Lawrence Ponoroff*
The oxymoronically titled Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or “2005 amendments”) has received considerable attention since its passage, and considerably less than all of it is positive. By even a neutral account, the bill is clumsily drafted, unnecessarily prolix, internally inconsistent, and annealed in a cauldron of special interest pressures. The legislative history is scant and what does exist is less than altogether clear or helpful. Together, these factors have frequently rendered the traditional judicial function in application of the law; namely, ascertaining (or at least beginning by ascertaining) congressional intent, an exercise in futility. To say the least, it is difficult to discern that which, in all likelihood, does not and has never existed in a uniform or coherent fashion.
Nonetheless, since enactment of BAPCPA, courts have labored gamely to make sense of its provisions, which, in any number of instances, are inscrutably obscure, and seem to lack any inherently clear reason. Thoughtful commentators have undertaken to offer useful insight and analysis to help guide that effort. Overall, however, these efforts have fallen, and will continue to fall, short in relation to any number of provisions of BAPCPA. This is because they entail a stoic and estimable, but ultimately vain, attempt to interpret statutory text that is, in some instances, impenetrably vague or simply incomplete, or, in other instances, confounds essential bankruptcy policy. A coherent and intelligible expression of legislative intent that might have shed some light in the process is nowhere to be found. Although the competition is unquestionably stiff, in perhaps no substantive area of the field have these observations been truer than in the efforts to deconstruct and rationally apply the changes BAPCPA wrought on an area of commercial law and practice that was already embroiled in confusion and controversy; namely, sellers’ right of reclamation.
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*Samuel F. Fegtly Chair in Commercial Law, The University of Arizona James E. Rogers College of Law.
Ashley Peterson*
More than forty-three million adult Americans are cigarette smokers. Cigarette smoking accounts for 400,000 deaths annually—more than AIDS, alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes, and fires combined—making cigarettes the leading preventable cause of death in the United States. Tomorrow, approximately 4,000 children under the age of eighteen will experiment with cigarettes for the first time and another 1,500 will become regular smokers. Of those that smoke regularly, about half will eventually die from tobacco use. Tobacco-related illnesses in the United States alone cost approximately $193 billion each year in lost productivity and health care expenditures. These sobering statistics have encouraged public health officials and lawmakers to take drastic action designed to encourage smokers to quit and to prevent young adults from ever lighting up. The Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or “the Act”) and its implementing regulations promote the government’s anti-smoking agenda—at the expense of tobacco companies’ constitutionally protected free speech.
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*J.D. Candidate 2014, University of Richmond School of Law; M.T., 2006, B.A., 2005, University of Virginia.
Andrew P. Sherrod *
Jaime B. Wisegarver **
This article surveys recent significant developments in Virginia civil practice and procedure. The article discusses opinions of the Supreme Court of Virginia from June 2012 through June 2013 addressing civil procedure topics, significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period, and legislation enacted by the Virginia General Assembly during its 2013 session that relates to civil practice.
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Laurence V. Parker, Jr. *
In the 2011 session, the Virginia General Assembly passed House Bill 2358, Benefit Corporations, to be codified as article 22 (the “Benefit Corporations Article”) of the Virginia Stock Corporation Act (“VSCA”). The Benefit Corporations Article is largely based on legislation prepared in other states and allows a Virginia corporation to elect in its articles of incorporation to be treated as a “benefit corporation.” These for-profit corporations are required to pursue not only profitability but also a general public benefit and, if one so elects, one or more specific public benefits. In Section II of this article, the author discusses the Benefit Corporations Article in detail. Section III examines some aspects of the Benefit Corporations Article for social entrepreneurs and practitioners to consider before making the benefit corporation election. In Section IV, the author asks whether practitioners and social entrepreneurs can achieve some of the same corporate governance objectives by private ordering without electing to be treated as benefit corporations. Finally, Section V concludes with some observations about the Benefit Corporations Article itself.
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* Partner, Williams Mullen, Richmond, Virginia; J.D., 2003, University of Richmond School of Law; M.B.A., 2003, The Robins School of Business, University of Richmond; B.A., 1995, University of Virginia.
Aaron Campbell*
Kathleen B. Martin**
D. Patrick Lacy, Jr.
Kathleen S. Mehfoud
Sharon K. Lieblich *
That the Court of Appeals of Virginia has reached its maturity is evident from the court’s recent decisions, which rarely break significant new ground. The last two years have seen the court mainly applying established principles in new contexts, and the most interesting cases tend to be the ones whose unusual facts make them stand out. Consider, for example, L.F. v. Breit, in which a mother who had acknowledged the paternity of the biological father of her child argued—unsuccessfully—that because they had used in vitro fertilization the father had no parental rights. At the other end of the spectrum are the many cases that do not even reach the merits because of some procedural failing on the part of the appealing party, such as not preserving the issue for appeal or failing to include the issue in the opening brief.
The General Assembly and court of appeals have attempted to dig out of the hole created by the decision in Hoy v. Hoy by amending Virginia Code section 20-113 to give Virginia courts the authority to enter a qualified domestic relations order (“QDRO”) or other order enforcing a support order and attaching any pension, profit-sharing, or deferred compensation plan as permitted by the Internal Revenue Code or other federal law. But there seems to be no escape from the rule that the designation of a beneficiary of federal life insurance prevails over all legislative efforts to require the beneficiary to convey the proceeds to the widow of the deceased.
The court of appeals continues to issue mostly unpublished decisions, many of which seem appropriate for publication. Sometimes an unpublished decision will address a legal issue of first impression, and even if the facts are quite unusual, it seems unduly reticent of the court not to publish the case.
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Craig D. Bell
J. William Gray, Jr.*
Katherine E. Ramsey**
Although meeting in short session, the 2013 Virginia General Assembly produced an unusually large number of new laws affecting wills, trusts, and estates. Among the nine legislative enactments were those that (1) enabled a real property owner to designate in a revocable deed those who will take the property upon the owner’s death, (2) authorized members of a Virginia limited liability company to permit the transfer of both their economic interests and their management interests in the company when assigning membership, (3) imposed possible criminal penalties on anyone who financially exploits a mentally incapacitated person, (4) confirmed and clarified the effect of Virginia’s statutory exception to the Rule Against Perpetuities for personal property, (5) expanded the category of trustees whose discretionary distribution powers are limited to an ascertainable standard by default, (6) permitted the personal representative of a deceased minor child to access the child’s online accounts, and (7) required anyone seeking court permission to exhume a dead body in order to establish inheritance rights to first cite sufficient facts to establish a reasonable possibility that the claimed biological relationship exists. In addition, June 1, 2013 marked the end of a twelve-month period during which the Supreme Court of Virginia issued five noteworthy opinions. The Supreme Court of the United States rounded out a busy year in the field with an opinion on June 3, 2013.
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* Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.
The Honorable Stephen R. McCullough
