In Memoriam: Clint Andrew Nichols

In Memoriam: Clint Andrew Nichols

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In Memoriam: Clint Andrew Nichols

Every year, the University of Richmond Law Review hosts a  symposium and publishes an accompanying issue of written work.  One rising third-year student volunteers as tribute to head up  both tasks. To succeed, the law student needs to exhibit excellence  in a number of ways that might be more “traditional” when it  comes to serving on the Law Review—timeliness, an eye for detail.  But the law student must be more—a politician of sorts, emceeing  an event that draws hundreds to the law school all the while connecting with a wide-range of personalities and individuals.  Clint Nichols fit the bill perfectly.  

A native of Winchester, Virginia, Clint graduated from Roanoke  College before moving to Washington, D.C., to begin a stint as a  staffer for the late United States Senator from Virginia, John W.  Warner. Not to be confined to the “world’s greatest deliberative  body,” he also served as an advance man on several presidential campaigns—for John McCain, for Mitt Romney, and for Marco  Rubio.  

In 2012, the outgoing board selected Clint to run the annual  symposium and direct the publication of the accompanying book.  Being a presidential year, it was only natural that Clint drew on  his background (and passion) in politics. Election Law: Beyond the  Red, Purple, and Blue was born.  

As for timeliness, one could hardly imagine a more appropriate  topic for that year.  

As for detail, he left none unaddressed. Indeed, in the last  minutes before the start of the symposium, Clint was furiously fashioning wire hangers to position perfectly the American flags in the backdrop of the panel. Betsy Ross would have been proud.  

As for the politician, that came naturally. From start to finish,  he commanded the panels that he moderated, glad-handed all the  guests, and made everyone with whom he interacted feel like the  most important person there.  

After a (brief) break from his duties, he successfully marshaled  to publication the symposium book just before our graduation in  the spring of 2013.  

In short, the Law Review and the University of Richmond School  of Law benefitted greatly from Clint’s service on the Volume 47  Executive Board.  

Those qualities he exhibited on the Executive Board propelled  him to professional success as well—first as a law clerk to United  States District Judge Henry E. Hudson, then as a partner at Han cock Daniel.  

While certainly proud of those accomplishments, he was most  proud of the accomplishments in his personal life. He constantly  (constantly) talked about his family. He made life-long friends everywhere he went. He volunteered his time to causes for the better ment of others.  

And he wanted to connect everyone he met along the way—no  matter how or when the relationship was forged. He wanted his  Roanoke College friends to meet his law school classmates—usu ally at Virginia Beach with a beverage in hand. He introduced his  law school classmates to his family—making the mistake of bringing them to his parents’ house for a birthday party where we  could see his baby pictures in all of their glory. And he wanted to  connect his family with those he met volunteering—going so far as  to make them one-in-the-same.  

Words can hardly express what the world has lost with Clint’s  untimely passing. He affected each of us in his own way. And each  of our lives was better for it.  

– Frank Talbott V

 

Thank You, Glenice!

Thank You, Glenice!

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Thank You, Glenice! 

 

Volume 56 would like to extend our warmest gratitude and appreciation to Glenice  B. Coombs, our Legal Publication Coordinator. Glenice has been an essential asset of  the University of Richmond Law Review for the past forty years, beginning with Volume 16 in 1981. As her chapter with Law Review comes to a close, it would be a  disservice not to pause and acknowledge Glenice’s endless dedication to Law Review’s  success, her unwavering commitment to excellence, and most importantly, the guidance and warmth that she brings to all who have had the pleasure of working along side her.  

The following Volumes of Law Review will miss Glenice’s eye for detail, inspiring  work ethic, and contagious laughter. It is people like Glenice that make the sleepless  nights of editing manuscripts worthwhile. From every member of Law Review, past  and present: thank you, Glenice! 

Preface

Preface

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Preface

 

The University of Richmond Law Review proudly presents the thirty-sixth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has been a guiding tool for practitioners and students to stay abreast of the recent legislative, judicial, and administrative developments in the Commonwealth of Virginia. Today, the Annual Survey is the most widely read publication of the Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth.

In this issue, the Law Review is proud to commemorate the memory of Clint Nichols, the Symposium Editor for Law Review Volume 47. We are saddened by his loss and remain extremely thankful for his service and dedication to the Law Review and to the Richmond legal community.

This issue of the Annual Survey of Virginia Law contains six articles, each providing summaries of changes in the last year to substantive areas of the law. The topics of these thorough and well-written updates include Civil Practice and Procedure; Criminal Law and Procedure; Family Law; Juvenile Justice; Taxation; and Wills, Trusts, and Estates. Additionally, this issue contains a groundbreaking Essay which provides an overview and history of the abolition of the death penalty, and a thoughtful student Comment written by a University of Richmond Law Review staff member, which suggests an expansion to the boundaries of consumer protection in Virginia.

The enduring Annual Survey tradition is made possible only by the thoughtfulness and talent of our authors, many of whom contribute to the Annual Survey every year. Each piece is the culmination of expertise and sacrificed time in the name of legal scholarship. I am so grateful for these authors’ continued kindness and commitment to our publication. I cannot give enough thanks to Glenice Coombs for her never-ending dedication and kindness to the Law Review’s publication and staff. Glenice, your commitment, guidance, and generosity have been instrumental in getting us through the publication process, both emotionally and practically. I cannot imagine the Law Review without you, and we are forever in your debt.

I would also like to extend sincerest thanks to the Law Review staff for their careful editing and hard work. This summer and fall, in addition to continuing to work through a pandemic, legal internships, and other responsibilities, the Law Review staff poured over the following Articles for no compensation or academic credit to perfect the already incredible pieces.

To my fellow Executive Board members, thank you for your concerted effort in fine-tuning the details and putting this book together. I could not list one without the others, so to Chris Sullivan, thank you for your leadership and patience. To Mary Grace Whitten, thank you for your attention to detail and thoughtfulness. To Ren Warden, thank you for your editing expertise and your knowledge of Emperor Honorius’ bird. To Caroline Jaques, thank you for your humor, and for always finding the right word. To Maya Ravindran, thank you for your care and unwavering moral support. To Emily Fahey, thank you for your diligence and empathy. To Tesia Kempski, thank you for your infinite kindness and consideration. I am so grateful to have you all on my team.

Finally, thank you to my friends and family for helping to keep me (mostly) sane throughout this process. Your support and compassion has been such a blessing.

It has been an honor and pleasure to serve as Editor of the Annual Survey of Virginia Law. We hope this issue can serve as a valuable resource in your legal practice. Thank you for your continued readership and patronage. 

Andy V. O’Connell

Annual Survey Editor

Rethinking Music Copyright Infringement in the Digital World: Proposing a Streamlined Test After the Demise of the Inverse Ratio Rule

Rethinking Music Copyright Infringement in the Digital World: Proposing a Streamlined Test After the Demise of the Inverse Ratio Rule

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Introduction

I simply cannot copy your song if I have never heard it before. In a hypothetical world in which I truly had no exposure to your musical composition, any eerie similarities between our two songs must necessarily be the product of our own individual imaginations. Indeed, copyright law protects such independent creation. Determining that one song was copied from another, therefore, requires two things: that the songs be “too” similar, whatever that means, and that the second author have had some kind of access to the first author’s work. In reality, however, songs can only be so similar before a rational person will start to suspect that one songwriter must have had access to the other songwriter’s work—even if that access cannot be proven. When the similarity between two songs is high enough, we begin to infer access even in the absence of evidence. On the other hand, however, if the songs are only mildly similar, we typically demand more proof of access before we are willing to chastise the second author for copying.

This inference gives rise to the now largely defunct inverse ratio rule—a three-word phrase that struck fear into the hearts of musicians within the jurisdiction of the United States Court of Appeals for the Ninth Circuit. While seemingly logical, the inverse ratio rule created three untenable situations; each resulted in deeming a song “copied,” which, most artists would likely agree, is a badge of shame. In the first, one songwriter could be found liable for copying—even in a song which bore little similarity to the supposed original—when a high amount of access to that supposed original could be shown. In the second, a song could be slapped with the “copied” stamp when it shared significant similarity with another, despite the songwriter having little access to the supposed original, because of the satisfaction of the inverse ratio rule—a conclusion that seems to fly in the face of copyright’s supposed protection of independent creation. This scenario is often referred to as “subconscious copying.” Finally, the rule deemed “copied” songs that innocently drew on the inspiration of, or paid overt homage to, the work of another musician—an incredibly common phenomenon that artists have described as paying tribute to the “legacy” of influential musicians.

In the face of such a bewildering rule, I might stop publishing songs altogether. After all, if I face a copyright lawsuit every time I compose—given that I have heard a wide array of songs in my lifetime—I may very well decide the risk is not worth the reward. I may derive my deepest joy from songwriting, but since I do not have $5 million to pay your damages award, prudence dictates I remain silent.

This is the landscape song composers faced after a surprise 2015 verdict, in which a California jury found that Robin Thicke and Pharrell Williams had infringed the copyright of Marvin Gaye’s Got to Give It Up with their smash hit, Blurred Lines—the bestselling single in the world in 2013. Despite the fact that the two songs share little musical similarity—at least in the opinion of the music industry—the courts hit Thicke and Williams with a $5.3 million payout, along with fifty percent of royalties generated by their song.

On appeal, when two members of a three-judge Ninth Circuit panel did not find enough reason to overturn the jury’s verdict, panic set in. The music community shared the opinion of Judge Jacqueline Nguyen, who in a spirited dissent argued that the majority had allowed for copyrighting of a musical style. “[B]y refusing to compare the two works,” Judge Nguyen wrote, “the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

This Comment will discuss the devastating blow to musicians inflicted by the Blurred Lines verdict’s embrace of the inverse ratio rule. Then, I will examine the Stairway to Heaven decision, in which the Ninth Circuit sharply changed course and decided to abrogate the inverse ratio rule. This welcome policy change nevertheless leaves questions as to how the Ninth Circuit will balance considerations of access with substantial similarity as it assesses copying in future cases. More importantly, the explosion of access in the digital world has fatally weakened—across all circuits—the role of access within the infringement test. In that light, I will conclude with a modified standard by which music copyright infringement cases should be judged. 

*Christina Dimeo

*J.D. Candidate 2022, University of Richmond School of Law; B.A. with Distinction, 2004, University of Virginia. I would like to thank the members of the University of Richmond Law Review for their tireless efforts in preparing this Comment for publication, and Professor Chris Cotropia for his spot-on suggestions pushing me to dig deeper. I am also grateful to Dave Schmidle for hours of enthusiastic discussion that allowed me to sharpen and refine my proposed music copyright infringement test, and for his invaluable assistance in creating electronic versions of my diagrams. Most of all, I would like to thank my children, Anthony, Sammy, and Anneliese, for their love, support, and continued patience as I “do my homework.”

 

Drones and Data: A Limited Impact on Privacy

Drones and Data: A Limited Impact on Privacy

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Introduction

Concerns about drones and their impact on privacy are misplaced. Most of the scenarios discussed in the academic literature and policy commentary simply assume that drones operate in a unique way. These discussions of drones and privacy have left the antecedent question unexamined—precisely how do drones impact privacy? This Article is the first to clearly define the operational parameters of drones that impact privacy in a unique way. From this precise definition, we learn that drones operate in very few spaces that allow them to capture data inaccessible to other technologies. In short, how drones operate has a limited impact on privacy.

*David Sella-Villa

 *Interim Chief Privacy Officer, South Carolina Department of Administration, focusing on technology, privacy, and security issues; CIPP/US, CIPP/E, CIPM, and GLEG certifications; Adjunct Professor, William & Mary Law School, aviation law class. J.D., William & Mary Law School; Editor-in-Chief, Environmental Law and Policy Review; M.S., London School of Economics; B.S. & B.A., West Virginia University.

 

The Veil (or Helmet) of Ignorance: A Rawlsian Thought Experiment About a Military’s Criminal Law

The Veil (or Helmet) of Ignorance: A Rawlsian Thought Experiment About a Military’s Criminal Law

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THE VEIL (OR HELMET) OF IGNORANCE: A RAWLSIAN THOUGHT EXPERIMENT ABOUT A MILITARY’S CRIMINAL LAW

This Article loosely adapts political philosopher John Rawls’s famous social contract thought experiment to interrogate a corner of law that receives too little theoretical attention: the separate federal code at the intersection of criminal law and national security that regulates both martial and non-martial conduct of millions of citizens, invests judicial responsibility and prosecutorial authority in nonlawyer commanding officers, operates with no territorial limitations, and pulls even certain retirees within its jurisdiction: the Uniform Code of Military Justice. Employing the perspectives of four “idealized” actors—Congress, a president, a Chairman of the Joint Chiefs of Staff, and a potential recruit—this “experiment” reconsiders the fundamental and necessary qualities of a specialized system of criminal law. Such qualities must render the system acceptable to civilian political leadership in a representative democracy exercising ultimate command and control over a professional military, but also accepted by those over whom its penal jurisdiction will rest. When considering the reasonable inferences and deductions each of these four actors will likely make from a hypothetical “original position,” four common principles emerge. Principles of nonrepulsion, retention, mission risk reduction, and compliance operate as four prescriptive corners bounding and framing a sensible set of answers to the following questions: (1) what conduct is to be proscribed and subjected to punishment? (2) what punishments, forms of discipline, or administrative censure are available for violations? (3) what processes shall organize the steps from investigating to punishing violations? (4) who shall have discretionary agency within the ranks to administer these processes with investigative, prosecutorial, and judicial authority? and (5) what constraints, limits, or individual rights and liberties shall operate to ensure due process, justice, and protection from that authority’s abuses? Answering these questions in light of the four principles goes some way toward articulating a “normative theory of criminal law”—a prospect that military justice currently lacks.

Dan Maurer*

*Assistant Professor of Law, United States Military Academy at West Point; Fellow, Modern War Institute; Lieutenant Colonel, Judge Advocate, United States Army. The author has served as a platoon leader in combat, as well as judge advocate prosecutor and appellate counsel, and as chief of military justice for a large Midwestern Army installation. 

Other assignments include Strategy Fellow for the Army Chief of Staff and Chief of Operational Law serving in Italy. The opinions and analysis in this Article are the author’s personal, academic views, and are not representative of the official positions of the U.S. Government or, specifically, the Army Judge Advocate General’s Corps or the U.S. Military Academy.

Special thanks to Professors Brenner Fissell, Eugene Fidell, Geoffrey Corn, my colleagues in the Department of Law at West Point, and the astute editors of the University of Richmond Law Review for their assistance. All errors are mine alone.

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