COMMENT: Howell v. McAuliffe

L. Michael Berman

In the summer of 2016, the Supreme Court of Virginia decided Howell v. McAuliffe. The case made national headlines as it was in response to Governor Terry McAuliffe’s attempt to restore the voting rights of more than 206,000 convicted felons. Among the petitioners in the case was the Speaker of the Virginia House of Delegates, William J. Howell; Majority Leader of the Virginia Senate, Thomas Norent, Jr.; as well as four other registered voters. The petitioners sought an injunction to prevent the Governor from granting pardons on a “blanket” basis. The court ordered the injunction and issued a writ of mandamus instructing precisely how the McAuliffe Administration was to rescind the recently restored voting rights, as well as how to proceed with restorations in the future.

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You Could Have Told Me That In The First Place: Five Tips That Might Have Saved A Young Lawyer A Lot Of Trouble

Jay O’Keeffe

I will open with a confession: I have very, very little to contribute to legal scholarship. My day-to-day work as a lawyer and a parent keeps me busy. My career to date as a generalist has not led me to develop any great substantive expertise in a particular area of the law. Even my war stories are boring because they cluster around briefs, procedural defaults, and oral arguments.

But I do have one thing to offer. I have been lucky in my career to work in “Biglaw,” then at a medium-sized firm of about fifty lawyers, and most recently at a small firm of just three lawyers. I made my share of mistakes at each stop—some routine, some painful, and almost all avoidable. For the most part, I have been paying attention along the way. And so what I have to share with you is a set of five tips, in no particular order, that could have prevented about eighty percent of my missteps as a young lawyer.

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Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions

Jim Vines

It is a special privilege for me to contribute to this edition of the University of Richmond Law Review honoring Judge Robert R. Merhige, Jr. Here, I seek to highlight his contributions to United States environmental law. In 1988 and 1989, I was one of two recent law school graduates who clerked for Judge Merhige (“please call me by my first name; it’s ‘Judge’”). The Judge was a larger than life figure. As a federal trial judge, historically important and intellectually challenging cases seemed to find their way into his court in a volume not matched in many other federal district courts. Not surprisingly, his environmental cases were “big” and his rulings reflected his uncommon grasp of the whole of the law.

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The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

Robert A. Pratt

The United States Supreme Court’s 1954 landmark decision in Brown v. Board of Education declared that segregation in public education violated the Fourteenth Amendment to the United States Constitution. For the millions of African Americans who had endured decades of separate and unequal schooling, this decision was a resounding reaffirmation of the nation’s commitment to equal justice under the law. But those who expected segregated schools to end overnight were in for a rude awakening. The National Association for the Advancement of Colored People (“NAACP”), which had led the legal assault against segregation since its founding in 1909, was encouraged by the Court’s ruling. But its attorneys would soon realize that their initial optimism had been premature and that they had greatly underestimated white southern resistance. Perhaps few could have predicted that it would take nearly twenty years before school desegregation would begin in earnest in the states of the former Confederacy—and only then because of the determined actions of a few courageous judges willing to place principle above prejudice. Judge Robert R. Merhige, Jr., of Virginia was one of them.

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The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time

Wayne A. Logan

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the federal bench, serves with distinction for thirty-one years, addressing some of the most controversial legal issues of his time with a skill, energy, and workhorse determination unknown to most mortals.

During his time on the bench, of course, Judge Robert R. Merhige, Jr., (“The Judge” to his clerks and extended court family) came to enjoy considerable national renown, not only for being a progenitor of the Eastern District of Virginia’s “rocket docket” and his expeditious resolution of cases when sitting on assignment, but also for landmark litigation, including the antitrust case involving Westinghouse uranium price-fixing litigation, the Dalkon Shield settlement, and events such as the Wounded Knee uprising, Watergate, the Klan/‌Nazi-Communist Party violence in Greensboro, North Carolina, and the desegregation of Virginia’s public schools.

Here, however, I would like to address a perhaps lesser-known and lower-profile aspect of the Judge’s illustrious tenure on the bench: his criminal case docket.

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Personal Reflections On The Honorable Robert R. Merhige, Jr.: A Judge, Mentor, and Friend

Mary Kelly Tate

Twenty-six years—half my lifetime—have passed since I joined Judge Merhige’s court family as his law clerk. I attempt here to sketch my personal impressions, distilling what to me was most remarkable about Robert R. Merhige, Jr. Perhaps unsurprisingly, this dynamic man turned legendary judge—a man I revered from the moment I met him—is more vivid to me now than he was to my younger self.

Mercurial, energetic, and benevolently despotic, Judge Merhige was a man of extraordinary decency who cherished his vocation and the law. He was a World War II veteran and an accomplished, wickedly talented trial attorney tapped by President Lyndon B. Johnson for the federal judiciary in 1967. As a Lebanese-Irish Northeasterner, he was understandably proud of making good in the famously clubby, genteel Richmond of the 1940s, 1950s, and 1960s. As a judge, he treated his court personnel and law clerks with great affection and caring watchfulness.

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The Honorable Robert R. Merhige, Jr.: A Series on His Life and Career

The Honorable Robert R. Merhige, Jr., was a man and judge whose career, personality, and impact deserve to be celebrated and remembered. As this year is the fiftieth anniversary of his judicial appointment to the United States District Court for the Eastern District of Virginia, it provides a perfect opportunity to honor and remember his illustrious career. In this endeavor, the Online Edition of the University of Richmond Law Review is publishing a series of articles that highlight Judge Merhige’s impact on people and the law. As Judge Merhige was an alumnus of the University of Richmond School of Law (L’42), it is with a sense of pride that the University of Richmond Law Review presents this series. In the articles that follow, you, dear reader, will learn of—or fondly be reminded of—Judge Merhige’s memorable personality, towering intellect, and admirable courage and fortitude in ensuring that justice was achieved.

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Non-Contact Excessive Force By Police: Is That Really A Thing?

Michael J. Jacobsma

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents.

But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to that question is yes.

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