Aaron Campbell*
This article aims to provide a succinct review of noteworthy cases in the areas of criminal law and procedure that the Supreme Court of Virginia and the Court of Appeals of Virginia decided this past year. Instead of covering every ruling or procedural point in a particular case, this article focuses on the “take-away” of the holdings with the most precedential value. This article also summarizes significant changes to criminal law and procedure enacted by the 2014 Virginia General Assembly.
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*Assistant Attorney General, Criminal Litigation Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.
Sean P. Byrne*
Garrett Hooe**
It has been several years since the Annual Survey of Virginia Law published a comprehensive Health Care Law update.[1] In that time, health care reform has taken center stage on the national level with the implementation of the Affordable Care Act and related federal legislation. Here in the Commonwealth, we have seen incremental change in the health care law landscape, both in case decisions from the Supreme Court of Virginia impacting medical malpractice jurisprudence, and in a host of reform measures and legislative changes from the General Assembly. It is beyond the scope of this article to detail every change in this complex and fast-changing area of law, but noteworthy developments are highlighted here in an effort to inform the health law practitioner.
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*Director, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1993, University of Richmond. Mr. Byrne’s practice concentrates on medical malpractice defense and health care risk management advice. He is also an assistant adjunct professor at the University of Richmond School of Law.
**Associate, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2006, James Madison University. Mr. Hooe’s practice concentrates on medical malpractice defense in trial and appellate courts. The authors wish to thank and recognize Timothy Patterson, J.D. Candidate 2015, University of Richmond School of Law, for his able assistance with research and drafting.
[1]. See generally Kathleen M. McCauley & Kristri L. VanderLaan, Annual Survey of Virginia Law: Health Care Law, 44 U. Rich. L. Rev. 473 (2009) (the most recent such Health Care Law update).
William T. Reisinger *
Over the past fifteen years, Virginia has witnessed numerous fundamental changes to the regulation of investor-owned electric utilities in the Commonwealth—from traditional cost-based rate regulation, to experiments with deregulation, and finally to “re-regulation” of utilities at the Virginia State Corporation Commission (the “SCC”).[1] The legislature has also enacted various policies designed to encourage the construction of new power plants, energy conservation, and the development of clean energy resources. Almost every annual session of the Virginia General Assembly has brought at least one minor change to the Virginia Electric Utility Regulation Act. This article explains, at a high level, some of the major changes to electric regulation in Virginia in recent years. It also discusses how the General Assembly’s new policies have affected retail electric rates and the development of new generation facilities, including renewable energy resources, in the Commonwealth since 1999.
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* Assistant Attorney General, Office of the Attorney General of Virginia; Distinguished Visitor in Natural Resources Law, Appalachian School of Law. Any views expressed in this article are my own and do not necessarily represent those held by the Attorney General of Virginia or any other agency or employee of the Commonwealth.
[1]. When discussing “electric utilities” or “utilities,” this article is primarily referring to the two largest investor-owned electric utilities operating in the Commonwealth: Dominion Virginia Power and Appalachian Power Company. Va. State Corp. Comm’n, Staff Investigation on the Restructuring of the Electric Industry 1 (2007), available at http://www.scc.virginia.gov/comm/reports/restrct4.pdf.
Craig D. Bell *
This article reviews significant recent developments in the laws affecting Virginia taxation. Each section covers legislative changes, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation (the “Tax Department”) and the Virginia Attorney General over the past year.
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* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. Mr. Bell, chair of the McGuireWoods Tax and Employee Benefits Department, practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Fellow of the American Bar Foundation, a Barrister of the J. Edgar Murdock Inn of Court (United States Tax Court), an adjunct professor of tax law at the College of William & Mary School of Law, and a past chair of both the Tax and Military Law sections of the Virginia State Bar and the Tax Section of the Virginia Bar Association. Mr. Bell is an emeritus director of The Community Tax Law Project, a nonprofit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS and in United States Tax Court and federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low-income taxpayers.
William Gray, Jr. *
Katherine E. Ramsey **
After an unusually busy year in 2013, Virginia’s General Assembly and state courts were relatively quiet in 2014 in the area of wills, trusts, and estates. Legislation was generally limited to clarifications and technical corrections to existing law, with the most extensive bills devoted to adjusting various statutory amounts to reflect cost-of-living adjustments and consolidating the rules governing the disposition of dead bodies. Four cases dealt with questions of charitable immunity, presumption of undue influence, inheritance rights of half-blood collateral heirs, and contracts to make a will.
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* Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.
The Honorable Marla Graff Decker *
In every attorney’s career, there is likely to be a time when that attorney believes that a judge or jury erred in a decision that negatively impacts his or her client. Virginia has a specific set of laws and rules that guide attorneys through the appellate process and provide for appropriate review of these legal challenges.
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* Judge, Court of Appeals of Virginia. J.D., 1983, University of Richmond School of Law; B.S., 1980, Gettysburg College. Prior to the author’s appointment to the Court of Appeals of Virginia, she served as Assistant Attorney General for the Commonwealth of Virginia in the Criminal Litigation Section. Judge Decker is also an Adjunct Professor for the University of Richmond School of Law.
The Honorable Beverly Snukals *
Maggie Bowman **
On November 25, 2013, following one of the closest races in Virginia history, the Virginia State Board of Elections (the “SBE”) certified Democratic State Senator Mark Herring as the winner of the 2013 race for the office of Attorney General of Virginia by a record few 165 votes, less than one-hundredth of a percent of the votes cast.[1] Two days later, Herring’s opponent, Republican State Senator Mark Obenshain, filed a petition in the Richmond City Circuit Court of Richmond seeking a recount of the election pursuant to Virginia Code section 24.2-801.[2] Within a few short days, each party filed hundreds of pages of pleadings and memoranda. Hearings had to be held and orders had to be endorsed.
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* Judge of the Richmond City Circuit Court. J.D., 1981, University of Richmond School of Law; B.A., 1978, Hollins College.
** J.D., 2013, University of Richmond School of Law; B.S., 2008, Virginia Tech; Law Clerk, 2013–14, Hon. Beverly W. Snukals & Bradley B. Cavedo in the Circuit Court of the City of Richmond.
[1]. Laura Vozzella & Ben Pershing, Obenshain Concedes Virginia Attorney General’s Race to Herring, Wash. Post (Dec. 18, 2013), http://www.washingtonpost.com/local/virgin ia-politics/obenshain-to-concede-virginia-attorney-generals-race-on-wednesday-in-richmon d/2013/12/18/fe85a31c-67e7-11e3-8b5b-a77187b716a3_story.html.
[2]. See Ben Pershing, Obenshain Camp Asks for Recount in Va. Attorney General’s Race Against Herring, Wash. Post (Nov. 27, 2013), http://www.washingtonpost.com/local/ virginia-politics/obenshain-camp-asks-for-recount-in-va-attorney-generals-race-against-herring/2013/11/27/c5e33aa6-577a-11e3-ba82-16ed03681809_story.html; see Va. Code Ann. § 24.2-801 (Repl. Vol. 2011).
Stephanie Martinez *
Without advanced planning, minority shareholders in a closely held corporation can find themselves in the unenviable position of being up a creek without a paddle. Minority shareholders often invest in a corporation with the belief that the investment will provide them with a steady stream of income, either from a job or from payment of dividends.[1] Yet many fail to protect themselves with employment contracts or buy-sell agreements,[2] leaving them vulnerable to a majority shareholder who may decide to fire them or withhold dividends.[3] Without a source of income, a minority shareholder can face an indefinite period when there is no return on his or her investment.[4]
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* J.D., 2014, University of Richmond School of Law; B.A., 2010, James Madison University. A special thank you to Professor Jessica Erickson, who never seemed to tire of my constant questions and office visits. I am also deeply indebted to the staff of the University of Richmond Law Review, who spent countless hours, during the summer no less, working on this comment. Finally, I would like to thank my friends and family, and especially my husband Jonathan, for their support and encouragement.
[1]. See Robert B. Thompson, The Shareholder’s Cause of Action for Oppression, 48 Bus. Law. 699, 702 (1993).
[2]. See Michael K. Molitor, Eat Your Vegetables (Or At Least Understand Why You Should): Can Better Warning and Education of Prospective Minority Owners Reduce Oppression in Closely Held Businesses?, 14 Fordham J. Corp. & Fin. L. 491, 495–96 (2009).
[3]. Thompson, supra note 1, at 703.
[4]. Id.
Kendall Hamilton *
“Truly humane societies are those . . . that have decided to begin the long march down the road toward the abolition of violence . . . . [and] every once in a while, stop along the way to take stock, and then decide to continue.”[1]
Our criminal justice system rests upon the fundamental notion that a defendant’s punishment will match her level of culpability.[2] In other words, the defendant should be a “fair candidate for punishment.”[3] Accordingly, when punishment outweighs culpability, effectively over-punishing a defendant, the legitimacy of our criminal justice system erodes because the system in which we have bestowed our trust has not produced a fair candidate for punishment. The intersection between Virginia’s self-defense laws and the realities surrounding domestic violence demonstrate this over-punishment problem.
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* J.D., 2014, University of Richmond School of Law; B.A., 2007, Johns Hopkins University. Thank you to my family for their support before, during, and after law school. Their continued guidance and encouragement is truly invaluable. Special thanks to Professor Tate for helping develop this comment in the early stages, and to Jonathan Tan and Samantha Fant for encouraging me to take the final steps towards its completion. Lastly, thank you to Tara Badawy and the University of Richmond Law Review’s editors and staff for their hard work throughout this process.
[1]. Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 15 (1989) [hereinafter Walker, Terrifying Love].
[2]. See Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 445 (2005) (“Notice that we refer to the absence of culpability in cases in which a person is not a fair candidate for punishment . . . . In contrast, in cases in which fault is at issue, we talk not only about the absence of culpability, but also—on the positive side, so to speak—about the varying degrees of culpability.”).
[3]. Id.; see also Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 Colum. L. Rev. 1233, 1241 (2005) (“Herbert Wechsler, Paul Tappan, and Louis Schwartz, . . . developed the Model Penal Code . . . [and] understood the Kantian argument that respect for offenders’ moral autonomy requires that they be punished in proportion to the seriousness of their crimes.”). This comment recognizes that legal scholars disagree as to the exact theory of punishment to be utilized, but despite such disagreement, most are still interested in incorporating a theory of punishment that is fair; namely, a punishment that is “politically legitimate, morally just, or otherwise institutionally necessary.” Marc O. DeGirolami, Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, 9 Ohio St. J. Crim. L. 699, 706 (2012).
Anne E. Mullins*
“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.”
As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.
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*Assistant Professor, University of North Dakota School of Law. J.D., University of Chicago School of Law; A.B., Dartmouth College. I would like to extend special thanks to David Bell, Xinmei Zhang and Yongge Dai Professor at the Wharton School of the University of Pennsylvania, for introducing me to psychological influence tactics in business marketing, and to Dr. Robert Cialdini’s exceptional work in the field. I thank Suzanne Rowe, Jen Reynolds, Anne Enquist, Michael Higdon, Lucy Jewel, Michael Sackey, Suparna Malempati, Cindy Archer, Emily Grant, and Tim Kelley for their thoughtful feedback. I also thank the Association of Legal Writing Directors for their Scholars’ Forum and Scholars’ Workshop; both were critical to the development of this article. Finally, I thank Meg Kirschnick, Chris MacMillan, Dawn Jagger, Anna Makowski, and Caitlin Kelly Engle for their outstanding research assistance and feedback.
