Closed Meetings Under FOIA Turn Fifty: The Old, the New, and What to Do

Tyler C. Southall*

The Commonwealth of Virginia boasts the location of the first permanent English settlement in the nation and takes pride in its long history of meetings of representative bodies. Since 1968, the Virginia Freedom of Information Act (“FOIA”) has ensured the public access to those meetings in order to provide that “[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” Although FOIA allows meetings to be closed to the public for various topics of discussion,3 one might expect to find that given Virginia’s long history and the law’s expectations of openness, Virginians would have long ago reached agreement on the law and practice surrounding open and closed meetings. However, since the beginning of 2016, legislators have pushed stricter penalties for violating FOIA, an elite public university found itself in a firestorm over a closed meeting, the Supreme Court of Virginia weighed in on a closed meeting case, and the Virginia Freedom of Information Act Advisory Council (“FOIA Council”) issued opinions reminding government entities of the nuances of the law. In a political environment that has become increasingly contentious, elected and appointed officials have reason to fear for the legal, ethical, and political implications of their actions every time they enter a closed meeting.

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Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth

Nadine Marsh-Carter*, Bruin S. Richardson, III**, Laura Ash-Brackley*** & Cassie Baudeán Cunningham****

In 2017, 446 youths left the foster care system in Virginia without a permanent family. The most recent data shows that nationwide, approximately 20,500 youths leave the foster care system without a permanent family each year. Out of fifty states, Virginia is ranked forty-ninth for the rate at which youth exit the foster care system without permanency. In 2016, Virginia had 19% of foster youth age out of foster care as compared to 8% nationally.

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Private Ordering in the Old Dominion: A Solution to Frivolous Litigation or the Elimination of a Fundamental Shareholder Right?

Rebekah Briggs*

Shareholder litigation is an important mechanism in corporate law for holding directors accountable to shareholders. It provides a method by which shareholders can recover when directors breach their fiduciary duties to the shareholders or the corporation. Additionally, the threat of shareholder litigation acts as a deterrent to future management misconduct. Thus, the right to sue “forms part of the portfolio of monitoring and enforcement tools for policing whether managers are acting as loyal agents.”

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Traft, Frankfurter, and the First Presidential For-Cause Removal

Aditya Banzai*

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them — William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers (“Board”) for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

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The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing

Jamie R. Abrams*

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded underreporting, underutilization, and recurring risks of budgetary cuts. Yet, this model and terminology have gone virtually unchanged for nearly half a century.

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Rethinking Bail Reform

Wendy R. Calaway* & Jennifer M. Kinsley**

The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of the discussion has surrounded solutions involving the implementation of and reliance on evidence-based practices to determine pretrial detention, rather than solutions involving reliance on money. These evidence-based practices usually take the form of pretrial assessment tools and pretrial supervision systems. Because the politics involved in criminal justice reform often paralyze reform attempts, the method by which these practices are implemented is often litigation. However, due to procedural impediments in federal court and the polit- ical realities of state courts, litigation often results in incomplete remedies that do not fully address, rectify, or prevent the range of harms inflicted by the money bail system.

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Reconsidering Selective Conscientious Objection

Andrew J. Haile*

In 1971, in the midst of the Vietnam War, the United States Su-preme Court decided that to qualify as a conscientious objector (“CO”) one must oppose all war, and not just a particular war. The Court’s decision in Gillette v. United States turned on its interpretation of section 6(j) of the Military Selective Service Act.2 Section 6(j) provided, in relevant part, that no person shall “be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” According to the Court, “an objection involving a particular war rather than all war would plainly not be covered by § 6(j).” Consequently, the Court construed the exemption from combatant military service in section 6(j) not to extend to so-called “selective conscientious objectors” (“SCOs”).

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Free Exercise and Comer: Robust Entrenchment or Simply More of a Muddle?

Mark Strasser*

Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amend-ments are per se unconstitutional. The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of complexity and confusion to an already muddled jurisprudence. That decision, unless modified, could have surprising implications that the Court is avowedly unwilling to endorse.

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Race, Speech, and Sports

Matthew J. Parlow*

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

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Rapid DNA Testing and Virginia’s Rape Kit Backlog: A Double-Edged Sword Masquerading as a Miracle, or the Future of Forensic Analysis?

Emma C. Greger*

When authorities in Richland County, South Carolina, arrived on the scene after receiving a report of shots fired on July 29, 2014, they found a wounded man but no suspect. The victim seemed to have been on the receiving end of an armed robbery gone wrong and had been shot during a “physical altercation” with the would be thief. Because of this “physical altercation,” officers from the sheriff’s department were able to recover deoxyribonucleic acid (“DNA”) samples from the victim’s clothing. A short time later, suspect Brandon Berry was taken into custody after being apprehended at a traffic stop; Berry would go on to be convicted of, among other charges, attempted murder and attempted armed robbery.

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