The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech

Margot E. Kaminski*
Shane Witnov**

Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.

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Testing Sex

Rachel Rebouché*

A revolution has happened in prenatal testing. Ushering in this change is a new prenatal test that relies on a simple blood sample collected from a pregnant woman. From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses. Potential parents can test that DNA for chromosomal abnormalities and for fetal sex after ten weeks of gestation, which is several weeks before a reliable ultrasound and seven weeks before an amniocentesis can be performed. As numerous newspaper and popular media articles report, what women can discover during their pregnancies will continue to evolve dramatically over the next ten years. This new non-invasive prenatal test (“NIPT”), coupled with advances in gene sequencing, could give parents information about all manner of traits, disorders, and propensities—from susceptibility to serious diseases, such as cancer and heart disease, to superficial traits, such as hair and eye color. The test is easy to perform, close to 100% accurate for fetal sex, and currently in clinical and commercial use.

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Same-Sex Marriage and Due Process Traditionalism

Ronald Turner*

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments shall not deprive persons of life, liberty, or property without due process of law. More than a guarantee of procedural due process, it is now well settled that a “substantive component” of the clauses protects “individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’” Government cannot “infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Substantive due process law and doctrine are thus established (but, for some, controversial) features of constitutional law. In a recent ruling, the Sixth Circuit rejected a challenge to anti-same-sex marriage laws and held, among other things, that the Due Process Clause did not provide or protect a fundamental right to marry a person of the same sex.

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Danger in the DMCA Safe Harbors: The Need to Narrow What Constitutes Red Flag Knowledge

Hank Fisher*

In 1998 Congress enacted the Digital Millennium Copyright Act (“DMCA”) in order to “provide certainty for copyright owners and Internet service providers with respect to copyright infringement liability online.” The DMCA safe harbors protect Internet and online service providers such as YouTube from secondary copyright infringement liability. The DMCA, however, does not provide full protection as certain caveats greatly reduce the safe harbor protection, disqualifying a service provider from protection if it is “aware of facts or circumstances from which infringing activity is apparent.” Courts and commentators refer to this level of awareness as “red flag” knowledge. If the service provider obtains red flag knowledge of infringing activity, it must act “expeditiously to remove, or disable access to, the material,” or be subject to liability. As the DMCA currently stands, the red flag knowledge provision constricts safe harbor protection to the point where online service providers are being held liable when they have actively attempted to comply with the statute. Because compliance with the law in its current form is so difficult, the open accessibility of video-sharing websites is in jeopardy.

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2014 Annual Survey: Preface

The University of Richmond Law Review proudly presents the twenty-ninth issue of the Annual Survey of Virginia Law. The Annual Survey serves as a comprehensive guide to recent legislative, administrative, and judicial developments in the Commonwealth of Virginia. The 2014 Annual Survey includes seven articles, each providing readers with a comprehensive, in-depth update of a specific area of the law. Authors of these updates are practitioners and experts in their respective fields, bringing significant insight to their articles. In addition to updates on the law, each year the Annual Survey publishes essays on important legal topics in Virginia. The 2014 Annual Survey includes two essays written by Virginia judges. This year’s essays address and provide practical advice on the areas of election recounts and appellate advocacy. The Law Review is proud to include two comments written by former members of the Law Review staff.

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2014 Annual Survey: Civil Practice and Procedure

Andrew P. Sherrod *
Jaime B. Wisegarver **

This article surveys recent significant developments in Virginia civil practice and procedure. Part I of this article discusses opinions of the Supreme Court of Virginia from June 2013 through June 2014 addressing noteworthy civil procedure topics. Part II addresses amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period. Part III discusses legislation enacted by the Virginia General Assembly during its 2014 session that relates to civil practice.

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2014 Annual Survey: Criminal Law and Procedure

Aaron Campbell *

This article aims to provide a succinct review of noteworthy cases in the areas of criminal law and procedure that the Supreme Court of Virginia and the Court of Appeals of Virginia decided this past year. Instead of covering every ruling or procedural point in a particular case, this article focuses on the “take-away” of the holdings with the most precedential value. This article also summarizes significant changes to criminal law and procedure enacted by the 2014 Virginia General Assembly.

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2014 Annual Survey: Health Care Law

Sean P. Byrne *
Garrett Hooe **

It has been several years since the Annual Survey of Virginia Law published a comprehensive Health Care Law update. In that time, health care reform has taken center stage on the national level with the implementation of the Affordable Care Act and related federal legislation. Here in the Commonwealth, we have seen incremental change in the health care law landscape, both in case decisions from the Supreme Court of Virginia impacting medical malpractice jurisprudence, and in a host of reform measures and legislative changes from the General Assembly. It is beyond the scope of this article to detail every change in this complex and fast-changing area of law, but noteworthy developments are highlighted here in an effort to inform the health law practitioner.

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Public Utilities Law

William T. Reisinger *

Over the past fifteen years, Virginia has witnessed numerous fundamental changes to the regulation of investor-owned electric utilities in the Commonwealth—from traditional cost-based rate regulation, to experiments with deregulation, and finally to “re-regulation” of utilities at the Virginia State Corporation Commission (the “SCC”). The legislature has also enacted various policies designed to encourage the construction of new power plants, energy conservation, and the development of clean energy resources. Almost every annual session of the Virginia General Assembly has brought at least one minor change to the Virginia Electric Utility Regulation Act. This article explains, at a high level, some of the major changes to electric regulation in Virginia in recent years. It also discusses how the General Assembly’s new policies have affected retail electric rates and the development of new generation facilities, including renewable energy resources, in the Commonwealth since 1999.

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