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Foreword

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Foreword

The 2020–2021 legislative session was one of the busiest legislative sessions on crime and punishment in recent memory. Much was accomplished. Much still needs to be tackled. Several significant criminal justice reform measures were passed:

● Abolishing the death penalty in Virginia;
● Authorizing judges to sentence a defendant after a jury trial, changing 224 years of precedent;
● Ending the presumption against bail;
● Authorizing parole eligibility and review for juvenile offenders;
● Preventing an individual from being arrested/prosecuted for purchasing/possessing a controlled substance after reporting an overdose to emergency services;

● Prohibiting law enforcement/jail officers from strip searching minors;

● Enacting a police reform omnibus bill banning the use of chokeholds by law enforcement, requiring law enforcement to undergo training in de-escalation techniques, creating a duty to intervene if law enforcement officers witness misconduct by other officers, and banning no-knock-warrants;
● Expanding the authority of Civilian Review Boards in Virginia to investigate incidents of police misconduct, and giving the authority to issue subpoenas;

● Legalizing simple possession of marijuana;
● Creating degrees of robbery;
●Prohibiting vehicle searches based on the odor of marijuana;

● Requiring judges in criminal proceedings to take mental/emotional conditions into consideration;

● Allowing for automatic expungement of certain misdemeanors from criminal records and for individuals to petition circuit courts to have certain misdemeanor/felony convictions to be expunged;

● Allowing individuals to obtain a restricted driver’s license without paying court fines;

● Creating a Public Defender Office in Chesterfield County.

Joseph Giarratano*

*Mr. Giarratano spent thirteen years on Death Row in Virginia, where he served as a client advisor for the Virginia Coalition on Jails and Prisons and as a member of the advisory board of the Center for Teaching Peace, Washington, D.C. His fight to avoid electrocution attracted the support of advocates as diverse as columnist James J. Kilpatrick and Amnesty International, many of whom argued that there is serious doubt as to Mr. Giarratano’s guilt. Mr. Giarratano has also attracted significant attention due to the innovative legal scholarship he has brought to his involvement in right-to-counsel and other death penalty related litigation, and to the articles he has published on Death Row issues.

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!

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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

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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

The “Vanishing Trial”: Arbitrating Wrongful Death

The Hon. Victoria A.B. Willis *

Judson R. Peverall **

Within the past four decades, private arbitration has spread apace across the American legal landscape. The “mass production” of arbitration clauses has pervaded modern business life, relegating a multitude of legal doctrines from the public courthouse into the private realm. The results have been both acute and invidious. Modern judicial preferences for arbitration have given way to enforcement in areas of the formerly unenforceable. Courts are now compelling new classes of claims, previously thought to be beyond the pale of any arbitration agreement.

The latest target in this expedition is the wrongful death action, with courts now shifting wrongful death litigants into private arbitration when they never agreed to arbitrate their disputes in the first place. The recent paradigm shift into wrongful death arbitration raises a complex blend of conceptual, practical, normative, and doctrinal problems. Under modern judicial preferences for arbitration, the problems that inhere within wrongful death arbitration have remained largely hidden. In this article, we expose these problems and develop a more nuanced and coherent rule of analysis that comprehends the history and purpose behind these two legal doctrines: wrongful death liability and arbitration.

First, we show that courts compelling arbitration in this area distort the very rights wrongful death liability historically sought to defend—including the property rights of family members who depended upon the decedent for economic support. Next, we explain that, by denying family members access to public tribunals and punitive damage awards, courts compelling wrongful death arbitration erode the basic deterrence function of wrongful death liability. In reaching our conclusion, we urge a bright-line rule that rejects wrongful death arbitration as fundamentally inconsistent with the historical intent and purpose behind both wrongful death liability and arbitration.

* Circuit Court Judge, Fifteenth Judicial Circuit of Virginia. J.D., University of Richmond School of Law; B.A., Vanderbilt University.

** Law Clerk, Fifteenth Judicial Circuit of Virginia. J.D., University of Richmond School of Law; A.B., College of William and Mary. We are indebted to the University of Richmond Law Review for their excellent comments and edits on this article, and Professor W. Hamilton Bryson, the Hon. Charles Sharp, the Hon. Michael Levy, Edward Englestad, Kevin Brosnan, Donita Peverall, and Vikki Wharton for their support and advice before and during the publishing process.

Eliminating Liability for Lack of Informed Consent to Medical Treatment

Valerie Gutmann Koch *

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing so, this article evaluates the rationale and procedure for abolishing a common law private right of action for lack of informed consent, as well as potential alternatives to tort liability for failure of informed consent to medical treatment. The article concludes that the time has not come for a wholesale elimination of the private right of action for lack of informed consent to treatment. Abolishing liability for lack of informed consent in treatment would not only eliminate the deterrent effect for potential bad actors, but would also remove recourse for those who have suffered harm due to a failure of informed consent.

* Director of Law & Ethics, MacLean Center for Clinical Medical Ethics at the University of Chicago; Visiting Fellow at DePaul University College of Law; Chair of the American Bar Association’s Special Committee on Bioethics & the Law. J.D., Harvard Law School; A.B., Princeton University.

I would like to offer particular gratitude to Ting Liu, who provided extensive research support for this project. In addition, thank you to Professor Michael Waitzkin, who enabled this project to come to fruition through the Duke Institute for Science & Society summer practicum; Elizabeth Yang, Deputy Director of the Division for Public Services; and the American Bar Association, for coordinating this effort with the ABA Special Committee on Bioethics & the Law. Valuable discussion of this article was provided by Wendy Netter Epstein and Nadia Sawicki.

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