Archives | University of Richmond Law Review

The Emerging Virginia Constitution: Open Questions of Interpretation, and How Their Resolution May Impact Unenumerated Rights

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Although there is a Federal Constitution, of which we are all familiar, there are also 50 separately crafted state constitutions designed to respond to the unique circumstances of the territories they govern. These state constitutions contain analogues of our federal constitution, often including a bill of rights or other declaration of individual rights. Despite the distinctive history, nature, structure, and text of each state constitution, for decades if an individual invoked a claim involving a state constitutional right a state court would determine the scope of that state constitutional right in “lockstep” with federal Supreme Court. That approach has fractured.

Last December, the Constitution of Virginia reemerged into the spotlight after more than a century on the sidelines when the Supreme Court of Virginia announced in Vlaming v. West Point School Board that the Constitution of Virginia includes new and sweeping protections for religious freedom, exceeding the rights protected by the Federal Constitution. This decision is important not only for its outcome, but also for the novel questions it raises regarding interpretation of the Constitution of Virginia.

This article attempts to frame but a few of the questions now facing state supreme courts who have reached similar conclusions and then applies them specifically to Virginia, where the recent decision on religious liberties has left them ripe for development.

The Honorable Lisa M. Lorish *

Elizabeth Putfark **

* The Honorable Lisa M. Lorish is a Judge on the Virginia Court of Appeals. Thanks to
Tyler Demetriou, A.E. Dick Howard, Antonella Nicholas, Diane Philips, Lawrence Solum,
and Brian Warren for helpful comments and conversation. A special thanks as well to Connor Johnson, Jami-Reese Robertson and the other wonderful editors at the Richmond Law
Review for their diligent work on this piece. The views expressed in this article represent
strictly the personal views of the authors.

** Elizabeth Putfark is an associate attorney with the Southern Environmental Law
Center and former judicial extern to the Honorable Lisa M. Lorish.

Improving Law Reviews

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Legal academia’s system of utilizing student-run journals for publication has its downsides. Professors and students both have shared frustrations in the editing process. While editorial processes differ by journal, often there are issues with lack of mutual understanding in the scope of what should be edited, the role of the student in the editing process, and what level of deference should be provided to author discretion.

To remedy these downsides, this article proposes a framework which is borrowed from the world of appellate procedure, based on the proposition that the relationship between trial judges and appellate judges resembles the relationship between authors and student editors. Specifically, this article suggests that student editors should use standards of review, similar to those used by appellate judges when reviewing trial judges’ decisions, to guide their editorial decisions. Implementing additional tools—specifically, burdens of proof and reasoned explanations—could further improve the editorial process by guiding student editors to fewer but more helpful edits.

Dora W. Klein *

* Professor of Law, St. Mary’s University School of Law.

Acknowledgments

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Caleb C. Briggs *

* J.D., 2024, University of Richmond School of Law; B.A., 2020, University of Virginia.

Choice of Law and the After-Acquired Domicile

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The wheels of justice move slowly. There is usually a significant lapse of time between the underlying factual events prompting a dispute, the filing of a lawsuit, and an ultimate judgment. During this significant temporal lag, it is not uncommon for parties to a dispute to move to a new state and establish a new domicile. This move can complicate a choice of law analysis. Modern choice of law heavily emphasizes the domicile of the parties to a dispute. But which domicile counts: The pre-move or post-move domicile of the litigant? The black letter law has always assumed that the postmove domicile—the “after-acquired” domicile—does not count for choice of law purposes. But there are some cases that do consider the after-acquired domicile when doing a choice of law analysis. This Article examines the after-acquired domicile problem and offers a comprehensive solution to the issue.

Luke Meier *

* Professor of Law, Baylor Law School.

Immigration Enforcement Creep in Immigrant & Employee Rights

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As the only agency charged with enforcing the Immigration Reform and Control Act’s antidiscrimination provisions, the Immigrant and Employee Rights (“IER”) section of the Department of Justice’s Civil Rights Division plays an important role in protecting worker rights. Yet over the past decade, IER has moved from worker protection to immigration enforcement: a phenomenon this Article terms “immigration enforcement creep.”

This observation is based on ten years of data collected from IER’s settlement agreements, complaints filed, and telephone interventions. The data show that rather than protect noncitizen workers from unlawful discrimination, IER has moved its focus to enforcing immigration laws against employers who hire workers on temporary work visas. IER’s enforcement choices lead to underenforcement of the antidiscrimination provisions Congress charged it with enforcing. This Article ultimately concludes that this immigration enforcement creep goes against IER’s role as a worker protection agency and suggests principles of equitable enforcement that should guide its exercise of authority instead.

Angela D. Morrison *

* Professor of Law, Texas A&M University School of Law.