The Honorable Marla Graff Decker *
In every attorney’s career, there is likely to be a time when that attorney believes that a judge or jury erred in a decision that negatively impacts his or her client. Virginia has a specific set of laws and rules that guide attorneys through the appellate process and provide for appropriate review of these legal challenges.
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* Judge, Court of Appeals of Virginia. J.D., 1983, University of Richmond School of Law; B.S., 1980, Gettysburg College. Prior to the author’s appointment to the Court of Appeals of Virginia, she served as Assistant Attorney General for the Commonwealth of Virginia in the Criminal Litigation Section. Judge Decker is also an Adjunct Professor for the University of Richmond School of Law.
The Honorable Beverly Snukals *
Maggie Bowman **
On November 25, 2013, following one of the closest races in Virginia history, the Virginia State Board of Elections (the “SBE”) certified Democratic State Senator Mark Herring as the winner of the 2013 race for the office of Attorney General of Virginia by a record few 165 votes, less than one-hundredth of a percent of the votes cast.[1] Two days later, Herring’s opponent, Republican State Senator Mark Obenshain, filed a petition in the Richmond City Circuit Court of Richmond seeking a recount of the election pursuant to Virginia Code section 24.2-801.[2] Within a few short days, each party filed hundreds of pages of pleadings and memoranda. Hearings had to be held and orders had to be endorsed.
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* Judge of the Richmond City Circuit Court. J.D., 1981, University of Richmond School of Law; B.A., 1978, Hollins College.
** J.D., 2013, University of Richmond School of Law; B.S., 2008, Virginia Tech; Law Clerk, 2013–14, Hon. Beverly W. Snukals & Bradley B. Cavedo in the Circuit Court of the City of Richmond.
[1]. Laura Vozzella & Ben Pershing, Obenshain Concedes Virginia Attorney General’s Race to Herring, Wash. Post (Dec. 18, 2013), http://www.washingtonpost.com/local/virgin ia-politics/obenshain-to-concede-virginia-attorney-generals-race-on-wednesday-in-richmon d/2013/12/18/fe85a31c-67e7-11e3-8b5b-a77187b716a3_story.html.
[2]. See Ben Pershing, Obenshain Camp Asks for Recount in Va. Attorney General’s Race Against Herring, Wash. Post (Nov. 27, 2013), http://www.washingtonpost.com/local/ virginia-politics/obenshain-camp-asks-for-recount-in-va-attorney-generals-race-against-herring/2013/11/27/c5e33aa6-577a-11e3-ba82-16ed03681809_story.html; see Va. Code Ann. § 24.2-801 (Repl. Vol. 2011).
Stephanie Martinez *
Without advanced planning, minority shareholders in a closely held corporation can find themselves in the unenviable position of being up a creek without a paddle. Minority shareholders often invest in a corporation with the belief that the investment will provide them with a steady stream of income, either from a job or from payment of dividends.[1] Yet many fail to protect themselves with employment contracts or buy-sell agreements,[2] leaving them vulnerable to a majority shareholder who may decide to fire them or withhold dividends.[3] Without a source of income, a minority shareholder can face an indefinite period when there is no return on his or her investment.[4]
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* J.D., 2014, University of Richmond School of Law; B.A., 2010, James Madison University. A special thank you to Professor Jessica Erickson, who never seemed to tire of my constant questions and office visits. I am also deeply indebted to the staff of the University of Richmond Law Review, who spent countless hours, during the summer no less, working on this comment. Finally, I would like to thank my friends and family, and especially my husband Jonathan, for their support and encouragement.
[1]. See Robert B. Thompson, The Shareholder’s Cause of Action for Oppression, 48 Bus. Law. 699, 702 (1993).
[2]. See Michael K. Molitor, Eat Your Vegetables (Or At Least Understand Why You Should): Can Better Warning and Education of Prospective Minority Owners Reduce Oppression in Closely Held Businesses?, 14 Fordham J. Corp. & Fin. L. 491, 495–96 (2009).
[3]. Thompson, supra note 1, at 703.
[4]. Id.
Kendall Hamilton *
“Truly humane societies are those . . . that have decided to begin the long march down the road toward the abolition of violence . . . . [and] every once in a while, stop along the way to take stock, and then decide to continue.”[1]
Our criminal justice system rests upon the fundamental notion that a defendant’s punishment will match her level of culpability.[2] In other words, the defendant should be a “fair candidate for punishment.”[3] Accordingly, when punishment outweighs culpability, effectively over-punishing a defendant, the legitimacy of our criminal justice system erodes because the system in which we have bestowed our trust has not produced a fair candidate for punishment. The intersection between Virginia’s self-defense laws and the realities surrounding domestic violence demonstrate this over-punishment problem.
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* J.D., 2014, University of Richmond School of Law; B.A., 2007, Johns Hopkins University. Thank you to my family for their support before, during, and after law school. Their continued guidance and encouragement is truly invaluable. Special thanks to Professor Tate for helping develop this comment in the early stages, and to Jonathan Tan and Samantha Fant for encouraging me to take the final steps towards its completion. Lastly, thank you to Tara Badawy and the University of Richmond Law Review’s editors and staff for their hard work throughout this process.
[1]. Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 15 (1989) [hereinafter Walker, Terrifying Love].
[2]. See Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 445 (2005) (“Notice that we refer to the absence of culpability in cases in which a person is not a fair candidate for punishment . . . . In contrast, in cases in which fault is at issue, we talk not only about the absence of culpability, but also—on the positive side, so to speak—about the varying degrees of culpability.”).
[3]. Id.; see also Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 Colum. L. Rev. 1233, 1241 (2005) (“Herbert Wechsler, Paul Tappan, and Louis Schwartz, . . . developed the Model Penal Code . . . [and] understood the Kantian argument that respect for offenders’ moral autonomy requires that they be punished in proportion to the seriousness of their crimes.”). This comment recognizes that legal scholars disagree as to the exact theory of punishment to be utilized, but despite such disagreement, most are still interested in incorporating a theory of punishment that is fair; namely, a punishment that is “politically legitimate, morally just, or otherwise institutionally necessary.” Marc O. DeGirolami, Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, 9 Ohio St. J. Crim. L. 699, 706 (2012).
Anne E. Mullins*
“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.”
As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.
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*Assistant Professor, University of North Dakota School of Law. J.D., University of Chicago School of Law; A.B., Dartmouth College. I would like to extend special thanks to David Bell, Xinmei Zhang and Yongge Dai Professor at the Wharton School of the University of Pennsylvania, for introducing me to psychological influence tactics in business marketing, and to Dr. Robert Cialdini’s exceptional work in the field. I thank Suzanne Rowe, Jen Reynolds, Anne Enquist, Michael Higdon, Lucy Jewel, Michael Sackey, Suparna Malempati, Cindy Archer, Emily Grant, and Tim Kelley for their thoughtful feedback. I also thank the Association of Legal Writing Directors for their Scholars’ Forum and Scholars’ Workshop; both were critical to the development of this article. Finally, I thank Meg Kirschnick, Chris MacMillan, Dawn Jagger, Anna Makowski, and Caitlin Kelly Engle for their outstanding research assistance and feedback.
Stacey A. Tovino*
Imagine a forty-year-old woman who has been diagnosed with stage IV colorectal cancer and who has less than a ten percent chance of living five years from the date of her diagnosis. The woman’s physician, who specializes in oncology and practices at a hospital affiliated with a major academic medical center, recommends a combination of surgery, chemotherapy, and radiation to treat the woman’s cancer. This article addresses the permissible scope of uses and disclosures of the woman’s individually identifiable health information that may be made by the hospital and the physician for the purpose of attempting to raise funds for the hospital’s own benefit.
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*Lincy Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Ph.D., University of Texas Medical Branch; J.D., University of Houston Law Center; B.A., Tulane University. I thank Nancy Rapoport, Interim Dean, and Daniel Hamilton, Dean, William S. Boyd School of Law, for their financial support of this research project. I also thank William J. Winslade (James Wade Rockwell Professor of Medicine, University of Texas Medical Branch) for his comments on an earlier presentation of this article, and Jeanne Price (Director, Wiener-Rogers Law Library), Chad Schatzle (Student Services Librarian, Wiener-Rogers Law Library), Jennifer Gross (Reference and Collection Management Librarian, Wiener-Rogers Law Library), Bryn Esplin (3L and President, Health Law Society, Boyd School of Law), and Danny Gobaud (3L, Boyd School of Law) for their outstanding assistance in locating many of the sources referenced in this article. I further thank the participants of the 66th Annual Meeting of the Southeastern Association of Law Schools in Palm Beach, Florida, for their helpful comments and suggestions on earlier presentations and versions of this article.
Anders Walker*
Behind police brutality there is social brutality, economic brutality, and political brutality. — Eldridge Cleaver
Few issues in American criminal justice have proven more toxic to police/community relations than stop and frisk. To take just one example, federal judge Shira Scheindlin recently declared that stops lacking “individualized reasonable suspicion” had become so “pervasive and persistent” in New York City that they not only reflected “standard [police] procedure,” but had become “a fact of daily life” for minority residents. Scheindlin promptly ordered “immediate changes to the NYPD’s policies,” meanwhile recalling the Supreme Court’s observation in Terry v. Ohio that “the degree of community resentment” caused by a particular police practice could influence judicial “assessment” of that practice.
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*Professor, Saint Louis University School of Law; Ph.D, 2003, Yale University; J.D., 1998, Duke University; B.A., 1994, Wesleyan University. I would like to thank Tracey Meares, David Sklansky, Jeffrey Fagan, Devon Carbado, Darryl K. Brown, Kami Chavis Simmons, Scott Sundby, Arnold Loewy, Eric J. Miller, and Joel Goldstein for input on this piece. I would also like to thank Adina Schwartz, Dorothy Schultz, and the members of the John Jay College of Criminal Justice faculty for early conversations on this topic, including insight into the role that riots played in the development of a Humanities curriculum for the New York City Police Department.
Mary Ziegler*
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance. This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.
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*Assistant Professor, Florida State University College of Law. J.D., 2007, Harvard Law School; B.A., 2004, Harvard College. Professor Ziegler would like to thank Beth Burkstrand-Reid, Caroline Corbin, Jaime King, Maya Manian, Rachel Rebouché, and Tracy Thomas for sharing their thoughts on earlier drafts of this piece.
Nick Dantonio
People smoke to get a buzz. Plain and simple. Every time a person decides to smoke a cigarette they make a personal costbenefit decision. The benefits of smoking often include improved concentration and mood as well as providing sedative and euphoric effects. On the other hand, the costs of smoking traditional, combustible cigarettes are quite high. The adverse effects of smoking combustible cigarettes have become common knowledge over the past fifty years, beginning with the required warnings on cigarette packs in the 1960s, as countless studies have affirmed the link between cigarette smoking and a seemingly endless list of negative health effects.
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Paul Holdsworth
Long before President John F. Kennedy famously proclaimed the United States of America a “nation of immigrants,” the Statue of Liberty stood above New York Harbor as a beacon of our nation’s historically rich immigrant background. Since 1886, Lady Liberty has triumphantly posed as a proud symbol of freedom, refuge, and opportunity. At the base of her iconic pose, Emma Lazarus’ immortal poem poignantly calls for the world’s tired and poor, and exhorts them to enter by the “golden door.” Americana symbolism aside, this exhortation has proven quite paradoxical. Immigration has provided our country with unquestionable cultural richness, yet, at times, the country’s treatment of immigrants has contradicted fundamental notions of fairness and decency.
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