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Filling Lower Court Vacancies in Congress’ Lame Duck Session

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Filling Lower Court Vacancies in Congress’ Lame Duck Session

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.

Swimming Up the Stream of Commerce: How Plaintiffs in Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine

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Swimming Up the Stream of Commerce: How Plaintiffs in Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine

The growth of e-commerce has facilitated an increasing number of products’ travel, frequently across state and international lines. This development has subsequently increased litigation between parties who are of diverse residencies. These disputes have challenged the fundamental territorial principles that established early personal jurisdiction doctrine. Moreover, unprecedented corporate expansion—both geographically and economically—has created an environment that has outgrown a doctrine focused on protecting defendants’ rights. As courts are beginning to reform their analysis in products liability litigation towards finding Amazon and others like it strictly liable for injuries caused by products sold on their sites, Amazon will have to find another way out, likely through challenging the presiding court’s adjudicatory authority.

This Comment will evaluate whether the Supreme Court of the United States’ interpretation of personal jurisdiction has progressed at the necessary speed to adequately address the issues arising out of Americans’ dependence on Amazon. More generally, it will look at the implications of the Supreme Court’s current understanding of personal jurisdiction and assess whether the current state of the doctrine is sheltering corporations behind new types of business models. By looking specifically at products liability litigation involving goods sold on Amazon, it will conclude that the expansion of e-commerce has challenged the adequacy of current approaches to personal jurisdiction and products liability disputes. The solution to the issues caused by this stagnant nature of law requires simultaneous specific personal jurisdiction and products liability doctrinal reform.

Lily Smith

J.D. Candidate, 2022, University of Richmond School of Law

B.A., 2019, Fordham University

Utilizing Tax Incentives to Increase Gender Parity on Corporate Boards

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Utilizing Tax Incentives to Increase Gender Parity on Corporate Boards

Women are drastically underrepresented in positions of power and prominence in the United States. As of 2021, women hold only thirty percent of board seats on the S&P 500. The number is much smaller for private corporations. One study found that in 2020, women occupied only eleven percent of board seats for private corporations. Given these statistics, it is unsurprising that a 2021
study predicts that corporate boards will not reach gender parity until 2032.

This underrepresentation matters for several reasons. First, the lack of gender equity on corporate boards is blatantly sexist. This disparity should matter for anyone who wants to reduce societal inequalities. Second, boards with high female representation are correlated with better outcomes for workers. Notably, there is a positive correlation between boards with high female representation and an increased receptiveness to workers’ needs. Third, gender-equitable boards help corporate stocks. This is attributed to higher returns on equity and better stock price informativeness.6 Lastly, having more female-led companies may reduce economic recessions. Research on the 2008 financial crisis indicates that banks run by men took more risks than banks run by women, leading to a financial recession.

Mary Tursi

J.D. Candidate, 2023, University of Richmond School of Law

B.A., 2020, Trinity College

Make Some Sense of Scent Trademarks: The United States Needs a Graphical Representation Requirement

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Make Some Sense of Scent Trademarks: The United States Needs a Graphical Representation Requirement

When it comes to consumer loyalty, some businesses have decided to go beyond attracting the eyes. Why not keep customers via their nostrils? Accordingly, the scent marketing industry is booming. Jennifer Dublino, Vice President of Development at ScentWorld Events, remarks that “smell is one of the most unique of human senses. Scent enters the limbic system [of the brain] and bypasses all of the cognitive and logical thought processes and goes directly to the emotional and memory areas of the brain.” Companies like ScentAir have been created specifically to help stores design fragrances that best fit their image and objectives as a way to increase returns on investment.

Science indicates that olfactory cues are more effective than visual cues at triggering memory. Scents’ strong ties to memory and emotions can make them a powerful branding tool. A study found that gamblers spent forty-five percent more money when there was a floral scent present around a slot machine than when there was not. Four hundred consumers, who were surveyed after shopping
in a Nike store, reported that a “pleasant ambient scent” improved not only their evaluation of the store and its products but the likelihood they would shop there again. Some human rights activists have even suggested that using scents to identify goods could be beneficial to those who are visually impaired and are not able to reap the benefits of visual trademarks.6 Overall, scents appear to both attract customers and increase their affinity to a particular good or service from a specific source, much like a mesmerizing logo or catchy slogan.

Gabrielle E. Brill

J.D. Candidate, 2022, University of Richmond School of Law

B.A., magna cum laude, 2018, Dickinson College

How President Biden Can Fill the Central District of California Bench

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How President Biden Can Fill the Central District of California Bench

President Joseph Biden confronts an enormous opportunity to seat highly qualified, mainstream federal judges in plenty of appeals court and district court openings which former President Donald Trump neglected to fill in his four-year term. The remarkable California trial level vacant emergency slots, particularly in the United States District Court for the Central District of California, are the United States’ worst-case scenario and consummate promise. The Central District of California tribunal had experienced as many as ten lengthy open court slots among twenty-eight posts during the Trump administration, but it encounters six vacancies today.

Carl Tobias, Williams Chair in Law, University of Richmond School of Law

Pretextual Stops: The Rest of the Story

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Introduction

Pretextual stops made by law enforcement officers—stops aimed at serving some purpose other than the official reason for the stop—have received renewed attention in the public discourse following several high-profile law enforcement confrontations with people of color. Naturally, the conversations about pretextual stops have centered around their most horrid iteration: discriminatory stops made by bad cops. These stops are damaging to both motorists and officers, and conversations about them are undeniably important. But there is more to pretextual stops than the nefarious purposes attributed to them.

As a former police officer who regularly made pretextual stops for reasons entirely unrelated to race, I’d like to tell the rest of the story (as Paul Harvey would say). Whatever we as a society might decide about pretextual stops, the fact that cops regularly put pretext to use for good should be part of the conversation. To that end, this Essay offers a “boots on the ground” perspective. It aims to share how pretextual stops are used for good, and to shift the focus from how we can eliminate an officer’s discretion to make pretextual stops, to a candid evaluation of which laws are really worth having (and enforcing) and what else we might do to ameliorate the valid concerns that they raise.

I begin in Part I by outlining the doctrine of, and principal concerns with, pretextual stops. I complicate the issue in Part II by discussing the legitimate uses to which police officers regularly put pretextual stops. In Part III, I turn to a few thoughts about how to separate the bad from the good, refocusing the discussion as a question of what laws we want the police to enforce and how we might foster trust between the police and the policed.

J.E.B. Stuart VI*

J.D. 2021, University of Richmond School of Law; B.S. 2013, Virginia Tech
Prior to attending law school, the author served in multiple public-safety positions, including as a patrol deputy with a Virginia sheriff’s office.