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 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

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.

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.

The global popularity of comics has propelled scholarship about “graphic justice,” a term Thomas Giddens coined to refer to the intersection of comics and law. While much graphic justice scholarship seeks to dignify comics by analyzing their “serious” engagement with law, this Article evaluates how recent scholarship in comics form has deployed humor for critical purposes. Through subverting genre conventions, such scholarship has democratized discourse in fields including constitutional law, criminal law, and intellectual property law. The graphic justice texts discussed used humor as a vital tool to advocate for reforms to laws, legal eduction and scholarship, and the profession. Law faculty in a variety of courses can foster an inclusive learning environment and spark students’ critical thinking about the discipline by incorporating humorous graphic texts into their classes. Moreover, in representing law through an ascendant popular culture form, graphic justice texts forge a “common law” that may restore public confidence in the legal system during a precarious time for the rule of law world-wide.

Almas Khan *

*Assistant Professor of Law, University of Arkansas at Little Rock, William H. Bowen School of Law.

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules and conventions that have long governed the selection process and concomitantly provided highly capable, mainstream jurists who improve ethnic, gender, sexual orientation, ideological, and experiential court diversity. Former President Trump and the Republican chamber in the 116th Congress approved fourteen lower court judges promptly after Joe Biden had defeated Trump. These phenomena have jeopardized federal court ideological balance, citizen regard for the judicial selection process, and federal court diversity. Notwithstanding which party realizes a majority in this November’s midterm elections, the present slim Democratic Party majority needs to rapidly convene a lame duck session, which rigorously canvasses and confirms myriad jurists after the imminent elections. Those factors deserve review to comprehend how President Biden and Senate lawmakers can best promote appointments
throughout the upcoming lame duck session.

Carl Tobias *

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