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Katz v. United States: Back To The Future?

Michael Vitiello *

Fifty years ago, in Katz v. United States, the United States Supreme Court developed a flexible approach to assessing when the police’s use of modern technology became a search within the meaning of the Fourth Amendment. Katz abandoned the importance of trespass law and reframed the debate in terms of expectations of privacy.

Decided towards the end of the Warren Court era, Katz, like other progressive Warren Court decisions, has undergone a retrenchment over most of the past fifty years. In a series of post-Warren Court cases, the Court routinely found that when a suspect exposed information to third parties, society did not recognize the suspect’s expectation of privacy as reasonable. Thus, when the police sought similar access, the police conduct did not amount to a search. The post-Warren Court did not focus on how much privacy is essential to a free society. The post-Warren Court cases had the effect of allowing technological innovation to determine how much privacy the Fourth Amendment protects. Framed differently, when companies developed technology that required us to expose information to third parties—for example, when we use cell phones or global monitoring technology—the act of sharing information with the technology company eroded Fourth Amendment protection.

* Distinguished Professor of Law, The University of the Pacific, McGeorge School of Law; University of Pennsylvania. J.D., 1974; Swarthmore College, B.A., 1969. I want to extend my thanks to participants in the 2017 SEALS conference panel on Criminal Justice and Technology, organized by Catherine Hancock and Cynthia Alkon, for their helpful comments. Particularly detailed and helpful were Scott Sundby’s comments. In addition, I offer special thanks to my research assistant Kendall Fisher for all of her help.

Rethinking Removal And “Relates To”: International Arbitration Disputes And The N.Y. Convention

Holly Wilson *

To most, “The New York Convention” may sound like a gigantic conference center filled with people wearing “I heart NY” shirts and eating thin crust pizza, but for a small group of international commercial litigators, it sounds like a trump card to end all trump cards, a ticket into federal court and—eventually—out to arbitration.

The N.Y. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) is an obscure and infrequently utilized part of Chapter 2 of the Federal Arbitration Act implementing the United Nation’s Convention covering how to enforce and recognize foreign arbitral awards and agreements. One of the marvels of the Convention is that it contains special, extremely defendant-friendly removal provisions. Where these provisions come to life though is in how the courts construe and enforce them. Specifically, the Convention requires that a foreign arbitration agreement “relate to” the subject matter of the case for it to be removable, irrespective of diversity of citizenship or federal question jurisdiction. The Fifth Circuit originally crafted a standard in Marathon Oil v. Ruhrgas, A.G. interpreting the “relates to” requirement that struck the right balance to allow easy removal but maintain structure. Now, however, the Fifth Circuit has created a new standard in Beiser v. Weyler interpreting “relates to” so broadly that the gate into federal court is blown right off of its hinges. Alarmingly, more and more circuits are picking up the Fifth Circuit’s new test. Many circuits though have yet to adopt any test as these cases are very niche and come up only on occasion.

* J.D., 2016, University of Richmond School of Law; B.A., 2013, Denison University. A special thanks to Jamie Adkins, Andrea Mousouris, and Sarah Ashley Barnett for encouraging me in this endeavor. Thank you to my fierce female family tribe for enabling me to embrace my ambition and teaching me that my voice matters.

COMMENT: Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez v. Colorado And How To Address Them

Lauren Crump *

Justice Kennedy began his recently decided Peña-Rodriguez v. Colorado majority opinion by saying, “The jury is a central foundation of our justice system and our democracy.” The case grappled with the question of whether the long-standing federal rule that jury members cannot testify about any aspect of the deliberation process should give way in cases of racial bias. In a 5-3 decision, the United States Supreme Court found that it should, thereby creating an exception to the commonly referred to “no-impeachment rule.” This exception comes after many expressed concerns that allowing testimony about jury deliberations will undermine the criminal justice system. Those opposed to the exception fear that this exception will remove finality from jury verdicts, dissuade jurors from engaging in “heated discussions” during deliberations and lead to harassment of jurors. Notwithstanding these concerns, the Court ruled that ensuring the elimination of racial bias in jury deliberations was too important of a government objective to allow for the no-impeachment rule to remain undisturbed.

* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Syracuse University. I would like to first thank the University of Richmond Law Review staff and editors for all of their hard work in preparing this comment for publication. I would also like to thank Professor Ronald Bacigal for giving me the opportunity to write this comment and for all of his encouragement during the process. Finally, I would like to thank my parents and my sister for always inspiring me to do my best.

COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

Stephen Scaife *

State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, though indirectly, compels people to forgo, a serious issue arises.

* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Presbyterian College. I would like to thank my wife, Rachel Scaife, for her constant love and support. I also want to thank my parents, Tom and Kyung Scaife, for their unending encouragement and love. As well, I am grateful to Professor Jack Preis, who provided invaluable feedback and counsel during this writing process. Finally, I want to thank the University of Richmond Law Review staff for their diligent efforts in preparing this paper for publication.

COMMENT: In Re Trulia: Revisited and Revitalized

Emma Weiss *

After an escalation in deal litigation that culminated with challenges to 95% of $100,000,000 deals, merger objection litigation that ends in disclosure-only settlements has become a topic of great concern. These cases are concerning because it seems implausible that 95% of all mergers are executed carelessly. The problematic cases all follow a similar pattern. When a merger is announced, multiple shareholder plaintiffs challenge the transaction in multiple jurisdictions. Plaintiffs and corporate defendants then quickly agree to a disclosure-only settlement, wherein the plaintiffs receive trivial supplemental disclosures about the transaction. In return, defendants receive a broad release from liability for future claims. The parties then seek the court’s approval of the settlement, and upon receiving approval, the plaintiffs’ attorney is rewarded with significant attorney’s fees. This cycle is so common it has been dubbed a “deal tax” or “transaction tax.”

* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Virginia Polytechnic Institute and State University. I would like to thank the University of Richmond Law Review staff and editors for their assistance in making this piece publishable. I would also like to thank Professor Jessica Erickson for her invaluable advice and guidance throughout the writing process.

Preface

Brian M. Melnyk, Annual Survey Editor

The University of Richmond Law Review is proud to present the thirty-second issue of the Annual Survey of Virginia Law. The Law Review published the first issue of the Annual Survey in 1985 to provide a resource detailing legislative, judicial, and administrative changes to practitioners and students in the Commonwealth of Virginia. Our mission remains the same today. Now, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, and legislators in every corner of the Old Dominion. With this in mind, we selected articles and essays we think are invaluable for keeping our readership abreast of the most important updates to Virginia law.

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