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.[1] 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.’”[2] 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.”[3] Substantive due process[4] law and doctrine are thus established (but, for some, controversial) features of constitutional law.[5] 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.[6]
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*Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., 1984, University of Pennsylvania Law School; B.A., 1980, Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation.
[1]. See U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”); id., amend. XIV § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law”).
[2]. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
[3]. Reno v. Flores, 507 U.S. 292, 302 (1993).
[4]. “Substantive due process” is a phrase “that borders on oxymoron.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents And Principles We Live By 119 (2012); see also John Hart Ely, Democracy And Distrust: A Theory of Judicial Review 18 (1980) (“‘[S]ubstantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’”).
[5]. See McDonald v. City of Chicago, 561 U.S. 742, 811, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”); see also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 147 (1982) (“Substantive due process is not a function of politically aggressive judges who have lost their heads and are acting as would-be legislators, abandoning any sense of judicial self-restraint. Rather, the doctrine is the necessary product of the superimposition onto a state system of plenary authority, of a federal court system committed to preserving those individual liberties that animated the limited federal Constitution.”).
[6]. Deboer v. Snyder, 2014 U.S. App. LEXIS 21191, at *55 (6th Cir. Nov. 6, 2014).
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.”[1] The DMCA safe harbors protect Internet and online service providers such as YouTube from secondary copyright infringement liability.[2] 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.”[3] Courts and commentators refer to this level of awareness as “red flag” knowledge.[4] 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.[5] 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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*J.D. Candidate 2015, University of Richmond School of Law; B.A. 2012, University of Virginia. I am highly grateful to my parents for their never-ending support. I would like to thank Morgan Ackerman, Alex Fisher, and Caroline Lamberti for their valuable revisions and suggestions throughout the writing process. I would also like to thank the editors and staff of the University of Richmond Law Review who sacrificed many hours to make this publication possible.
[1]. S. Rep. No. 105-190, at 2 (1998).
[2]. See 17 U.S.C. § 512 (2012).
[3]. Id. § 512(c)(1)(A)(ii).
[4]. See, e.g., Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012) (defining “red flag” knowledge).
[5]. § 512(c)(1)(A)(iii).
2014 Allen Chair Symposium: Lethal Injection, Politics, and the Future of the Death Penalty
Dean William T. Muse founded the University of Richmond Law Notes – the first scholarly legal journal published at the University of Richmond School of Law – in 1958. Initially, the faculty and administration managed the Law Notes, but with the publication of Volume 3 in May 1968, the publication became a completely student run organization and was rechristened as the University of Richmond Law Review. Since then, due to the dedication of its members, the Law Review has realized enormous success. With the publication of Volume 49 of the Law Review, we all share a sense of pride in the history of the journal and acknowledge the support of the law school administration, faculty, and staff in establishing and maintaining this publication.
The Allen family established the George E. Allen Chair in 1976, signifying their devotion to the continued success of the law school. Through that generous support, the Allen Chair has hosted symposia and published Allen Chair issues for the past twenty years. We look forward to the publication of the Allen Chair issue focused on Lethal Injection, Politics, and the Future of the Death Penalty.
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.
The Annual Survey attributes its continued success to each of the authors who devoted significant time, dedication and hard work to create high-quality articles that will truly benefit the legal community of Virginia. Each author devoted substantial time and effort to provide readers with thorough, informative, and poignant pieces. I genuinely appreciate the efforts put forth by each of you, and thank you for your commitment to the Annual Survey.
The Annual Survey could not exist without the efforts of the Law Review members. I thank each and every member of the Law Review staff for your diligence and hard work. I especially want to thank Sarah Bennett, Nick Dantonio, and Amy Whitelaw for your unwavering support, dedication and assistance in this process. I am grateful for the extra help I received from each of you. Thank you to the members of the Law Review Executive Board, Rina Van Orden, Leah Stiegler, and Derek Schnitzer, for your diligence and the time you spent working on the Annual Survey. A special thank you to Paul Holdsworth, Sheherezade Malik, and Sarah Padway, not only for your unfaltering dedication and unwavering commitment to the Annual Survey, but also for the hours of companionship and invaluable laughter you provided during this process. It has truly been a pleasure to work with such intelligent and good-humored individuals. I could not have done it without you. Thank you to Chris Bascom, the 2013 Annual Survey Editor, for your mentorship, confidence and support. And my most sincere and genuine appreciation goes to Glenice Coombs, the heart, soul, and guiding hand of the Law Review. Glenice, your guidance and advice is truly invaluable, but more than that, you bring cheer and light to every day and the Law Review truly could not succeed without you. Lastly, I want to thank my family for your patience, love, and motivating words, and Rob Cassidy for your advice, support and encouragement.
It has truly been an honor to serve as the Editor of the 2014 Annual Survey of Virginia Law. Thank you for your continued patronage and readership.
Tara Badway
Annual Survey Editor
John Paul Jones*
John R. Mohrmann**
This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act (“the VAPA”), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.
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*Professor of Law Emeritus, University of Richmond School of Law. LL.M., 1982, Yale University; J.D., 1980, University of San Diego; B.A., 1969, Marquette University.
** J.D., 2014, University of Richmond; B.A., 2011, Hampden-Sydney College. The authors are much obliged to the reference specialists of the Muse Law Library for their outstanding assistance in the research for this article.
