Uncategorized | University of Richmond Law Review

The Veil (or Helmet) of Ignorance: A Rawlsian Thought Experiment About a Military’s Criminal Law

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THE VEIL (OR HELMET) OF IGNORANCE: A RAWLSIAN THOUGHT EXPERIMENT ABOUT A MILITARY’S CRIMINAL LAW

This Article loosely adapts political philosopher John Rawls’s famous social contract thought experiment to interrogate a corner of law that receives too little theoretical attention: the separate federal code at the intersection of criminal law and national security that regulates both martial and non-martial conduct of millions of citizens, invests judicial responsibility and prosecutorial authority in nonlawyer commanding officers, operates with no territorial limitations, and pulls even certain retirees within its jurisdiction: the Uniform Code of Military Justice. Employing the perspectives of four “idealized” actors—Congress, a president, a Chairman of the Joint Chiefs of Staff, and a potential recruit—this “experiment” reconsiders the fundamental and necessary qualities of a specialized system of criminal law. Such qualities must render the system acceptable to civilian political leadership in a representative democracy exercising ultimate command and control over a professional military, but also accepted by those over whom its penal jurisdiction will rest. When considering the reasonable inferences and deductions each of these four actors will likely make from a hypothetical “original position,” four common principles emerge. Principles of nonrepulsion, retention, mission risk reduction, and compliance operate as four prescriptive corners bounding and framing a sensible set of answers to the following questions: (1) what conduct is to be proscribed and subjected to punishment? (2) what punishments, forms of discipline, or administrative censure are available for violations? (3) what processes shall organize the steps from investigating to punishing violations? (4) who shall have discretionary agency within the ranks to administer these processes with investigative, prosecutorial, and judicial authority? and (5) what constraints, limits, or individual rights and liberties shall operate to ensure due process, justice, and protection from that authority’s abuses? Answering these questions in light of the four principles goes some way toward articulating a “normative theory of criminal law”—a prospect that military justice currently lacks.

Dan Maurer*

*Assistant Professor of Law, United States Military Academy at West Point; Fellow, Modern War Institute; Lieutenant Colonel, Judge Advocate, United States Army. The author has served as a platoon leader in combat, as well as judge advocate prosecutor and appellate counsel, and as chief of military justice for a large Midwestern Army installation.

Other assignments include Strategy Fellow for the Army Chief of Staff and Chief of Operational Law serving in Italy. The opinions and analysis in this Article are the author’s personal, academic views, and are not representative of the official positions of the U.S. Government or, specifically, the Army Judge Advocate General’s Corps or the U.S. Military Academy.

Special thanks to Professors Brenner Fissell, Eugene Fidell, Geoffrey Corn, my colleagues in the Department of Law at West Point, and the astute editors of the University of Richmond Law Review for their assistance. All errors are mine alone.

Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public

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Introduction

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. While they had engaged in earlier, smaller protests and reforms, Stonewall ignited a mass gay liberation movement and sparked popular awareness of LGBTQ people’s civil rights struggles. LGBTQ activists demanded their rights to express identity, associate with one another, and engage in queer behavior. That same year, the newly burgeoning feminist movement also launched protests and called for women’s equality in public accommodations—the legal term of art for places open to the public. These groups shared a history of regulation. Customary business practices, the discriminatory administration of liquor licensing laws, and limited protections against discrimination all denied LGBTQ people and heterosexual women alike the freedoms that heterosexual men enjoyed in public space. As they resisted this regulation, LGBTQ people and cisgender women won mutually reinforcing legal reforms.

To understand the dramatic change in social custom and law regulating gender and sexuality over the last half century requires examining the historical regulation and deregulation of cisgender women and of LGBTQ people together. Risa Goluboff has led the charge against siloed accounts of social movements and socio-legal change, arguing against historical narratives that treat subordinated groups as distinct and in pursuit of discrete goals. By instead synthesizing the histories of social movements, Goluboff shows that we gain better understanding of how social and legal structures of hierarchy and oppression “worked [and] how they then fell apart.” Heeding this call, this Article offers a close examination of dual case studies of feminist and gay and lesbian activism, in the period from the late 1960s through the mid-1980s.

Elizabeth Sepper * Deborah Dinner **

* Professor of Law, University of Texas at Austin School of Law.

** Associate Professor of Law, Emory University School of Law. Thank you to participants in the University of Richmond Law Review Symposium on the 50th Anniversary of the Stonewall Riots. We thank Athena Dufour, Chris Marple, and the staff of the University of Richmond Law Review for their superb organization and editing

Taxation

Craig D. Bell* and Michael H. Brady**, Annual Survey of Virginia Law Taxation, 54 U. Rich. L. Rev. 133 (2019).

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This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department”) and the Attorney General of Virginia over the past year.

Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact their clients. However, it does not address many of the numerous minor, locality-specific or technical legislative changes to Title 58.1 of the Virginia Code, which covers taxation.

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University.

Mr. Bell is a past chair of McGuireWoods’s Tax and Employee Benefits Department and practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Fellow of the American Bar Foundation, a Master of the J. Edgar Murdock Inn of Court (United States Tax Court), an adjunct professor of tax law at the College of William & Mary’s Marshall-Wythe School of Law, and a past chair of both the Tax and Military Law sections of the Virginia State Bar and of the Tax Section of the Virginia Bar Association. Mr. Bell is an emeritus director of the Community Tax Law Project, a nonprofit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS, in United States Tax Court, and in federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low-income taxpayers.

** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, The University of Texas School of Law; B.S., 2006, Liberty University. Following law school, Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009 to 2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011 to 2014, joining McGuireWoods LLP in 2014.

Wills, Trusts, and Estates

J. William Gray Jr.* & Katherine E. Ramsey**, Annual Survey of Virginia Law Wills, Trusts and Estates, 54 U. Rich. L. Rev. 183 (2019).

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The 2019 Virginia General Assembly did not enact any major new legislation, but it did pass several significant amendments. Among the most useful was an amendment to the Virginia Uniform Transfers to Minors Act which extended the maximum age for custodianships from twenty-one to twenty-five. The legislature also decided to cease imposing income taxes on estates and trusts whose sole connection to the Commonwealth is that they are being administered here. It responded to two recent court cases involving the required execution formalities for leases and the right to award attorneys’ fees in actions involving an agent’s breach of fiduciary duty under a power of attorney. Among other legislative actions, the General Assembly modernized the recordation tax exemption for certain deeds of distribution; dealt with issues affecting Virginia’s small estate, wrongful death, and property tax exemption statutes; made it easier for financial institutions to combat financial exploitation of the elderly; strengthened the enforcement of reporting requirements for guardians; and protected circuit court clerks who disclose probate tax return information to the commissioner of accounts or who destroy wills they have been holding for 100 years or more.

For its part, the Supreme Court of Virginia handed down six decisions addressing the presumption of undue influence, the attestation requirements and principles of construction applicable to wills, the legal effect of naming an estate or trust (rather than the fiduciary) as the sole party to a suit, the application of Virginia’s long-arm statute in an elder abuse case, and the legal requirements for execution of a lease with a term of five years or more.

* Senior Counsel, Whiteford Taylor Preston LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.

** Partner, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

Transitional Equality

Suzanne A. Kim *

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.

This article examines the underexplored issue of inequality in the process of shifting legal relational status and posits a new framework of “Transitional Equality” to address vulnerabilities that may arise during the process of transition itself. Focusing on the constitutional law of intimacy, this article discusses the specific case study of tens of thousands of same-sex couples who have transitioned from the legal status of unmarried to married after the Supreme Court’s 2015 decision on marriage equality in Obergefell v. Hodges. Same-sex couples face substantially different process burdens than different-sex couples when moving from from unmarried to married, and for some couples the burdens may be exacerbated by racism, poverty, and other structural obstacles. Achieving the promise of equality requires attention to such factors and their impact on the lived experience of becoming married.

Transitional Equality is a framework for identifying obstacles to full enjoyment of new legal rights and building resilience in the process of moving from one legal relational status to another. This article situates this new framework in reference to critical legal theory, constitutional doctrine, legal policy, and areas for future policy innovation and sociolegal research.

We are in the midst of a robust public discussion of various forms of inequality, including in regard to gender and sexuality, economic opportunity, health, criminal justice, immigration, education, and other areas. Transitional Equality provides a framework for identifying obstacles and solutions on the path to achieving equal rights that have been promised under law.

* Professor of Law and Judge Denny Chin Scholar, Rutgers Law School. For generous engagement on the ideas contained here, I thank Jamie Abrams, Kerry Abrams, Carlos Ball, Arianne Renan Barzilay, Noa Ben-Asher, Alexander Boni-Saenz, Naomi Cahn, June Carbone, Colleen Chien, Bridget Crawford, Deborah Dinner, Jessica Dixon Weaver, Max Eichner, Martha Fineman, Suzanne Goldberg, Julie Goldscheid, Meredith Johnson Harbach, Andy Hayward, Christina Ho, Kevin Maillard, Solangel Maldonado, Maya Manian, Kaipo Matsumura, Jessica Miles, Melissa Murray, Kim Mutcherson, Douglas NeJaime, Chrystin Ondersma, Margo Pollans, Darren Rosenblum, Andrew Rossner, Clare Ryan, Fergus Ryan, Sabrina Safrin, the faculty of Pace University Law School, the Columbia Law School Center for Gender and Sexuality Law, the International Society of Family Law, the Vulnerability and the Human Condition Initiative at Emory Law School, and the University of Lund. I thank Taylor Craney, Christina La Bruno, Heather McLinn, Michael Licciardi, Alexandria Silva, and Nicole Virella for invaluable research assistance. I thank Rutgers Law School and the Shuchman Fund for Empirical Research for valuable support

Unjust Cities? Gentrification, Integration, and the Fair Housing Act

Olatunde C.A. Johnson*

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance a more robust form of integration. This broader framework would attend to how public and private goods are distributed in gentrifying cities, and build governance and participation mechanisms that enhance the voice and participation of traditionally excluded groups.

* Jerome B. Sherman Professor of Law, Columbia Law School. J.D., 1995, Stanford Law School; B.A., 1989, Yale University.
For helpful research assistance, I am grateful to Amelie Hopkins and Alexander Perry. Many thanks to Jessica Bulman-Pozen, Lance Freeman, Richard Sander, Serena M. Williams, and participants at the University of Richmond School of Law Symposium and the faculty workshop at Columbia Law School for their helpful comments and suggestions.

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