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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

College Athletics, Coercion, and the Establishment Clause: The Case of Clemson Football

Once a person turns eighteen and goes to college, do they immediately become less susceptible to the influences of those in power and their peers? The Supreme Court tells us that they do. While consistently willing to find that prayers at middle …

By Erin B. Edwards
106 Va. L. Rev. 1533

Against Fiduciary Constitutionalism

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the …

By Samuel L. Bray & Paul B. Miller
106 Va. L. Rev. 1479

Secrecy Surrogates

Debates about how best to check executive branch abuses of secrecy focus on three sets of actors that have access to classified information and that traditionally have served—in one way or another—as our surrogates: congressional committees, federal …

By Ashley Deeks
106 Va. L. Rev. 1395

Conflicts of Precedent

The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This …

By Henry J. Dickman
106 Va. L. Rev. 1345

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

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