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Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution

Each year, more than ten thousand people are imprisoned by federal courts without being charged with a crime, indicted by a grand jury, or found guilty beyond a reasonable doubt by a jury of their peers. Those results are authorized by federal …

By Stefan R. Underhill & Grace E. Powell
108 Va. L. Rev. Online 297

On Rawlsian Contractualism and the Private Law

Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different …

By David Blankfein-Tabachnick & Kevin A. Kordana
108 Va. L. Rev. Online 265

Circuit Personalities

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety …

By Allison Orr Larsen & Neal Devins
108 Va. L. Rev. 1315

Criminal Law Exceptionalism

For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of …

By Benjamin Levin
108 Va. L. Rev. 1381

A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains

Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, …

By Abigail N. Burke
108 Va. L. Rev. 1449

On Lenity: What Justice Gorsuch Didn’t Say

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …

By Brandon Hasbrouck
108 Va. L. Rev. 1289

The Common Law of Interpretation

Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian …

By Christopher J. Baldacci
108 Va. L. Rev. 1243

Stakeholderism, Corporate Purpose, and Credible Commitment

One of the most significant recent phenomena in corporate governance is the embrace, by some of the most influential actors in the corporate community, of the view that corporations should be focused on furthering the interests of all corporate …

By Lisa M. Fairfax
108 Va. L. Rev. 1163

Debunking the Nondelegation Doctrine for State Regulation of Federal Elections

One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, …

By Mark S. Krass
108 Va. L. Rev. 1091

On Lenity: What Justice Gorsuch Didn’t Say

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …

By Brandon Hasbrouck
108 Va. L. Rev. Online 239
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
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
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
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
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
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
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
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

A Corpus Linguistic Analysis of “Foreign Tribunal”

In March, the United States Supreme Court heard a case involving the issue of whether a private arbitration panel in another country is covered by the statutory phrase “foreign or international tribunal.” The statutory language, enacted in 1964, …

By James C. Phillips & Jesse Egbert
108 Va. L. Rev. Online 207

Antideference: COVID, Climate, and the Rise of the Major Questions Canon

Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s …

By Nathan Richardson
108 Va. L. Rev. Online 174