Brian M. Murray *
Jason Lawson[1] is a twenty-five-year-old African American male with a criminal record.[2] He is currently unemployed despite possessing a high school diploma and an associate’s degree from a local, urban community college, which is more higher education than the vast majority of his neighbors.[3] He plans to earn his bachelor’s degree in the evening once he finds steady employment.
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* Abraham Freedman Fellow and Lecturer-in-Law, Temple University, Beasley School of Law; J.D., 2011, magna cum laude, Notre Dame Law School; B.A., 2008, Philosophy and Political Science, summa cum laude, Villanova University. I would like to express my gratitude for the comments of Professor Rick Greenstein and Professor Jennifer Mason McAward while drafting this article. I also would like to extend a heartfelt thank you to my wife, Katherine, for her unyielding support, my daughter Elizabeth, for her inspiring wonder and curiosity in all things, and my entire family, for their unconditional love, continuous patience, and enduring encouragement.
[1]. The following account is a fictional scenario based on the author’s experience as a practicing attorney in both the criminal defense and employment law contexts.
[2]. Mr. Lawson, as an African American male, is sadly somewhat average when it comes to his criminal record. Statistics indicate that disproportionate shares of African American males have some type of criminal record, whether that means a conviction or an arrest record. See Thomas P. Bonczar, Bureau of Just. Stats., U.S. Dep’t of Just., NCJ 197976, Prevalence of Imprisonment in the U.S. Population, 1974–2001, 5–6 (Aug. 2003), available at http://www.bjs.gov/content/pub/pdf/piusp01.pdf. See generally Erica Goode, Many in U.S. Are Arrested by Age 23, Study Finds, N.Y. Times, Dec. 19, 2011, at A16 (noting 30.2% of twenty-three-year-olds surveyed reported having been arrested for “an offense other than a minor traffic violation,” compared to 22% who made a similar report in a 1965 study). This has caused the Equal Employment Opportunity Commission (“EEOC”) to conclude that some employment practices may have a disparate impact on African Americans and Latinos. EEOC Guidance No. 915.002, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012) [hereinafter EEOC, Guidance], available at http: //www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
[3]. Only roughly 20% of African Americans over twenty-five possessed a college degree as of 2010. U.S. Census Bureau, Statistical Abstract of the United States: 2012 151 tbl.229 (2012), available at http://www.census.gov/compendia/statab/2012/tables /12s0229.pdf (statistic under the table titled, “Educational Attainment by Race and Hispanic Origin: 1970 to 2010”).
Carl Tobias *
Marriage equality is sweeping the United States. Across 2014, numerous federal circuit and district court judges throughout America invalidated state constitutional bans or legislative restrictions which proscribe same-sex marriage. Accordingly, it was predictable that Judge Wright Allen of the United States District Court for the Eastern District of Virginia would rule that Virginia’s prohibitions were unconstitutional and enjoin their enforcement on February 13,[1] even as the jurist stayed her decision.[2] Marriage equality in Virginia comprises a significant legal issue and has telling effects on numerous people, but its status remained less than clear until recently. Marriage equality in the jurisdiction deserves analysis, which this piece undertakes.
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* Williams Chair in Law, University of Richmond School of Law. I wish to thank Peggy Sanner for exceptional ideas, Thomas DiStanislao and Katie Lehnen for valuable research, Leslee Stone for excellent processing, and Russell Williams and the Hunton Williams Summer Endowment Fund for generous, continuing support. Remaining errors are mine.
[1]. Bostic v. Rainey, 970 F. Supp. 2d 456, 483–85 (E.D. Va. 2014); see Robert Barnes, Federal Judge Strikes Down Va. Ban on Gay Marriage, Wash. Post (Feb. 14, 2014), http:// www.washingtonpost.com/politics/federal-judge-strikes-down-va-ban-on-gay-marriage/201 4/02/13/c65b7674-9528-11e3-83b9-1f024193bb84_story.html?hpid=z1.
[2]. Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va. 2014).
Benjamin D. Johnson *
In 1973, Jack Nilles, a researcher with the University of Southern California, coined the term “teleworking.”[1] His idea was to create a more flexible communication system for employees, reduce the need for transportation, and ultimately decentralize the traditional workplace.[2] Six years later, Marvin Minsky, a professor at the Massachusetts Institute of Technology (“MIT”), first used the term “telepresence.”[3] Minsky sought to create a phenomenon whereby people could use technology to replicate their presence in an environment where they were not physically present.[4]
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* J.D. Candidate, 2016, University of Richmond School of Law. A.B., 2012, University of Georgia. I would like to thank the University of Richmond Law Review editorial staff for their diligent work that made this article possible. I would also like to thank my parents and my sister who each helped to instill in me a love for writing and are a constant source of encouragement in all of my pursuits. Finally, I would like to thank my wife, Sarah, whose unwavering love and support keeps me motivated daily.
[1]. Biography of Jack Nilles, JALA Int’l, http://www.jala.com/jnmbio.php (last modified Sept. 26, 2011).
[2]. See Jennifer Mears, Father of Telecommuting Jack Nilles Says Security, Managing Remote Workers Remain Big Hurdles, Network World (May 15, 2007, 1:00 AM), http://www.networkworld.com/article/2299251/computers/father-of-telecommuting-jack-nilles-says-security–managing-remote-workers-remain-big-hurd.html (quoting Jack Nilles’ initial thoughts about telecommuting and his perceptions on how his ideas contrasted with those of the “business world”).
[3]. Wijnand A. IJsselsteijn, History of Telepresence, in 3D Videocommunication: Algorithms, Concepts, and Real-Time Systems in Human Centred Communication 7, 7 (Oliver Schreer, Peter Kauff & Thomas Sikora eds., 2005).
[4]. See id. (“[Telepresence] refers to the phenomenon that a human operator develops a sense of being physically present at a remote location through interaction with the system’s human interface, that is, through the user’s actions and the subsequent perceptual feedback he/she receives via the appropriate teleoperation technology.”).
Christopher M. Keegan *
The United States of America is a nuclear nation. Despite individuals and organizations opposed to nuclear energy,[1] the reality is that nuclear power is an integral part of our nation and world.[2] In the United States specifically, nuclear power plays a vital role. Just less than 20% of the electricity produced in the United States comes from nuclear power.[3] Sixty-one commercial nuclear power plants currently operate in thirty states.[4] Furthermore, nuclear power is the most abundant clean energy source, accounting for roughly 60% of the non-fossil fuel electricity generated in the United States.[5] Additionally, the United States Navy is built around nuclear energy. As of 2009, approximately 45% of the Navy’s ships were nuclear powered, with 103 reactors powering eleven aircraft carriers and seventy-one submarines.[6]
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* J.D. Candidate, 2016, University of Richmond School of Law. M.E.M., 2013, Old Dominion University; B.S., 2007, United States Naval Academy. I must express my extreme gratitude to Casey, for years of listening to me talk about nuclear power. Thank you also to the University of Richmond Law Review’s editors and staff whose tireless and thankless work has made this comment possible.
[1]. See generally Karl S. Coplan, The Externalities of Nuclear Power: First, Assume We Have a Can Opener . . . , 35 Ecology L. Currents 17 (2008) (arguing that the benefits of nuclear power are not worth the long term impacts of nuclear energy production).
[2]. See Alex Funk & Benjamin K. Sovacool, Wasted Opportunities: Resolving the Impasse in United States Nuclear Waste Policy, 34 Energy L.J. 113, 114 (2013) (stating that nuclear power accounts for 13.5% of the world’s electricity).
[3]. Nuclear Explained, U.S. Energy Info. Admin., http://www.eia.gov/energyexplain ed/index.cfm?page=nuclear_home#tab2 (last updated Sept. 8, 2014).
[4]. How Many Nuclear Power Plants Are in the United States, and Where Are They Located?, Frequently Asked Questions, U.S. Energy Info. Admin., http://www.eia.gov/ tools/faqs/faq/cfm?id=207&t=3 (last updated Jan. 22, 2015); see also Nuclear Power in the USA, World Nuclear Ass’n, http://www.world-nuclear.org/info/Country-Profiles/Count ries-T-Z/USA-Nuclear–Power/ (last updated Feb. 2015).
[5]. See What Is U.S. Electricity Generation by Energy Source?, U.S. Energy Info. Admin., http://www.eia.gov/tools/faqs/faq.cfm?id=427&t=3 (last updated June 13, 2014) (stating that 67% of electricity in the United States is generated by fossil fuels and 19% by nuclear; therefore, nuclear energy accounts for 57% of the remaining 33% of energy not generated by fossil fuels).
[6]. U.S. Dep’t of Energy & U.S. Dep’t of the Navy, The United States Naval Nuclear Propulsion Program 1 (2009).
Brockenbrough A. Lamb *
One day in the fall of 2011, a man unrolled a blanket on a sidewalk by Central Park, laid out multiple copies of a book, and started selling them for forty dollars apiece.[1] The man was the notorious appropriation artist Richard Prince, and the books for sale were near-duplicates of an early edition of The Catcher in the Rye by J.D. Salinger.[2] They were “near-duplicates” for one very obvious reason: on the dustcover, title page, and copyright page, Prince’s name appeared in place of Salinger’s.[3] As it turns out, these books were part of Prince’s latest art project—500 meticulously constructed copies of The Catcher in the Rye using thick, high quality paper meant to mimic the 1951 original, the same cover art as the original, and most astonishingly, the same text as the original (in its entirety).[4]
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* J.D. Candidate, 2016, University of Richmond School of Law. B.A., 2000, Wake Forest University. I would like thank the authors Roland Barthes, Jorge Luis Borges, J.D. Salinger, and Richard Prince for their inestimable contributions to culture. I would also like to thank the staff and editors of the University of Richmond Law Review for their work on this comment. Finally, I am especially thankful for the support and encouragement of three loved ones, who happen to be attorneys: my wife, Elizabeth Anne Ridler Lamb; my father, Robert Henley Lamb; and my sister Hampton Breckinridge Lamb.
[1]. See Kenneth Goldsmith, Richard Prince’s Latest Act of Appropriation: The Catcher in the Rye, Poetry Found. (Apr. 19, 2012), http://www.poetryfoundation.org/harriet/ 2012/04/richard-princes-latest-act-of-appropriation-the-catcher-in-the-rye/.
[2]. Several articles have referred to the Richard Prince versions as duplicates of the first edition (and not only an early edition) of The Catcher in the Rye by J. D. Salinger. See, e.g., id.; Thomas Hawk, Richard Prince on Appropriating “The Catcher in the Rye”, Thomas Hawk’s Digital Connection (June 17, 2013, 12:59 PM), http://thomashawk. com/2013/06/richard-prince-on-appropriating-the-catcher-in-the-rye.html. For a variety of bibliographic reasons this is incorrect. For instance, true first editions of The Catcher in the Rye had a photograph of J.D. Salinger on the rear panel of the dust jacket. First Edition Criteria and Points to Identify The Catcher in the Rye by J.D. Salinger, FEDPO.com, http://www.fedpo.com/BookDetail.php?bk=213 (last visited Apr. 3, 2015). In later printings this feature was dropped. Michael Lieberman, Richard Prince: Book Pirate?, Book Patrol (Apr. 23, 2012), http://bookpatrol.net/richard-prince-book-pirate/. The Prince copies have a blank rear panel. See id. (noting that Prince’s version used the second issue dust jacket which lacks J.D. Salinger’s photo).
[3]. Goldsmith, supra note 1.
[4]. See Hawk, supra note 2.
Steven W. Lippman *
A major issue in today’s corporate landscape is the growth of shareholder litigation. The typical types of claims brought by shareholders are derivative claims and class action claims. Specifically, derivative claims aimed at merger transactions were filed in over 90% of corporate mergers and acquisitions valued at $100 million since 2010.[1] As for securities class action claims—the topic of this comment—there have been an average of 191 filings per year since 1997.[2] Of the 166 securities class action claims in 2013, 84% involved Rule 10b-5 claims.[3] Claims alleging a violation of Section 10(b) of the Securities and Exchange Act of 1934 contend that the company made fraudulent misstatements or omissions that violate federal securities laws.[4] The ability to bring class action suits has its foundation in both statutory regimes and common law principles.[5]
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* J.D. Candidate 2016, University of Richmond School of Law. B.B.A., 2012, James Madison University. I am forever grateful for the love and support from my parents and my grandmother, Irene Lippman. I would like to thank the editors and staff of the University of Richmond Law Review for their hard work in making this publication possible.
[1]. Lisa A. Rickard, Delaware Flirts with Encouraging Shareholder Lawsuits, Wall St. J. (Nov. 14, 2014), http://www.wsj.com/articles/lisa-rickard-delaware-flirts-with-encour aging-shareholder-lawsuits-1416005328.
[2]. Cornerstone Research, Securities Class Action Filings—2013 Year in Review 1 (2014), available at https://www.cornerstone.com/GetAttachment/d88bd527-25b5-4c54-8d40-2b13da0d0779/Securities-Class-Action-Filings-2013-Year-in-Review.pdf. While there has been a decline in the number of filings in recent years, there was an increase in the number of filings from 2012 to 2013. Id.
[3]. Id. at 1, 7.
[4]. 15 U.S.C. § 78j(b) (2012).
[5]. Class Action: An Overview, Legal Info. Inst., https://www.law.cornell.edu/wex/ class_action (last visited Apr. 3, 2015).
The University of Richmond Law Review had a very successful Allen Chair Symposium this academic year, titled, “Lethal Injection, Politics, and the Future of the Death Penalty.” The Symposium featured a keynote address from Professor Stephen B. Bright, President and Senior Counsel for the Southern Center for Human Rights and professor at the Yale School of Law, as well as incredible panels comprised of nationally renowned death penalty scholars, practitioners, doctors, politicians, and journalists. Through the subsequent months of hard work, the Law Review proudly presents the corresponding Allen Chair Issue. This, Volume 49’s third issue, is sure to be a great source for all things related to this controversial and important topic. We encourage all to read these articles and allow them to shed some unique light on the issue of the death penalty in American society and jurisprudence.
Professor Stephen Bright was our keynote speaker at the Allen Chair Symposium. His thought-provoking piece, largely developed from his address, is titled, “The Role of Race, Poverty, Intellectual Disability, and Mental Illness in the Decline of the Death Penalty.” Its citation is 49 U. Rich. L. Rev. 671 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Bright-493.pdf
Students Sheherezade Malik (Executive Editor, Volume 49) and Paul Holdsworth (Editor-in-Chief, Volume 49) then lay a foundation for the rest of the pieces of the Allen Chair Issue with “A Survey of the History of the Death Penalty in the United States.” This contribution’s citation is 49 U. Rich. L. Rev. 693 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/History-493.pdf
THE DEATH PENALTY AND LETHAL INJECTION
Doctor Joel Zivot of the Emory School of Medicine & Emory University Hospital provides an unprecedented analysis of lethal injection from the medical perspective. His contributions to the panel were incredibly insightful, and this piece is sure to be a “game-changer” in legal academia as well. His contribution is titled, “Lethal Injection: States Medicalize Execution.” Its citation is 49 U. Rich. L. Rev. 711 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Zivot-493.pdf
Professor Eric Berger then offers a compelling reflection on states’ execution procedures and their possible constitutional implications titled, “The Executioners’ Dilemmas.” Its citation is 49 U. Rich. L. Rev. 731 (2015), and it is available at http://lawreview.richmond.edu/files/2015/04/Berger-493.pdf
Distinguished Richmond journalist Frank Green sheds his expertise and reflections on having covered Virginia executions since 1982. His contribution is titled, “Witnessing Executions.” Its citation is 49 U. Rich. L. Rev. 763 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Green-493.pdf
Second-year law student, and Editor-in-Chief-elect, Thomas DiStanislao offers a compelling proposal for Virginia to return to the firing squad in lieu of the recent complications with lethal injection. His comment is titled, “A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as Its Primary Method of Execution.” Its citation is 49 U. Rich. L. Rev. 779 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/DiStanislao-493.pdf
THE SHIFTING POLITICS OF THE DEATH PENALTY
Former Attorney General Mark Earley shifts the Issue’s focus to political and policy analysis. His contribution, titled, “A Pink Cadillac, An IQ of 63, and a Fourteen-Year-Old From South Carolina: Why I Can No Longer Support the Death Penalty” is an interesting reflection about how Mr. Earley’s views and opinions of the death penalty have evolved throughout and following his political career. It can be cited at 49 U. Rich. L. Rev. 811 (2015) and is available at http://lawreview.richmond.edu/files/2015/04/Earley-493.pdf
Professor Corinna Lain, without whose generosity and ideas the Allen Chair Symposium and Issue would not have been possible, offers a piece that highlights and analyzes 2014’s string of botched executions, and their various legal and societal implications. Her contribution is titled, “The Politics of Botched Executions.” The piece’s citation is 49 U. Rich. L. Rev. 825 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Lain-493.pdf
Following Professor Lain’s piece, Notre Dame law professor Stephen Smith, urges caution in declaring that the demise of the death penalty has been realized. While many recent developments have certainly called into question the future of America’s death penalty, there is much more to do. Professor Smith’s piece is titled, “Has the ‘Machinery of Death’ Become a Clunker?” Its citation is 49 U. Rich. L. Rev. 845 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Smith-493.pdf
THE FUTURE OF THE DEATH PENALTY
Richmond Law’s esteemed professor and former Dean, John G. Douglass, shifts the Issue’s focus to the future of the death penalty. Professor Douglass’ contribution tackles the issue of plea bargaining in Virginia death penalty cases. His essay is titled, “Death As a Bargaining Chip: Plea Bargaining and the Future of Virginia’s Death Penalty.” It can be cited at 49 U. Rich. L. Rev. 873 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Douglass-493.pdf
Professor Brandon Garrett, from the University of Virginia School of Law, then offers his contribution by analyzing interrogation policies in the Commonwealth of Virginia and proposing that such policies are in need of a major overhaul. Professor Garret’s piece, “Interrogation Policies” can be cited at 49 U. Rich. L. Rev. 895 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Garrett-493.pdf
Next, Richard Dieter, the Executive Director of the Death Penalty Information Center, discusses the trajectory of the death penalty in the United States. His piece, appropriately titled, “The Future of the Death Penalty in the United States” can be cited at 49 U. Rich. L. Rev. 921 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Dieter-493.pdf
Professor Mary Tate, the Director of the University of Richmond School of Law’s Institute for Actual Innocence, reflects on the inherent arbitrariness of doctrinal developments, public policy, and societal mood in death penalty outcomes. Professor Tate does so through reexamining the case of Tommy David Strickler, an indigent Virginia man executed in 1999. Her piece is titled, “Temporal Abritrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial.” Its citation is 49 U. Rich. L. Rev. 939 (2015), and is available at http://lawreview.richmond.edu/files/2015/04/Tate-493.pdf
Student Ann Reid, the Law Review’s Lead Articles Editor-elect, rounds out the Allen Chair 2015 Issue with an innovative proposal of narrowing capital eligibility in the aftermath of 2014’s botched execution and the controversial atmosphere surrounding death penalty sentiment. Her comment, “Making Sure We Are Getting It Right: Repairing ‘The Machinery of Death’ by Narrowing Capital Eligibility” can be cited at 49 U. Rich. L. Rev. 967 (2015). It is available at http://lawreview.richmond.edu/files/2015/04/Reid-493.pdf
POSTSCRIPT
In a unique postscript, Leah Stiegler, the Allen Chair Editor for Volume 49, interviewed an inmate on death row in California. This brief exchange serves to provides readers with a glimpse into one death row inmate’s views on the death penalty, lethal injection, and the criminal justice system. It is available at http://lawreview.richmond.edu/files/2015/04/Cruz-Update.pdf
ACKNOWLEDGMENTS
Please also read the Acknowledgments from Leah Stiegler, the Allen Chair Editor: http://lawreview.richmond.edu/files/2015/04/Ack.pdf
Stephen B. Bright *
Capital punishment is a difficult and sensitive topic because it involves terrible tragedies, the murder of innocent people, loss and suffering, and the passions of the moment. It is used in only a very small percentage of cases in which it could be imposed and is currently in decline. Six states have recently abandoned it, and the number of death sentences imposed in the country decreased from over 300 per year in the mid-1990s to less than eighty in the last several years.[1] And so it is appropriate for us to ask whether death remains an appropriate punishment in a modern society, whether it is fairly carried out without race and poverty influencing who dies, and whether it is imposed only upon the most incorrigible offenders who commit the most heinous crimes.
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* President and Senior Counsel, Southern Center for Human Rights, Atlanta, Georgia; Harvey Karp Visiting Lecturer, Yale Law School. The author’s curriculum vitae and publications are available at www.law.yale.edu/faculty/SBright.htm.
This essay was adapted from the keynote address given at Allen Chair Symposium, on October 24, 2014, at the University of Richmond School of Law. Parts of this essay and speech have been previously presented by Professor Bright, including at the United Nations Headquarters on April 24, 2014.
[1]. Death Penalty Trends, Amnesty Int’l, http://www.amnestyusa.org/our-work/issu es/death-penalty/us-death-penalty-facts/death-penalty-trends (last visited Feb. 27, 2015).
Sheherezade C. Malik *
Paul Holdsworth **
Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.
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* J.D. Candidate 2015, University of Richmond School of Law. B.A., 2012, University of Pennsylvania. I would like to thank the University of Richmond Law Review staff and editors for their assistance in the multiple drafts of this article. I would also like to thank Haven Ogbagiorgis for her valuable feedback and support throughout the writing process. Most importantly, I would like to thank my family—my brother, Ehsan, and my parents, Muneer and Victoria Malik—for their unstinted support and unconditional love, and for making my dreams their own.
** J.D. Candidate 2015, University of Richmond School of Law. B.A., 2012, Brigham Young University. I would like to thank the entire staff of the University of Richmond Law Reveiw for their work on this essay, and for making this year’s Allen Chair Symposium and Issue a success. Of course, every personal acheivement in my life would not be possible without the unwavering support of my wife, Claire.
Joel B. Zivot, MD *
In Baze v. Rees, the Supreme Court of the United States upheld the constitutionality of a method of lethal injection used for capital punishment.[1] The three-drug protocol referenced in Baze consisted of three chemicals injected into the condemned inmate via an intravenous drip.[2] The three-drug protocol began with sodium thiopental, followed by pancuronium bromide, and lastly, potassium chloride.[3] The claim that this lethal injection method would violate the Eighth Amendment’s ban on cruel and unusual punishment was made on behalf of two individuals, Ralph Baze and Thomas Bowling, both sentenced to death in Kentucky.[4]
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* Assistant Professor of Anesthesiology & Surgery, Medical Director of the Cardio-Thoracic Intensive Care Unit, Emory School of Medicine & Emory University Hospital. ABA, Anesthesiology/Critical Care Medicine, 1995, Cleveland Clinic Foundation; FRCP(C), Anesthesiology, 1993, University of Toronto; MD, 1988, University of Manitoba.
Thank you to the University of Richmond School of Law for giving me a forum to share my views on the problems of lethal injection. I want to especially thank Professor Corinna Barrett Lain, Tara Ann Badawy, Leah Stiegler, and the University of Richmond Law Review Allen Chair Symposium. Doctors have a unique perspective that has been mostly absent in law reviews and I hope my effort here will shed additional light on this important subject.
[1]. 553 U.S. 35, 47 (2008).
[2]. Id. at 44.
[3]. Id.
[4]. Id. at 46–47.
