Browse Articles

Browse By

Remedying Police Brutality Through Sentencing Reduction

Police brutality is a widespread problem that causes significant physical and psychological trauma, undermines faith in the law, and disproportionately impacts communities of color. Existing remedies to police brutality—including civil suits for …

By Mark D. Duda
107 Va. L. Rev. Online 99

Mail-In Ballots and Constraints on Federal Power Under the Electors Clause

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. …

By John J. Martin
107 Va. L. Rev. Online 84

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place. One of his parishioners, James Keating, had reported a theft of jewelry to the police. Later, Keating withdrew his …

By Austin T. Hetrick
107 Va. L. Rev. 393

Vagueness Attacks on Searches and Seizures

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect …

By Joel S. Johnson
107 Va. L. Rev. 347

Nondelegation and Criminal Law

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these …

By F. Andrew Hessick & Carissa Byrne Hessick
107 Va. L. Rev. 281

The Corrective Justice Theory of Punishment

The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the …

By Jacob Bronsther
107 Va. L. Rev. 227

Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general …

By W. Jackson Vallar
107 Va. L. Rev. 189

Settled Law

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial …

By G. Alexander Nunn and Alan M. Trammell
107 Va. L. Rev. 57

Conflict Avoidance in Constitutional Law

Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as …

By Charles L. Barzun and Michael D. Gilbert
107 Va. L. Rev. 1

The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95

What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential …

By William Hall and Saikrishna Bangalore Prakash
107 Va. L. Rev. 119

Foreword

If a foreword were to be limited to one word, and one word only, this foreword’s one word would be joy. It is a joy to introduce to you a diverse group of authors and their writings on the past, present, and future of a social justice movement that …

By Anne M. Coughlin
107 Va. L. Rev. Online 1

Bostock’s Inclusive Queer Frame

Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than …

By Rachel Slepoi
107 Va. L. Rev. Online 67

Termites in the Master’s House: Abortion Rap and Florynce Kennedy’s Contributions to Racial and Gender Justice

Contemporaries recognized Kennedy as “an outspoken activist for the rights of African Americans, women, sex workers, and members of the LGBT community.” In this way, Kennedy united social movements with divergent agendas. She believed that only …

By Hayley Hahn
107 Va. L. Rev. Online 48

Shaping Our Freedom Dreams: Reclaiming Intersectionality Through Black Feminist Legal Theory

Black feminist legal theory has offered the tool of intersectionality to modern feminist movements to help combat interlocking systems of oppression. Despite this tremendous offering, intersectionality has become wholly divorced from its Black …

By Trust Kupupika
107 Va. L. Rev. Online 27

A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power

In January 2020, Virginia became the thirty-eighth and final state needed to ratify the Equal Rights Amendment (“ERA”). Because Virginia’s ratification—and those of Nevada and Illinois —occurred four decades after Congress’s ratification deadline, …

By Julie C. Suk
107 Va. L. Rev. Online 3

Blackness as Fighting Words

Where I grew up, the wrong words could turn an innocent sparring match of playground taunts and after-school gibes into a full-out asphalt brawl. Naïve boys enacting popular tropes of Black hypermasculinity, we would often form a circle around the …

By Etienne C. Toussaint
106 Va. L. Rev. Online 124

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society..

By Scott M. Caravello
106 Va. L. Rev. 1769

The Unlimited Jurisdiction of the Federal Courts

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ …

By Stephen E. Sachs
106 Va. L. Rev. 1703

The Rise and Fall of Transcendent Constitutionalism in the Civil War Era

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress …

By Cynthia Nicoletti
106 Va. L. Rev. 1631

Damages for Privileged Harm

The law often permits us to impose substantial harm on others without incurring liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. Calculating these damages requires …

By Stephen Yelderman
106 Va. L. Rev. 1569