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June 1999 Listing of articles from the VBA Journal, 1975-98 |
July 1999
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While this may begin to sound like a succession of travel diaries, one of the several enjoyable functions of being President of The Virginia Bar Association is to attend meetings of other groups important to the practice of law and the administration of justice in Virginia. Sometimes, as at the Judicial Conference, The Virginia Bar Association is involved as a presenter. At all times, it is a pleasure to listen and to learn about projects and issues, especially those outside of the scope of our own activities, that may need our help, for example, in pursuing law reform - one of our unique attributes.
We have a right to be proud to be members of the Virginia State Bar. I wanted to be present for the VSB meeting at Virginia Beach June 16-19 because of my pride in that organization, support for it in its critical core role of discipline and to show both my personal and the VBA's great respect for the leadership of the VSB. John Keith had a great year. Scott Street is off to a running start and Joe Condo will provide positive consistency for the VSB.
The beauty of the relationship of the two groups - each with separate but complementary functions - was made even clearer to me in the course of attending the VSB meeting.
On Wednesday night, the Council dinner was a delightful event which recognized members of Council and others for their hard work. Retiring members were thanked and new members welcomed to the Council. Judges from Circuit Courts, the Court of Appeals and the Supreme Court lent their conversation and camaraderie to the dinner.
The next day, while Council was engaged in its agenda, I left Virginia Beach to attend a meeting at the Pentagon of the Special Issues Committee's Subcommittee on National Security, chaired by former Governor Jerry Baliles and former Congressman and Secretary of the Army Jack Marsh. The meeting was convened for the purpose of a briefing on the Department of Defense's role in weapons of mass destruction consequence management and response to encryption and cyberterrorism issues, the Federal Emergency Management Agency's role in weapons of mass destruction consequences, and the Department of Justice/FBI's role in these matters as well.
These issues, critical to the internal stability and security of the United States, spawn new legal issues and strain our view of the scope of many of our basic freedoms. These legal issues will be considered initially for us through a course to be taught at the William & Mary Law School this fall by Army Secretary Marsh under the auspices of The Virginia Bar Association Committee on Special Issues of National and State Importance. We will hear more on these subjects at The Greenbrier meeting on July 16 when Judge William Webster, former CIA and FBI director, speaks to us.
As we were briefed on the World Trade Center bombing and an event in which teenage hackers entered Defense Department computer systems, our presenters made clear that it will be critical to balance the traditional freedoms of movement and openness that we enjoy against the vulnerability which those freedoms create to attack by individuals, internal groups or rogue states.
In this regard, the subcommittee of the Special Issues Committee has as part of a background statement the following excerpt from a White Paper on the Clinton Administration... Critical InfraStructure Protection, page 1:
The United States possesses both the world's strongest military and its largest national economy. These two aspects of our power are mutually reinforcing and dependent. They are also increasingly reliant upon certain critical infrastructures and upon cyber-based information systems.
Critical infrastructures of those physical and cyber-based systems are essential to the minimum operations of the economy and the government. They include, but are not limited to, telecommunications, energy, banking and finance, transportation, water systems and emergency services, both governmental and private. Many of the nation's critical infrastructures have historically been physically and logically separate systems that had little interdependence. As a result of advances in information technology and the necessity of improved efficiency, however, these infrastructures have become increasingly automated and interlinked. These same advances have created new vulnerabilities to... physical and cyber attacks.
Because of our military strength, future enemies, whether nations, groups or individuals, may seek to harm us in nontraditional ways, including attacks within the United States. Our economy is increasingly reliant upon interdependent and cyber-supported infrastructures and nontraditional attacks on our infrastructure and information systems may be capable of significantly harming both our military power and our economy.
Virginia's geographic position and the presence of many strategic military bases and related support structures make it important for Virginia lawyers to understand potential problems and to have our legal structure prepared to provide the best balance between traditional freedoms and the security which we also believe to be an attribute of our free society.
I returned to Virginia Beach and the VSB meeting for the myriad of meetings and presentations on other important issues with increased recognition of the way in which our two organizations - one voluntary and one mandatory - play off each other to maximum good effect for our profession. That recognition was reciprocated by Scott Street in his president's address at the VSB banquet in complimenting The Virginia Bar Association on the work of its Professionalism Task Force and in regard to the activity of our Judicial Section as two particulars.
As I listened to Scott's speech and those comments, I couldn't help but think that the lawyers of Virginia - unlike their colleagues elsewhere - have the best of both worlds in a bar organization structure providing the Virginia State Bar and The Virginia Bar Association as complementary organizations, and that we both have a lot of work to do, separately and together. Return to Top
Although the Pentagon briefing on national security issues was limited to a small delegation from The Virginia Bar Association, those who attend the Association's 109th Summer Meeting banquet at The Greenbrier on Friday, July 16, will have an opportunity to learn more about this important topic.
The Honorable William H. Webster, former director of the Central Intelligence Agency and the Federal Bureau of Investigation, will speak on "The Changing Face of Terrorism-New Threats to American Liberties and Security."
Judge Webster's appearance is sponsored by the VBA Committee on Special Issues of National and State Importance.
During the welcoming reception on Thursday, July 15, VBA members and their guests will have a unique and enjoyable learning experience when Dr. Charles F. Bryan Jr., director of the Virginia Historical Society, will present a brief program on "Books That Changed American History."
Dr. Bryan is a graduate of the Virginia Military Institute, the University of Georgia and the University of Tennessee. Prior to assuming his current post in 1988, he served as director of both the East Tennessee Historical Society and the St. Louis Mercantile Library Association. He has considerable experience as a teacher and has written and/or edited numerous historical works. Return to Top
Introduction
There is a critical and immediate need for consistent and coherent contract rules to support the rapidly expanding commerce in information and on the Internet. The importance of this issue has been recognized universally. Billions of dollars of commerce are today being conducted in the absence of any clear guidance about how to form contracts, what obligations exist in computer information transactions on-line or otherwise, what laws apply, how to deal with automation, and a myriad of other questions. Because of the uncertainty, millions of dollars are spent annually on legal advice and that uncertainty inhibits the realization of the full potential of the information age.
For several years, proposed Article 2B of the Uniform Commercial Code has been a focal point for the development of a coherent legal regime for this new and expansive realm of modern commerce. Part of the difficulty in developing pertinent rules for this type of commerce has been the need to move away from a contract law regime focused on the sale or lease of goods and into a paradigm focused on computer information as the subject matter of transactions. This difficulty recently led the National Conference of Commissioners on Uniform State Laws and the American Law Institute, the two cosponsors of the UCC, to the conclusion that Article 2B should not remain a project within the Uniform Commercial Code. The National Conference then, in a step that may expedite the completion of relevant contract law principles within the United States, decided to complete and promote the work as a separate uniform act. Removing this project from the UCC reduces the need to reconcile sale of goods principles with the entirely different subject matter of transactions in computer information. The new uniform law, tentatively labeled as the Uniform Computer Information Transactions Act (UCITA) will be proposed for final approval as a targeted act by NCCUSL in July 1999. It will provide a critically important framework for state law on this subject area.
Commercial Law Codification
Commercial law in the United States relies on the "law merchant." See, for example, Uniform Commercial Code § 1-103. The classic work on the law merchant, Lex Mercatoria, makes the point that this body of authority is not one created by judges, but by the customs of merchants. Of course, by the late 1600s the common law lawyers and judges had assumed roles which previously had been performed by merchants, and the courts themselves declared the custom, which was incorporated as a part of the common law. Thus was commercial custom translated into judicial precedent, and commercial law, informed by commercial custom, grew as case law. Unity of law and custom has been a goal of commercial law ever since.
In the late 1800s, commercial law demanded greater certainty than was possible in the case law approach. Codification, that is, writing the judge made law into statutory form to achieve that certainty, was begun in England by Chalmers. In that endeavor, given the difficulty of getting innovation through Parliament (a circumstance no different with respect to modern legislation), the advice to "reproduce as exactly as possible the existing law" was followed. In short, the primary goal of codification was greater certainty in, and ease in finding, the law, and not the development of new law. Commercial law codification efforts in the United States have been reflected in the Uniform Commercial Code and certain other uniform laws. All of these statutes generally have continued to pursue the two consistent goals previously mentioned. As Grant Gilmore, a major participant in the original formulation of the Uniform Commercial Code, long ago observed in an article in 57 YALE L.J. 1341:
"The principal objects of draftsmen of general commercial legislation...are to be accurate and not to be original. Their intention is to assure that if a given transaction...is initiated, it shall have a specified result; they attempt to state as a matter of law the conclusion which the business community apart from statute...gives to the transaction in any case."
Reflecting this goal in the UCC is §1-102(2), which emphasizes the purpose of clarity and the role of custom and usage, and both §1-102(2) and (3), which give sanction to private rules developed by the parties in their agreements. Commercial law codification in the United States has not been limited to the Uniform Commercial Code. For example, the Uniform Partnership, Limited Partnership, Fraudulent Transfer, and Trade Secrets Acts were promulgated by the same organization that is a partner with the American Law Institute in promulgating the Uniform Commercial Code. That organization, the National Conference of Commissioners on Uniform State Laws, is a 107-year-old organization whose purpose is to prepare statutes for uniform enactment by the states. The commercial law statutes prepared by the National Conference all are designed to codify established commercial practice and its reflection in the decided cases. They also seek to simplify and modernize the law, but the later goal is different than developing new rules that extend beyond current experience or settled law, or that redesign present practice and law to meet perceived theoretical constructs of what the law should be from a particular perspective.
The Background of Proposed UCC Article 2B
A project to draft legal rules reflecting sound commercial practice and to codify the somewhat limited case law for computer information transactions was initially conceived by the National Conference as a uniform act separate from the UCC. However, it was subsequently considered for inclusion in the UCC. Thus, the National Conference, and the American Law Institute as the partner of the National Conference, for the past several years have been cooperating in a project whose goal is to codify the law for computer information transactions in the Uniform Commercial Code. The project was originally determined by the National Conference to be needed because courts, looking for guidance to resolve disputes in computer software transactions, often applied the rules from Article 2 of the UCC, designed for sales of goods, to software contracts (licenses), even though the rules for the tangible medium that might carry the information were not relevant to the intangible rights to information, which is the real subject of this type of transaction.. See, e.g., Advent Systems Ltd. v. Unisys Corp., 925 F.2d 670 (3rd Cir. 1993). In the early form of this codification, the rules drafted for software transactions took the approach of building an information "spoke" on the common contractual "hub" in UCC Article 2, leaving as another "spoke" the particular rules for sales of goods then in Article 2.
This approach was short-lived. As drafting progressed, greater and more numerous differences between the subject matter of the new proposed law and the UCC Article 2 approach and provisions became apparent. Moreover, the failure of this "hub and spoke" approach in an earlier effort known as the New Payments Code, which tried to amalgamate payments systems within one law and ended up with all constituencies opposed because of the difficulty in finding particular rules and the necessary changes to established law, was a constant reminder of the practical problems with this approach. However, since some of the basic contract principles of the Code and some principles in UCC Article 1, like freedom of contract and other policies articulated in §1-102(2), were considered to be applicable in software and other information transactions, another home for the proposed new law, if not as a spoke in a Code article designed as a wheel, at first seemed to be as another but separate article to the Code. Thus proposed new Article 2B to the Uniform Commercial Code was begun.
Proposed UCC Article 2B
Proposed new UCC Article 2B to the UCC retained a coordinated relationship to Article 2 on sales of goods because it was proposed as an article to the Code and the sparse case law often used UCC Article 2 as a model. However, as time passed, and after further and frustrating efforts to integrate the new area into the UCC framework occurred, it became apparent that transactions in intangible information are quite different in fact from those for tangible goods, and they cannot be appropriately integrated into the UCC Articles 2 and 2A transactional framework which emphasizes transactions in goods. Among the kinds of differences and resulting problems that have been cited by some participants in this process are those related to the treatment of "copies" modeled after the UCC Article 2 treatment of delivered goods, the open texture of the offer-acceptance rules of Article 2 which may be difficult to apply in the Article 2B context where contracts closely define the product itself, and the fact that there are strong First Amendment considerations that are not present in a sale of goods and that require a different shaping of warranty and of third party liability issues. This experience thus suggested that this approach might not be the most appropriate vehicle. In addition, to remove the subject matter of computer information transactions from the UCC would respond to some of the concerns expressed by affected industries who see the UCC framework and tradition as not very well suited to their business practices. It also would allow both the revision of UCC Article 2 and the codification of the law of computer information transactions to proceed with a focus on their own unique commercial contexts without being forced to forge compromises to the possible detriment of each project in order to achieve what could be viewed as artificial harmonization. Finally, removal would allow both projects to more easily achieve their projected completion dates of July 1999, a goal that would be difficult to attain with the two projects linked and in tandem. In short, both computer information transactions and sales of goods could benefit from separation.
Some participants in the proposed UCC Article 2B project, who disagree with the provisions of the proposed statute, argued that the project should be dropped in the absence of the type of consensus that has become a tradition under the Uniform Commercial Code. However, that simply is not a tenable option. The information industry exceeds most manufacturing sectors in size. The numbers of transactions and dollar volume of them is immense. The Internet and information technology is a major component of the future economic prosperity of the United States. As the United States moves from an economy centered around transactions in goods to an information economy, the need has grown dramatically for coherent and predictable legal rules to support the contracts that underlie that economy. The full potential of this new commerce cannot be realized when the legal rules for it are unclear or uncertain, or where difficult to interpret cases derive a rule by analogy from other law designed for transactions of a different nature. Moreover, uniformity among the states is essential when transactions are nearly instantaneous across state lines. When the common law of sales reached significant commercial importance, it was codified. So too the law of leases of goods, negotiable instruments, funds transfers, letters of credit, and so on.
Moreover, doubt about the law applicable to electronic commerce has been driving many current legislative attempts to clarify various aspects of it. There is now much legislative activity in the states, but it is diverse in nature and that diversity creates a potential nightmare for industries which are national and indeed international in scope. In such circumstances, various components of the industry have turned to Congress for uniform action. But the Congressional system for legislation is ill-suited to craft a broad statute that would alleviate the industry concerns involved in the subject matter of the proposed state legislation on computer information transactions. The Congressional approach does not mirror the studies and broad participation the process used by the National Conference of Commissioners on Uniform State Laws embodies. While such a process could be employed at the federal level, to devise such a process and implement it will take time the concerned industries do not believe exists. Moreover, federal legislation, which inevitably must coordinate with state contract and property law in the area under discussion, instead tends to override it, with unintended consequences. It is far easier for a state law effort to coordinate with more limited federal law. For these reasons, uniform state legislative action in the near future is essential.
The Proposed Uniform Computer Information Transactions Act
It is now clear by reason of the experience in drafting proposed Article 2B as a part of the UCC, that codification of this subject is best suited at this juncture in a commercial statute separate from the UCC. What is needed is an intermediate legal step that will bring greater uniformity and certainty to the law until the practice and law in this area has developed sufficient maturity. Accordingly, the Institute and the National Conference have agreed that the proposed statute should be separated from the Code. In form it can embody relevant and accepted Code principles, such as freedom of contract, use of custom and practice, and other attributes, that will allow the statute flexibility as its subject matter develops and yet avoid the inappropriate transactional framework that integration now into the Code involves. Thus, former Article 2B will be offered as completed by the National Conference in 1999, with the participation of the former committee members of the Institute as advisors as they may desire, as a free-standing uniform act, tentatively titled the Uniform Computer Information Transaction Act. The act will be targeted for enactment by the National Conference for immediate introduction and enactment in the states beginning in the fall of 1999. A separate uniform act can best provide the framework in which sound business practices may further evolve in the marketplace bounded by standards setting appropriate public policy.
Conclusion
The history of the proposed act on computer information transactions from its inception in the American Bar Association studies to its offering to the states in 1999, as a uniform solution for greater certainty of law in computer information transactions is a story of great interest, and one of important lessons in the crafting of private state uniform laws. That story deserves to be told in detail, but not here, and not until the story is finished. For now, the new proposed act (f.k.a. UCC Article 2B) serves as an example of the flexibility of the uniform law process, the sound judgment of the institutions involved with it, and the ability of diverse interests to cooperate in the development of good law to serve the public interest.
Attributes of UCITA
The White House on July 1, 1997, emphasized the importance of Uniform Acts for both international and domestic electronic commerce and stated it supports "the adoption of uniform legislation by all states," employing the following principles: parties should be free to contract between themselves; rules should support use of electronic technologies; and the market should lead the development of this the most rapidly expanding component of our economy. (http://www.iist.gov.eleccomm/ecomm.htm)
The proposed Uniform Computer Information Transactions Act (UCITA) incorporates these principles and establishes rules where none exist now or improves present law as follows:
1. Provides greater certainty and clarity, over the present diverse and uncertain applicable law to computer software and information transactions.
Creates a uniform national framework for contracts in industries whose transactions routinely span state and international borders; establishes rules that reflect existing commercial practice;
establishes warranty and remedy structures that are more appropriate to computer-information transactions than existing law; creates an appropriate framework for contracting allowing exchange of published informational content and data without a potentially chilling liability risk;
modernizes and makes uniform the applicable statute of frauds applicable to computer information transactions, recognizing the sufficiency of electronic records and signatures; provides default gap-filler provisions (Parts 3,4,5 and 6) if the parties have not stated a term or the term is not otherwise provided by course of dealing, usage of trade or course of performance (Sections 104, 106 and 302); and enables electronic commerce with flexible, technology neutral rules.
2. Enables parties to opt in or opt out (except for certain mandatory rules), so parties can elect to be under a common set of rules for mixed transactions (Section 103).
3. Updates contract formation rules to reflect modern contracting practice and provides contract formation rules for electronic transactions which the common law and present statutory rules do not uniformly address (Part 2).
Provides a framework for contracting on the Internet; and provides a framework for obtaining assent to terms to make an agreement requires (1) an opportunity to review the terms (Section 112) and (2), that the person sign (" authenticate"), or by the person's intentional conduct and have reason to know that the other party may infer assent from the conduct (Section 111 and Restatement, Section 19).
4. Provides licensee protections equal to or greater than current common law (or current UCC Article 2, 2A and 9).
Consumer protection laws trump UCITA except as UCITA allows consumers to engage in electronic transactions (Section 105(c)); "unconscionable" terms are not enforceable (Section 111), and limits are placed on varying contract terms by contract (Section 104); terms that are clearly outweighed by fundamental public policy are not enforceable (Section 105(b)); protections are extended to "mass-market" transactions including a cost free return right if for any reason the terms are rejected; the return right provides for refund of the price, costs of return and for restoration costs incurred if booting up to review the terms damages the user's system or information (Section 211); terms cannot be performed or enforced in "bad faith" (Sections 102 and 104); gives consumers a right to avoid effect of a mistake on-line (Section 217); supplemental general principles of law and equity (e.g. estoppel, duress, misrepresentation, fraud, coercion, etc.), apply (Section 104); provides protections against abuse from electronic self-help (Section 816); ability to choose applicable law is limited in a consumer transaction (Section 109); and unreasonable and unjust choice of forum is denied (Section 110).
5. Preserves freedom of contract in computer information transactions generally.
6. Adopts and makes nationally uniform the modern view on choice of forum, allowing the parties by agreement to make the choices unless the choice is unreasonable and unjust, thereby facilitating the doing of business by small companies on the Internet (Section 110).
7. Parties are expressly authorized to choose the governing law except for mandatory consumer protection provisions (Section 109).
8. Warranties are equivalent to those under UCC Article 2 but appropriately expressed for application to intangibles (Part 4). New or enhanced warranties are added that do not exist in Article 2 or the common law. UCITA 405(c), creates a system integration implied warranty; 402(a)(1) makes uniform the principle that advertising can create an express warranty; and 404 creates uniform warranties for information out of common law "non-warranty" rules.
9. Establishes a remedy structure that is fashioned to provide clear and appropriate rules when a contract is breached.
About the Authors: This article is a reprint in part of an article published in UCC Bulletin, June 1999; it is reprinted with the permission of UCC Bulletin. Fred H. Miller is Professor of Law at the University of Oklahoma College of Law in Norman, Oklahoma, and serves as Executive Director of the National Conference of Commissioners on Uniform State Laws. Carlyle C. Ring Jr. is the Virginia Commissioner on Uniform State Laws, Chair of the UCITA Drafting Committee, a member of The Virginia Bar Association, and is a partner in the law firm of Ober, Kaler, Grimes & Shriver, located in Washington, D.C. Return to Top
Summer Meeting Update!
Carlyle C. Ring Jr., co-author of this article, is a panelist for "The Uniform Computer Information Transactions Act: To Be, But Not [Article] 2B," to be presented at the 109th VBA Summer Meeting on Saturday, July 17, from 9 to 10 a.m., at The Greenbrier in White Sulphur Springs, West Virginia.
The program will be moderated by Marshall M. Curtis of Whitham, Curtis & Whitham in Reston, chair of the VBA Intellectual Property Law Section. Other speakers include David Kunkle, the director, executive vice president and general counsel of PSI Net, Inc., Herndon; James Love, U.S. co-chair of the Transatlantic Consumer Dialog on E-Commerce, Washington, D.C.; and Jerry N. Simonoff, director of the Virginia Department of Technology Planning in Richmond. The program will offer 1.5 continuing legal education credits.
This program, sponsored by the VBA Intellectual Property Law Section, is one of 12 continuing legal education programs offered at the 109th Summer Meeting. A complete schedule of all programs, including speakers, times and available credits, may be found on the VBA website at http://www.vba.org/. Also on the website are details about registration, special events, activities for spouses and children, recreational tournaments, hotel accommodations and a downloadable meeting registration form. Or members may call the VBA office at (804) 644-0041 for registration information. Return to Top
Murphy to receive Distinguished Service Award
The Honorable W. Tayloe Murphy Jr. of Warsaw, former treasurer of The Virginia Bar Association and longtime member of the Virginia House of Delegates, will receive the VBA's Distinguished Service Award during the Association's 109th Summer Meeting, July 15-18 at The Greenbrier.
The award is presented in recognition and appreciation of exceptional service and contribution to the bar and public at large.
Delegate Murphy, who has announced his retirement after representing the 99th House District since 1982, is a graduate of Hampden-Sydney College and the University of Virginia School of Law, where he was a member of the editorial board of the Virginia Law Review and of the Raven Society.
His VBA involvement includes membership in the Environmental Law and Wills, Trusts & Estates Sections, and he chairs the education and environment subcommittee of the Committee on Special Issues of National and State Importance. He served on the VBA Executive Committee from 1991 to 1995.
He has chaired the Chesapeake Bay Commission, the Joint Legislative Audit and Review Commission, and the Commission on Population Growth and Development. He has also served on the Virginia Code Commission.
In the House of Delegates, he has co-chaired the Labor and Commerce Committee and served on the following committees: Appropriations, Conservation and Natural Resources, Corporations, Insurance and Banking; and Chesapeake and Its Tributaries.
The Northern Neck native has also been involved in numerous civic activities, including serving as chair of Westmoreland County's Planning Commission and its Board of Zoning Appeals. Return to Top
Civil Lit CLE features Roush review of appellate cases
The Civil Litigation Section has added another program to the Summer Meeting CLE lineup (12 in all). The Honorable Jane Marum Roush of the 19th Judicial Circuit in Fairfax will present a "1999 Review of Virginia Civil Appellate Cases" on Friday, July 16, from 9 to 10:30 a.m. The program will offer 1.5 hours of CLE credit to participants. Return to Top
Life Members will be recognized
Thirty-six members of The Virginia Bar Association (VBA) will be recognized as VBA Life Members during the banquet on Friday, July 16, at the Association's 109th Summer Meeting at The Greenbrier in White Sulphur Springs, West Virginia.
Life Members of The Virginia Bar Association are those persons who have been members of the VBA for at least 40 consecutive years.
The 1999 Life Members are as follows:
Hon. Robert F. Babb, Portsmouth
Lewis T. Booker, Richmond
W.R. Broaddus III, Martinsville
William R. Cogar, Richmond
Thomas W. diZerega, Upperville
Homer C. Eliades, Hopewell
Hon. James H. Flippen Jr., Norfolk
William A. Forrest Jr., Richmond
George C. Freeman Jr., Richmond
John Goode, Richmond
David F. Guthrie, Halifax
Harris Hart II, Tazewell
Wilbur L. Hazlegrove, Roanoke
C. Flippo Hicks, Richmond
Robert J. Ingram, Pulaski
W.A. Johnston III, Winchester
John F. Kay Jr., Richmond
Floyd E. Kellam Jr., Virginia Beach
John F. Kelly, Richmond
Charles W. Laughlin, Richmond
Leigh B. Middleditch Jr., Charlottesville
Michael W. Moncure III, Richmond
Edward R. Parker, Richmond
Thomas C. Phillips Jr., Abingdon
Hon. William T. Prince, Norfolk
Robert L. Rhea, Staunton
Ben M. Richardson, Roanoke
William R. Shands Jr., Midlothian
John S. Smart, Richmond
J. Glenwood Strickler, Roanoke
John S. Stump, McLean
Frank Talbott III, Danville
Charles F. Tucker, Norfolk
Jerrold G. Weinberg, Norfolk
Hon. James B. Wilkinson, Richmond
R. Allan Wimbish, Virginia Beach Return to Top
The Reciprocal Group:
American National Lawyers Insurance Reciprocal
(Risk Retention Group)
and The Reciprocal Insurance Agency, Ltd.
CSX Corporation and
Norfolk Southern Corporation
Hunton & Williams
LEXISr Law Publishing
Patrick & Associates Return to Top
The State Corporation Commission headquarters in downtown Richmond is located in the Main Street financial district, overlooking Shockoe Bottom and traffic flowing by on I-95.
Small wonder that when SCC Commissioner Hullihen Williams Moore decides to get away from it all, he heads to the Blue Ridge Mountains, where urban bustle gives way to natural quietude and the only things flowing by are the streams. There, he captures beautiful and unique images with his camera.
Moore, known as "Hullie," has long been an avid photographer. During his college days at Washington & Lee, he worked as a stringer for the Richmond Times-Dispatch, receiving $5-10 per photo for his efforts.
Then came law school at the University of Virginia, practice with a Richmond law firm, and life with a growing family. Photography gave way to other priorities.
In the 1970s, his wife's gift of a camera led to a reclaimed interest in photography. He spent 10 days in 1979 studying with the renowned nature photographer Ansel Adams in Yosemite National Park, and a passion was reborn.
Since then, Moore has studied with such photographers as John Sexton and Phillip Hyde and has continued to hone his skills, even after leaving law practice in 1992 for one of the three top spots at the SCC. In fact, the study with Sexton was a farewell present from colleagues at his former law firm.
Much of Moore's (chiefly) black-and-white work is done in Shenandoah National Park.
"I enjoy it," Moore says of his love of nature photography. "I don't play golf, I don't own a boat-and therefore you can justify a lot! It's different, interesting and it brings me pleasure. Others may enjoy seeing my work, and it helps me bring a little piece of the park to those who might not otherwise see it."
Moore's work has been featured in Blue Ridge and exhibited at W&L, Suitable for Framing in Richmond, the 1997 show of the Shenandoah Valley Arts Association, and at Big Meadows Visitor Center in Shenandoah National Park, where posters of his photos are sold. Next spring, his work will be seen at Richmond's Lewis Ginter Botanical Garden.
Moore's love of photography is matched by his admiration of the naturalist John Muir (1838-1914), which began when his son borrowed The Wind in the Woods from a local library. "I decided to read it and was enthralled. Then I read My First Summer in the Sierras and just was fascinated. I'd heard of Muir but didn't know much about him. I bought a first edition of his work, and then I got hooked on collecting 'Muirabilia' and learning about him. I've met lots of interesting people through my interest in him.
"He was a businessman, inventor, farmer and lobbyist. If you measure the good of people by the influence they have on others, he was as good an American as anyone. Just a remarkable human being. He created the environmental awareness movement in this country. He met with Theodore Roosevelt to establish the national parks system, which he did almost singlehandedly. And he wrote wonderful stuff. My First Summer is fresh, a diary. Others, like his outline for Yosemite, are more analytical. Stickeen is his account of being stranded on an Alaskan glacier with a small dog."
Moore recalls one quip of Muir's: "He was visiting the redwoods with Emerson and said he was glad that he wasn't so important that he had to be somewhere all the time, but that he could just spend time in the woods."
While Moore's work at the SCC is important, it is clear that he will always set aside free hours to "just spend time in the woods." And with his camera, he will continue to help others see "the magic and the wonders" of nature. Return to Top
At the Assembly's request, VBA group studies insanity defense in juvenile criminal cases
Work has begun on what will be a key endeavor of The Virginia Bar Association this year: studying the application of the insanity defense in Virginia juvenile delinquency proceedings, at the request of the General Assembly.
Currently, § 19.2-167 of the Code of Virginia establishes that an adult must have been sane at the time of an offense lodged against him or her to stand trial for that offense. The Code, however, does not provide for a juvenile's right to be found sane enough to stand trial or for standards of adjudicating insanity in juvenile delinquency proceedings. No clear guidelines exist in the mental health field to address sanity standards for juveniles, and the Commonwealth lacks clear protocols and procedures for the placement and effective treatment of juveniles found to be unable to stand trial as a result of insanity.
House Joint Resolution 680, agreed to by both the House of Delegates and the Senate during the legislative session earlier this year, called for the VBA to convene an advisory task force to "examine the state's policies, procedures and services applicable to these issues with a goal of developing statutory guidance and the mechanisms to implement a new law."
Jeanne F. Franklin of Alexandria, chair of the VBA Executive Committee and a former chair of the VBA Committee on the Needs of the Mentally Disabled, chairs the advisory task force.
Task force members, listed below, include VBA leaders, juvenile and domestic relations district court judges, and representatives of the Virginia College of Defense Attorneys, the Institute on Law, Psychiatry and Public Policy, the Commonwealth's Attorneys Services Council, the Department of Juvenile Justice, the Department of Mental Health, Mental Retardation and Substance Abuse Services, and the Virginia Association of Community Services Boards.
The advisory task force intends to complete work in time to submit a report to the 2000 General Assembly.
THE VIRGINIA BAR ASSOCIATION HJR 680 ADVISORY TASK FORCE
VBA Working Group
Jeanne F. Franklin, Alexandria, Chair
John R. Fletcher, Norfolk
Prof. Roger D. Groot, Lexington
Hon. Dale H. Harris, Lynchburg
John E. Oliver, Chesapeake
Prof. Robert E. Shepherd Jr., Richmond
Harriette H. Shivers, Roanoke
THE ADVISORY GROUP
Dr. Cheryl Al-Mateen, Midlothian
Hon. William A. Becker, Manassas
Hon. Gary L. Close, Culpeper
Melinda Douglas, Alexandria
Jeanette DuVal, LCSW, Richmond
Frank E. Ferguson, Richmond
Brent Garland, J.D., M.S., Charlottesville
Keith N. Hurley, Richmond
Marion Kelly, Richmond
Helen Leiner, Fairfax
James Martinez, Richmond
Hon. Michael McGinty, Williamsburg
Dr. Gloria Morote, Alexandria
Beth Rafferty, Richmond
Richard Redding, J.D., Ph.D., Charlottesville
William B. Reichardt, Fairfax
Hon. Philip Trompeter, Salem
Dr. Dennis Waite, Richmond Return to Top
VBA leaders participate in top-level security briefings at the Pentagon
VBA leaders traveled to Arlington on June 17 for special security briefings at the Pentagon on matters related to terrorism and the legal issues arising from them.
The briefings were organized by former Governor Gerald L. Baliles, chair of the VBA Committee on Special Issues of National and State Importance, and former Army Secretary John O. Marsh, who chairs the Committee's subcommittee on national security issues.
According to Baliles, the Defense Department personnel gave the VBA briefings top-level attention because of the serious legal questions which have arisen as the United States shapes its policies and responses to such threats as cyberterrorism, encryption and weapons of mass destruction.
During the briefings, Defense Department officials discussed the Department's response to encryption and cyberterrorism and its role in weapons of mass destruction consequence management.
The group also learned about the roles played by the Federal Emergency Management Agency and the Department of Justice/Federal Bureau of Investigation in weapons of mass destruction consequence management.
Participants also discussed legal issues related to encryption, cyberterrorism and response to the use of weapons of mass destruction.
In addition to Baliles and Marsh, the VBA delegation included President David Craig Landin, President-elect Anita Poston, Executive Committee Chair Jeanne Franklin, Executive Vice President Breck Arrington, and the following members of the Committee on Special Issues: Thomas C. Brown Jr., Darragh Davis, Dr. James A. Davis, Alexander Macaulay, Hon. W. Tayloe Murphy Jr., Hon. Sharon E. Pandak, Hon. John R. Reilly and F. Blair Wimbush.
National security is one of six key areas of interest for the Committee on Special Issues, along with citizenship, education and environment, finance, globalization, and infrastructure. Return to Top
Corporate Counsel Section hosts Fall Forum September 17-18
Corporate practice lawyers will want to mark their calendars for the VBA Corporate Counsel Section's first Fall Forum, to be held September 17-18 at The Jefferson Hotel in Richmond.
Attorneys from around the state will gather to earn six CLE credits (2 ethics) in an interactive setting on topical issues facing the corporate lawyer.
The Fall Forum will begin on Friday afternoon with a session on "Professionalism and Civility in the Corporate World."
Later, attendees and guests will depart The Jefferson for a three-hour dinner cruise down the James River on the "Annabel Lee," featuring live entertainment.
On Saturday morning, following a welcome and opening remarks, the Fall Forum will feature a session on "The Medium Is the Message - Legal Issues and Harnessing the Internet for Your Business." It will be followed by "Significant Developments in Corporate Law: An Overview of Recent and Pending U.S. Supreme Court Cases," after which the forum will be adjourned.
Amy T. Holt of Trigon Blue Cross Blue Shield in Richmond chairs the Corporate Counsel Section.
Section members who wish to make advance room reservations at The Jefferson for Friday night, September 17, may call (804) 649-4690. Registration details will be mailed later this summer and will be available on the Section's activities page. Return to Top
VBA members are renominated to posts with affiliated groups
Eight VBA members have been renominated by President David Craig Landin to positions with affiliated organizations.
William R. Van Buren III of Norfolk, a partner in the firm of Kaufman & Canoles, and Nancy N. Rogers of Richmond, a partner in the firm of Mays & Valentine, were both nominated for election to second and final three-year terms on the Virginia Law Foundation Board.
Five VBA members currently serving on the Virginia Law Foundation Joint Committee on Continuing Legal Education have been renominated to additional one-year terms. They are Dexter C. Rumsey III of Irvington, a partner in the firm of Rumsey & Bugg and the current chair of the committee; Wilson B. Dodson III of Norfolk, a partner in the firm of Williams, Kelly & Greer; Elaine R. Jordan of Richmond, a partner in the firm of Sands, Anderson, Marks & Miller; J. Lee E. Osborne of Roanoke, a partner in the firm of Carter, Brown & Osborne; and VBA Young Lawyers Division Representative Melissa Amos Young of Roanoke, an associate with the firm of Gentry, Locke, Rakes & Moore.
Conway H. Sheild III of Newport News, a partner in the firm of Jones, Blechman, Woltz & Kelly, has been appointed to a second two-year term on the Joint Judicial Review Committee. Return to Top
Labor lawyers will meet October 8-9 at The Tides
The 29th Annual Labor Relations and Employment Law Conference, presented by the VBA Labor Relations and Employment Law Section, will be held October 8-9 at The Tides in Irvington.
Programs and presentations, as in past conferences, will focus on current issues and recent developments in the fields of labor relations and employment law. Continuing legal education credits will be available to conference participants.
Section members have received preliminary mailings about the conference. Registration materials will be distributed later this summer.
Michael F. Marino of Hunton & Williams in McLean chairs the Labor Relations and Employment Law Section.
Information about the conference will also be posted on the section's activities page at http://www.vba.org. Questions may also be directed to the VBA office at (804) 644-0041. Return to Top
Potomac News, T-D reporting teams win journalism awards
Reporting teams from the Potomac News in Woodbridge and the Richmond Times-Dispatch took top honors in this year's competition for Awards for Journalism in the Field of Law and Justice, sponsored by The Virginia Bar Association.
Pamela Gould, Sandra Jontz Merrifield and Kari Pugh of the Potomac News won in Group I (newspapers with circulation of 40,000 or less) for their series on how the state's crime lab made an error which linked an innocent man to forensic evidence, and the potential ramifications of that error.
Frank Green, David Ress and Jamie Ruff of the Richmond Times-Dispatch won in Group II (circulation more than 40,000) for a series examining use of the death penalty in a Virginia city, and allegations that race played a large role in deciding who was sentenced to death. Return to Top
Professor Robert E. Shepherd Jr. of the University of Richmond School of Law, chair of the VBA Commission on the Needs of Children, recently received the Lifetime Achievement Award of the Virginia State Bar's Family Law Section for his lifetime dedication to serving as an advocate and "shepherd" for children and youth.
Catherine C. Hammond, a VBA member and active participant in the VBA's Professionalism Task Force Working Group, became the first woman judge to sit on the Henrico Circuit Court bench when her investiture took place on June 10 at the Henrico County Courts Building. VBA President David Craig Landin represented the Association at the ceremony and presented Judge Hammond with a framed copy of the VBA Creed. The investiture ceremony for The Honorable Gary A. Hicks, a VBA member and the first African-American judge of the Henrico Circuit Court, will take place on July 23.
Louis A. Mezzullo of Richmond, a VBA member and partner in the law firm of Mezzullo & McCandlish, has received the Tax Management Distinguished Author Award for 1998 in honor of his tax planning insights and analysis. He is a member of the VBA Taxation and Wills, Trusts & Estates Sections. Tax Management Inc., a leading provider of tax information for tax professionals, is a subsidiary of The Bureau of National Affairs.
J. Jack Kennedy Jr., a VBA member and the circuit court clerk for Wise County and the city of Norton, has been named a Fellow of the Institute of Court Management following his completion of the Court Executive Development Programs sponsored by the National Center for State Courts. The program is equal to a master's degree in court administration and is one of the highest designations for a court administrator in the United States. Kennedy is the only circuit court clerk in Virginia so far to obtain this honor.
W. David Harless, a VBA member and partner in the Richmond law firm of Christian & Barton, became the 115th president of The Bar Association of the City of Richmond in June.
Virginia Legal Aid Society, Inc., seeks an attorney to provide high-quality civil legal services to low-income families, children, and the elderly; use legal skills to solve problems in housing, health care, public benefits, economic self-sufficiency, education, consumer purchases, and family relations. Salary $30K plus, DOE. Excellent benefit package including health and dental insurance and LRAP. Positions available in Danville, Farmville, Lynchburg and Suffolk, communities with low costs of living and many attractions. Send resume to Executive Director, Virginia Legal Aid Society, P.O. Box 6058, Lynchburg, VA 24505; fax (804) 528-3571; e-mail david@vlas.org.
The list of "50 Best Golf Resorts" published in the June issue of Conde Nast Traveler includes several courses familiar to those who attend the VBA Annual and Summer (and other) Meetings. The Greenbrier tied (with the Four Seasons Resort on Nevis) for top honors, followed by The Homestead at #8, The Tides at #25, the Williamsburg Inn at #32, and Kingsmill at #43. Return to Top
Forty fourth-graders from Forest Park Elementary in Roanoke, participants in the VBA Young Lawyers Division's Roanoke Mentor Program, boarded a bus to visit the State Capitol in Richmond on May 10.
On the way north, the students stopped in Charlottesville, where they were greeted by Jack Blackburn, dean of admissions at the University of Virginia, and toured the Lawn and Rotunda. The students, most of whom had never visited a college, were very impressed and well behaved.
After several students stated their intention to become Wahoos, Dean Blackburn encouraged them to do their homework and read at every opportunity.
The bus continued to Richmond, where, following a tour of the State Capitol building, the students met with Secretary of Education Wilbert Bryant and Attorney General Mark Earley.
The group's activities in Richmond were organized by VBA/YLD leaders Maureen R. Matsen of the State Council for Higher Education and Ashley L. Taylor Jr. of the Office of the Attorney General.
The students were so impressed by their meeting with Taylor (see photo above) that they made an unscheduled trip to the Virginia Military Institute, Taylor's undergraduate alma mater, on the return trip to Roanoke after what one VBA/YLD participant termed "a memorable and fun day for all."
Lori D. Thompson chairs the VBA/YLD Mentor Program in Roanoke, where 49 VBA/YLD members serve as role models and mentors to hundreds of fourth-graders. This very successful VBA/YLD program works to broaden students' horizons and to encourage academic and social success. Thanks to the work of Thompson and the other VBA/YLD volunteers, the students derive tremendous benefits from their time spent with the mentors. Return to Top
Nominations for the Virginia Law Foundation Fellows' Class of 2000 will be accepted through September 1, 1999. The Class of 2000 will be inducted at a dinner meeting in January 2000, during The Virginia Bar Association Annual Meeting in Williamsburg.
A candidate must be an active or associate member of the Virginia State Bar for at least 10 years; be a resident of Virginia; be a person of integrity and character; have maintained and upheld the highest standards of the profession; be outstanding in the community; and be distinguished in the practice of law.
Retired and senior status judges are eligible during their tenures. Nominations must include a resume or biographical sketch of the nominee and must be received by September 1.
Nominations should be sent to the following address: VLF Fellows Council, c/o Nominations, 701 East Franklin Street, Suite 708, Richmond, Virginia 23219. Questions may be addressed to the Virginia Law Foundation at (804) 648-0112. Return to Top
Copyright 1999 The Virginia Bar Association