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Separation of Powers

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Constitutional Powers, Jurisprudence Theory

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework …

By Curtis A. Bradley & Neil S. Siegel
106 Va. L. Rev. 1
Civil Rights, Employment Law

Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law

In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County, holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity. The opinion, authored by Justice Neil …

By Guha Krishnamurthi
108 Va. L. Rev. Online 1
Education, Racial Legal Theory

Restoring Honor: Ending Racial Disparities in University Honor Systems

In student-led academic honor systems, students establish policies governing lying, cheating, or stealing (referred to as “academic misconduct”); adjudicate reports of academic misconduct among their peers; and determine appropriate sanctions..

By Anna G. Bobrow
106 Va. L. Rev. Online 47
Constitutional Law, International Law

Rejoining Treaties

Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal …

By Jean Galbraith
106 Va. L. Rev. 73
Criminal Law, State Law & Federalism

Statutory Federalism and Criminal Law

Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely …

By Joshua M. Divine
106 Va. L. Rev. 127
Civil Procedure, Federal Courts

Colorado River Abstention: A Practical Reassessment

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent …

By Owen W. Gallogly
106 Va. L. Rev. 199
Civil Procedure

Intervention

Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, …

By Caleb Nelson
106 Va. L. Rev. 271
Constitutional Powers, International Law

Congressional Administration of Foreign Affairs

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a …

By Rebecca Ingber
106 Va. L. Rev. 395
Antitrust, Corporate Law, Finance & Banking

The New Gatekeepers: Private Firms as Public Enforcers

The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ …

By Rory Van Loo
106 Va. L. Rev. 467
Criminal Justice

Redefining the Relationship Between Stone and AEDPA

This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have …

By Theodore J. Kristek, Jr.
106 Va. L. Rev. 523
Constitutional Law, Corporate Law, Fourteenth Amendment, Legal History

Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection

This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this …

By Evelyn Atkinson
108 Va. L. Rev. 581
Technology

A Right to a Human Decision

Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision makers. From welfare and employment to bail and other risk assessments, state actors increasingly lean on machine-learning tools …

By Aziz Z. Huq
106 Va. L. Rev. 611
Contracts, Corporate Law

Collaborative Intent

Why do parties—even sophisticated ones—draft contracts that are vague or incomplete? Many others have tackled this question, but this Article argues that there is an overlooked, common, and powerful reason for contractual gaps. Using original …

By Cathy Hwang
108 Va. L. Rev. 657
Corporate Law

Myopic Consumer Law

People make mistakes with debt, partly because the chance to buy now and pay later tempts them to do things that are not in their long-term interest. Lenders sell credit products that exploit this vulnerability. In this Article, I argue that …

By Andrew T. Hayashi
106 Va. L. Rev. 689
Criminal Justice, Criminal Law

Pretrial Detention and the Value of Liberty

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify …

By Megan T. Stevenson & Sandra G. Mayson
108 Va. L. Rev. 709
Legal History

Colonial Virginia: Incubator of Judicial Review

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics …

By Justin W. Aimonetti
106 Va. L. Rev. 765
Constitutional Law, Separation of Powers

Vagueness and Nondelegation

The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression …

By Arjun Ogale
108 Va. L. Rev. 783
Technology

Measuring Algorithmic Fairness

Algorithmic decision making is both increasingly common and increasingly controversial. Critics worry that algorithmic tools are not transparent, accountable, or fair. Assessing the fairness of these tools has been especially fraught as it requires …

By Deborah Hellman
106 Va. L. Rev. 811
Federal Courts, Jurisprudence Theory

Judicial Minimalism in the Lower Courts

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should …

By Thomas P. Schmidt
108 Va. L. Rev. 829
Technology

Manipulating Opportunity

Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When …

By Pauline T. Kim
106 Va. L. Rev. 867
Bankruptcy, Finance & Banking

A Modern Poor Debtor’s Oath

Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford bankruptcy. Filing for even the simplest type of bankruptcy costs around $1,800, with most of this …

By Richard M. Hynes & Nathaniel Pattison
108 Va. L. Rev. 915
Corporate Law

Designing Business Forms to Pursue Social Goals

The long-standing debate about the purpose and role of business firms has recently regained momentum. Business firms face growing pressure to pursue social goals and benefit corporation statutes proliferate across many U.S. states. This trend is …

By Ofer Eldar
106 Va. L. Rev. 937
Corporate Law, Insurance

Changing Guards: Improving Corporate Governance with D&O Insurer Rotations

Almost all public companies buy insurance for their directors and officers. D&O insurers should be active gatekeepers for the corporation, since they lose money if executives misbehave, but all available evidence suggests the opposite: insurers …

By Andrew Verstein
108 Va. L. Rev. 983
Federal Courts, International Law

Transatlantic Perspectives on the Political Question Doctrine

On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) unanimously invalidated U.K. Prime Minister Boris Johnson’s attempt to suspend (or “prorogue”) Parliament. The UKSC’s decision, R (Miller) v. Prime Minister (Miller/Cherry), was a …

By Jackson A. Myers
106 Va. L. Rev. 1007
Local Government, State Law & Federalism

The Structures of Local Courts

Local courts are, by far, the most commonly used courts in our justice system. Cases filed in local courts outnumber those filed in federal court by a factor of over two hundred. Few litigants who receive local-court judgments appeal the matter …

By Justin Weinstein-Tull
106 Va. L. Rev. 1031
Constitutional Law, Fourth Amendment

Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches

Consent searches are by far the most common tool to circumvent the Fourth Amendment’s warrant requirement. Though police officers have the property owner’s permission, the searches they conduct are not always harmless. Without probable cause or …

By Eva Lilienfeld & Kimberly Veklerov
108 Va. L. Rev. 1055
Contracts, International Law

Substance-Targeted Choice-of-Law Clauses

Recent cases highlight two persistent problems in United States litigation: the frequency with which parties seek to validate an otherwise unenforceable provision through a choice-of-law clause, and the disparate results courts have reached in such …

By Katherine Florey
106 Va. L. Rev. 1107
Corporate Law

Defining Appraisal Fair Value

Appraisal is a statutory mechanism that entitles dissenting stockholders of Delaware merger targets to receive a judicially determined valuation of their shares. During a decade when Delaware courts significantly constrained other legal avenues of …

By Ben Lucy
106 Va. L. Rev. 1183
First Amendment

Weaponizing the First Amendment: An Equality Reading

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is …

By Catharine A. MacKinnon
106 Va. L. Rev. 1223
Second Amendment

Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process

Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of …

By Joseph Blocher & Jacob D. Charles
106 Va. L. Rev. 1285