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Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the …

By F. Andrew Hessick and Michael T. Morley
107 Va. L. Rev. 1059

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia …

By Juliet Buesing Clark
107 Va. L. Rev. 1115

What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the …

By Josh Bowers
107 Va. L. Rev. 959

Government Speech and First Amendment Capture

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the …

By Caroline Mala Corbin
107 Va. L. Rev. Online 224

Race, Ramos, and the Second Amendment Standard of Review

Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We …

By Justin Aimonetti and Christian Talley
107 Va. L. Rev. Online 193

Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police

Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of …

By Aidan J. Coleman and Katharine M. Janes
107 Va. L. Rev. Online 166

Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in …

By Clay Phillips
107 Va. L. Rev. 919

Velvet Rope Discrimination

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming …

By Shaun Ossei-Owusu
107 Va. L. Rev. 683

The Law of Legislative Representation

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, …

By Jonathan S. Gould
107 Va. L. Rev. 765

Trade Administration

At the core of public debates about trade policy making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss …

By Kathleen Claussen
107 Va. L. Rev. 845

A Prelude to a Critical Race Theoretical Account of Civil Procedure

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized …

By Portia Pedro
107 Va. L. Rev. Online 143

Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often …

By Kathleen DeLaney Thomas
107 Va. L. Rev. 571

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat …

By Nathaniel C. Sutton
107 Va. L. Rev. 639

Invoking Criminal Equity’s Roots

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and …

By Cortney E. Lollar
107 Va. L. Rev. 495

Interpretive Entrepreneurs

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official …

By Melissa J. Durkee
107 Va. L. Rev. 431

Why BIPOC Fails

Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice. …

By Meera E. Deo
107 Va. L. Rev. Online 115

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