Underprosecution Too

Underprosecution Too

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Underprosecution Too

This Article makes two main contributions to existing literature. First, it asserts that in deciding whether to pursue sexual assault charges, prosecutors should not rely on the convictability standard. Assessing evidentiary sufficiency in sexual assault cases through the lens of a hypothetical jury is misguided because it incorporates a myriad of jurors’ extralegal considerations of victims’ behaviors, consisting of racialized, gendered, class, status and other prejudices and biases against victims.35 Declining to prosecute sexual assault based on the convictability standard not only perpetuates unwarranted misconceptions about certain victims, but also reinforces their marginalization by exacerbating the legal system’s unequal and discriminatory treatment. Instead, this Article proposes the reasonable prosecutor’s evidentiary sufficiency standard under which prosecutors should take into account only legal factors directly relevant to the evidentiary strength of the sexual assault case at issue.36 This proposed standard asks only whether a reasonable jury could convict the defendant based on the admissible evidence, rather than predicting whether jurors would likely do so.

Michal Buchandler-Raphael

Assistant Professor of Law, Widener Commonwealth Law School

 

Frenemy Federalism

Frenemy Federalism

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Frenemy Federalism

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have  legalized marijuana. And with good reason. For the past fifty  years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the  drug to have a high potential for abuse and no accepted medical  use. Congress’s aim in establishing Schedule I of the CSA was to  “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of  the states (and territories) have legalized marijuana for medical or  recreational purposes. And, for the most part, the CSA does not preempt state laws legalizing marijuana. This creates a potentially volatile situation in which the substance is contraband under  federal law but is legal under perfectly valid state laws. 

Scott BloombergAssociate Professor of Law, University of Maine School of Law.

 

Traumatic Justice

Traumatic Justice

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Traumatic Justice

In the recent past, allegations of police misconduct have periodically led to widespread community protests, but usually only when the incident is sufficiently high-profile and the harm is severe, such as when a police officer beats or kills an unarmed Black person. More often the spotlight and outrage have faded quickly, as victims were discredited and no charges were brought, or no convictions obtained. But citizens have increasingly harnessed the power of cell phone videos and social media to bring attention to acts of racial violence and hold accountable those who are responsible, particularly in cases of alleged police misconduct. As violent encounters with police are more frequently filmed, posted, and shared on social media—thousands, hundreds of thousands, even millions of times—calls for justice and reform grow louder and more sustained.

Teri Dobbins Baxter

Williford Gragg Distinguished Professor, University of Tennessee College of Law

 

Strictly Speaking, What Needs to Change? A Review of How Statutory Changes Could Bring Strict Products Liability to Virginia

Strictly Speaking, What Needs to Change? A Review of How Statutory Changes Could Bring Strict Products Liability to Virginia

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Introduction

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would not be alone. State legislation is the method that four states have already used to adopt strict liability. Others have passed statutes to further limit or expand the reach of liability that their state courts established. Legislation is thus a proven method to adopt and manage strict liability should the General Assembly
take up the effort.

Part I of this Comment briefly reviews the history of Virginia products liability law, and how small changes over centuries have put the Commonwealth on a long line trending slowly towards, but keeping a healthy distance from, modern product liability norms. Part II addresses where Virginia products liability law is today, and how that practically differs from strict liability. Part III explores how Virginia could adopt strict liability without unnecessarily disrupting established precedent and provides a sample statute to accomplish that end.

* Ryan Fowle

 J.D. Candidate, 2022, University of Richmond School of Law

 

Disrupting Death: How Specialized Capital Defenders Ground Virginia’s Machinery of Death to a Halt

Disrupting Death: How Specialized Capital Defenders Ground Virginia’s Machinery of Death to a Halt

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Introduction

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the United States Supreme Court invalidated capital punishment statutes nationwide. In part, Virginia’s repeal is momentous because it marks the first time a Southern state abolished the death penalty. In part, it is momentous because even among Southern states, Virginia was exceptional in its zeal for capital punishment. No state executed faster once a death sentence was handed down. And no state was more successful in defending death sentences, allowing Virginia to convert death sentences into executions at a higher rate than any other state in the Union. Sure, Texas holds the record for the most executions in the modern era of capital punishment. But Virginia was next in line with the second most executions in the modern era, and it holds the record for the most executions in the history of the United States, period.6 Granted, Virginia had been executing people for over 400 years, so it had a head start. But that just makes its repeal of the death penalty all the more remarkable. How did Virginia go from all-in on the death penalty to abolition?

 

* Corinna Barrett Lain

** Douglas A. Ramseur

* S.D. Roberts and Sandra Moore Professor of Law, University of Richmond School of Law

** Adjunct Professor of Law, University of Richmond School of Law, and owner of The Ram Law Firm, P.L.L.C., in Richmond, Virginia

 

Wills, Trusts, and Estates

Wills, Trusts, and Estates

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Introduction

The 2021 Virginia General Assembly did not pass any major laws governing estates or trusts this year. However, it did pass several legislative efforts related to the field and of which practitioners should be aware. Perhaps the most relevant update given the COVID-19 pandemic was the Legislature’s effort to modernize procedures for electronic notarizations and electronic recording of documents. Another new law was designed to improve retirement savings participation rates in the Commonwealth by requiring certain employers to enroll their employees by default in a new, state-facilitated individual retirement account program. The Legislature also passed several bills designed to make it easier for disabled individuals to receive third-party support when making their own healthcare, financial, and personal decisions. New laws also expanded the class of parents and custodians who can designate a standby legal guardian for a minor and slightly modified the order of priority for beneficiaries in a wrongful death suit. Finally, the Legislature updated the Virginia Stock Corporation Act as it pertains to filing procedures and requirements, shareholder notice requirements, and the ability of directors to take emergency action. Although these changes were not technically substantive developments in the area of wills, trusts, and estates, attorneys should be mindful of them when advising their clients in ancillary corporate matters.

Katherine E. Ramsey *

Sarah J. Brownlow**

* Member, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

** Of Counsel, Virginia Estate & Trust Law, P.L.C., Richmond, Virginia. J.D., 2009, Vanderbilt University Law School; B.B.A., 2004, College of William & Mary.

 

 

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