Browse Articles

Browse By

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

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

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

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

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

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

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

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

Proving Causation in Clinical Research Negligence

Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing …

By Stephen Paul
108 Va. L. Rev. 535

The Original Meaning of “Due Process of Law” in the Fifth Amendment

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated …

By Max Crema & Lawrence B. Solum
108 Va. L. Rev. 447

Equal Speech Protection

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on …

By Francesca L. Procaccini
108 Va. L. Rev. 353

Statutory History

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from …

By Anita S. Krishnakumar
108 Va. L. Rev. 263

Reevaluating School Policing

School police, often referred to as school resource officers (“SROs”), contribute to a pattern called the school-to-prison pipeline, through which Black and brown children are diverted from classrooms and into the criminal justice system. In schools …

By Catherine A. Ward
108 Va. L. Rev. Online 152

Standing and Student Loan Cancellation

As the public policy debate over broad student loan cancellation continues, many have questioned whether the Executive Branch has the legal authority to waive the federal government’s claim to up to $1.6 trillion in debt. Some have argued that loan …

By Jack V. Hoover
108 Va. L. Rev. Online 129

Lawmaking in the Legitimacy Gap: A Short History of the Supreme Court’s Interpretive Finality

Despite bestowing an epic name upon the nation’s highest tribunal, the Constitution says precious little about the weight that we must accord to its constitutional decisions. That silence has spawned serious division among jurists and scholars. Some …

By Christian Talley
108 Va. L. Rev. Online 112

The Runaway Presidential Power over Diplomacy

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot …

By Jean Galbraith
108 Va. L. Rev. 81

Punitive Surveillance

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as …

By Kate Weisburd
108 Va. L. Rev. 147

RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise

RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction …

By Abby Porter
108 Va. L. Rev. 223