Jeffrey R. Adams & Lucas I. Pangle, The Downfall of “Incumbent Protection”: Case Study and Implications, 54 U.R. L. Rev. 243 (2019).
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On January 9, 2019, the United States Court of Appeals for the Fourth Circuit struck down Virginia Code section 24.2-509—Virginia’s long-standing “Incumbent Protection Act” (or the “Act”). The Incumbent Protection Act was the only statute of its kind, and had endured criticism by grassroots commentators. Yet, the Incumbent Protection Act had long evaded scrutiny in the courtroom. Indeed, the Incumbent Protection Act’s courtroom history is labyrinthine, replete with interesting and significant commentaries on party rights, standing, and public policy preference for primaries. In fact, before its eventual demise, it had been implicated in several lawsuits bringing constitutional challenges to various Virginia election laws and had dodged one direct assault by defending on standing grounds.
By the time the challenge to the Incumbent Protection Act culminated with the Fourth Circuit’s January 9, 2019 decision, litigation to dismantle it had been ongoing for almost five years between two different suits. Indeed, the Incumbent Protection Act was felled not by one, but two swings.
This Article chronicles the course of the litigation that ultimately toppled the Incumbent Protection Act. Spanning two lawsuits and no fewer than seven opinions, the story of the litigation provides insight to practitioners who hope to navigate the interlocking and overlapping hierarchies of party plans, state laws, and constitutional rights. Following the summary and analysis of the litigation, this Article will assess the ramifications of the two Fourth Circuit opinions and will look ahead to issues likely of interest to future challengers to Virginia’s election laws.
Dr. Stephen Allred*, An Analysis of Intentional Infliction of Emotional Distress Claims in the Virginia Workplace, 54 U.R. L. Rev. 283 (2019).
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This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable. After reviewing the evolution of the doctrine since it was first recognized in Virginia nearly fifty years ago in Part II, Part III returns to the incident described above involving Linda Bodewig and her employer, and offers an analysis of how her case would likely be decided in the Virginia courts today—and whether that decision would be the right one.
Joanna R. Steele, Comment, “In the Little World”: Breaking Virginia’s Foster-Care-to-Prison Pipeline Using Restorative Justice, 54 U.R. L. Rev. 313 (2019).
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Measuring a nation’s strength by the health of its economy or armed forces is easy. In those regards, the United States is one of the strongest nations on Earth. If we judge our country’s strength by how it cares for the 443,000 children in foster care,[2]however, the result is completely different. The United States has created a foster-care-to-prison pipeline that sweeps vulnerable children into the penal system at alarming rates.
This Comment proposes that integrating restorative justice conferencing into Virginia’s foster care system can help break its foster-care-to-prison pipeline. Part I details Virginia’s foster care system and the foster-care-to-prison pipeline. Part II reviews and explains how restorative conferencing in Glenmona, Northern Ireland’s equivalent foster care system correlates strongly with decreased incarceration of foster children. Part III outlines how Virginia can implement the same restorative conferencing in its foster care system and pioneer a program that could affect its foster-care-to-prison pipeline.
MaryAnn Grover, The First Amendment and the Great College Yearbook Reckoning, 53 U. Rich. L. Rev. Online 19 (2019).
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Henry L. Chambers, Jr., Curating Campus Speakers, 53 U. Rich. L. Rev. Online 3 (2019).
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Michael Conklin, Can You Truly Be Happy in Law School? An Analysis of Law School Advice, 53 U. Rich. L. Rev. Online 63 (2019).
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Kate Miceli, Life, Liberty, and the Pursuit of Paid Parental Leave: How the United States Has Disadvantaged Working Families, 53 U. Rich. L. Rev. Online 33 (2019).
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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.
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* 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.
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.
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* 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.
Diane Mickelson *
When Congress introduced the U visa in 2000, it intended to create a program that not only protected immigrant victims of domestic violence from deportation, but also strengthened law enforcement’s ability to investigate crimes and encouraged victims to report the abuse. Traditionally, immigrant victims are particularly vulnerable to domestic violence and have been provided with few options to leave the relationship without risking their immigration status. However, while the U visa provides immigration protections to broad categories of victims, it contains a unique “helpfulness” requirement that compels victims to continually cooperate with law enforcement in order to receive the necessary certification. This requirement alone is not contradictory to the goals of the U visa, but particular problems arise in jurisdictions with no-drop prosecution policies. No-drop prosecution policies remove the ability of victims to request that their cases be dropped and the discretion of prosecutors to drop cases unless there is a clear lack of evidence. In these jurisdictions, if immigrant victims cease cooperation, they lose their eligibility to receive a U visa. However, where sufficient evidence exists, the case will continue to be tried and could result in the victim’s deportation along with her abuser. Therefore, to further the goals of the U visa, I recommend adopting the evidence-based standard of no-drop prosecution policies for the certification requirement in place of the current cooperation-based standard.
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* J.D. Candidate 2020, University of Richmond School of Law; B.S., 2013, Furman University. I would like to thank Professor Margaret Ivey for her invaluable guidance and support throughout the writing process. I would also like to thank the University of Richmond Law Review staff and editors for helping prepare this article for publication. Lastly, I would like to thank my family for their input and support
