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.