Browse Articles

Browse By

Foreword

This symposium about the future of legal pedagogy could not be more timely. Its four thought-provoking papers raise a constellation of questions about how law schools educate lawyers and toward what purposes. These papers describe and assess the …

By Risa Goluboff
108 Va. L. Rev. Online 24
Civil Rights, Employment Law

Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law

In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County, holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity. The opinion, authored by Justice Neil …

By Guha Krishnamurthi
108 Va. L. Rev. Online 1

Some Notes on Courts and Courtesy

This Essay is a short reflection on misgendering by judges, told through a critical assessment of three cases from the Fifth and Eighth Circuits: Gibson v. Collier, United States v. Varner, and United States v. Thomason. In the trio, judges refused …

By Chan Tov McNamarah
107 Va. L. Rev. Online 317

The But-For Theory of Anti-Discrimination Law

Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as …

By Katie Eyer
107 Va. L. Rev. 1621

Excited Delirium and Police Use of Force

Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical …

By Osagie K. Obasogie
107 Va. L. Rev. 1545

The Lost Judicial Review Function of the Speech and Debate Clause

The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by …

By Erin Brown
107 Va. L. Rev. 1777

Liberalism and Disagreement in American Constitutional Theory

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and …

By J. Joel Alicea
107 Va. L. Rev. 1171

Universal Injunctions: Why Not Follow the Rule?

Over the last several years, a debate has flared up over universal injunctions, court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issues. …

By George Rutherglen
107 Va. L. Rev. Online 300

Black Women’s Hair and Natural Hairstyles in the Workplace: Expanding the Definition of Race Under Title VII

interpretation of Title VII as including cultural characteristics often associated with race or ethnicity, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace. Courts have held that …

By Doriane S. Nguenang Tchenga
107 Va. L. Rev. Online 272

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people …

By Robert Frey
107 Va. L. Rev. 1499

Where Nature’s Rights Go Wrong

There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights …

By Mauricio Guim & Michael A. Livermore
107 Va. L. Rev. 1347

The Chimerical Concept of Original Public Meaning

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward …

By Richard H. Fallon
107 Va. L. Rev. 1421

Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders

A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in …

By Jack V. Hoover
107 Va. L. Rev. 1305

How Litigation Imports Foreign Regulation

Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European …

By Diego A. Zambrano
107 Va. L. Rev. 1165

Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The recently issued Supreme Court ruling in the landmark case of Google v. Oracle illustrates why this is problematic. …

By Abraham Bell & Gideon Parchomovsky
107 Va. L. Rev. 1255

From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring …

By Robyn M. Powell
107 Va. L. Rev. Online 246

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