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Biden, Bennet, and Bipartisan Federal Judicial Selection
Get PDFThe U.S. Constitution plainly assigns to the Senate the profound duties of rendering critical advice and consent related to all specific federal judicial nominees whom the President selects. The dynamic roles of senators who directly represent jurisdictions where vacant posts materialize have perennially been crucial to appropriately discharging these essential responsibilities. Senators identify excellent candidates—individuals who possess diversity in terms of ethnicity, gender, sexual orientation, independence, experience, and ideology, as well as the character and measured judicial temperament to be exceptional jurists—assemble complete applications, comprehensively review the prospects, and interview choices whom the senators duly recommend to the President. After the chief executive nominates aspirants, home state politicians must introduce nominees to their Senate colleagues and to the Judiciary Committee and must encourage plentiful upper chamber members to assiduously support the nominees proffered.
Colorado Democratic Senator Michael Bennet provides a superlative example for all of his colleagues from both sides of the political aisle, as he has astutely fulfilled those important responsibilities with diligence, expertise, nuanced comprehension of appointments’ compelling, albeit mixed histories, immense respect for candidates, nominees, and colleagues, and consummate grace over his years of extraordinary public service. Indeed, Bennet perceptively effectuated initiatives during the starting half term of President Joe Biden’s administration to enhance bipartisan collaboration when filling appeals court and trial court vacancies, which arise in Colorado as in much of the United States.
The concerted, powerful efforts of Senator Bennet and President Biden have carefully shattered previous records for appointing federal court jurists quantitatively and vis-à-vis the numerous valuable diversity parameters recounted above. Nevertheless, the selection process has yet to markedly improve and could even be deteriorating in a number of states, especially the many jurisdictions which two Grand Old Party (GOP) senators represent, as the chamber failure to appoint a single judge for any “red” state vacancy throughout President Biden’s initial seventeen months compellingly illustrates. On Capitol Hill, principally in the Senate, and effectively in certain geographic areas of the country, Democratic and Republican party accusations and countercharges, stunning partisanship, and striking politicization have created a counterproductive downward spiral which threatens to continue undermining the selection procedures while potentially undercutting public respect for those measures, the presidency, the Senate, the federal courts, and even the rule of law.
In fact, the current state of the appointments process apparently has become sufficiently problematic that Democratic Senator Richard Durbin (IL), the present Judiciary Committee Chair, and Republican Senator Lindsey Graham (SC), the current Ranking Member, caustically and cautiously admonished copious Democratic, Republican, and independent colleagues to expand bipartisanship throughout judicial appointments during the initial Biden nominee committee hearing and the panel’s first three Executive Business Meetings as well as numerous subsequent hearings and business meetings of the nascent 118th Congress. Because the Colorado process to appoint federal court jurists has apparently realized considerably greater success than in most of the nation, which may now be partially attributable to Senator Bennet’s prodigious court appointments work, the legislator’s endeavors deserve close review to ascertain whether cogent insights might actually be derived from Colorado’s experience that helpfully inform selection elsewhere. [..
A Wrong Turn with the Rights of Nature Movement
Get PDFEnvironmentalists have long dreamed of granting enforceable legal rights to nature, and their vision has recently become reality. Governments in the United States and abroad are enacting Rights of Nature laws, and many scholars have championed this burgeoning movement as one of the best hopes for preserving the environment.Legal rights for nature seem visionary, but policymakers and scholars are overlooking considerable problems with this approach. This Article spotlights these problems, including the vague and incoherent content of nature’s rights, the difficulty of defining the boundaries of natural entities, the absence of limiting principles for the rights, and the legislation’s lack of guidance for humans. Because the Rights of Nature movement relies on ad hoc litigation to enforce nebulous rights in court, it will likely lead to arbitrary and oppressive outcomes for humans while under-protecting nature. For these reasons, Rights of Nature is a wrong turn in environmental law and policy.While showing why the Rights of Nature project is likely to be ineffective and even unjust, this Article also examines possible reforms to make it palatable. I conclude that none of the reforms are workable. Rights of Nature offers a resonant battle cry for activists, but it is the wrong approach for addressing the global environmental crisis – and it could take us backward to a more polluted, degraded environment
Evidence Rules for Decarceration
Get PDFTwo observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration.While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial. This Essay examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state. It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals – without regard for the truth, fairness, or justice of the outcome. In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.
e-Museletter: March 2023
Get PDFThis Issue:
Director\u27s Message
Library News
Featured Resources
Materials Update
Things to Consider
Student Services Cornerhttps://scholarship.richmond.edu/museletter/1180/thumbnail.jp
Evolution of the U.S. Jury
Get PDFA visual history of the evolution of the jury system under United States law, tracking the evolution of juries from the times of Anglo-Saxon England to the modern doctrine, reflected in the 6th Amendment to the United States Constitution, ratified in 1791 as part of the Bill of Rights.https://scholarship.richmond.edu/law-comics/1002/thumbnail.jp
From Ban to Approval: What Virginia\u27s Facial Recognition Technology Law Gets Wrong
Get PDFFace recognition technology (FRT), in the context of law enforcement, is a complex investigative technique that includes a delicate interplay between machine and human. Compared to other biometric and investigative tools, it poses unique risks to privacy, civil rights, and civil liberties. At the same time, its use is generally unregulated and opaque. Recently, state lawmakers have introduced legislation to regulate face recognition technology, but this legislation often fails to account for the complexities of the technology, or to address the unique risks it poses. Using Virginia’s recently passed face recognition law and the legislative history behind it as an example, we show how legislation can fail to properly account for the harms of this technology
Virginia Tax Re-Structuring: 100 Years Ago, 50 Years Ago, and Now
Get PDFVirginia’s state and local financing structure is under pressure. Aged schools have fallen into disrepair in localities without a tax base to back capital improvement bonds. Virginia’s commitment in the wake of Brown v. Board of Education to fund equal public education opportunity for all has eroded. As the dominate source of local government funding, the real estate tax adds to housing costs, consuming the largest share of household budgets. This article discusses current and historic Virginia debates on tax equity, economic sustainability, program ramifications, and non-resident cost-sharing. It raises questions about the widening income gap and changes in business activity, as well as Virginia’s extreme cost-of-living spread and its fifty-year-old economic measure that determines the level of state funding for each locality’s schools. The article provides broad context to help balance tax policy goals, political dynamics, and local realities in the informed debate that needs to take place to support enlightened action by the Virginia General Assembly
Executive Order 14036: Promoting Competition?
Get PDFFour million Americans left their jobs in July 2021. By the end of that month, the number of open jobs reached an all-time high: 10.9 million. Employees are walking out the door in record numbers as part of a trend so remarkable, we even gave it a name: the Great Resignation. With 4.3 million Americans quitting their jobs in January 2022 and 11.3 million job openings, the Great Resignation is only gaining momentum and showing no signs of slowing down.
And as a consequence of employees exiting in droves, employers are hurting. According to The Work Institute, turnover costs employers approximately thirty-three percent of an employee’s annual salary. Other estimates indicate it could cost as much as 1.5 times a worker’s salary. The cumulative effect of so many workers leaving means employers are taking a serious hit; two experts estimate that employee turnover costs American businesses approximately $1 trillion. Employers need a way to stop the bleeding and mitigate the significant losses they have already incurred. Covenants not to compete can do just that: they allow employers to protect their assets and prevent situations like what we are seeing currently with companies hemorrhaging money due to a mass exodus of employees.
To make matters worse, some studies show a direct correlation between quitting rate and inflation; as the number of workers quitting their jobs increases, the rate of wages and prices also increases. In this situation, workers who are not bound by a noncompete may decide they want to leave their jobs and start looking for opportunities to work elsewhere. They could be enticed by a rival company who is willing to pay them more, and if their current employer values and wants to keep them, they will feel pressured to pay the employee more to retain them. So “[i]n this context, if employed workers search more, wage competition among employers increases, leading to an increase in inflationary pressures; if they search less, wage competition falls and inflationary pressures decrease.” In other words, enforcing noncompete agreements can lead to lower rates of inflation and a better economy.
Given that covenants not to compete were designed for such a time as this, with prices increasing faster than they have since 1982 and employees exiting in record numbers, it only makes sense that employers have been enforcing these covenants more frequently. Surveys show that lawsuits involving noncompetes and trade secret agreements have approximately tripled since the year 2000. This increase in enforcement has garnered widespread attention with states across the country rethinking their laws regarding covenants not to compete and culminated in President Biden calling for regulation at the federal level with Executive Order 14036, “Promoting Competition in the American Economy.”
No question—a lot of people are talking about noncompetes right now, and many have very strong opinions on both sides of the issue. But before we can move forward and decide whether covenants not to compete are a good or bad idea for employers, employees, and the overall economy, we must first go back to the beginning and understand their history
Community-engaged faculty activity: A resource guidefor department chairs
Get PDFThe purpose of this document is to share important and updated information aboutcommunity engagement in higher education with department chairs and other academicleaders who seek to support community-engaged scholars and teachers. The documentprovides strategies and links to resources these leaders may use to support communityengagement in their disciplines, departments, and schools. For chairs who themselves arecommunity-engaged or who are experienced in mentoring community-engaged faculty,this document will introduce the latest best practices and strategies. For chairs who arenew to their role of mentoring community-engaged faculty, this document serves as aprimer and guide, offering foundational definitions and examples as well as links tohelpful resources. Chairs are encouraged to use this information to build their ownknowledge, promote discussion within their department, and use their professionaljudgment in implementing only those suggestions that fit the departmental anduniversity contexts in which they work