Wills, Trusts, and Estates

William Gray, Jr. *
Katherine E. Ramsey **

After an unusually busy year in 2013, Virginia’s General Assembly and state courts were relatively quiet in 2014 in the area of wills, trusts, and estates. Legislation was generally limited to clarifications and technical corrections to existing law, with the most extensive bills devoted to adjusting various statutory amounts to reflect cost-of-living adjustments and consolidating the rules governing the disposition of dead bodies. Four cases dealt with questions of charitable immunity, presumption of undue influence, inheritance rights of half-blood collateral heirs, and contracts to make a will.

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Appellate Law

The Honorable Marla Graff Decker *

In every attorney’s career, there is likely to be a time when that attorney believes that a judge or jury erred in a decision that negatively impacts his or her client. Virginia has a specific set of laws and rules that guide attorneys through the appellate process and provide for appropriate review of these legal challenges.

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A Recount of the Recount: Obenshain v. Herring

The Honorable Beverly Snukals *
Maggie Bowman **

On November 25, 2013, following one of the closest races in Virginia history, the Virginia State Board of Elections (the “SBE”) certified Democratic State Senator Mark Herring as the winner of the 2013 race for the office of Attorney General of Virginia by a record few 165 votes, less than one-hundredth of a percent of the votes cast. Two days later, Herring’s opponent, Republican State Senator Mark Obenshain, filed a petition in the Richmond City Circuit Court of Richmond seeking a recount of the election pursuant to Virginia Code section 24.2-801. Within a few short days, each party filed hundreds of pages of pleadings and memoranda. Hearings had to be held and orders had to be endorsed.

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The Power Paradox: The Need for Alternative Remedies in Virginia Minority Shareholder Oppression Cases

Stephanie Martinez *

Without advanced planning, minority shareholders in a closely held corporation can find themselves in the unenviable position of being up a creek without a paddle. Minority shareholders often invest in a corporation with the belief that the investment will provide them with a steady stream of income, either from a job or from payment of dividends. Yet many fail to protect themselves with employment contracts or buy-sell agreements, leaving them vulnerable to a majority shareholder who may decide to fire them or withhold dividends. Without a source of income, a minority shareholder can face an indefinite period when there is no return on his or her investment.

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Virginia’s Gap Between Punishment and Culpability: Re-Examining Self-Defense Law and Battered Woman’s Syndrome

Kendall Hamilton *

“Truly humane societies are those . . . that have decided to begin the long march down the road toward the abolition of violence . . . . [and] every once in a while, stop along the way to take stock, and then decide to continue.”

Our criminal justice system rests upon the fundamental notion that a defendant’s punishment will match her level of culpability. In other words, the defendant should be a “fair candidate for punishment.” Accordingly, when punishment outweighs culpability, effectively over-punishing a defendant, the legitimacy of our criminal justice system erodes because the system in which we have bestowed our trust has not produced a fair candidate for punishment. The intersection between Virginia’s self-defense laws and the realities surrounding domestic violence demonstrate this over-punishment problem.

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Subtly Selling the System: Where Psychological Influence Tactics Lurk in Judicial Writing

Anne E. Mullins*

“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.”

As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.

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Silence Is Golden… Except in Health Care Philanthropy

Stacey A. Tovino*

Imagine a forty-year-old woman who has been diagnosed with stage IV colorectal cancer and who has less than a ten percent chance of living five years from the date of her diagnosis. The woman’s physician, who specializes in oncology and practices at a hospital affiliated with a major academic medical center, recommends a combination of surgery, chemotherapy, and radiation to treat the woman’s cancer. This article addresses the permissible scope of uses and disclosures of the woman’s individually identifiable health information that may be made by the hospital and the physician for the purpose of attempting to raise funds for the hospital’s own benefit.

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“To Corral and Control the Ghetto”: Stop, Frisk, and the Geography of Freedom

Anders Walker*

Behind police brutality there is social brutality, economic brutality, and political brutality. — Eldridge Cleaver

Few issues in American criminal justice have proven more toxic to police/community relations than stop and frisk. To take just one example, federal judge Shira Scheindlin recently declared that stops lacking “individualized reasonable suspicion” had become so “pervasive and persistent” in New York City that they not only reflected “standard [police] procedure,” but had become “a fact of daily life” for minority residents. Scheindlin promptly ordered “immediate changes to the NYPD’s policies,” meanwhile recalling the Supreme Court’s observation in Terry v. Ohio that “the degree of community resentment” caused by a particular police practice could influence judicial “assessment” of that practice.

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Abortion and the Constitutional Right (Not) to Procreate

Mary Ziegler*

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance. This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

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Vape Away: Why a Minimalist Regulatory Structure is the Best Option for FDA E-Cigarette Regulation

Nick Dantonio

People smoke to get a buzz. Plain and simple. Every time a person decides to smoke a cigarette they make a personal costbenefit decision. The benefits of smoking often include improved concentration and mood as well as providing sedative and euphoric effects. On the other hand, the costs of smoking traditional, combustible cigarettes are quite high. The adverse effects of smoking combustible cigarettes have become common knowledge over the past fifty years, beginning with the required warnings on cigarette packs in the 1960s, as countless studies have affirmed the link between cigarette smoking and a seemingly endless list of negative health effects.

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