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

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

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

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

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

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. 

 

An Unlikely Romance: The United States and Intermediated Markets

An Unlikely Romance: The United States and Intermediated Markets

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Americans are infatuated with the stock markets, and today’s stock markets are dominated by a small number of large institutions that manage enormous amounts of money. Those two facts are paradoxical given the history of stock markets in the United States. Modern stock markets in the United States are the consequence of federal legislation responding to widespread social and economic harm caused by the stock market crash of 1929. That legislation was designed to avoid the concentration of economic power in a small number of institutions. Despite those historical facts, over the past century, the centrality of the stock markets in the U.S. economy has steadily grown, and a handful of enormous institutions have come to manage an outsized portion of the money in those markets.

This Article explores the historical choices and forces that led us to this point. It describes the cultural and political forces that led U.S. lawmakers to favor market financing, at first reluctantly, but eventually unabashedly. It catalogs federal lawmaking around the securities markets over the near century between 1929 and today. This review of lawmaking uncovers how, over this time, lawmakers’ affinity for markets strengthened as their skepticism of institutions disappeared. It concludes that once policymaking embraced the capital markets, the development of investment intermediaries was
all but inevitable.

Emily Winston *

* Assistant Professor, University of South Carolina School of Law.

 

Cost Cushion or Cash Cow? A Federal Drugpricing Program Called into Question

Cost Cushion or Cash Cow? A Federal Drugpricing Program Called into Question

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With a specific focus on DSH hospitals, this Comment proposes that Congress amend the statutory provisions governing the 340B Program to require covered entities to reinvest 340B funds in improving the quality and accessibility of health care for their low-income and uninsured patient populations. The true potential of the 340B Program to improve the quality of healthcare for low-income and uninsured patients will remain unknown and unharnessed until gaps in the oversight of the 340B Program are closed. Congress must amend the 340B statute to require covered entities to use and account for 340B funds in a way that is consistent with the policy goals of the program. In addition, the program’s current auditing and oversight mechanisms must be adapted to ensure that appropriate recourse may be taken if 340B funds are not properly used.

Caleb C. Briggs *

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

 

Hitting Snooze Amidst Virginia’s Mental Health Crisis: The Shortcomings of the Bed of Last Resort and the Need for a Continuum of Crisis Care

Hitting Snooze Amidst Virginia’s Mental Health Crisis: The Shortcomings of the Bed of Last Resort and the Need for a Continuum of Crisis Care

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This Comment examines the history, structure, and unintended consequences of the Bed of Last Resort law by tracking its development and how it currently operates within Virginia’s broader mental health system. This Comment also evaluates the efficacy of the Bed of Last Resort law by comparing it to best practices for treating those experiencing mental health emergencies, focusing specifically on the Crisis Now model for a continuum of crisis care. This Comment concludes with proposals for improving the Bed of Last Resort law without completely overhauling the legislation.

Mary C. Fritz *

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

 

Preface

Preface

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The University of Richmond Law Review is proud to present its ninth annual issue of online scholarship. For the past nine years, the University of Richmond Law Review Online has been dedicated to publishing a diverse range of scholarly works in an exclusively digital format. This modern approach allows the Law Review to embrace greater flexibility and foster innovative contributions to legal discourse. Today, the expansive Online platform is read by lawyers, judges, students, and many others around the globe.

 

Mariah L. Riley *

* Online Editor, University of Richmond Law Review Vol. 58. J.D., 2024, University of Richmond School of Law.

 

Applying the Fair Use Doctrine in Music Copyright “Borrowing” Infringement Cases

Applying the Fair Use Doctrine in Music Copyright “Borrowing” Infringement Cases

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Copyright fair use is a broad, statutory doctrine that permits fair use of any type of copyrighted work. But the fair use defense is virtually nonexistent in copyright infringement cases involving musical compositions, such as the famous “Blurred Lines” case. Defendants and courts neglect to consider it for reasons unknown. One might conjecture that this simply reflects a tacit understanding in the music industry that original music should be untouched. In fact, musical borrowing is a longstanding and accepted tradition, which makes copyright fair use particularly amenable to musical compositions. Disconcertingly, ignoring fair use of musical compositions in infringement cases almost certainly means that courts have been generating erroneous outcomes for many years.

This Article overviews the tradition of musical borrowing, briefly surveys copyright infringement cases involving musical compositions, and considers how the fair use doctrine would apply in such cases. The objective is to compel defendant composers to raise the fair use defense in appropriate cases and, ultimately, help courts correct this glaring oversight in U.S. copyright jurisprudence.

Shea Bettwy *

* LL.M., University of Galway; J.D., University of California, Berkeley School of Law; B.A., University of Notre Dame.