Confirm Julie Rikelman for the First Circuit

Confirm Julie Rikelman for the First Circuit

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Confirm Julie Rikelman for the First Circuit

 

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the Center for Reproductive Rights at which she has worked over a decade. The vacancy that the nominee would fill has been empty for plentiful months. Thus, the Senate needs to promptly confirm the well qualified, mainstream nominee.

Carl Tobias *

* Williams Chair in Law, University of Richmond School of Law

 

Redemption

Redemption

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Redemption

 

Lawyer and University of Richmond Law graduate Robert C. Smith—the great-great-grandson of T.C. Williams, Sr.—has recently claimed that his family is owed a refund of $3.6 billion from the University of Richmond, stemming from donations that Williams, for whom the University of Richmond School of Law was officially named from 1920 until September 2022, made to establish and sustain the school. Though the law school had not referred to itself as the T.C. Williams School of Law for some two decades, the University formally changed the law school’s name because Mr. Williams “owned and managed slaves in both his professional and personal capacity.”

Smith is likely aware that he would have no standing before a court of law, or an actionable claim, for the recovery of the money his great-great-grandfather donated to the University of Richmond, much less a sum greater than the entire University endowment. Smith’s demands appeal more to Smith’s view of morality than the law of contracts. By demanding not only the money that Williams donated, but a sum that is greater than the University’s endowment, Smith essentially suggests that unless the Law School bears Williams’s name, it should not exist. On this point, and several others, he is mistaken.

By publishing his letters, and the stunning defenses of slavery contained therein, Smith is waging a battle that is not so much legal as it is rhetorical—and he does so with a particular audience in mind. Through this battle, Smith is attempting not to redeem a financial debt, but rather, to redeem his family’s honor vis-à-vis America’s present culture wars.

Where Smith fails to articulate a compelling claim for contractual breach, he does make an excellent case for reparatory justice. Unlike Smith’s far-fetched demands for the return of Williams’s gift, reparative justice to those exploited and otherwise harmed by enslavement does have a basis in law.

Marissa Jackson Sow *

* Assistant Professor, University of Richmond School of Law

 

Unavoidable Necessities: How COVID-19 and Ali v. Commonwealth Illustrate the Need for a New Balancing Test for Speedy Trial Right Claims

Unavoidable Necessities: How COVID-19 and Ali v. Commonwealth Illustrate the Need for a New Balancing Test for Speedy Trial Right Claims

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Unavoidable Necessities: How COVID-19 and Ali v. Commonwealth Illustrate the Need for a New Balancing Test for Speedy Trial Right Claims

 

The COVID-19 pandemic is still an ever-present phenomenon in the United States. Since the pandemic began in March 2020, over one million Americans have died as a result of this disease. During that time period, the pandemic impacted the everyday lives of Americans and the institutions we depend on. The judicial system in particular was affected by COVID-19. In Virginia, the Supreme Court of Virginia declared a judicial emergency in response to the pandemic. As a result of this judicial emergency, the trials of many criminal defendants were postponed for an indefinite period of time. This resulted in many criminal defendants languishing in jail during the pandemic. Many of these defendants, in Virginia and other states, have challenged their subsequent convictions, arguing that their Sixth Amendment right to a speedy trial was violated when their trials were not allowed to move forward. These challenges have been met with little to no success. On May 31, 2022, the Court of Appeals of Virginia decided a case, Ali v. Commonwealth, that sought to bring clarity to the law of the Commonwealth relating to speedy trial rights and COVID-19.

This Comment reviews the Ali decision, the history of speedy trial jurisprudence, and the continued impact of Barker v. Wingo. In Barker, the Supreme Court of the United States set out a four factor balancing test for analyzing a defendant’s speedy trial claim. The court in question looks at the facts of the case and analyze the following: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice suffered by the defendant. Once the court has completed this analysis, it balances these factors and determines if the defendant’s right to a speedy trial had been violated.

Courts have followed this balancing approach for the last fifty years. However, this Comment illustrates how COVID-19 and previous natural disasters have shown that courts should no longer follow the Barker four-factor test. Instead, this Comment proposes a similar, but different test: the Unavoidable Necessities Test. Under this test, the government has the burden to show that it was not responsible for an intentional or negligent action that led to the defendant’s trial being delayed. If the government intentionally or negligently caused the delay in the defendant’s trial, the court would compare the intrinsic importance of the delay, the length of the delay, and its potential for prejudice to the defendant in determining whether the defendant’s speedy trial right was violated.

Roger D. Herring *

* J.D. Candidate, University of Richmond School of Law

 

The Role of Virginia Evidence Law in Colas v. Tyree

The Role of Virginia Evidence Law in Colas v. Tyree

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The Role of Virginia Evidence Law in Colas v. Tyree

 

The Supreme Court of Virginia recently decided a significant case involving an all-too-common circumstance: a police officer’s use of deadly force against a person suffering a mental health crisis. The case was Colas v. Tyree and the court was bitterly divided, with four justices finding in favor of the officer and three justices siding with the decedent, Jeffrey Tyree. There is much that could be said about law and policy in this area, but here I would like to focus on the role that Virginia evidence law played—or perhaps did not play—in the court’s majority opinion.

What makes this topic worthy of exploration is the odd fact that the majority opinion fails to address what appear to be powerful pieces of evidence noted by the dissent. Below, I attempt to piece together why the majority may have rejected the dissent’s arguments and consider whether that decision is justified. I focus on the possibility that the majority viewed the evidence cited in the dissent as categorically insufficient to justify a ruling for Tyree’s Estate. I conclude that, although there is some precedential support for a categorical holding of this sort, that precedent does not certainly apply and, in any event, is ripe for a critical reexamination by the court.

John F. Preis *

* Professor of Law, University of Richmond School of Law

 

Analyzing the Post-Marchand “Expansion” of Mission Critical Risks: Cybersecurity, Climate Change, and Caremark

Analyzing the Post-Marchand “Expansion” of Mission Critical Risks: Cybersecurity, Climate Change, and Caremark

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Analyzing the Post-Marchand “Expansion” of Mission Critical Risks: Cybersecurity, Climate Change, and Caremark

 

This Comment undertakes the task of defining the scope of “essential and mission critical” risk categories in the context of directors’ duty of oversight. Although director oversight liability under Caremark seemed like an impossible standard, Delaware jurisprudence suggests a growing trend in Caremark claims surviving a motion to dismiss. Indeed, “within thirteen months in 2019–2020, four Caremark claims succeeded in surviving the motion to dismiss (Marchand, Clovis, Hughes, and Chou).” As of December 15, 2021, “five of 17 Caremark claims raised in the Court of Chancery have survived a motion to dismiss—an approximately 30% success rate. It remains to be seen whether the Delaware courts will continue to sustain Caremark oversight claims with increased frequency.”

This Comment, which proceeds in three Parts, proposes that emerging and atypical areas of risk in the context of directors’ fiduciary duty of oversight—specifically, cybersecurity and climate change—are not “mission critical” for most corporations. The directors of such corporations, therefore, are unlikely to face oversight liability for failure to address cybersecurity and climate change risks. In other words, it is unlikely that a Caremark claim, in this scenario, would survive a motion to dismiss. Ultimately, the standard for director oversight liability under Caremark has not changed post-Marchand.

Kelly O’Brien *

* JD Candidate, University of Richmond School of Law.

 

Fill the Virginia Federal District Court Vacancies

Fill the Virginia Federal District Court Vacancies

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Fill the Virginia Federal District Court Vacancies

 

On July 13, 2022, President Joe Biden nominated United States District Court for the Western District of Virginia United States Magistrate Judge Robert Ballou to replace this district’s Judge James Jones, who realized senior status in August 2021; the President concomitantly proposed United States District Court for the Eastern District of Virginia Assistant U.S. Attorney (“AUSA”) Jamar Walker to replace that district court’s Judge Raymond Jackson, who assumed senior status during November 2021. The four individuals have constantly engaged in rigorous public service. Because the federal court vacancies have persisted over more than a year and the 118th Congress began working in January, the Senate needs to appoint each well qualified, mainstream nominee.

 

Carl Tobias *

*Williams Chair in Law, University of Richmond School of Law.