THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR … · 2010. 8. 18. · THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR ASSOCIATION • VOL. XXXVI1, No. 3 • FALL2010 VBA . . News Journal

THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR ASSOCIATION • VOL. XXXVI1, No. 3 • FALL2010VBA News Journal. .

Also inside:President’s Page • Writer’s Block • Uniform Power of Attorney Act •

New Rules of the Supreme Court of Virginia • 120th VBA Summer MeetingPhotos • VBA Member Spotlight • Rule of Law Project

Featured Article:

The Resurgent Role of Legal History in Modern U.S. Supreme Court Cases

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PresidentStephen D. Busch, RichmondPresident-electLucia Anna “Pia” Trigiani, AlexandriaChair, Board of GovernorsHugh M. Fain, RichmondImmediate Past PresidentJohn D. Epps, RichmondLaw Practice Management Division ChairMichael J. Quinan, RichmondYoung Lawyers Division ChairHenry I. Willett, III, RichmondYoung Lawyers Division Chair-electB. Webb King, RoanokeBoard of GovernorsThe Officers andThomas R. Bagby, RoanokeAttison L. Barnes, III, Washington, D.C.Hon. Rudolph Bumgardner, III, StauntonDean Davison M. Douglas, WilliamsburgJeffrey H. Gray, Virginia BeachMichael C. Guanzon, DanvilleSusan M. Hicks, FairfaxJames M. Hingeley, CharlottesvilleLeighton S. Houck, LynchburgHon. Robert Hurt, ChathamMaureen R. Matsen, RichmondLoc Pfeiffer, RichmondHon. Jane Marum Roush, FairfaxJohn L. Walker, III, RichmondABA House of Delegates MemberE. Tazewell Ellett, AlexandriaLegislative CounselHon. Robert B. Jones, Jr., RichmondAnne Leigh Kerr, RichmondExecutive DirectorGuy K. TowerAssistant Executive DirectorBrenda DillardVBA News Journal EditorKimberly L. Kovac

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Our MissionThe Virginia Bar Association is a vol-untary organization of Virginialawyers committed to serving thepublic and the legal profession bypromoting the highest standards ofintegrity, professionalism, and excel-lence in the legal profession; workingto improve the law and the adminis-tration of justice; and advancing col-legial relations among lawyers.

THE VIRGIN IA BAR ASSOCIAT IONVOLUME XXXVI I , ISSUE 3

FALL 2010

News JournalVBA. .

VBA News Journal, the official publication of The Virginia Bar Association (ISSN1522-0974, USPS 093-110), is published four times per year. Membership duesinclude the cost of one subscription to each member of the Association.Subscription price to others, $30 per year. Statements or expressions of opinionsappearing herein are those of the authors and not necessarily those of theAssociation, and likewise, the publication of any advertisement is not to be con-strued as an endorsement of the product of service unless specifically stated in theadvertisement that there is such approval or endorsement. Periodicals postage paidat Richmond, VA 23232. POSTMASTER: Send address changes to The Virginia BarAssociation, 701 East Franklin Street, Suite 1120, Richmond, VA 23219.

4 • President’s Page VBA Lawyers for Virginia Veterans: Call to Action—To Serve Those Who Serve the CommonwealthStephen D. Busch

6 • Writer’s BlockMisplaced Modifiers—Say What?By David Spratt

9 • The VBA Rule of Law Project Teaches Indonesian Students the Power of the Law

10 • The Resurgent Role of Legal History in Modern U.S. Supreme Court CasesBy Hon. D. Arthur Kelsey

14 • 120th VBA Summer Meeting Photos

18 • The Virginia Uniform Power of Attorney ActBy Andrew H. Hook and Stephen E. Taylor

20 • New Rules of The Supreme Court of Virginia(part one of a two-part series)By L. Steven Emmert

23 • VBA Corporate Counsel Section Launches Pro Bono Resource Center

24 • VBA Calendar of Events

25 • YLD Hosts 4th Annual Diversity Job Fair

26 • VBA Member Spotlight

27 • VBA Membership ApplicationImages on the cover— Clockwise L to R: Sir William Blackstone (courtesy of The Wardenand Fellows of All Souls College, Oxford), western facade of the U.S. Supreme Court build-ing, William the Conqueror, freed slaves in the Union Army and the U.S. Constitution

4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL FALL 2010

PRESIDENT’S PAGE

BY STEPHEN D. BUSCH

VBA Lawyers for Virginia Veterans: Call to Action—To Serve Those Who Serve the Commonwealth

This President's Page is dedicatedto the thousands of men and womenserving the Commonwealth throughthe Virginia National Guard and otherbranches of the military. They needour help, and I hope that you will joinyour colleagues in responding to thiscall to action to participate in the VBAVeterans Initiative. You can help intwo ways: First, support a VeteransDay fundraiser as a volunteer ordonor, and second, volunteer to pro-vide legal services on a pro bono orreduced fee basis, through the VirginiaNational Guard Project.

Background

The VBA Veteran's Initiative grewout of a program presented by theVBA Committee on Special Issues ofNational and State Importance duringour annual meeting in January 2009:"A Nation in Debt: Our Obligations toServicemembers Returning From Combat—Iraq, Afghanistan and Beyond." Twoof the panelists were Maj. JosephGeraci, and Col. Elspeth Ritchie of theU.S. Army. Maj. Geraci spoke aboutleading troops in combat, the death ofclose friends and the psychologicaleffects of these experiences. Col.Ritchie is the lead psychiatrist atWalter Reed Hospital, and she report-ed the tragically high incidence of sui-

cide and post-traumatic stress disorderin veterans of the Iraq and Afghanistanwars. One of the other panelists, whois mentioned below, was MarkMatthews, of the Veterans BenefitClinic (“VBC”) at the William & MaryLaw School.

This inspirational program gaverise to discussions with Maj. Gen.Robert Newman and other officers ofthe Virginia National Guard ("VNG")about the legal problems that our fel-low Virginians commonly face upontheir return from military duty in Iraqand Afghanistan and the lack of anygovernmental assistance to help.Under the leadership of 2009 VBApresident, John Epps of Hunton &WIlliams, with assistance by formerVBA president Jim Meath of Williams

Mullen and VBAmember BobBarrett, of SpottsFain, a programwas establishedlast year encour-aging lawyersfrom around thestate to volunteerto provide probono legal servic-es to returningVNG veteransfrom Iraq andA f g h a n i s t a n .Thus far, over 100lawyers have vol-unteered to pro-vide pro bono orreduced fee serv-ices to VNG per-sonnel returningfrom deployment.

At the begin-ning of this year, I

asked Jim Meath to further theseefforts by serving as chair of a newlyestablished Veterans Issues Task Force.Bob Barrett was appointed to serve asvice chair. The activities describedbelow are the result of the Task Force’shard work.

Pressures Facing Veterans

On September 1 of this year, theVNG announced that soldiers from the29th Infantry Division had received amobilization order for active dutybeginning on November 1, inAfghanistan. The soldiers will be partof the NATO-led International SecurityAssistance Force. A few weeks later,on September 22, Maj. Gen. Daniel E.Long, Jr., the VNG's Adjutant General,announced that the 2nd Battalion,224th Aviation Regiment had receiveda mobilization order for active duty inIraq beginning February 25, 2011. Themobilization order calls for an activeduty period not to exceed 400 days,unless extended by the Secretary ofDefense based upon operationalneeds. Approximately 400 VNG sol-diers will participate in training at FortHood, Texas for one to two monthsbefore deploying overseas. Accordingto Maj. Gen. Long "even though themission of United States militaryforces in Iraq has shifted away fromcombat operations, there is still impor-tant work to be done in Iraq."

The reports of these planneddeployments remind us of the incredi-ble sacrifices made by the men andwomen of the VNG and other elementsof the U.S. military. Can you imaginethe changes in your life if you wereordered to leave your family, home

Staff Sgt. Michelle Smith of Henrico watches to make sure thatthe training being taught is well received after every demonstra-tion. Members of the 266th assisted Al Hartha police officers byconducting weapons training and movement techniques in Iraq.(Courtesy of 266th Military Police Company).

“You can help in two ways: First,support a Veterans Day fundrais-er as a volunteer or donor, andsecond, volunteer to providelegal services on a pro bono orreduced fee basis, through theVirginia National Guard Project.”

FALL 2010 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5

and job for a year or more? Howwould you handle the anxiety causedby the separation from your ordinaryroutine and the security we feel fromall that is familiar to us? Would yourlaw practice survive your absence?How would you handle family prob-lems from the other side of the globewhile you are away? Similar questionsface every servicemember that hasreceived orders for active duty anddeployments to Iraq, Afghanistan andelsewhere.

While there are no easy answers tothe personal problems and challengestriggered by a servicemember’sdeployment, there is something thateach member of the Virginia Bar cando to help—right now. If you need anyinspiration for responding to this call toaction, consider the words of noneother than America’s first president.After the passage of 200 years, a quoteattributed to George Washington in1789, remains highly relevant today:

“The willingness with which ouryoung people are likely to serve in any war,no matter how justified shall be directlyproportional to how they perceive theVeterans of earlier wars were treated andappreciated by their nation.”

Veterans Day Event

Bob Barrett and VBA memberMatt Kapinos of McGuireWoods, haveconceived a plan to assist Virginia'sveterans with their legal services needsby raising money to support the VBC,an existing program at William &Mary Law School which provides legalservices to veterans. Bob and Matt areboth graduates of the United StatesMilitary Academy and are combat vet-erans who served our country in thewars in Iraq and Afghanistan. Basedon their personal experiences, they areeager to gain additional support forthe VBC and to recruit additional vol-unteer attorneys to supplement thecadre of lawyers who have signed upto provide pro bono and reduced feeservices through the VBA's VirginiaNational Guard Project.

Through the Veterans Issues TaskForce, Bob and Matt have organized anevent to coincide with Veterans Day(November 11). The goal is to estab-lish an annual Veterans DayFundraiser that will be modeled afterthe VBA's award-winning Legal FoodFrenzy. The purpose of the VeteransDay Fundraiser is to raise funds forand awareness of the VBC.

The VBC offers students theopportunity to assist veterans by rep-resenting them during their dischargefrom active military service, as well as

by filing claims andappealing adverse deci-sions on claims for dis-ability compensation withthe Department ofVeterans Affairs. TheVBC is managed by for-mer officers of the U.S.Army's Judge AdvocateGeneral's Corps, Stacey-Rae Simcox and MarkMatthews. Under theirsupervision, students helpveterans receive disabilitycompensation and appro-priate medical care. Inworking up the cases,they investigate the factsby interviewing theprospective clients andother potential witnesses,gather and analyze medical records,communicate with health careproviders as necessary, and developand implement strategy for each case.The VBC website notes that "theseservices can have life-changing effectson the veterans we serve." See:http://law.wm.edu/academics/pro-grams/jd/electives/clinics/veterans/index.php.

Dean Dave Douglas of the William& Mary Law School, a member of theAssociation's Board of Governors, isjustifiably pleased with this clinicalprogram:

"William & Mary Law School isvery proud of its Veterans BenefitsClinic. It is providing a much-neededservice to many of our nation's injuredveterans, for whom the need for legalrepresentation is great. The Clinic alsoprovides a rich opportunity for ourlaw students both to engage in animportant service and to enhance theirlawyering skills."

Bob and Matt are mobilizing lawfirms, corporate counsel and otherlegal professionals throughoutVirginia to garner support for thiseffort. The goal is to raise $50,000 tosupport the VBC. To accomplish thegoal, the committee is encouragingfirms to hold at least one fundraisingevent, which could be a "Jeans Day" onFriday, November 12th (the day afterVeterans Day), or some other eventthat will engage lawyers and staff inVirginia law firms. (“Jeans Day” givesfirm employees an opportunity towear jeans to work for a day inexchange for a donation to the VBC.)Several law firms already have com-mitted to making donations to supple-ment the gifts that will be made bytheir lawyers and staff.

A kick-off event will be held dur-ing the first week of November to cap-italize on the approach of VeteransDay and to build excitement aroundthese efforts. You can help by contact-ing Bob at 804-697-2017, [email protected], or Matt at 804-775-1191, [email protected],to volunteer to organize an event inyour law firm or to make a donation.Donations are tax-deductible and arebeing collected by the VBA Foun-dation, which in turn will transferdonations to the VBC. If you wish tomake a direct contribution to the VBAFoundation, you may do so throughthe VBA website (www.vba.org), bycalling the VBA office (804-644-0041),or mailing a check to the VBAFoundation, noting that it is for thebenefit of the VBC (c/o The VirginiaBar Association, 701 E. Franklin Street,Suite 1120, Richmond, VA 23219).

Finally, please consider why thisfundraising effort is so important.William & Mary Law School is a stateinstitution. We are all aware of thesober budget restrictions facing the

Continued on page 8

1st Lt. John Hinton of Newport News talks with studentsfrom the Iman Abbas School in Basra, Iraq, on April 13,2009. (Photo by Petty Officer 2nd Class Andre McIntyre.)

A UH-60 Black Hawk helicopter crewfrom the 2nd Battalion, 224th AviationRegiment practices landings on August11, 2010 in harsh environments at FortBragg, N.C. similar to landings the crewwill when deployed to Iraq. (Photo byStaff Sgt. Andrew H. Owen, VirginiaGuard Public Affairs)


Writer’s BlockMISPLACED MODIFIERS—SAY WHAT?

BY David H. spratt

David H. Spratt is a professor at The American University, WashingtonCollege of Law, where he teaches Legal Rhetoric, Introduction toAdvocacy, and Family Law Practice and Drafting. Professor Spratt prac-ticed family law for 10 years and is a former chair of the VBA DomesticRelations Section.

"I could not love you any less."Utter that phrase to a significant other. One of two things

will happen: anger or happiness. When I once said these wordsto a girlfriend, expecting a smile, surprisingly I was confrontedwith anger. I thought, "How could she be angry?" I just told herthat I couldn't imagine a time when I was not as massively in lovewith her as I was at that moment. Unfortunately, she thought I wastelling her I wasn't really that in to her. Luckily for me, this was aneasy misunderstanding for me to correct, but my ambiguous(ahem—poor) choice of words resulted in an unintentionally tensemoment.

As lawyers, we are wordsmiths. Clients pay us for thecorrect word choice, and lack of precision or ambiguity can havedisastrous consequences. Some of you might remember thePeerless case1. In that case, the buyer agreed to purchase bales ofcotton arriving from Bombay upon the ship Peerless. Two shipsnamed Peerless sailed from Bombay several months apart, bothcarrying cotton. Because there was a contractual ambiguity, andthe contract did not state which ship was meant, the court heldthere was no binding contract.

What is the moral of this story? If we write fearless, weare haunted by Peerless? Not really, but kind of. Lawyers muststrive for clarity, choosing each word carefully to ensure that eachsentence conveys its intended meaning. One way of achieving thisclarity (among many others) is to eliminate misplaced modifiers.

A misplaced modifier is a word, phrase, or clause that actson something other than what the writer intended, usuallybecause the word, phrase, or clause is placed too far from the nounor pronoun it describes. For example:Abraham Lincoln wrote the Gettysburg address while traveling

from Washington to Gettysburg on the back of an envelope. Was this an early version of air mail? Or did Lincoln sud-

denly find himself with Harry Potter at Hogwarts? Although mis-placed modifiers often lead to laughter, as legal writers, we do notaspire for comedy (in fact, misplaced modifiers can lead to mal-practice lawyers having the last laugh). In the above example, thewriter should have said, "Abraham Lincoln wrote the Gettysburgaddress on the back of an envelope while traveling fromWashington to Gettysburg," as "on the back of an envelope" pur-ports to describe the method of inscription rather than the methodof travel.

Fortunately, misplaced modifiers are easily corrected. Tocorrect a misplaced modifier, follow these two simple steps: 1) Make sure that your modifier actually has something to modify;and2) Move the modifier as close as possible to the word or phrase itis describing.

Let's look at a few more examples. Several years ago, Iwas driving through the Dulles Greenway Toll Plaza and noticedthis sign:

Please do not exit your vehicle for safety reasons! Now, I fancy myself an open-minded kind of guy—to

each his or her own I say. Still, despite my tolerance for individ-ual expression, did the people who designed this sign really meanto say that? If they did, a driver at the toll plaza who needs to exither car to pee may do so freely, but a driver at the toll plaza whoneeds to exit her car to ensure her personal safety is prohibitedfrom doing so. Say what?

To fix this sign (and hopefully convey its intended mean-ing), pair the modifying phrase as close as possible with thewords the phrase is intended to modify. The result is much clear-er, safer, and results in much less laughter:

For safety reasons, please do not exit your vehicle!Here is another example:

Mark refused to service the car belonging to the man whoinsulted him with good reason.

The above sentence might be absolutely correct andunambiguous. Perhaps Mark had poor customer service skills,and the man was justified in insulting Mark, after which timeMark stubbornly refused to fix his car. More than likely, howev-er, the sentence contains a misplaced modifier, as "with good rea-son" is meant to modify Mark's refusal to service the car and notthe propriety of the insult. To convey this meaning, the revisedsentence should read as follows:Mark refused with good reason to service the car belonging to

the man who insulted him.You are now getting the hang of it. Let's move to a sentence thatone might find in a legal document:

Being beyond any doubt insane, the court ordered thepatient's transfer to a state mental hospital.

One of the cardinal rules of legal writing is to rememberyour audience. If the above sentence appeared in a brief filedwith a trial court as part of a motion for reconsideration, howmight the trial court - the intended audience - react? To be a bitcheeky, such language might drive the court "crazy," as the writeris saying that the court was insane when it ordered the patient'stransfer to a state mental hospital. As much as lawyers mightsometimes disagree with a court, does calling the court "insane,"even as a result of bad writing, truly further a client's cause?What the writer should have written is:

Being beyond any doubt insane, the patient was transferredby court order to a state mental hospital.

It is after all better to call a patient "insane" than the court!Finally, let's look at one last example. Recently, I was

wine tasting at a local Virginia winery and noticed this sentenceon a flyer announcing an upcoming barrel tasting:Join winery owner as he guides you through an intimate tast-

ing of our reds while still in barrel.Well, you get the picture! And, to reward myself for finishing thiscolumn, I get a glass of Virginia wine (try it - you will not be dis-appointed!).

As always, questions, comments, or suggestions are wel-comed (even encouraged).Notes:1) Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 373 (Ex.1864).



Commonwealth. The VBC faces tight-ening budget requirements at the verytime when many veterans are in thehighest need of legal services as theyreturn from overseas deployment. TheVBC is unique; it is the only institutionin Virginia that has a sustained anddedicated law school organization tomeet veteran's needs.

Virginia National Guard Project

The second focus of the VeteransIssues Task Force's work this year is torecruit additional volunteers for theVBA's Virginia National GuardProject, through which legal assistanceis provided to VNG personnel who arereturning from service in Iraq andAfghanistan. Last year, the VBAagreed to create a statewide list oflawyers willing to provide pro bono orreduced fee legal assistance to VNGservicemembers returning from over-seas deployments. Later this fall, alarge number of VNG personnel whohave been deployed, in some instancesfor more than a year, will be returningto the Commonwealth. Based uponpast experience, many of these veter-ans will face the grim reality of legalproblems that await their return.

To place this need in perspective,the VNG headquarters staff has pro-vided the following information:

Since September 11, 2001, theVNG has mobilized 951 soldiers and317 airmen in support of OperationEnduring Freedom in Afghanistan, and4,644 soldiers and 558 airmen in sup-port of Operation Iraqi Freedom. An

additional 476 soldierswere deployed for dutyin support of the KosovoForce (KFOR) Peace-keeping Mission. Appr-oximately 348 soldierswere ordered for dutyin Bosnia and 373 forAir Expeditionary Forceduty.

In total, approxi-mately 12,026 soldiersand airmen, including764 personnel on indi-vidual mobilizations allover the world, havebeen mobilized for fed-eral active dutythrough the VNG. Ourneighbors and fellowVirginians are depl-oyed in multiple ven-ues virtually aroundthe world in the causeof freedom.

Lawyers from the VNG's JudgeAdvocate General's staff will screenVNG personnel seeking legal counsel.JAG lawyers will handle matters with-in the scope of the JAG officers' dutiesand expertise. Other matters will bereferred to volunteer lawyers on theVBA list and matched to the specialtypractice where appropriate. The list isused when VNG personnel express aninterest in obtaining legal help whichis unavailable to them through theGuard.

Measured by the number oflawyers who have volunteered to date,the VNG Project has been successful,but more help is needed due to thescores of VNG personnel returninghome this fall. As a part of theVeterans Day Fundraiser, VBA mem-

bers and otherVirginia lawyerswill be recruitedto volunteer theirservices byadding theirnames to the vol-unteer attorneylist.

Fortunately,given the state-wide makeup ofVNG contingent,lawyers from allregions of theCommonwealthhave volunteer-ed. To this point,lawyers have vol-unteered to pro-vide advice inbankruptcy, com-

mercial litigation, construction, con-sumer issues, criminal law, domesticrelations, education law, employment,business law, general civil litigation,health care, immigration, intellectualproperty, juvenile law, landlord-ten-ant, personal injury, real estate, socialsecurity, taxation, veterans disabilityclaims, and wills, trusts and estates.

The entire VBA ExecutiveCommittee (Steve Busch, John Epps,Pia Trigiani, Hugh Fain and HenryWillett) has volunteered for this probono effort, and I hope that you willjoin us as a volunteer as well.

How to Volunteer

You can add your name to theVNG Project volunteer list by callingBranden Patrick at the VBA office (804-644-0041), or by sending an email [email protected]. To join thelist, we need your name and contactinformation, areas of law, geographicareas of the state that you are willing toserve, and whether you volunteeringfor pro bono and/or reduced fee servic-es.

In conclusion, I would like to rec-ognize and thank Jim Meath, BobBarrett and Matt Kapinos for theirmany efforts through the VeteransIssues Task Force on behalf of theAssociation this year. Please join yourcolleagues in supporting the VeteransDay Fundraiser as a volunteer ordonor, and also by enlisting as a volun-teer for the Virginia National GuardProject.

President’s PageContinued from page 5

Sgt. Ernest Spycher of Reston, a soldier of the 266th MP Co.assists one of the Al Hartha Iraqi police with construction of arooftop. (Courtesy of 266th Military Police Company).

Brig. Gen. Stephen Huxtable, Assistant Adjutant General ofVirginia—Army, speaks to Virginia soldiers about theirupcoming deployment to Afghanistan. Huxtable gave wordsof encouragement and Virginia’s commitment to supportingthe Soldiers during their mobilization. (Photo by Capt. MattNowak, Virginia Army National Guard Public Affairs)


The VBA Rule of Law Project Teaches IndonesianStudents the Power of the Law

Legacy International invited the VBA Rule of Law Project to leada discussion about the Project with a group of 30 Indonesian secondaryschool students and their teachers in July in Roanoke’s Higher EducationCenter and was led by former VBA president Mike Pace and Project coor-dinator Tim Isaacs, hosted by Legacy International vice president for pro-fessionalism programs Marlene Ginsberg and vice president for trainingShanti Thompson. Also attending was Sabrina Holly from the U.S.Department of State, Youth Programs Division.

The VBA representatives reviewed for the visiting students thehistory of the Project, provided a written summary of the Project and asampling of the Rule of Law website, gave each attendee a blue "The LawRules" wrist band, and showed part of "The Law Rules" video, followedby an explanation of what the rule of law concept means to Americans.They then engaged the students in a discussion of the rule of law fromtheir perspective.

As a result of the presentation, the Legacy International staffinvited the Project representatives to their Bedford campus to talk furtherwith the teachers and to discuss mutual interests in educating all stu-dents about the rule of law. Isaacs provided an overview of the Project’swebsite for Indonesian secondary school teachers with special emphasison the teacher resource material available for download. Indonesian stu-dents are required to study 16 subjects each week, resulting in teachershaving only 45 minutes during the week to meet with their students forinstruction. This nationally mandated requirement frustrates the teach-ers and led them to ask Isaacs for suggestions regarding how to make themost of the limited time they had with their students. One teacher notedthat with each time a definition of the rule of law is requested, a differentanswer is received. Isaacs explained that the rule of law is an elusive con-cept even for Americans, but that it should be thought of as an ideal thatall humans should pursue in order to guarantee individual rights andfreedoms and to protect the common good. Isaacs and Pace have beenasked to come to Indonesia to help assist their teachers in the future.

At the conclusion of the day, the students raised their arms toshow their blue wrist bands and shouted in unison, "The Law Rules!"


The Resurgent Role of Legal Historyin Modern U.S. Supreme Court Cases

BY HON. D. ARTHUR KELSEY

G.K. Chesterton once said "a manwithout history is almost in the literalsense half-witted" because he "doesnot know what half his own wordsmean, or what half his own actions sig-nify." In recent years, jurists from var-ious points on the ideological matrixhave come to the same conclusion.Many of the most consequential legalissues recently addressed by theUnited States Supreme Court havebeen debated and decided based pri-marily on legal history—not the some-times anfractuous reasoning of priorcases or the ipse dixit declarations oficonoclastic judges. The art of morph-ing dicta from prior opinions intofuture holdings, exaggerating orunderstating the scope of precedent,and moving law along the desired tra-jectory using case-by-case incremental-ism—skills naturally acquired througha typical law school education and thetools of choice for some moderncourts—has not been wholly aban-doned. But, truth be told, it is a spentforce rapidly losing whatever intellec-tual capital it once had.

Understandably so. It simplyasks too much of us to be told that"[l]iberty finds no refuge in a jurispru-dence of doubt" and then to learn thatthe jurisprudence of certitude consid-ers liberty to be "the right to defineone's own concept of existence, ofmeaning, of the universe, and of themystery of human life." PlannedParenthood of Southeastern Pa. v. Casey,505 U.S. 833, 844, 851 (1992). Such rea-soning would more than puzzleThomas Jefferson who thought lawsshould be "construed by the ordinaryrules of common sense" and not by"metaphysical subtleties, which maymake anything mean everything ornothing" depending on the sophisticskills of jurists. To be sure, a worthycynicism of such philosophical vaporshas set in among many on the benchand in the academy—leading in part, Ibelieve, to a resurgence of the role oflegal history as a basis for judicial deci-sionmaking.

Take for example the SecondAmendment's right to keep and beararms. The Supreme Court in District ofColumbia v. Heller, 128 S. Ct. 2783

(2008), pointed out "it has always beenwidely understood that the SecondAmendment, like the First and FourthAmendments, codified a pre-existingright." Because these rights predatedthe 1791 Bill of Rights, Heller looked tothe historical background of theserights under English common law andAmerican colonial jurisprudence asthe best evidence of their scope andmeaning. True to this premise, themajority and dissenting opinions inHeller engaged in rigorous historicalanalyses and offered over 300 citationsto sources predating the 20th century.The text of these opinions includes:

• 17 citations to William Blackstone'sCommentaries on the Laws of Englandoriginally published from 1765-69, aswell as St. George Tucker's 1803American edition;• 59 citations to various other 18th and19th century legal treatises (mostprominent being William Hawkins's1771 edition of A Treatise of the Pleas ofthe Crown, James Wilson's CollectedWorks, William Rawle's 1825 A View ofthe Constitution of the United States ofAmerica, and Joseph Story's 1833

Commentaries on the Constitution of theUnited States); • 14 citations to both popular and legaldictionaries (including the 1773 editionof Samuel Johnson's A Dictionary of theEnglish Language, TimothyCunningham's 1771 legal dictionary,and Noah Webster's famous 1828 AnAmerican Dictionary of the EnglishLanguage); • 18 references to the English Bill ofRights enacted in 1689 during thereign of William and Mary;• 25 citations to the writings of leadingFounding Fathers like Samuel Adams,James Wilson, Alexander Hamilton,and Thomas Jefferson (some appear-ing as Federalist and Anti-FederalistPapers);• 46 citations to colonial charters, dec-larations of rights, and the constitu-tions of newly formed states, as well asstatutes from the 17th, 18th, and 19thcenturies;• 30 citations to Jonathan Elliot's com-pendium of the state ratificationdebates and Francis Thorpe's collec-tion of early state constitutions andstatutes; and • a discussion of the efforts of StuartKings Charles II and James II to disarmtheir political opponents between theRestoration and the GloriousRevolution.

None of these examples includefootnotes, which by themselves offer88 additional citations to various pri-mary, secondary, and tertiary historicalsources. Contrast this approach to theonly other Supreme Court opinionattempting to unpack the meaning ofthe Second Amendment, United Statesv. Miller, 307 U.S. 174 (1939). Fairly ornot, Heller summarily dismissed Milleras unreliable precedent because,among other things, the opinion "dis-cusses none of the history of the SecondAmendment."

Another striking example of thepower of historical legal reasoning isCrawford v. Washington, 541 U.S. 36(2004), a case that retooled theConfrontation Clause of the SixthAmendment. Before Crawford, the pre-

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vailing understanding of the right ofconfrontation came from Ohio v.Roberts, 448 U.S. 56 (1980), a case fol-lowed by scores of lower courtsadministering the criminal dockets ofthe nation. The legal analysis inCrawford, however, did not begin withRoberts. Instead, the Court inCrawford said it must first "turn to thehistorical background of the Clause tounderstand its meaning." 541 U.S. at43. From there, the opinion citesFacing the Accuser: Ancient andMedieval Precursors of the ConfrontationClause, 34 Va. J. Int'l L. 481 (1994), andthen engages a wide array of histori-cal sources including the 16th centurybail and committal statutes underQueen Mary, the notorious trial of SirWalter Raleigh in 1603, a library ofEnglish common law cases and trea-tises predating the AmericanRevolution, the British use of civil lawpractices in colonial America, earlystate constitutions, ratificationdebates of state constitutional conven-tions, and a battery of 19th centurystate case law. In all, Crawford con-tains over 85 citations to historicalsources predating the adoption of theSixth Amendment in 1791. Only afterthis historical tour de force doesCrawford address the Roberts line ofcases and dismiss them as out of syncwith the far deeper historical prece-dent stretching back to antiquity.

Another application of the histor-ical approach to judicial decisionmak-ing is the politically charged caseaddressing whether the writ of habeascorpus extends to detainees held asenemy combatants at the U.S. NavalStation in Guantanamo Bay, Cuba.Finding the writ applied to detaineesat Guantanamo, the Court inBoumediene v. Bush, 128 S. Ct. 2229(2008), reviewed English common lawauthorities (including Bracton's trea-tise, written in the 1200s, and theMagna Carta, executed by King Johnin 1215) and a battery of English casesdetermining the scope of the writ ofhabeas corpus throughout the BritishEmpire prior to the AmericanRevolution. Why was this extensivereview of English legal history neces-sary? Because "[t]his history wasknown to the Framers," Boumediene,128 S. Ct. at 2246, and they wrote theConstitution we now seek to interpret.

Lest you think these are aberra-tional examples, consider Apprendi v.New Jersey, 530 U.S. 466 (2000), the casethat ultimately led to the invalidationof the Federal Sentencing Guidelines.Apprendi did not rely on a clever cut-and-paste presentation from priorjudicial opinions, but rather on SirWilliam Blackstone's observation thatunder English common law in 1769 the

right to a trial by jury required "thetruth of every accusation . . . be con-firmed by the unanimous suffrage oftwelve of [the defendant's] equals andneighbours . . . ." Justice Stevens'smajority opinion also relied upon theEnglish common law described inscholarly tomes entitled Pleading andEvidence in Criminal Cases and TheEnglish Criminal Trial Jury on the Eve ofthe French Revolution, in The Trial Jury inEngland, France, Germany 1700-1900. Alater case, Blakely v. Washington, 542U.S. 296 (2004), accelerated the processof dismantling determinate sentencingschemes by emphasizing Blackstone'sdiscussion of the common law andquoting from John Adams's diary,Thomas Jefferson's private letters, andthe Anti-Federalist Papers.

Even this short list would beincomplete without mentioning U.S.Term Limits, Inc. v. Thornton, 514 U.S.779 (1995), which involved a core issuesilently embedded in our constitution-al structure: legislative term limits.Thornton held state-imposed term lim-its on federal office holders are incon-sistent with the Framers' intent to"form a 'more perfect Union.'" Toinform its understanding of that intent,Thornton began with a discussion ofPowell v. McCormack, 395 U.S. 486(1969), a case that thoroughly tra-versed the parliamentary history ofEngland (focusing on the infamousexpulsion of John Wilkes from theHouse of Commons), primary sourcematerials from the PhiladelphiaConstitutional Convention, privateand public writings of many of theleaders of the Revolution, records fromstate ratification conventions, andselections from the Federalist and

Anti-Federalist Papers. As these few examples demon-

strate, the use of legal history is resur-gent in modern United States SupremeCourt opinions. The phenomenon isnot limited to arcane disputes over theRule in Shelley's Case, the territorialboundaries of Blackacre, or other suchlegal curiosities. The historical modelhas instead influenced some of themost important issues of our times:the scope of the Bill of Rights, the mod-ern reach of the ancient writ of habeascorpus, and even the structure of ourconstitutional republic. The impact,moreover, appears to be ideologicallyneutral. On various stormy issues,both the conservative and liberal fac-tions of the United States SupremeCourt have found safe harbor in histor-ical reasoning. No case establishesthis point more clearly than Heller.Both the majority and the dissentrelied primarily on legal history,prompting many commentators toconcede, "We are all originalists now."

Along these same lines, takeaccount of the splintered opinions inBilski v. Kappos, 130 S. Ct. 3218 (2010).The plurality opinion in Bilski attempt-ed to clarify whether business prac-tices can be patented. Justice Stevens,joined by Justices Ginsburg, Breyer,and Sotomayor, concurred in the resultbut "strongly disagree[d] with theCourt's disposition of this case."What provoked them was the plurali-ty's failure to see the case as an oppor-tunity to "restore patent law to its his-torical and constitutional moorings."Reviewing the subject from pre-Revolutionary English precedent,through the Industrial Revolution, andthe Constitutional Convention, andtacking on for good measure a curiousallusion to "the days of Assyrian mer-chants," the concurring justices con-cluded "the historical clues convergeon one conclusion: A business methodis not a 'process.'"

What does all this mean for us?For the average lawyer it means quite alot. It is a reminder that legal historycan be (and often should be) incorpo-rated into your advocacy model.Before you write this assertion off asrelevant only to the tiny handful oflawyers litigating constitutional issues,consider that the Code of Virginiacommands that the "common law ofEngland, insofar as it is not repugnantto the principles of the Bill of Rights

ABOUT THE AUTHORD. Arthur Kelsey is a judge of the Court of Appeals of Virginia. He was formerly ajudge of the Fifth Judicial Circuit of Virginia and a litigation partner with Hunton &Williams.

"By leaving untouchedwhole epochs of legal

history and focusing soheavily on the latestjudicial and academic

pronouncements, mod-ern law schools decoupletheir students from the

collective wisdom of thepast and immodestly

trumpet false claims ofintellectual novelty."

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and Constitution of thisCommonwealth, shall continue in fullforce within the same, and be the ruleof decision, except as altered by theGeneral Assembly." Code § 1-200.This statute, first enacted in 1776, "pre-serves the common law as the 'rule ofdecision' except when 'altered by theGeneral Assembly.' Absent a clearlyexpressed legislative intent otherwise,statutes should not be construed todisplace long-established common lawprinciples. 'Abrogation of the com-mon law requires that the GeneralAssembly plainly manifest an intent todo so.'" Thus, every Virginia statutetouching upon a common law issuemust be strictly construed to avoidconflict with common law principles.Many Virginia cases—from the late1700s through a few months ago—pivot one way or the other on this veryfulcrum. Needless to say, no lawyercan know which way the wand of strictconstruction should be waved withoutfirst knowing what the venerable com-mon law says on the subject.

For law schools, the resurgence oflegal history as a mode of decision-making means the conventional cur-riculum should be reexamined. Let mebegin with the easiest example. By awide margin, American courts havecited Blackstone's Commentaries as themost authoritative source on commonlaw. "Although Blackstone was notquite the Solon of America," one histo-rian has noted, "probably no other newnation-state has been so much gov-

erned by a single legal authority fromabroad." Whether you agree withhim or not, Blackstone's enduringinfluence on American law cannot beunderstated. Every significantRevolutionary Founder—from JohnAdams, to Thomas Jefferson, JohnMarshall, and James Madison—readBlackstone's Commentaries and cited itas legal orthodoxy. It became the pri-mary textbook for the first Americanlaw professor, Chancellor GeorgeWythe of the College of William andMary. Wythe’s successor, Judge St.George Tucker, edited a version of theCommentaries and added Americanprecedents in footnotes. Tucker'swork became "the most importantearly American edition" ofBlackstone's famed Commentaries,earning Tucker the title of "theAmerican Blackstone."

Blackstone's reasoning played arole in Marbury v. Madison, Dred Scottv. Sandford, Brown v. Board ofEducation, Roe v. Wade, and innu-merable other cases. Hundreds ofopinions from the United StatesSupreme Court cite to Blackstone'sCommentaries. In the last term of theUnited States Supreme Court, whichended only a few months ago, opin-ions by various justices included overforty citations to Blackstone. Yet few—very few—law students have read,much less studied, any portion ofBlackstone's Commentaries. How canthis be? Do schools of psychiatry notrequire students to study Freud, orschools of quantum physics not expecttheir students to read Einstein's AnnusMirabilis papers? Are the Meditationsof Marcus Aurelius unfamiliar to stu-dents of philosophy?

Incorporating legal history intothe law school experience has beenmade far easier in the Internet age.Extensive online libraries catalog near-ly every major source on legal history,from the earliest sources (e.g., theDomesday Book of William theConqueror, Bracton's treatise on com-

mon law from the 1200s, and casereports interpreting the Magna Carta)to the later retrospective works ofAmerican legal scholars (e.g., theessays of Justice James Wilson, one ofthe principal authors of theConstitution, Justice Joseph Story'sCommentaries on the Constitution of theUnited States, and the writings ofChancellor James Kent).

Law school graduates should beequipped with the knowledge to incor-porate these materials into their futureadvocacy. By leaving untouchedwhole epochs of legal history andfocusing so heavily on the latest judi-cial and academic pronouncements,modern law schools decouple theirstudents from the collective wisdom ofthe past and immodestly trumpetfalse claims of intellectual novelty.This development stands in stark con-trast to the traditional educationalmodel for aspiring lawyers, whichimplicitly assumes the truth ofSolomon's axiom: "What has been willbe again, what has been done will bedone again; there is nothing newunder the sun." Ecclesiastes 1:9 (NIV).Those who aspire to make history,Solomon understood, must first knowit. And those who simply wish tomake a point, Cicero would add,would better do so upon the realiza-tion that historical argument "is notonly very entertaining, but adds agreat deal of dignity and weight towhat we say." 2 Marcus Tullius Cicero,On Oratory and Orators 291 (circa 55B.C; 1808 trans. ed.).

"All that is necessary for a [law]student is access to a library," Jeffersonagreed, "and directions in what orderthe books are to be read." He suggest-ed three columns of books, selectionsfrom each to be read every day. Thefirst column included, among others,Sir Edward Coke, Blackstone,Hawkins, and, of course, "Virginialaws," by which he no doubt meantstatutes. The second column addedseveral others, including Hale, LordBacon, John Locke, and Montesquieu.The third column added various histo-ry books by Voltaire, Burke, and oth-ers. If there was any time left for addi-tional reading, Jefferson said nolawyer's training would be completewithout reading books on grammar,rhetoric, and "the English poets for thesake of style also."

Over a century later, when askedfor advice on "the best mode of obtain-ing a thorough knowledge of the law,"Abraham Lincoln answered: "Themode is very simple, though laborious,and tedious. It is only to get the books,and read, and study them carefully.Begin with Blackstone's Commentaries,and after reading it carefully through,

"Like it or not, legal his-tory is resurgent in mod-

ern judicial decision-making. The great

debates of our times willpass us by if we are ill-equipped—as lawyers,

law professors, orjudges—to engage in his-torical legal research and

reasoning."

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say twice, take up [other historicaltexts] in succession. Work, work,work, is the main thing." All thatseems to be left of that advice, at leastin the modern academy, is work, work,work.

For judges, the resurgent role oflegal history offers us an opportunityto reexamine our decisional philoso-phies. In one of the greatest of under-statements, Crawford observed that the"Constitution's text does not aloneresolve this case." Well, then whatdoes? James Madison answered thequestion this way:

I entirely concur in the propriety ofresorting to the sense in which theConstitution was accepted and ratified bythe nation. In that sense alone it is thelegitimate Constitution . . . . If the mean-ing of the text be sought in the changeablemeaning of the words composing it, it isevident that the shape and attributes of thegovernment must partake of the changes towhich the words and phrases of all livinglanguages are constantly subject.

What a metamorpho-sis would be produced inthe code of law if all itsancient phraseology wereto be taken in its modernsense! And that the lan-guage of our Constitutionis already undergoinginterpretations unknownto its founders will, Ibelieve, appear to all unbi-ased inquirers into the his-tory of its origin and adop-tion. Thomas Jefferson alsothought the point equal-ly inarguable:

On every question ofconstruction [of theConstitution] let us carryourselves back to the timewhen the Constitution was adopted, recol-lect the spirit manifested in the debates,and instead of trying what meaning maybe squeezed out of the text, or inventedagainst it, conform to the probable one inwhich it was passed. So, too, did Chief Justice Marshall:

To say that the intention of the[Constitution] must prevail; that thisintention must be collected from its words;that its words are to be understood in thatsense in which they are generally used bythose for whom the instrument wasintended; that its provisions are neither tobe restricted into insignificance, norextended to objects not comprehended inthem, nor contemplated by its framers; -- isto repeat what has been already said moreat large, and is all that can be necessary.

In short, the Father of theConstitution, the author of theDeclaration of Independence, and thelegendary Chief Justice (three ofVirginia's favored sons) considered thepoint settled. To them, the only legiti-mate approach to interpreting the con-stitutional text is to ask what it meantto those who wrote it and voted it intolaw.

The historical approach, ifemployed with intellectual honesty,has the effect of squeezing politicalprejudices out of judicial decisionmak-ing. Political sentiments come and go.They lack the constancy necessary fora stable adjudicatory system. Theyalso have the capacity to go verywrong. If you think I overstate thepoint, reread the Dred Scott decision, inwhich the highest court in the landdeclared there to be a constitutionalright to enslave our countrymen, andon that basis, struck down theMissouri Compromise. After you readthe majority opinion, look at the dis-sent of Justice Curtis. This is what youfind:

Political reasons have not the requi-site certainty to afford rules of [judicial]interpretation. They are different in differ-ent men. They are different in the samemen at different times. And when a strictinterpretation of the Constitution, accord-ing to the fixed rules which govern theinterpretation of laws, is abandoned, andthe theoretical opinions of individuals areallowed to control its meaning, we have nolonger a Constitution; we are under thegovernment of individual men, who for thetime being have power to declare what theConstitution is, according to their ownviews of what it ought to mean.

It was only a few years afterJustice Curtis issued his dissent thatour nation took a violent free-fall intocivil war. Imagine how the course ofour nation's history could have been

altered had the majority on theSupreme Court heeded the warningsin Justice Curtis's dissent.

The historical model also diffusesthe temptation a judge might have tothink of himself as a "knight-errant"free to "innovate at pleasure" on socialissues and to roam "at will in pursuit ofhis own ideal of beauty or of good-ness." Benjamin N. Cardozo, TheNature of the Judicial Process 141 (1921).In the workshop of the law, we are arti-sans of the highest order. But in thetemple of moral philosophy, "[j]udgesare no better qualified than any of therest of us to identify transcendent prin-ciples of right and wrong." Robert H.Bork, The Judge's Role in Law andCulture, 1 Ave Maria L. Rev. 19, 22(2003). To be sure, arrogating such apower to the judiciary would blow agale into the persistent charge that our"Constitution is all sail and no anchor."

Like Chesterton, "I am not urginga lop-sided idolatry of the past; I amprotesting against . . . [a] lop-sidedidolatry of the present." My only

point is a modest one: Likeit or not, legal history isresurgent in modern judi-cial decisionmaking. Thegreat debates of our timeswill pass us by if we are ill-equipped—as lawyers,law professors, orjudges—to engage in his-torical legal research andreasoning. Even the lesserdebates will find us flat-footed if we do not devel-op basic competencies inthis area. How do webegin to ramp up thelearning curve? Lincolnanswered that questionnearly 150 years ago:"Begin with Blackstone'sCommentaries."

Notes:*The views advanced in this essay repre-sent commentary "concerning the law, thelegal system, [and] the administration ofjustice" as authorized by Virginia Canonof Judicial Conduct 4(B) (permittingjudges to "speak, write, lecture, teach" andotherwise participate in extrajudicialefforts to improve the legal system).These views, therefore, should not be mis-taken for the official views of the VirginiaCourt of Appeals or my opinion as anappellate judge in the context of any spe-cific case.1. 33 THE COLLECTED WORKS OF G.K.CHESTERTON 674 (Ignatius Press 1990).2. Letter of Thomas Jefferson To JusticeWilliam Johnson (June 12, 1823), reprintedin 15 WRITINGS OF THOMAS JEFFERSON 439,449 (Andrew A. Lipscomb ed., 1904), also

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120th VBA Summer MeetingIn PhotosJuly 22-25, 2010 • The Homestead • Hot Springs

1) Marshall Curtis and Blair Wimbush connect at the opening reception.2) Governor Jerry Baliles and wife Robin check in at the registration desk.3) Rhodes and Alana Ritenour dance at the President’s Reception.4) Webb King, YLD chair-elect and Audrey Burges, YLD Special Education Committeechair, at the President’s Award Reception.5) Editor of the Pulitzer Prize-winning Bristol Harold Courier, Carl Esposito (R) andreporter Daniel Gilbert (L) accept the first VBA Award for Excellence in Legal Journalismfrom VBA president Steve Busch (C).6) VBA members attend a CLE program on developments and trends in civil litigation.7) (L to R) Bikram and Nupur Bal, Angela and Derek Swanson enjoy the President’sReception.8) VBA members and guests relax on The Homestead’s porch following the banquet.9) SunTrust sponsored golf clinics throughout the weekend for VBA members and guests.10) (L to R) former VBA president Mike Pace, YLD chair Henry Willet, Brooke Rosen,James O’Keeffe, Kevin O’Neill and Cordell Parvin present “Helping Lawyers Create andExpand Client Relationships in a Challenging Market.”11) (L to R) Prof. Hamilton Bryson, Prof. Patrick Baker and YLD Richmond Town HallCommirree co-chair Ryan Boggs network between events.

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Thank you 2010 SummerMeeting Sponsors!

Christian & Barton, LLP

CSX Corporation

Dominion Resources

Equity Concepts, L.L.C.

Hunton & Williams LLP

LexisNexis

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SunTrust Bank

The Greenbrier Clinic

The Homestead

U.S. Bank Corporate TrustServices

Wells Fargo Private Bank,Legal Specialty Group

Whitham, Curtis,Christofferson and Cook, PC

Williams Mullen

1) VBA Board of Governors chair Hugh Fain, president-elect Pia Trigiani, presidentSteve Busch and immediate past president John Epps (L to R front row) and othermembers of the Board pause for a photo before the banquet.2) Meeting attendees learn the secrets to searing scallops from Homestead ExecutiveChef Mark Gallaudet.3) (L to R) Politico correspondent Mike Allen, Former Virginia Attorney General RichardCullen, former U.S. Attorney General William Barr and U.S. Attorney for the EasternDistrict of Virginia Neil MacBride hold a discussion on dealing with terrorists for thePresident’s Showcase.4) VBA president Steve Busch greets Supreme Court of Virginia Justice Bill Mims atthe reception held in Mims’ honor.5) Dr. Lisa Stephens and Cyrus Dolph at the reception.6) The VBA Executive Committee recognizes assistant executive director, BrendaDillard, for her 20 years with the VBA.7) (L to R) Jeff Schapiro, Chris LaGow, E.M. Miller, Delegate Bill Janis, Senator JohnEdwards and Delegate David Albo provide insights into the 2010 Virginia GeneralAssembly session.8) Past VBA presidents Jeannie Franklin and Ed Betts catch up between programs.

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available at http://etext.virginia.edu/toc/modeng/public/JefLett.html (entitled "TheSupreme Court and the Constitution").3. See, e.g., JEFFREY TOOBIN, THE NINE: INSIDETHE SECRET WORLD OF THE SUPREME COURT56-59 (2008); Allen O'Rourke, Refuge from aJurisprudence of Doubt: Hohfeldian Analysisof Constitutional Law, 61 S.C. L. REV. 141,141-42 (2009) (finding the SupremeCourt's unclear use of the word "right"has "confuse[d] legal doctrine" andobscured "the nature of constitutionalrights"); EDWARD LAZARUS, CLOSEDCHAMBERS: THE RISE, FALL, AND FUTUREOF THE MODERN SUPREME COURT 459-86(1999); Erin Daly, Reconsidering AbortionLaw: Liberty, Equality, and the NewRhetoric of Planned Parenthood v. Casey, 45AM. U. L. REV. 77, 80 (1995) (stating thatdespite the opinion's "lofty overture," itwas "so fractured that . . . there is some-thing in it for everyone to hate");Prakash Mehta, An Essay on Hamlet:Emblems of Truth in Law and Literature, 83GEO. L.J. 165, 185 (1994) (the Court's rea-soning created "a doubt-laden jurispru-dence that fails to persuade"); AlexKozinski & Eugene Volokh, A PenumbraToo Far, 106 HARV. L. REV. 1639, 1645(1993) ("If liberty finds no refuge in ajurisprudence of doubt, it similarlyfinds none in a jurisprudence that anycourt can read to mean anything itpleases." (internal quotation marks andfootnote omitted)).4. District of Columbia v. Heller, 128 S.Ct. 2783, 2797 (2008).5. Id. at 2815 (emphasis in original).6. Apprendi, 530 U.S. at 477 (quoting 4 W.BLACKSTONE, COMMENTARIES ON THELAWS OF ENGLAND 343 (1769) (omittingemphasis added by Apprendi)).7. Blakely v. Washington, 542 U.S. 296,301, 305-06 (2004).8. U.S. Term Limits, Inc. v. Thornton,514 U.S. 779, 838 (1995).9. Id. at 787-795.10. See, e.g., McDonald v. Chicago, 130 S.Ct. 3020 (2010) (Alito, J.) (incorporatingby reference the legal history recited inHeller, 128 S. Ct. 2783); Citizens United v.FEC, 130 S. Ct. 876, 948 (2009) (Stevens,J., dissenting) (discussing principles ofthe First Amendment held by "theFramers and their contemporaries");Rothgery v. Gillespie County, 128 S. Ct.2578, 2595 (2008) (Thomas, J., dissent-ing) (finding there "is no better place tobegin than with Blackstone"); Deck v.Missouri, 544 U.S. 622, 626 (2005)(Breyer, J.) (beginning analysis withBlackstone's COMMENTARIES); Eldred v.Ashcroft, 537 U.S. 186, 200 (2003)(Ginsburg, J.) (discussing history ofCongress's power under the CopyrightClause from the First Congress onwardbecause "a page of history is worth avolume of logic") (citation omitted);Atwater v. City of Lago Vista, 532 U.S.318, 327 (2001) (Souter, J.) (beginning

analysis with "the state of pre-foundingEnglish common law" and citing over 45historical sources from the 16th to 19thcenturies); Alden v. Maine, 527 U.S. 706,715 (1999) (Kennedy, J.) (beginninganalysis with English common law anddocuments from the ratificationdebates). 11. Jamal Greene, Heller High Water?The Future of Originalism, 3 HARV. L. &POL'Y REV. 325, 325 (2009) (citing inter aliaSeth Barrett Tillman & Steven G.Calabresi, Debate, The Great Divorce: TheCurrent Understanding of Separation ofPowers and the Original Meaning of theIncompatibility Clause, 157 U. PA. L. REV.PENNUMBRA 134, 135 (2008); DaveKopel, Conservative Activists Key to DCHandgun Decision, HUM. EVENTS, June 27,2008, http://www.humanevents.com/article.php?id=27229; Dale Carpenter,Heller on a First Read, THE VOLOKHCONSPIRACY (June 27, 2008, 5:03 PM),http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214589509.

See also Orin Kerr, What Does Heller SayAbout Originalism?, THE VOLOKHCONSPIRACY (June 27, 2008, 1:58 PM),http://volokh.com/posts/chain_1214589509.shtml. ;12. Bilski v. Kappos, 130 S. Ct. 3218,3257 (2010).13. Id. at 3232. 14. Id. at 3249. 15. Id. at 3250. 16. Newman v. Newman, 42 Va. App.557, 566-67, 593 S.E.2d 533, 538 (2004) (enbanc) (internal citations omitted). 17. See, e.g., Evans v. Evans, 280 Va. 76,84, 695 S.E.2d 173, 177 (2010); Isbell v.Commercial Inv. Assocs., 273 Va. 605,613, 644 S.E.2d 72, 75 (2007); CountryVintner, Inc. v. Louis Latour, Inc., 272Va. 402, 412-15, 634 S.E.2d 745, 751-52(2006); Sabre Constr. Corp. v. Cnty. ofFairfax, 256 Va. 68, 73, 501 S.E.2d 144,147 (1998); Boyd v. Commonwealth, 236Va. 346, 349, 374 S.E.2d 301, 302 (1988);Chesapeake & Ohio Ry. v. Kinzer, 206Va. 175, 181, 142 S.E.2d 514, 518 (1965);

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Va. Elec. & Power Co. v. Bowers, 181 Va.542, 546, 25 S.E.2d 361, 362 (1943);Hannabass v. Ryan, 164 Va. 519, 525, 180S.E. 416, 418 (1935); Keister's Adm'r v.Keister's Ex'rs, 123 Va. 157, 162, 96 S.E.315, 317 (1918); Hollingsworth v.Funkhouser, 85 Va. 448, 454, 8 S.E. 592,596 (1888); Ruble v. Turner, 12 Va. 38, 47-48, 2 Hen. & M. 38, 47-48 (1808)(Fleming, J. concurring); Wallace v.Taliaferro, 6 Va. 447, 467 (1800);Chichester v. Vass, 5 Va. (1 Call) 83, 102(1797); Braxton v. Winslow, 1 Va. 31, 33(1791); Wade v. Commonwealth, 56 Va.App. 689, 693-94, 696 S.E. 2d 258, 260(2010); Moses v. Commonwealth, 45 Va.App. 357, 361 n.2, 611 S.E.2d 607, 609 n.2(2005) (en banc) (quoting Chichester v.Vass, 5 Va. (1 Call) 83, 102 (1797), quotedin part by Wicks v. Charlottesville, 215Va. 274, 276, 208 S.E.2d 752, 755 (1974));Meador v. Va. Birth-RelatedNeurological Injury Comp. Program, 44Va. App. 149, 155, 604 S.E.2d 88, 91(2004); Brown v. Burch, 30 Va. App. 670,677, 519 S.E.2d 403, 406 (1999); Clark v.Commonwealth, 22 Va. App. 673, 681-82, 472 S.E.2d 663, 667 (1996).18. Although "most Americans nowa-days think of law as an enactment of alegislature, actually the basis ofAmerican law, still applied in countlesscases, is the common law which beganto develop in England nine hundredyears ago." RUSSELL KIRK, THE ROOTS OFAMERICAN ORDER 371 (4th ed. 2003).19. Id. at 373. In post-revolutionAmerica, "America had only lawyerswithout much formal instruction—andBlackstone as their manual. FromBlackstone, most Americans with anyinterest in the law acquired their princi-pal stock of knowledge of natural law,common law, equity, and, the charteredrights of Englishmen." Id. at 368. "In theUnited States, where no national legalcode was promulgated . . . Blackstoneremained the standard manual of lawuntil publication (1826-30) of theCOMMENTARIES ON AMERICAN LAW byChancellor James Kent, of New York.Even after that, Blackstone was pre-ferred for a time in some states and dis-tricts." Id. at 369.20. "It is hardly an exaggeration to saythat what we actually took over fromEngland was simply Blackstone."ALFRED Z. REED, TRAINING FOR THE PUBLICPROFESSION OF THE LAW 111 (1921).21. Paul D. Carrington, The RevolutionaryIdea of University Legal Education, 31 Wm.& Mary L. Rev. 527, 535 (1990). W.HAMILTON BRYSON, LEGAL EDUCATION INVIRGINIA 1779-1979, at 23 (1982).22. Carrington, supra note 21, at 540.23. Heller, 128 S. Ct. at 2799.24. BRYSON, supra note 21, at 24.25. 5 U.S. 137 (1803).26. 60 U.S. 393 (1856).27. 347 U.S. 483 (1954).28. 410 U.S. 113 (1973).

29. THE AVALON PROJECT: DOCUMENTS INLAW, HISTORY AND DIPLOMACY,h t t p : / / a v a l o n . l a w . y a l e .edu/subject_menus/constpap.asp (lastvisited August 18, 2010); A CENTURY OFLAWMAKING FOR A NEW NATION: U.S.CONGRESSIONAL DOCUMENTS ANDDEBATES, http://lcweb2.loc.gov/ammem/amlaw/lawhome.html (last visitedAugust 18, 2010); FOUNDING DOCUMENTS,http: / /www.const i tut ion.org/cs_found.htm (last visited August 18, 2010);THE CONSTITUTIONAL SOURCES PROJECT,h t t p : / / w w w . c o n s o u r c e .org/index.asp?bid=530 (last visitedAugust 18, 2010); THE ONLINE LIBRARY OFLIBERTY, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Fcollection=65&Itemid=27 (last visitedAugust 18, 2010); THE FOUNDERS'CONSTITUTION, http://press-pubs.uchica-go.edu/founders/ (last visited August 18,2010); BRITISH LEGAL HISTORY,http://www.law.cam.ac.uk/resourceshistory.php (last visited August 18, 2010);BRACTON ONLINE, http://hlsl5.law.harvard.edu/bracton//index.htm (last vis-ited August 18, 2010); MEDIEVAL LEGALHISTORY: ENGLISH LAW, http://www.fordha m . e d u / h a l s a l l / s b o o k - l a w. h t m l#ENGLISH LAW (last visited August 18,2010).30. ALBERT J. HARNO, LEGAL EDUCATIONIN THE UNITED STATES: A REPORT PREPAREDFOR THE SURVEY OF THE LEGAL PROFESSION19-20 (1953). 31. Letter of Thomas Jefferson to JohnGarland Jefferson, June 11, 1790, avail-able at http://etext.virginia.edu/toc/modeng/public/JefLett.html (entitled"Reading the Law"); see also Letter ofThomas Jefferson to Thomas Turpin,Feb. 5, 1769, available at http://etext.virginia.edu/toc/modeng /public/JefLett.html(entitled "The Study of Law").32. Id.33. Id.34. Letter from Abraham Lincoln toJohn M. Brockman (Sept. 25, 1860), inABRAHAM LINCOLN: SPEECHES ANDWRITINGS 1859-1865, at 180 (1989).35. Crawford, 541 U.S. at 42.36. 3 LETTERS & OTHER WRITINGS OFJAMES MADISON 442-43 (Madison Letterto Henry Lee, June 25, 1824), available athttp://www.archive.org/stream/letterswritings03madirich#page/442/mode/2up; see also 5 DOCUMENTARY HISTORY OF THECONSTITUTION 332-34 (Madison Letter toAndrew Stevenson) (March 25, 1826),also available at http://books.google.com (search "To AndrewStevenson Montpellier, March 25, 1826").Determining the intent of the Framers"does not follow without difficulty, andtwo judges equally devoted to the origi-nal purpose may disagree about thereach or application of the principle atstake and so arrive at different results,but that in no way distinguishes the taskfrom the difficulties of any other legal

writing." ROBERT H. BORK, THE TEMPTINGOF AMERICA 162-63 (1990). "In short, allthat a judge committed to originalunderstanding requires is that the text,structure, and history of theConstitution provide him not with aconclusion but with a major premise.That major premise is a principle or stat-ed value that the ratifiers wanted to pro-tect against hostile legislation or execu-tive action. The judge must then seewhether that principle or value is threat-ened by the statute or action challengedin the case before him. The answer tothat question provides his minor prem-ise, and the conclusion follows." Id.37. Supra note 2.38. Ogden v. Saunders, 25 U.S. (12Wheat.) 213, 332 (1827) (Marshall, C.J.,dissenting).39. Dred Scott v. Sandford, 60 U.S. 393,620-21 (1857) (Curtis, J., dissenting). 40. D. Arthur Kelsey, Law & Politics: TheImperative of Judicial Self-Restraint, 28VBA NEWS JOURNAL No. 6, at 8 (Sept.2002), available at http://216.230.13.18/section/judicial/publication.htm.41. Letter from British parliamentarianand historian T.B. Macaulay to H.S.Randall, author of a LIFE OF THOMASJEFFERSON (May 23, 1857), available athttp://www.americanheritage.com/arti-cles/magazine/ah/1974/2/1974_2_104.shtml.42. DALE AHLQUIST, COMMON SENSE 101:LESSONS FROM G.K. CHESTERTON 131(Ignatius Press 2006).43. Supra note 34. Particular attentionshould be paid to the introductory chap-ter on "The Nature of Laws in General"which is by far "the most jurispruden-tial" aspect of Blackstone'sCOMMENTARIES. Albert W. Alschuler,Rediscovering Blackstone, 145 U. PA. L.REV. 1, 20 (1996).

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The Virginia Uniform Power of Attorney Act

BY ANDREW H. HOOK and STEPHEN E. TAYLOR

Durable Powers of Attorney("DPAs") are rapidly emerging as a sig-nificant, if not essential, estate planningtool. DPAs are extremely complex,powerful, and flexible legal instrumentsthat create significant legal authority,duties, and obligations. All fifty statesand the District of Columbia have enact-ed DPA statutes, yet most of thesestatutes are limited in scope, non-uni-form, and rely upon the common law ofagency for the construction and inter-pretation of DPAs. In response to amulti-year project of The Virginia BarAssociation's ("VBA's") Wills, Trusts, &Estates Section, the 2010 GeneralAssembly enacted the Virginia UniformPower of Attorney Act ("UPOAA") inorder to significantly update and clarifyexisting Virginia laws related to DPAsand to make the same more uniformwith that found in other jurisdictions.

The laws related to DPAs havelargely evolved from the common lawof agency and are steadily movingtowards a uniform, statutory frame-work. The statutory law is moving fromrelatively short statutes amendingagency law to a comprehensive statuto-ry framework supplemented by the

common law. The driv-ing force behind this

trend is the desirefor increasedacceptance and

use of DPAs, andVirginia and theVBA have been at

the forefront of the effort to unify theoften divergent DPA statutes among thestates.

DPAs and the Evolution of theUPOAA

Under the common law, a power ofattorney became ineffective upon theprincipal's incapacity. Therefore, it wasnot a useful tool to manage the affairs ofan incapacitated principal since theprincipal's loss of capacity terminatedthe agent's actual authority. In 1954,Virginia led the way in the evolution ofthe DPA, becoming the first state tostatutorily provide for the continuationof the agency relationship when theinstrument expressly stated that it sur-vived the principal's incapacity. Withthe promulgation of the UniformProbate Code ("UPC") in 1969 and theUniform Durable Power of Attorney Act("UDPAA") in 1979, the adoption ofDPA statutes became widespread.

More recently, there has been anexplosion in the use of DPAs and result-ing litigation. States have responded byrevising their state DPA statutes toaddress perceived problem areas. TheAmerican Law Institute adopted andpromulgated the Restatement (Third) ofAgency, which recognizes DPAs.

In 2002, the National Conference ofCommissioners on Uniform State Laws("NCCUSL") conducted a nationalstudy comparing state DPA statutes.The study revealed that despite initialuniformity among state DPA statutes,there was a growing divergence.Specifically, the study found that amajority of states had begun to enactnon-uniform provisions to deal withspecific matters upon which theUDPAA was silent. These mattersincluded execution requirements, suc-

cessor agents, portability provisionsand sanctions for third-party

refusal to accept DPAs.Responses to the NCCUSL

survey demonstrated ahigh degree of consen-

sus on the issuesthat need to bea d d r e s s e d ,such as:

(1) improving portability, (2) includingsafeguards, remedies, and sanctions forabuse by an agent, (3) protecting thereliance of other persons on a power ofattorney, and (4) including remediesand sanctions for third-party refusal tohonor a DPA.

As a result of the survey, NCCUSLadopted and promulgated the UPOAAin 2006. The UPOAA "codifies bothstate legislative trends and collectivebest practices, and strikes a balancebetween the need for flexibility andacceptance of an agent's authority [bythird parties] and the need to preventand redress financial abuse." TheUPOAA is essentially "a set of defaultrules that preserve a principal's freedomto choose both the extent of an agent'sauthority and the rules that govern theagent's conduct." Where the UPOAA issilent the common law rules of agencyapply. The UPOAA is similar to theUniform Trust Code ("UTC") in that itis a comprehensive statute providing afew mandatory rules in addition tomany default rules that can be alteredby the draftsman. One significant fea-ture of the UPOAA is the inclusion of anoptional statutory form DPA, anattempt to add simplicity to the processof creating a DPA.

As of 2010, Virginia, Idaho, NewMexico, Nevada, Maine, Colorado,Maryland, Wisconsin and the U.S.Virgin Islands have adopted versions ofthe UPOAA. Minnesota, Ohio and WestVirginia all introduced UPOAA bills totheir state legislatures in 2010, whilenine additional states—Alabama,Arkansas, Connecticut, Florida, Georgia,Iowa, Massachusetts, Michigan,Montana, Nebraska and NorthCarolina—are actively reviewing andconsidering enactment of the UPOAA.

Enactment in VirginiaShortly after the UPOAA was devel-

oped, the VBA Wills, Trusts & EstatesSection formed a subcommittee to studythe UPOAA and assess the impact itsenactment would have on existingVirginia law. The subcommittee metregularly to discuss the UPOAA andmade revisions to the Act where it feltthat Virginia law was superior.

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Additionally, the subcommittee consult-ed with various organizations such asthe Virginia Bankers Association andthe AARP to solicit feedback on theUPOAA. The modified UPOAA wasintroduced into the House of Delegatesduring the 2008 session to give notice ofthe VBA's intention to seek enactment.This bill was not pursued and was left inthe House Commerce and LaborCommittee. In the fall of 2008, the sub-committee again recommended themodified version of the UPOAA to theVirginia General Assembly for enact-ment. The Act was introduced in early2009 in the Senate as Senate Bill 855.The Virginia Bankers Association andthe AARP joined the VBA in recom-mending enactment of the UPOAA.The General Assembly enacted the billwith amendments made by the Houseof Delegates and subject to a re-enact-ment provision which provided: "Theprovisions of this Act shall not becomeeffective unless reenacted by the 2010Session of the General Assembly."..Subsequently, the UPOAA was reintro-duced during the 2010 Session of theGeneral Assembly in both the House ofDelegates and the Senate. TheGovernor signed the bill on April 11,2010, and it became effective on July 1,2010.The Virginia UPOAA and its Impact on

the Bar The Virginia UPOAA provides a

modern set of default rules that, in turn,lead to the drafting of shorter and less-cumbersome powers of attorney. It is avaluable alternative to expensive andtime-consuming guardianship proceed-ings. Alongside the existing statutorydefault rules for wills and trusts inVirginia, the UPOAA will provide valu-able assistance in ensuring the seamlessand continuous management of the prop-erty, finances, and personal affairs of theincapacitated.

Virginia's UPOAA preserves powersof attorney as a low-cost, flexible, and pri-vate form of surrogate decision-making,while significantly improving the priorlaws related to powers of attorney inVirginia. Other tangible benefits include:Increased Efficiency. The UPOAAassists in the drafting of powers of attor-ney by providing modern definitions ofauthority that can be granted to an agentthrough incorporation by reference todescriptive terms. It also providesdefault provisions that can be customizedto suit the individual principal. Protections for the Principal. TheUPOAA provides protection for princi-pals with mandatory and default dutiesfor the agent, liability for agent miscon-duct, and broad standing for judicialreview. It also requires that the principalinclude express language when granting

certain authority that could dissipate theprincipal's property or alter the princi-pal's estate plan. Protections for the Agent. The UPOAArecognizes that an agent who acts withcare, competence, and diligence for thebenefit of a principal should not be liablesolely because the agent benefits from theact or has conflicting interests. Protections for Third Parties. TheUPOAA encourages acceptance of pow-ers of attorney by third parties by provid-ing broad protection for good faithacceptance or refusal of an acknowledgedpower of attorney. It also provides sanc-tions for unreasonable refusal of anacknowledged power of attorney.

During the drafting process, theVirginia Bar also recognized that severalexisting provisions of the Virginia Codeshould be incorporated into Virginia'sUPOAA. First, the UPOAA retains thepermissibility of discovery by third par-ties of the acts of the agent under a powerof attorney. Second, the UPOAA pre-serves Virginia's so-called anti-Caseystatute, which allows for agents to makecertain gifts which, while not expresslyauthorized under the power of attorney,are not inconsistent with the instrument'sexpress terms. Finally, existing Virginialaw held that actual delivery of the powerof attorney to the agent was not requiredfor validity. The Virginia UPOAAretains this Virginia distinction.

The General Assembly did make onerather conspicuous omission from theUPOAA. As adopted by NCCUSL,Article 3 of the UPOAA includes a statu-tory short form power of attorney. Thisstatutory form is designed to be under-standable to lay persons while providingattorneys a foundation upon which anypower of attorney under the UPOAA canbe implemented. However, the VirginiaBar Association addressed concerns thatthe statutory short form may be suscepti-ble to abuse when used by consumerswithout adequate legal representation byrecommending its deletion from theUPOAA. The General Assembly agreedwith this recommendation and deletedthe statutory short form from the enactedbill, but reserved a section of the UPOAAfor possible future adoption. Virginiajoins Maine as the only other state thathas adopted the UPOAA without thestatutory short form.

While the UPOAA is a useful tool,the Bar should recognize that there con-tinues to be room for improvement. Forexample, in order to promote the accept-ance of powers of attorney, the UPOAAplaces the risk that a power of attorney isinvalid upon the principal rather than thethird party asked to accept the document.Section 26-90(B) protects third partieswho, in good faith, accept a purportedlyacknowledged power of attorney.Virginia's codification of this provision ofthe UPOAA is consistent with the currentstate of the common law, which placesthe risk of forgeries on third parties.Virginia did not, however, amend section26-90(C), which allows a third party torequest and rely on, without furtherinvestigation, an agent's certificationunder oath as to any factual matter con-cerning the principal, the agent, or thepower of attorney. Thus, it appearsunder the Virginia UPOAA, a third partythat accepts a power of attorney with anagent's certification would be protectedfrom liability under section 26-90(C),despite Virginia's amendment of section26-90(B). The interplay between thesetwo provisions is unclear and should beclarified by the General Assembly.Notes1. Durable Powers of Attorney, Tax Mgmt.(BNA) No. 859-2d, at A-2 (2008).2. Id. at A-1 to A-2.3. See Act of Apr. 11, 2010, ch. 455, 2010 Va.Acts ___ (codified at VA. CODE ANN. §§ 26-72 to -116 (Supp. 2010)); Act of Apr. 11, 2010,ch. 632, 2010 Va. Acts ___ (codified at VA.CODE ANN. §§ 26-72 to -116 (Supp. 2010)).4. Andrew H. Hook & Thomas D. BegleyJr., The New Uniform Power of Attorney Act:From Infancy to Adolescence, ESTATEPLANNING, Oct. 2007, at 36.5. RESTATEMENT (THIRD) OF AGENCY § 3.08(1)(2006).6. See id.7. See VA. CODE ANN. § 11-9.7 (Supp. 2009)(repealed 2010) (originally enacted in 1954).8. UNIF. PROBATE CODE §§ 1-101 to 2-1010(amended 2006), 8 U.L.A. 1 (1998 & Supp.2009).9. UNIF. DURABLE POWER OF ATTORNEY ACT§§ 1-10 (amended 1987), 8A U.L.A. 246(2003).10. See RESTATEMENT (THIRD) OF AGENCY §3.08(2), cmts. b, c (2006).11. See LINDA S. WHITTON, NAT'LCONFERENCE OF COMM'RS ON UNIF. STATELAWS, NATIONAL DURABLE POWER OFATTORNEY SURVEY RESULTS AND ANALYSIS

About the AuthorsAndrew H. Hook, a partner, and Stephen E. Taylor work in the Virginia Beach office of Oast& Hook, P.C. Mr. Hook concentrates his practice in the areas of elder law, estate and trustadministration, estate planning, long-term care planning, asset protection planning, specialneeds planning and personal injury settlement consulting. He is a past president of theSpecial Needs Alliance, a non-profit association of disability attorneys. Mr. Hook is a mem-ber of the VBA Wills, Trusts & Estates Section Council. Mr. Taylor is a May 2010 gradu-ate of the University of Richmond School of Law where he served as Allen Chair Editor ofthe University of Richmond Law Review and was a member of the Moot Court Board andTrial Advocacy Board.

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New Rules of The Supreme Court of Virginia(Part one of a two-part series)

BY L. STEVEN EMMERT

In 1985, the Supreme Court of Virginia repealed Part 5 ofthe Rules of that court and replaced the previous provisionswith a new Part 5. This followed the initial promulgation,less than a year earlier, of Part 5A, for the benefit of thebrand-new Court of Appeals.

A generation later, after a comprehensive study by theAppellate Rules Advisory Committee (often referred to asthe Lemons Commission, for its chair, Supreme Court JusticeDonald Lemons), it was time for an overhaul. Effective July1, 2010, the court rewrote the rules for both courts. This two-part essay will highlight some of the more important newrules and outline some of the new procedures that apply toproceedings in both courts. [The second part will appear inthe next issue of the VBA News Journal.]Part 5 - The Supreme Court

Rule 5:1—The revisions eliminate the distinctionbetween the former terms "file with the clerk" and "file in theoffice of the clerk." The former required service on counsel ofrecord, but the latter did not. Now, all documents that are tobe filed must be served as well. The rule also includes a newsubparagraph (f) that explains prior practice without chang-ing it: Unpublished opinions may be cited in briefs to thecourt, but they will be considered as persuasive, not authori-tative. The citer must usually provide a copy of the unpub-lished opinion along with the brief.

Rule 5:1A—This is an entirely new rule that establishes aprocedure to deal with nonjurisdictional procedural defects.In the past, practitioners routinely feared that any default atall would be fatal. The new rule provides that in mostinstances, the court will issue an order giving the defaultingparty a certain time within which to cure the error. (The newrules have been described as more user-friendly, and this pro-vision is Exhibit A in that analysis.) The rule also describesprevious practice, that a default that results in a dismissalmay (note: not must) be reported by the court to the VirginiaState Bar.

Rule 5:4—The new version of this rule contains a require-ment borrowed from the Fourth Circuit's local rules. Thissalutary provision requires a statement in all motions that themovant has consulted with his or her opponent about theintended filing of the motion. It also requires an indication ofwhether the opponent has consented to the motion.

Rule 5:5—There's a small but important change to thisrule, which governs timely filings of documents. In the past,when filing was done by mail, only certified mail through theUS Postal Service was acceptable. Now, parties may use "athird-party commercial carrier for next-day delivery."Numerous litigants were caught in the trap of overnighting apleading or brief on the due date, only to find that theyshould have used the (often slower) mail. That trap has van-ished. (It's still best to file early.)

Rule 5:6—Court reporters have long made condensedtranscripts available, showing four transcript pages per sheetof paper. This arrangement saves the lives of countless treesand makes transcripts much more portable. As of July 1, italso explicitly violates the requirement for appendices. Ifyou're going to file a transcript, it now needs to be full-sized.If you inadvertently use a condensed transcript, the clerk willrequire you to file a corrected appendix with full-sized pages.

Rule 5:8A—This rule is brand-new, and represents a sig-nificant change from prior practice. It "codifies" (and subtlychanges) the common-law severable-interests rule, involvingappeals from multiparty litigation. Previously, if a court dis-missed Defendant A at an early stage of the litigation but leftDefendant B to face the jury, the plaintiff had a choice, assum-ing the claims against the two defendants were distinct fromone another: He could appeal the dismissal of A immediate-ly, or else wait until the end of the case and appeal then.Now, that plaintiff may ask the trial court to enter a "partialfinal judgment" in order to trigger his right to appeal imme-diately. If the trial court agrees to enter such an order, theplaintiff must appeal the dismissal of A immediately, or notat all; he can't change his mind and appeal at the end of thecase. If the judge refuses to enter the partial final judgment,then the plaintiff has no choice but to wait; there is no appealfrom a trial court's decision not to grant such a judgment.

Rule 5:11—This oft-cited rule gets two significant newprovisions. First, it states that the appellee has the obligationto ensure that the record is sufficient to ensure that theSupreme Court can fully evaluate the assignments of cross-error. Previous caselaw placed the onus on the appellant toensure that the record was complete, without addressingcross-error, which logically should be the appellee's respon-sibility. Second, it provides a short window of grace for sup-plementation of a transcript. The previous 60-day deadlinehad always been regarded as mandatory and jurisdictional,with no exceptions; but the new rule gives the appellant anextra ten days in which the appendix may be "supplemented,corrected, or modified," with no questions asked. The finaleffect of the rule change, however, is the provision that evenafter the 70th day, the transcript can be corrected if two jus-tices concur that there's good cause. This means that thedeadline is no longer jurisdictional, though sensible litigantsshould always regard it as mandatory.

Rule 5:17—The first significant change to this rulerequires appellants to indicate exactly where the appellateissue has been preserved in the trial court. This provisionhad been in the rulebook for the Court of Appeals, and its


appearance in the Supreme Court essentially requires sensi-ble advocacy. The new rule also adds a filing-fee require-ment, removes the obligation to cite to SoutheasternReporter, specifies procedures for the filing of Anders briefs,and, for the first time, explicitly excludes "the cover page,table of contents, table of authorities, and certificate" from thepage limitations in the rules. The new rule allows appellantsto comply with either a page limit or a word-count limit inthe petition for appeal.

Rule 5:17A—This seldom-used rule gets one importantchange: For the first time, the court requires that petitions forreview of the grant or denial of temporary injunctions mustcomply with the briefing requirements of ordinary petitionsfor appeal (Rule 5:17). That means that these petitions mustcontain things like assignments of error, tables, and a certifi-cate.

Rule 5:18—If an appellee raises cross-error, he must stateas much on the cover, so the justices don't have to look insidethe brief in order to discern whether cross-error is assigned.As with the petition for appeal, this brief may now complywith either a page limit or a word-count limit. The new rulealso explains current practice, in that the court will only con-sider cross-error if it has already decided to grant a writ tothe appellant.

Rule 5:19—The only changes to this rule relate to thelength of the brief. Alternative word-count limits are insert-ed, and in the instance where an appellant responds only toassignment of cross-error, thus preserving the right to arguethe petition orally, the limits are noticeably shorter.

Rule 5:20—There's a new subsection (b), dealing withrehearings of original-jurisdiction petitions. In those cases(habeas-corpus, mandamus, prohibition, and actual-inno-cence petitions), the appellant may file a petition for rehear-ing within 30 days after the original refusal of the writ. Notethat this window is twice the 15-day limit for rehearing peti-tions in ordinary appeals.

Rule 5:20A—Most petitions for rehearings filed by attor-neys are governed by this rule, which gets one subtle but sig-nificant change. The old rule required that the petition be nomore than 3,000 words. The new rule cuts that limit backsharply, to 1,750 words, although it does add an alternative10-page maximum.

Rule 5:21—This rule, which once dealt exclusively withappeals from the State Corporation Commission, has beenexpanded to include attorney-discipline appeals. In bothkinds of appeals, appellants must now serve the AttorneyGeneral. The new provisions for disciplinary appeals containdetailed requirements for perfection, briefing, and proce-dure, including provisions for a stay pending the appeal.

Rule 5:22—Review of death sentences is largelyunchanged, but there are two liberalizations of the previousrule. Appellants now get 30 days, not 10, within which to filea list of assignments of error, and briefing limits, which oncematched those for other briefs, are greatly expanded, to 100pages or 17,500 words (and half that length for reply briefs).

Rule 5:25—The contemporaneous-objection rule gets amodest makeover, but the substance of the rule isunchanged. Despite the subtly different wording, expect allof the court's prior caselaw interpreting the rule to surviveintact.

Rule 5:26—This rule deals with briefs in a general sense,setting forth page limits at the merits stage. Those page lim-its are unchanged, but alternative word-count limits areadded. New subparagraphs centralize previously scatteredrequirements for certificates of service and compliance withthe length limits; forbid incorporating by reference argu-

ments that were made elsewhere; and reassure practitionersthat noncompliance with this rule won't result in dismissal.(Instead, you have to resubmit the brief with the noncompli-ance corrected.)

Rules 5:27 and 5:28—These two rules, containing the pro-visions for principal briefs on the merits, are reorganizedwithout much substantive change. The previous require-ment for citation to Southeastern Reporter for Virginia caseshas been deleted. Both rules require that the argument sec-tion include a statement of the standard of review for eachissue appealed. Experienced appellate lawyers have longbeen voluntarily doing that; the new rule makes that soundpractice mandatory.

Rule 5:30—The amicus-curiae rule gets only a modestchange, clarifying that such a brief can be filed at the petition,merits, or rehearing stages of the appeal.

Rule 5:32—This rule now gives the appellant a choicebetween filing 15 printed copies of the appendix, or 10 print-ed copies and 10 electronic copies on CD-ROMs. (In casesinvolving large appendixes, the CD-ROMs will be far lessexpensive.) It includes a new provision for filing sealedmaterials. There is a slight extension of time for designationof the contents of the appendix; the appellee now gets 15days instead of 10 within which to separately designate.Briefs filed in lower courts are not to be included "unless theyhave independent relevance," which won't happen often.The new rule concludes by stating that if the appendix failsto comply with the requirements, the court may issue anorder directing a correction within a specified time.

Rule 5:33—The old rule (which was designated Rule5:35) provided that oral argument would not exceed 30 min-utes per side, but the court's practice for years has been toallow 15 minutes per side. The new rule now reflects theshorter period. Parties involved in exceptionally complicat-ed appeals may still move the court for extra time, but in real-ity, such requests will very seldom be granted.

Rule 5:35—This rule contains the provisions of the oldRule 5:37, dealing with taxation of costs in the appellatecourt. One subtle change is that a bill of costs could previous-ly be filed 10 days after the issuance of the opinion, withobjections thereto due 14 days later. The new rule reversesthose periods, so successful litigants now have 14 days to filea bill, with objections due 10 days later. The rule also refersthe parties to Rule 1:1A, by which a party can get an awardof attorneys' fees in an appropriate case.

Rule 5:37—This rule condenses old Rules 5:39 and 5:39A,dealing with petitions for rehearings after a decision on themerits. The principal change is to shorten the permissiblelength for such petitions, from the old 15-page limit to a newlimit of 10 pages or 1,750 words.

Rule 5:38—Only one small change appears to this provi-sion, which deals with settlements pending appeal. Whileparties are still required to notify the Clerk promptly afterreaching a settlement agreement, the new rule specifies thatsuch notice must be in writing.

ABOUT THE AUTHORL. Steven Emmert is a partner with Sykes, Bourdon, Ahern &Levy in Virginia Beach where his practice focuses exclusivelyon appellate advocacy in the state and federal courts. He alsoserves as chair of the VBA Appellate Practice Section andfounded the web site, Virginia Appellate News & Analysis,which provides same-day analysis of Supreme Court of Virginiaand Court of Appeals decisions. Mr. Emmert holds a B.A. fromRichmond College and J.D. from the University of Virginia.


(2002), http://www.law.upenn.edu/bll/ulc/dpoaa/survey-oct2002.pdf.12. Id. at 1; UNIF. POWER OF ATTORNEY ACT prefatory note, 8BU.L.A. 33 (Supp. 2010).13. UNIF. POWER OF ATTORNEY ACt prefatory note, 8B U.L.A. 33.14. Id.15. See id.16. See id.17. Id.18. Id.19. Id. § 121 cmt.20. UNIF. TRUST CODE (amended 2005) 7C U.L.A. 177 (2006).21. UNIF. POWER OF ATTORNEY ACT § 301 8B U.L.A. 33.22. See Unif. Law Comm'rs: The Nat'l Conference of Comm'rs onUnif. State Laws, A Few Facts About the Uniform Power ofAttorney Act (2010), http://www.nccusl.org/update/uniformact_factsheets/uniformacts-fs-upoaa.asp.23. See id.24. E-mail from Eric M. Fish, Legislative Counsel, NationalConference of Commissioners on Uniform State Laws, toAndrew H. Hook, Attorney at Law, Oast & Hook, P.C. (Aug. 31,2010, 15:02 EST) (on file with author).25. See H.B. 950, Va. Gen. Assembly (Reg. Sess. 2008).26. See Summary as Introduced, H.B. 950 Uniform Power ofAttorney Act (2008), http://leg6.state.va.us/cgi-bin/legp604.exe?ses=081&typ=bil&val=hb950.27. S.B. 855, Va. Gen. Assembly (Reg. Sess. 2009) (enacted as Actof Apr. 8, 2009, ch. 830, 2009 Va. Acts 2634).28. See Act of Apr. 8, 2009, ch. 830, 2009 Va. Acts 2634 (codified atVa. Code Ann. §§ 26.71.01 to -74.02 (Supp. 2009) (repealed 2010)).29. H.B. 719, Va. Gen. Assembly (Reg. Sess. 2010) (enacted as Actof Apr. 11, 2010, ch. 632, 2010 Va. Acts ___).30. S.B. 204, Va. Gen. Assembly (Reg. Sess. 2010); S.B. 159, Va.Gen. Assembly (Reg. Sess. 2010) (enacted as Act of Apr. 11, 2010,ch. 455, 2010 Va. Acts ___).31. For a more detailed examination of the UPOAA as enacted inVirginia, see Andrew H. Hook & Lisa V. Johnson, Annual Surveyof Virginia Law: The Virginia Uniform Power of Attorney Act, 44 U.Rich. L. Rev. 107 (2009). See also J. Rodney Johnson, Annual Survey

of Virginia Law: Wills, Trusts and Estates, 45 U. Rich. L. Rev. ___(forthcoming Nov. 2010) (discussing several changes in the finalUPOAA as codified).32. See VA. CODE ANN. §§ 64.1-45 to -96.11 (2007 & Supp. 2010)(Wills and Decedents' Estates); VA. CODE ANN. § 55-541.01 to -551.06 (2007 & Supp. 2010) (Uniform Trust Code).33. See Unif. Law Comm'rs, The Nat'l Conference of Comm'rs onUnif. State Laws, Summary: Uniform Power of Attorney Act(2006), http://www.nccusl.org/update/uniformact_summaries/uniformacts-s-upoaa.asp.34. Id.; see, e.g., VA. CODE ANN. § 26-95 (Supp. 2010). 35. VA. CODE ANN. § 26-85 (Supp. 2010).36. Id. § 26-88 (Supp. 2010).37. Id. § 26-87 (Supp. 2010).38. Id. § 26-85(B)(6) (Supp. 2010).39. Id. § 26-85(D) (Supp. 2010).40. See id. §§ 26-90, -91 (Supp. 2010).41. Id. § 26-91(C) (Supp. 2010).42. Id. § 26-85(I) (Supp. 2010).43. See id. § 11-9.5 (2006) (repealed 2010); see also Casey v.Comm'r, 948 F.2d 895 (4th Cir. 1991).44. See id. § 26-87(C) (Supp. 2010).45. Id. § 11-9.7 (2006) (repealed 2010).46. Id. § 26-77(E) (Supp. 2010).47. See UNIF. POWER OF ATTORNEY ACT § 301 8B U.L.A. 33.48. Linda S. Whitton, Navigating the Uniform Power of AttorneyAct, 3 NAT'L ACAD. OF ELDER LAW ATT'YS J. 1, 11 (2007).49. See VA. CODE ANN. § 26-112 (Supp. 2010).50. See Me. Rev. Stat. Ann. Tit. 18-A § 5-951 (2009).51. See VA. CODE ANN. § 26-90 (Supp. 2010).52. Id. § 26-90(B) (Supp. 2010).53. See Kern v. Barksdale Furniture Corp., 224 Va. 682, 685, 299S.E.2d 363, 364 (1983) ("One who deals with an agent does so athis own peril and has the duty of ascertaining the agent's author-ity. If the agent exceeds his authority, the principal is not boundby the agent's act." (citing Kern v. Freed Co., 224 Va. 678, 680, 299S.E.2d 363, 364 (1983); Seergy v. Morris Realty Corp., 138 Va. 572,577, 121 S.E. 900, 902 (1924))).54. See Va. Code Ann. § 26-90(C) (Supp. 2010).55. See id. §§ 26-90(B), (C) (Supp. 2010).

Continued from page 19


VBA Corporate Counsel Section Launches ProBono Resource Center

Have You Logged-in?Earlier this year, the VBA launched a

new website with a Members Only section.By using the Member Log-in on the VBAwebsite's home page, you will be able tomake changes to your Member Profile, seethe latest issue of the VBA News Journal, reg-ister for upcoming VBA events, renew yourVBA membership, access a new online VBAMembership Directory and take advantageof a number of members-only benefits,including discounts on publications, CLEcourses, group and individual health, long-term care and other insurance, online legalresearch, clothing, audio and web confer-encing and other valuable products andservices.

To login for the first time, enter youruser name (which is the email addresswhich the VBA has on file for you) and thepassword “VBA” (case sensitive). You willimmediately be prompted to change yourpassword to a new, more secure password.

If you have any questions, would liketo give us feedback or experience any tech-nical difficulties, contact us [email protected] or (804) 644-0041.

The Corporate Counsel Section of The VirginiaBar Association has participated in efforts this year todraw attention to the need for pro bono legal repre-sentation. In particular, chair John Scheib representedthe Section on a task force evaluating a proposed rulechange to permit lawyers holding a VirginiaCorporate Counsel Certificate to provide pro bonoservice in the Commonwealth. This proposal is a sig-nificant step forward that is needed to unleash a groupof capable lawyers who can provide these valuableservices.

Recognizing that it can be difficult to find probono opportunities that meet the interests and needsof in-house counsel and corporate counsel theCorporate Counsel Section has initiated a project tohelp in-house lawyers and corporate counsel find pro

bono service providers. One criteria for being includ-ed is that the pro bono service provider must havemalpractice insurance that will cover the volunteerlawyer. The "Corporate Counsel Pro Bono ResourceCenter," can be found on the Corporate CounselSection webpage located on the VBA websitewww.vba.org

If you can identify any qualifying pro bonoopportunities, please let the VBA or section councilmembers know so that it can be added to the Pro BonoResource Center.


Expert witness: software patents and intellectual property, softwareengineering, real-time systems, automotive engineering, electric and hybridvehicles. 32 years industry and academia experience. David Levine, Ph.D.,P.E., [email protected], 314-308-9294.

Incorporate the expertise of a Certified Legal Nurse into your busi-ness. A Nurse brings you a competitive edge. A CLNC can work a casemuch faster than a paralegal because this is our area of expertise. Don’twaste countless hours reviewing recorts, call today. (540) [email protected].

Gerard M. Stegmaier, an attorney in the Washington, D.C. office ofWilson Sonsini Goodrich & Rosati, P.C., has been elected President of theFairfax Law Foundation. The Fairfax Law Foundation is the non-profit armof the Fairfax Bar Association, the largest bar association in Virginia locatedin the suburbs of Washington, D.C. The foundation administers the probono and community outreach programs of the bar.

Classifieds and Annoucements

The VBA News Journal offers classified advertising. Categories available are as fol-lows: positions available, positions wanted, books and software, officeequipment/furnishings, office space, experts, consulting services, business services,vacation rentals, and educational opportunities. Rates are $1 per word for VBA mem-bers and $1.50 per word for non-members, with a $35 minimum, payable at the timeof submission. The VBA News Journal reserves the right to review all copy beforepublication and to reject material deemed unsuitable. Professional announcementsmay be printed; the cost per announcement is $15 and text may be edited for styleand space limitations. Deadlines are one month in advance of the date of publication.Information is available online at www.vba.org.

YLD wins big at ABA Annual Meeting

Continuing a long tradition of excellence in programming, TheVirginia Bar Association Young Lawyers Division took home top honorswhen the American Bar Association presented its annual Awards ofAchievement at the ABA Annual Meeting held in August in San Francisco.

The VBA YLD received First Place for its Comprehensive pro-gramming which includes such signature projects as the 2009 VirginiaLieutenant Gubernatorial Candidates Debate, the Jammin' for Justicefundraiser for Legal Aid, the Robert E. Shepherd, Jr. Juvenile Law andEducation Conference and the Annual Legal Food Frenzy. Additionally,the YLD received Second Place for its service to the bar through theDiversity Job Fair held in Richmond in August 2009 which provided anopportunity for Virginia employers to interview diverse law school candi-dates from around the country (more information regarding this year’s fairon facing page). The YLD also received Special Recognition for probono legal services provided by The Virginia Hispanic Chamber ofCommerce Legal Aid Clinic.

Congratulations to the VBA YLD for earning national nationalrecognition showcasing the hard work and success of the YLD in offeringwell-rounded and original projects that serve the public and the legal pro-fession. For more information on getting involved in one of many YLDprojects, visit www.vba.org.

VBA EventsOctober 15-16, 2010

Board of Governors MeetingThe Red Fox Inn, Middleburg

October 19, 201012th Annual Corporate Counsel

Fall ForumThe Omni Richmond Hotel

October 22-23, 2010Boyd-Graves Conference

Williamsburg Lodge andConference Center

October 29-30, 201021st Annual Tax Practitioners’

RoundtableFarmington Country Club

October 29, 2010YLD Fall Executive

Committee/Council MeetingWintergreen Resort, Rockfish

November 4, 201016th Annual Administrative Law

ConferenceThe Omni Richmond Hotel

November 5, 20106th Annual Virginia Health Care

Practitioners’ RoundtableTroutman Sanders, Richmond

November 5, 2010National Moot Court Competition

The Omni Richmond Hotel

November 18-19, 201018th Annual Capital Defense

WorkshopThe Omni Richmond Hotel

January 20-23, 2011121st VBA Annual Meeting

Williamsburg Lodge andConference Center

July 21-24, 2011121st VBA Summer MeetingThe Homestead, Hot Springs


YLD Hosts 4th Annual Diversity Job FairThe VBA Young Lawyers Division's Diversity Recruitment

Committee hosted the VBA’s 4th Annual Diversity Job Fair onSaturday, August 21 at the Embassy Suites in Richmond.Approximately 100 students and 14 employers participated in the allday event.

The Diversity Job Fair, which was open to rising 2Ls and 3Ls,drew both Virginians and out-of-state students. Each employerreserved a suite for interviews, creating a relaxing atmosphere inwhich students and employers could converse about their mutualobjectives. Registration and hospitality areas offered opportunities forinformal conversation between appointments, as did a luncheon.

Co-Chairs of the VBA/YLD Diversity Recruitment Committeeare Elaina L. Banks, Kaufman & Canoles; Dana A. Dews, Christian &Barton; Monica McCarroll, Williams Mullen; Karen R. Robinson, U.S.Department of Health and Human Services; and Nicole S. Terry, Officeof the Montgomery County Commonwealth's Attorney.

Irene C. DelcampFirm: Barnes & Diehl, P.C.ChesterfieldVBA Member Since 2009 VBA Activities: Domestic Relations Section Council (YLD Representative); Chair, HenricoJuvenile Licensing Project

The Virginia Bar AssociationMember Spotlight

1. What is your favorite legal term? Res Ipsa Loquitur- Latin for "the thing speaks for itself."This is simply the most interesting phrase to me due to the colorful examples given to us in ourTorts class years ago (flaming rats, barrels of flour shooting from windows, etc.). 2. What is the most rewarding aspect of the Henrico Juvenile Licensing Project? I value theability to give back to the community by speaking to high school students about the privilege andgreat responsibility of having a driver's license. It is an honor to speak with the juvenile courtjudges during the licensing ceremonies.

3. How were you able to determine the area of law you wanted to practice? I have been most interested in issuesinvolving the family, specifically children. Taking part in the University of Richmond's Juvenile Law Center clinic was a greatexperience which piqued my interest in family law. As a family law attorney, it is rewarding to have the ability to positive-ly affect the lives of others in such a critical area of their lives. 4. What is one goal you would like to accomplish in your lifetime? Later in my career, I would like to teach a lawskills class at the University of Richmond. While a student there, a great group of local practitioners taught the weekly lawskills class where I learned practical knowledge I use frequently. This would be an excellent opportunity to give back tothe law school. 5. Do you have any hidden talents? I really enjoy art and architecture. They have been passions of mine since my ado-lescence. I used to be quite good in primary and college art classes. I even won a couple of awards. At UVA, I majoredin architecture prior to switching over to government. Now, when I have the time, I like to draw or paint.

Patrick C. Devine, Jr.Firm: Williams MullenNorfolkVBA Member Since 1983VBA Activities: Health Law Section Council; member of the Administrative, Businessand Tax Sections1. What motivated you to get involved with the VBA Health Law Section Council? My friend,Brac McKee (Kaufman & Canoles, Norfolk), asked me to join the Council over a decade ago. Theopportunity to regularly talk and work with a room full of very smart and affable attorneys fromaround the state is a special one. Also, I was raised by a few generations of physicians and trainedby a few generations of attorneys who all considered it their privilege and obligation to be activelyinvolved in their professional associations.

2. If you could give one piece of advice to the incoming fall new admittees, what would it be? Work hard, but donot forget to have some fun and make a lifetime of friends among your coworkers, clients and competitors.3. What is your most memorable VBA experience? Among my most memorable were several occasions in the 80s atVBA winter meetings when I had the opportunity to sit around the fireplace in one of the historic homes in Williamsburg onsnowy afternoons watching ACC basketball games with the likes of VBA legends Bill Spong, John Ryan, Frank Crenshawand Alan Hofheimer. They drank whiskey, told bad jokes and made the young lawyers in the room feel welcome. On theother hand, I claim no current recollection of the infamous Willcox Savage keg parties which followed the VBA banquet inWilliamsburg during those years. 4. Who is your favorite literary character? I probably should say Atticus Finch in To Kill a Mockingbird or HoldenCaulfield in Catcher in the Rye, but I was never much of a reader. Except for law books, I usually read newspapers andmagazines.5. If you weren’t practicing law, what would you be doing? Playing soccer, golf or tennis. Probably still not readingany quality literature.


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Administrative Law ................................................................... $25 GAppellate Practice................................................................................ $25 GBankruptcy Law ........................................................................ $25 GBusiness Law ............................................................................ $25 GCivil Litigation .......................................................................... $25 GConstruction and Public Contracts Law ............................... $25 GCorporate Counsel .................................................................... $25 GCriminal Law ............................................................................ $25 GDomestic Relations .................................................................. $25 G

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THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR … · 2010. 8. 18. · THE OFFICIAL PUBLICATION OF THE VIRGINIA BAR ASSOCIATION • VOL. XXXVI1, No. 3 • FALL2010 VBA . . News Journal