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Volume 110 — 2024

Issue 3

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the …

By Katherine Mims Crocker
110 Va. L. Rev. 521

Separation of Structures

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. …

By Alex Zhang
110 Va. L. Rev. 599

Detained Immigration Courts

This Article traces the modern development and institutional design of detained immigration courts—that is, the courts that tie detention to deportation. Since the early 1980s, judges in detained immigration courts have presided over more than 3.6 …

By Ingrid Eagly & Steven Shafer
110 Va. L. Rev. 691

Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for …

By Anna Sonju
110 Va. L. Rev. 781

A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law

In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private …

By Samuel Freeman
110 Va. L. Rev. 815

Issue 2

Race in the Machine: Racial Disparities in Health and Medical AI

What does racial justice—and racial injustice—look like with respect to artificial intelligence in medicine (“medical AI”)? This Article offers that racial injustice might look like a country in which law and ethics have decided that it is …

By Khiara M. Bridges
110 Va. L. Rev. 243

The Education Power

Public officials are increasingly warring over the power to set fundamental education policies. A decade ago, disputes over Common Core Curriculum and school choice programs produced a level of acrimony between policymakers not seen since school …

By Derek W. Black
110 Va. L. Rev. 341

Becoming the “Bill of Rights”: The First Ten Amendments from Founding to Reconstruction

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be …

By Kurt T. Lash
110 Va. L. Rev. 411

The Right to Remain Protected: Upholding Youths’ Fifth Amendment Rights After Vega v. Tekoh

In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983. Experts predict that this decision will …

By Julia Eger
110 Va. L. Rev. 489

Issue 1

First Amendment Disequilibrium

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the …

By Christina Koningisor & Lyrissa Lidsky
110 Va. L. Rev. 1

Vagueness Avoidance

It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes that delegate enormous enforcement discretion to prosecutors and police officers. The constitutional void-for-vagueness doctrine promises to provide a …

By Joel S. Johnson
110 Va. L. Rev. 71

Ordinary Meaning and Plain Meaning

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between …

By Marco Basile
110 Va. L. Rev. 135

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, …

By Harper A. North
110 Va. L. Rev. 207

Volume 109 — 2023

Issue 8

The Federal Government’s Role in Local Policing

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or …

By Barry Friedman, Rachel Harmon & Farhang Heydari
109 Va. L. Rev. 1527

Multi-Textual Constitutions

We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is wrong. All constitutions are in some way written, and all constitutions contain unwritten rules. This false distinction moreover …

By Richard Albert
109 Va. L. Rev. 1629

Sex Discrimination Formalism

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic …

By Jessica A. Clarke
109 Va. L. Rev. 1699

Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework

Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or …

By Lauren Murtagh
109 Va. L. Rev. 1807

Issue 7

Defeating the Empire of Forms

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock-full of terms that courts will not, or should not, enforce. Most think that the market for …

By David A. Hoffman
109 Va. L. Rev. 1367

Suffering Before Execution

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions …

By Lee Kovarsky
109 Va. L. Rev. 1429

Collateral Effects of Habeas Retrogression

Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are …

By Dev P. Ranjan
109 Va. L. Rev. 1491

Issue 6

Municipal Immunity

Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding …

By Joanna C. Schwartz
109 Va. L. Rev. 1181

Silencing Litigation Through Bankruptcy

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a …

By Pamela Foohey & Christopher K. Odinet
109 Va. L. Rev. 1261

The Nullity Doctrine

The Federal Rules of Civil Procedure permit litigants to make changes to the substance of their initial pleading. Those changes raise a constitutional question when the initial pleading fails to establish a constitutionally required element of a …

By Ethan C. Treacy
109 Va. L. Rev. 1331

Issue 5

The New Major Questions Doctrine

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court …

By Daniel T. Deacon & Leah M. Litman
109 Va. L. Rev. 1009

Second-Order Decisions in Rights Conflicts

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not …

By James D. Nelson & Micah Schwartzman
109 Va. L. Rev. 1095

A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation

When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades …

By Julia Grant
109 Va. L. Rev. 1143

Issue 4

Relational Fairness in the Administrative State

The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and …

By Christopher S. Havasy
109 Va. L. Rev. 749

Bad Faith Prosecution

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on …

By Ann Woolhandler, Jonathan Remy Nash & Michael G. Collins
109 Va. L. Rev. 835

Reconstructing Reconstruction-Era Rights

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This …

By Ilan Wurman
109 Va. L. Rev. 885

Reconsidering The Legal Definition of Gambling: A Resuscitation of the Gambling Instinct Test

The modern chance-based test for gambling is fundamentally flawed. It is descriptively inaccurate, difficult to apply, and easily circumvented. Despite these shortcomings, the test is by-and-large the only test employed for the identification of …

By David H. Kinnaird
109 Va. L. Rev. 963

Issue 3

Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government …

By Amanda L. Tyler
109 Va. L. Rev. 489

Patents’ New Salience

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, …

By Janet Freilich
109 Va. L. Rev. 595

How Clear is “Clear”?

This Article proposes a new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this …

By Ryan D. Doerfler
109 Va. L. Rev. 651

Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions

When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and …

By Abby Porter
109 Va. L. Rev. 711

Issue 2

Property against Legality: Takings after Cedar Point

In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the …

By Aziz Z. Huq
109 Va. L. Rev. 233

Disclosing Corporate Diversity

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this …

By Atinuke O. Adediran
109 Va. L. Rev. 307

Qualitative Market Definition

Modern antitrust law has come under intense criticism in recent years, with a bipartisan chorus of complaints about the power of technology and internet platforms such as Google, Amazon, Facebook, and Apple. A fundamental issue in these debates is …

By Thomas B. Nachbar
109 Va. L. Rev. 373

Harmonizing Federal Immunities

This Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical …

By Dev. P. Ranjan
109 Va. L. Rev. 427

Dynamic Tort Law: Review of Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History

Rarely does a book—let alone one on torts—come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again …

By Catherine M. Sharkey
109 Va. L. Rev. 465

Issue 1

Severability First Principles

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. …

By William Baude
109 Va. L. Rev. 1

Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the …

By Elizabeth Sepper and James D. Nelson
109 Va. L. Rev. 61

Property’s Boundaries

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property …

By James Toomey
109 Va. L. Rev. 131

Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches

The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does …

By Tom Schnoor
109 Va. L. Rev. 193

Volume 108 — 2022

Issue 8

White Injury and Innocence: On the Legal Future of Antiracism Education

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased …

By Osamudia James
108 Va. L. Rev. 1689

Defining “Substantial Burdens” on Religion and Other Liberties

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the …

By Sherif Girgis
108 Va. L. Rev. 1759

Criminal Violations

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a …

By Jacob Schuman
108 Va. L. Rev. 1817

Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, …

By Katharine M. Janes
108 Va. L. Rev. 1897

Issue 7

The Promise and Perils of Private Enforcement

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent …

By Luke P. Norris
108 Va. L. Rev. 1483

Federalism, Private Rights, and Article III Adjudication

This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have …

By John M. Golden & Thomas H. Lee
108 Va. L. Rev. 1547

Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two …

By Robert W. Frey
108 Va. L. Rev. 1613

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. 1657

Issue 6

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

Issue 5

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

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

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

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

Issue 4

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
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
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
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

Issue 3

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
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
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
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

Issue 2

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

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

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

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

Issue 1

The Banker Removal Power

The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. …

By Da Lin & Lev Menand
108 Va. L. Rev. 1

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

Volume 107 — 2021

Issue 8

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

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 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

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

Issue 7

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

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

Issue 6

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

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

Issue 5

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

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

Issue 4

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

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

Issue 3

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

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

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

Issue 2

The Corrective Justice Theory of Punishment

The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the …

By Jacob Bronsther
107 Va. L. Rev. 227

Nondelegation and Criminal Law

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these …

By F. Andrew Hessick & Carissa Byrne Hessick
107 Va. L. Rev. 281

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

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

Issue 1

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

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

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

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

Volume 106 — 2020

Issue 8

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

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

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 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

Issue 7

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

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

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

Issue 6

First Amendment

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
Second Amendment

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

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

Issue 5

Local Government, State Law & Federalism

The Structures of Local Courts

Local courts are, by far, the most commonly used courts in our justice system. Cases filed in local courts outnumber those filed in federal court by a factor of over two hundred. Few litigants who receive local-court judgments appeal the matter …

By Justin Weinstein-Tull
106 Va. L. Rev. 1031
Contracts, International Law

Substance-Targeted Choice-of-Law Clauses

Recent cases highlight two persistent problems in United States litigation: the frequency with which parties seek to validate an otherwise unenforceable provision through a choice-of-law clause, and the disparate results courts have reached in such …

By Katherine Florey
106 Va. L. Rev. 1107
Corporate Law

Defining Appraisal Fair Value

Appraisal is a statutory mechanism that entitles dissenting stockholders of Delaware merger targets to receive a judicially determined valuation of their shares. During a decade when Delaware courts significantly constrained other legal avenues of …

By Ben Lucy
106 Va. L. Rev. 1183

Issue 4


Measuring Algorithmic Fairness

Algorithmic decision making is both increasingly common and increasingly controversial. Critics worry that algorithmic tools are not transparent, accountable, or fair. Assessing the fairness of these tools has been especially fraught as it requires …

By Deborah Hellman
106 Va. L. Rev. 811

Manipulating Opportunity

Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When …

By Pauline T. Kim
106 Va. L. Rev. 867
Corporate Law

Designing Business Forms to Pursue Social Goals

The long-standing debate about the purpose and role of business firms has recently regained momentum. Business firms face growing pressure to pursue social goals and benefit corporation statutes proliferate across many U.S. states. This trend is …

By Ofer Eldar
106 Va. L. Rev. 937
Federal Courts, International Law

Transatlantic Perspectives on the Political Question Doctrine

On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) unanimously invalidated U.K. Prime Minister Boris Johnson’s attempt to suspend (or “prorogue”) Parliament. The UKSC’s decision, R (Miller) v. Prime Minister (Miller/Cherry), was a …

By Jackson A. Myers
106 Va. L. Rev. 1007

Issue 3

Constitutionalism in Unexpected Places

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and …

By Farah Peterson
106 Va. L. Rev. 559

A Right to a Human Decision

Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision makers. From welfare and employment to bail and other risk assessments, state actors increasingly lean on machine-learning tools …

By Aziz Z. Huq
106 Va. L. Rev. 611
Corporate Law

Myopic Consumer Law

People make mistakes with debt, partly because the chance to buy now and pay later tempts them to do things that are not in their long-term interest. Lenders sell credit products that exploit this vulnerability. In this Article, I argue that …

By Andrew T. Hayashi
106 Va. L. Rev. 689
Legal History

Colonial Virginia: Incubator of Judicial Review

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics …

By Justin W. Aimonetti
106 Va. L. Rev. 765

Issue 2

Civil Procedure


Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, …

By Caleb Nelson
106 Va. L. Rev. 271
Constitutional Powers, International Law

Congressional Administration of Foreign Affairs

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a …

By Rebecca Ingber
106 Va. L. Rev. 395
Antitrust, Corporate Law, Finance & Banking

The New Gatekeepers: Private Firms as Public Enforcers

The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ …

By Rory Van Loo
106 Va. L. Rev. 467
Criminal Justice

Redefining the Relationship Between Stone and AEDPA

This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have …

By Theodore J. Kristek, Jr.
106 Va. L. Rev. 523

Issue 1

Constitutional Powers, Jurisprudence Theory

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework …

By Curtis A. Bradley & Neil S. Siegel
106 Va. L. Rev. 1
Constitutional Law, International Law

Rejoining Treaties

Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal …

By Jean Galbraith
106 Va. L. Rev. 73
Criminal Law, State Law & Federalism

Statutory Federalism and Criminal Law

Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely …

By Joshua M. Divine
106 Va. L. Rev. 127
Civil Procedure, Federal Courts

Colorado River Abstention: A Practical Reassessment

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent …

By Owen W. Gallogly
106 Va. L. Rev. 199

Volume 105 — 2019

Issue 8

What is Just Compensation?

By Wanling Su
105 Va. L. Rev. 1483

Federalism, Metropolitanism, and the Problem of States

By Richard C. Schragger
105 Va. L. Rev. 1537

Speech Across Borders

By Jennifer Daskal
105 Va. L. Rev. 1605

Unshackling the Due Process Rights of Asylum-Seekers

By Sara DeStefano
105 Va. L. Rev. 1667

Issue 7

Appointments Without Law

By James Durling & E. Garrett West
105 Va. L. Rev. 1281

Genetic Privacy After Carpenter

By Natalie Ram
105 Va. L. Rev. 1357

A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

By Brendan Woods
105 Va. L. Rev. 1427

Issue 6

Insincere Evidence

By Michael D. Gilbert & Sean P. Sullivan
105 Va. L. Rev. 1115

Standing to Challenge the Lost Cause

By Amanda Lineberry
105 Va. L. Rev. 1177

Garbage Pulls Under the Physical Trespass Test

By Tanner M. Russo
105 Va. L. Rev. 1217

Issue 5

The Myth of Common Law Crimes

By Carissa Byrne Hessick
105 Va. L. Rev. 965

Faux Contracts

By Cathy Hwang
105 Va. L. Rev. 1025

Right to Be Educated or Right to Choose? School Choice and Its Impact on Education in North Carolina

By Will Robertson & Virginia Riel
105 Va. L. Rev. 1079

Issue 4

“Standing” and Remedial Rights in Administrative Law

By Caleb Nelson
105 Va. L. Rev. 703

Combating Silence in the Profession

By Veronica Root Martinez
105 Va. L. Rev. 805

Confining Cases to Their Facts

By Daniel B. Rice & Jack Boeglin
105 Va. L. Rev. 865

Pardoning Contempt—Reconsidering the Criminal-Civil Divide

By Michael Weisbuch
105 Va. L. Rev. 931

Issue 3

Why Didn’t the Common Law Follow the Flag?

By Christian R. Burset
105 Va. L. Rev. 483

The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases

By Jeffrey A. Segal, Avani Mehta Sood, & Benjamin Woodson
105 Va. L. Rev. 543

Corporate Disestablishment

By James D. Nelson
105 Va. L. Rev. 595

Super PACs, Personal Data, and Campaign Finance Loopholes

By Samir Sheth
105 Va. L. Rev. 655

Issue 2


By Risa Goluboff
105 Va. L. Rev. 263

On Charlottesville

By Dayna Bowen Matthew
105 Va. L. Rev. 269

Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy

By Angela Onwuachi-Willig
105 Va. L. Rev. 343

Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury

By Brie McLemore
105 Va. L. Rev. 371

Education as Property

By LaToya Baldwin Clark
105 Va. L. Rev. 397

Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment

By Osagie K. Obasogie & Zachary Newman
105 Va. L. Rev. 425

White Privilege and White Disadvantage

By Khiara M. Bridges
105 Va. L. Rev. 449

Issue 1

The Government-Could-Not-Work Doctrine

By Nikolas Bowie
105 Va. L. Rev. 1

Abstention at the Border

By Maggie Gardner
105 Va. L. Rev. 63

Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era

By Kenneth S. Abraham & Robert L. Rabin
105 Va. L. Rev. 127

Congressional Control of Agency Expertise

By Daniel Richardson
105 Va. L. Rev. 173

Volume 104 — 2018

Issue 8

Administrative Rationality Review

By Maria Ponomarenko
104 Va. L. Rev. 1399

Unconstitutionally Illegitimate Discrimination

By Brandon L. Garrett
104 Va. L. Rev. 1471

Predicting Enemies

By Ashley S. Deeks
104 Va. L. Rev. 1529

A “Corporate Democracy”? Freedom of Speech and the SEC

By Karl M. F. Lockhart
104 Va. L. Rev. 1593

Issue 7

Powers, But How Much Power? Game Theory and the Nondelegation Principle

By Sean P. Sullivan
104 Va. L. Rev. 1229

Socioeconomic Status Discrimination

By Danieli Evans Peterman
104 Va. L. Rev. 1283

The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries

By Martin Jordan Minot
104 Va. L. Rev. 1359

Issue 6

The Securities Law Implications of Financial Illiteracy

By Lisa M. Fairfax
104 Va. L. Rev. 1065

The Death Penalty as Incapacitation

By Marah Stith McLeod
104 Va. L. Rev. 1123

The Missing Theory of Representation in Citizens United

By Harrison Marino
104 Va. L. Rev. 1199

Issue 5

A Tribute to Gordon Hylton

By Risa L. Goluboff
104 Va. L. Rev. 843

Subsidizing Segregation

By Joy Milligan
104 Va. L. Rev. 847

The Writ-Of-Erasure Fallacy

By Jonathan F. Mitchell
104 Va. L. Rev. 933

Akin to Madmen: A Queer Critique of the Gay Rights Cases

By Elizabeth J. Baia
104 Va. L. Rev. 1021

Issue 4

The Presumption of Civil Innocence

By Hon. J. Harvie Wilkinson III
104 Va. L. Rev. 589

Justice Souter’s Common Law

By Charles L. Barzun
104 Va. L. Rev. 655

Federal Decentralization

By David Fontana
104 Va. L. Rev. 727

Congress as Elephant

By Saikrishna Bangalore Prakash
104 Va. L. Rev. 797

Issue 3

The Damagings Clauses

By Maureen E. Brady
104 Va. L. Rev. 341

Legal Innocence and Federal Habeas

By Leah M. Litman
104 Va. L. Rev. 417

Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources

By Amanda M. Leon
104 Va. L. Rev. 497

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

By Maria Slater
104 Va. L. Rev. 547

Issue 2

Textualism and Statutory Precedents

By Anita S. Krishnakumar
104 Va. L. Rev. 157

Deregulation and the Subprime Crisis

By Paul G. Mahoney
104 Va. L. Rev. 235

“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches

By James C. McGlinchy
104 Va. L. Rev. 301

Issue 1

Should the Rules Committees Have an Amicus Role?

By Scott Dodson
104 Va. L. Rev. 1

Fee-Shifting and Shareholder Litigation

By Albert H. Choi
104 Va. L. Rev. 59

“Don’t Elect Me”: Sheriffs and the Need for Reform in County Law Enforcement

By James Tomberlin
104 Va. L. Rev. 113

Volume 103 — 2017

Issue 8

Enforcing the FCPA: International Resonance and Domestic Strategy

By Rachel Brewster
103 Va. L. Rev. 1611

Restoring the Lost Anti-Injunction Act

By Kristin E. Hickman & Gerald Kerska
103 Va. L. Rev. 1683

Are Speech Rights for Speakers?

By Leslie Kendrick
103 Va. L. Rev. 1767

Moral Commitments in Cost-Benefit Analysis

By Eric A. Posner and Cass R. Sunstein
103 Va. L. Rev. 1809

Waiving the Ministerial Exception

By Michael J. West
103 Va. L. Rev. 1861

Issue 7

Functionality Screens

By Christopher Buccafusco & Mark A. Lemley
103 Va. L. Rev. 1293

Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

By Tonja Jacobi and Dylan Schweers
103 Va. L. Rev. 1379

Legislative Underwrites

By Ethan J. Leib & James J. Brudney
103 Va. L. Rev. 1487

A Cost-Benefit Analysis–Based Interpretation of Reciprocity Under Clean Air Act Section 115(c)

By Jim Dennison
103 Va. L. Rev. 1561

Issue 6

Exorcising the Clergy Privilege

By Christine P. Bartholomew
103 Va. L. Rev. 1015

Ambition and Fruition in Federal Criminal Law: A Case Study

By Lauren M. Ouziel
103 Va. L. Rev. 1077

Copyright Survives: Rethinking the Copyright-Contract Conflict

By Guy A. Rub
103 Va. L. Rev. 1141

Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle

By Daniel N. Boger
103 Va. L. Rev. 1247

Issue 5

Situational Severability

By Brian Charles Lea
103 Va. L. Rev. 735

The Law Presidents Make

By Daphna Renan
103 Va. L. Rev. 805

The Constitutional Right to Collateral Post-Conviction Review

By Carlos M. Vázquez & Stephen I. Vladeck
103 Va. L. Rev. 905

Toward an International Right Against Self-Incrimination: Expanding the Fifth Amendment’s “Compelled” to Foreign Compulsion

By Neal Modi
103 Va. L. Rev. 961

Issue 4

The Untenable Case for Perpetual Dual-Class Stock

By Lucian A. Bebchuk & Kobi Kastiel
103 Va. L. Rev. 585

Entrenchment, Incrementalism, and Constitutional Collapse

By Michael D. Gilbert
103 Va. L. Rev. 631

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

By Daniel S. Cohen
103 Va. L. Rev. 673

Issue 3

Information Gaps and Shadow Banking

By Kathryn Judge
103 Va. L. Rev. 411

Religion Is Special Enough

By Christopher C. Lund
103 Va. L. Rev. 481

Targeting Detached Corporate Intermediaries in the Terrorist Supply Chain: Dial 2339/13224 for Assistance?

By Lauren C. O'Leary
103 Va. L. Rev. 525

Issue 2

A Tactical Fourth Amendment

By Brandon Garrett and Seth Stoughton
103 Va. L. Rev. 211

The Economic Foundation of the Dormant Commerce Clause

By Michael S. Knoll and Ruth Mason
103 Va. L. Rev. 309

Government Admissions and Federal Rule of Evidence 801(D)(2)

By Jared M. Kelson
103 Va. L. Rev. 355

Volume 102 — 2016

Issue 8

Unbundling the “Tort” of Copyright Infringement

By Patrick R. Goold
102 Va. L. Rev. 1833

The Amicus Machine

By Allison Orr Larsen & Neal Devins
102 Va. L. Rev. 1901

Corporations, Unions, and the Illusion of Symmetry

By James D. Nelson
102 Va. L. Rev. 1969

Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform

By Greg Rustico
102 Va. L. Rev. 2027

In Defense of the Secular Purpose Status Quo

By David R. Williams, Jr.
102 Va. L. Rev. 2075

Issue 7

The Rationality of Rational Basis Review

By Thomas B. Nachbar
102 Va. L. Rev. 1627

The Positive Right to Marry

By Gregg Strauss
102 Va. L. Rev. 1691

Legal Design for the “Good Man”

By Rebecca Stone
102 Va. L. Rev. 1767

Issue 6

The New Antitrust Federalism

By Rebecca Haw Allensworth
102 Va. L. Rev. 1387

What’s Wrong With Sentencing Equality?

By Richard A. Bierschbach and Stephanos Bibas
102 Va. L. Rev. 1447

The Common Law of Contract and the Default Rule Project

By Alan Schwartz and Robert E. Scott
102 Va. L. Rev. 1523

Who’s In and Who’s Out: Congressional Power Over Individuals Under the Indian Commerce Clause

By Monica Haymond
102 Va. L. Rev. 1589

Issue 5

A Tribute to David Martin

By Paul G. Mahoney
102 Va. L. Rev. 1163

Property’s Ceiling: State Courts and the Expansion of Takings Clause Property

By Maureen E. Brady
102 Va. L. Rev. 1167

A Theory of Copyright Authorship

By Christopher Buccafusco
102 Va. L. Rev. 1229

Competitive Public Contracts

By Eric M. Singer
102 Va. L. Rev. 1297

Mature Minors, Medical Choice, and the Constitutional Right to Martyrdom

By Josh Burk
102 Va. L. Rev. 1355

Issue 3

Issue 1

Statutory Domain and the Commercial Law of Intellectual Property

By John F. Duffy and Richard Hynes
102 Va. L. Rev. 1

The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities

By Deborah Dinner
102 Va. L. Rev. 79

A Declaratory Theory of State Accountability

By James E. Pfander and Jessica Dwinell
102 Va. L. Rev. 153

Benefits of Error in Criminal Justice

By Joel S. Johnson
102 Va. L. Rev. 237

Volume 101 — 2015

Issue 8

Changing the Vocabulary of the Vagueness Doctrine

By Peter W. Low and Joel S. Johnson
101 Va. L. Rev. 2051

Measuring the Impact of Plausibility Pleading

By Alexander A. Reinert
101 Va. L. Rev. 2117

Insincere Rules

By Michael D. Gilbert
101 Va. L. Rev. 2185

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

By Colin M. Downes
101 Va. L. Rev. 2225

Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

By Franklin Sacha
101 Va. L. Rev. 2263

Issue 7

The Corporate Criminal as Scapegoat

By Brandon L. Garrett
101 Va. L. Rev. 1789

Constructing Issue Classes

By Elizabeth Chamblee Burch
101 Va. L. Rev. 1855

Commercial Speech, Commercial Use, and the Intellectual Property Quagmire

By Jennifer E. Rothman
101 Va. L. Rev. 1929

Confronting Big Data: Applying the Confrontation Clause to Government Data Collection

By Chad Squitieri
101 Va. L. Rev. 2011

Issue 6

Patent Trolls and Preemption

By Paul R. Gugliuzza
101 Va. L. Rev. 1579

Corporate Inversions and the Unbundling Of Regulatory Competition

By Eric L. Talley
101 Va. L. Rev. 1649

Taming Title Loans

By Ryan Baasch
101 Va. L. Rev. 1753

Issue 5

Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship

By Charles L. Barzun
101 Va. L. Rev. 1203

Taking Care of Federal Law

By Leah Litman
101 Va. L. Rev. 1289

Reading Statutes in the Common Law Tradition

By Jeffrey A. Pojanowski
101 Va. L. Rev. 1357

Aligning Campaign Finance Law

By Nicholas O. Stephanopoulos
101 Va. L. Rev. 1425

Reassessing the Doctrine of Judicial Estoppel: The Implications of the Judicial Integrity Rationale

By Nicole C. Frazer
101 Va. L. Rev. 1501

Experimentation and Patent Validity: Restoring the Supreme Court’s Incandescent Lamp Patent Precedent

By Kevin T. Richards
101 Va. L. Rev. 1545

Issue 4

Jurisprudence and (Its) History

By Charles Barzun and Dan Priel
101 Va. L. Rev. 849

Jurisprudence, the Sociable Science

By Gerald J. Postema
101 Va. L. Rev. 869

Time-Mindedness and Jurisprudence: A Commentary on Postema’s “Jurisprudence, the Sociable Science”

By David Luban
101 Va. L. Rev. 903

Jurisprudence, History, and the Institutional Quality of Law

By Nicola Lacey
101 Va. L. Rev. 919

Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey’s “Jurisprudence, History, and the Institutional Quality of Law”

By Kimberly Kessler Ferzan
101 Va. L. Rev. 947

The Path-Dependence of Legal Positivism

By Frederick Schauer
101 Va. L. Rev. 957

What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer’s “The Path-Dependence of Legal Positivism”

By Steven Walt
101 Va. L. Rev. 977

Toward Classical Legal Positivism

By Dan Priel
101 Va. L. Rev. 987

Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel’s “Toward Classical Legal Positivism”

By Jeffrey A. Pojanowski
101 Va. L. Rev. 1023

Sovereignty and Subversion

By Alice Ristroph
101 Va. L. Rev. 1029

A Commentary on Ristroph’s “Sovereignty and Subversion”

By Mark C. Murphy
101 Va. L. Rev. 1055

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, …

By John Mikhail
101 Va. L. Rev. 1063

Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”

By Deborah Hellman
101 Va. L. Rev. 1105

Intellectual History as Constitutional Theory

By Lawrence B. Solum
101 Va. L. Rev. 1111

Intellectual History and Constitutional Decision Making: A Commentary on Solum’s “Intellectual History as Constitutional Theory”

By G. Edward White
101 Va. L. Rev. 1165

Marx, Law, Ideology, Legal Positivism

By Brian Leiter
101 Va. L. Rev. 1179

Philosophical Inquiry and Historical Practice: A Commentary on Leiter’s “Marx, Law, Ideology, Legal Positivism”

By John Henry Schlegel
101 Va. L. Rev. 1197

Issue 2

The Changing Face of the Supreme Court

By A. E. Dick Howard
101 Va. L. Rev. 231

The Case Against Federalizing Trade Secrecy

By Christopher B. Seaman
101 Va. L. Rev. 317

Contaminated Confessions Revisited

By Brandon L. Garrett
101 Va. L. Rev. 395

The Significance of Parental Domicile Under the Citizenship Clause

By Justin Lollman
101 Va. L. Rev. 455

What Killed the Violence Against Women Act’s Civil Rights Remedy Before the Supreme Court Did?

By Caroline S. Schmidt
101 Va. L. Rev. 501

Issue 1

The Legitimacy Of (Some) Federal Common Law

By Caleb Nelson
101 Va. L. Rev. 1

Patent Experimentalism

By Lisa Larrimore Ouellette
101 Va. L. Rev. 65

The Corporate Settlement Mill

By Dana A. Remus and Adam S. Zimmerman
101 Va. L. Rev. 129

Eliminating the Single-Entity Rule in Joint Infringement Cases: Liability for the Last Step

By Ben Aiken
101 Va. L. Rev. 193

Volume 100 — 2014

Issue 8

Lambert Revisited

By Peter W. Low and Benjamin Charles Wood
100 Va. L. Rev. 1603

Unplanned Coauthorship

By Shyamkrishna Balganesh
100 Va. L. Rev. 1683

The Trouble with Amicus Facts

By Allison Orr Larsen
100 Va. L. Rev. 1757

Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor

Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, …

By Lide E. Paterno
100 Va. L. Rev. 1819

Issue 7

The New Local

By Nadav Shoked
100 Va. L. Rev. 1323

Litigating the Financial Crisis

By David Zaring
100 Va. L. Rev. 1405

Another Look at Professor Rodell’s Goodbye to Law Reviews

By Harry T. Edwards
100 Va. L. Rev. 1483

A Rule of Lenity for National Security Surveillance Law

By Orin S. Kerr
100 Va. L. Rev. 1513

An Empirical Analysis of Sue-and-Settle in Environmental Litigation

By Ben Tyson
100 Va. L. Rev. 1545

Issue 6

A Tribute to Peter Low

By Paul G. Mahoney
100 Va. L. Rev. 1111

Reforming (and Saving) the IRS by Respecting the Public’s Right to Know

By George K. Yin
100 Va. L. Rev. 1115

Offsetting Benefits

By Ariel Porat and Eric Posner
100 Va. L. Rev. 1165

Transactionalism Costs

By Alan M. Trammell
100 Va. L. Rev. 1211

Contracting for Good: How Benefit Corporations Empower Investors and Redefine Shareholder Value

By Jacob E. Hasler
100 Va. L. Rev. 1279

Issue 5

Issue 4

Immigration’s Family Values

By Kerry Abrams and R. Kent Piacenti
100 Va. L. Rev. 629

Concurrent Damages

By Bert I. Huang
100 Va. L. Rev. 711

Glass Versus Steagall: The Fight over Federalism and American Banking

By Jacob H. Gutwillig
100 Va. L. Rev. 771

Issue 3

The Hidden Nature of Executive Retirement Pay

By Robert J. Jackson, Jr. & Colleen Honigsberg
100 Va. L. Rev. 479

The Monitor-“Client” Relationship

By Veronica Root
100 Va. L. Rev. 523

A Market-Based Tool to Reduce Systematic Undervaluation of Collateral in Residential Mortgage Foreclosures

By Stephen Guynn
100 Va. L. Rev. 587

Issue 1

One Hundred Years of Law Reviewed

By Ronald J. Fisher
100 Va. L. Rev. 1

Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters

By Paul B. Stephan
100 Va. L. Rev. 17

Property, Exclusivity, and Jurisdiction

By James Y. Stern
100 Va. L. Rev. 111

The Perverse Effects of Efficiency in Criminal Process

By Darryl K. Brown
100 Va. L. Rev. 183

Appeals by Prevailing Parties after Camreta

By Galen Bascom
100 Va. L. Rev. 225

Volume 99 — 2013

Issue 8

Why Do Juries Decide If Patents Are Valid?

By Mark A. Lemley
99 Va. L. Rev. 1673

To Say What The Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis

By Adam N. Steinman
99 Va. L. Rev. 1737

Self-Proving Causation

By Kenneth S. Abraham
99 Va. L. Rev. 1811

Historical Gloss and Congressional Power: Control Over Access to National Security Secrets

By Jared Cole
99 Va. L. Rev. 1855

An Empirical Analysis of the Foreign Corrupt Practices Act

By Anne H. Lippitt
99 Va. L. Rev. 1893

Issue 7

The Imbecilic Executive

By Saikrishna Bangalore Prakash
99 Va. L. Rev. 1361

Standing for the Structural Constitution

By Aziz Z. Huq
99 Va. L. Rev. 1435

Inferred Classifications

By Stephen M. Rich
99 Va. L. Rev. 1525

National Security Trials: A Judge’s Perspective

By T.S. Ellis, III
99 Va. L. Rev. 1607

Malicious Prosecution Claims in Section 1983 Lawsuits

By Lyle Kossis
99 Va. L. Rev. 1635

Issue 5

Against Religious Institutionalism

By Richard Schragger and Micah Schwartzman
99 Va. L. Rev. 917

International Law and the Domestic Separation of Powers

By Jean Galbraith
99 Va. L. Rev. 987

Defending (Religious) Institutionalism

By Paul Horwitz
99 Va. L. Rev. 1049

Economic Liberty and the Second-Order Rational Basis Test

By Austin Raynor
99 Va. L. Rev. 1065

Issue 4

Issue 3

The New Education Malpractice Litigation

By Ethan Hutt & Aaron Tang
99 Va. L. Rev. 419

Originalism and the Other Desegregation Decision

By Ryan C. Williams
99 Va. L. Rev. 493

Plenary Power Preemption

By Kerry Abrams
99 Va. L. Rev. 601

The Political Economy of Financial Rulemaking After Business Roundtable

By Jonathan D. Guynn
99 Va. L. Rev. 641

Issue 2

The Liability Rule for Constitutional Torts

By John C. Jeffries, Jr.
99 Va. L. Rev. 207

Prosecutorial Administration: Prosecutor Bias and the Department of Justice

By Rachel E. Barkow
99 Va. L. Rev. 271

Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs

By Shruti Chaganti
99 Va. L. Rev. 343

Chevron and Constitutional Doubt

By Jonathan D. Urick
99 Va. L. Rev. 375

Volume 98 — 2012

Issue 8

The Effect of Bargaining Power on Contract Design

By Albert Choi & George Triantis
98 Va. L. Rev. 1665

Expressive Incentives in Intellectual Property

By Jeanne C. Fromer
98 Va. L. Rev. 1745

Glucksberg, Lawrence, and the Decline of Loving’s Marriage Precedent

By Jeremiah Egger
98 Va. L. Rev. 1825

Supreme Court Review of Misconstructions of Sister State Law

By Will Sohn
98 Va. L. Rev. 1861

Issue 7

A Tribute to Michael P. Dooley

By Paul G. Mahoney, Stephen M. Bainbridge
98 Va. L. Rev. 1427

A Tribute to Jeffrey O’Connell

By Paul G. Mahoney
98 Va. L. Rev. 1435

Reconstructing Murdock v. Memphis

By Michael Collins
98 Va. L. Rev. 1439

Taking Conscience Seriously

By Elizabeth Sepper
98 Va. L. Rev. 1501

Free Speech, Hate Speech, and the Hostile Speech Environment

By S. Cagle Juhan
98 Va. L. Rev. 1577

Making a Statement About Private Securities Litigation

By Alexander C. Krueger-Wyman
98 Va. L. Rev. 1621

Issue 6

Foreword: Academic Influence on the Court

By Neal Kumar Katyal
98 Va. L. Rev. 1149

Not the Power to Destroy: An Effects Theory of the Tax Power

By Robert D. Cooter & Neil S. Siegel
98 Va. L. Rev. 1195

Confronting Supreme Court Fact Finding

By Allison Larsen
98 Va. L. Rev. 1255

The Relational Contingency of Rights

By Gideon Parchomovsky & Alex Stein
98 Va. L. Rev. 1313

Closing the Accountability Gap for Indian Tribes

By Clare Boronow
98 Va. L. Rev. 1373

Issue 5

Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction

By Michal Barzuza
98 Va. L. Rev. 935

Enforcing (but not Defending) ‘Unconstitutional’ Laws

By Aziz Z. Huq
98 Va. L. Rev. 1001

The Expectation Remedy Revisited

By Daniel Markovits and Alan Schwartz
98 Va. L. Rev. 1093

Examining the Conflict Between Municipal Receivership and Local Autonomy

By Lyle Kossis
98 Va. L. Rev. 1109

Forum Domination: Religious Speech In Extremely Limited Public Fora

By Nicholas Matich
98 Va. L. Rev. 1149

Issue 3

Unconstitutional Conditions: The Irrelevance of Consent

By Philip Hamburger
98 Va. L. Rev. 479

Regulation, Unemployment, and Cost-Benefit Analysis

By Jonathan S. Masur & Eric A. Posner
98 Va. L. Rev. 579

Atrocity, Entitlement, and Personhood

By Daniel J. Sharfstein
98 Va. L. Rev. 635

De Facto Supremacy: Supreme Court Control of State Commercial Law

By Ben Hurst
98 Va. L. Rev. 691

Issue 1

The End of Campaign Finance Law as We Knew It

By Michael S. Kang
98 Va. L. Rev. 1

A Consumer Decision-Making Theory of Trademark Law

By Mark P. McKenna
98 Va. L. Rev. 67

To Perform or Pay Damages

By Gregory Klass
98 Va. L. Rev. 143

Response to Markovits and Schwartz

By Seana Shiffrin
98 Va. L. Rev. 159

Rescuing International Investment Arbitration: Introducing Derivative Actions, Class Actions, and Compulsory Joinder

By Joseph D’Agostino
98 Va. L. Rev. 177

Volume 97 — 2011

Issue 8

Globalized Corporate Prosecutions

By Brandon L. Garrett
97 Va. L. Rev. 1775

A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause

By Barry Friedman and Daniel T. Deacon
97 Va. L. Rev. 1877

The Myth of Efficient Breach: New Defenses of the Expectation Interest

By Daniel Markovits and Alan Schwartz
97 Va. L. Rev. 1939

Reclaiming the Legal Fiction of Congressional Delegation

By Lisa Schultz Bressman
97 Va. L. Rev. 2009

Securing Sovereign State Standing

By Katherine Mims Crocker
97 Va. L. Rev. 2051

Issue 6

Larry Walker: An Intellectual Pioneer

By Paul G. Mahoney
97 Va. L. Rev. 1263

Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings

By Michael C. Dorf
97 Va. L. Rev. 1267

The Insignificance of Proxy Access

By Marcel Kahan & Edward Rock
97 Va. L. Rev. 1347

Second Opinions and Institutional Design

By Adrian Vermeule
97 Va. L. Rev. 1435

Balancing Comity with the Protection of Preclusion: The Scope of the Relitigation Exception to the Anti-Injunction Act

By Andrea R. Lucas
97 Va. L. Rev. 1475

Issue 2

Prosecuting Federal Crimes in State Courts

By Michael G. Collins and Jonathan Remy Nash
97 Va. L. Rev. 243

Conscience, Speech, and Money

By Micah Schwartzman
97 Va. L. Rev. 317

Toward Recognition of a Monetary Threshold in Campaign Finance Disclosure Law

By E. Rebecca Gantt
97 Va. L. Rev. 385

The Untold Story of Rhode Island v. Innis: Justice Potter Stewart and the Development of Modern Self-Incrimination Doctrine

By Jesse Stewart
97 Va. L. Rev. 431

Issue 1

The Complexity of Jurisdictional Clarity

By Scott Dodson
97 Va. L. Rev. 1

Original Habeas Redux

By Lee Kovarsky
97 Va. L. Rev. 61

Will Employers Undermine Health Care Reform by Dumping Sick Employees?

By Amy Monahan and Daniel Schwarcz
97 Va. L. Rev. 125

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

By Nicholas Klaiber
97 Va. L. Rev. 199

Volume 96 — 2010

Issue 8

The State Action Principle and Its Critics

By Lillian BeVier and John Harrison
96 Va. L. Rev. 1767

Decentralization and Development

By Richard Schragger
96 Va. L. Rev. 1837

Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century

By Daniel Lipton
96 Va. L. Rev. 1911

Structural Exceptionalism and Comparative Constitutional Law

By Brinton Lucas
96 Va. L. Rev. 1965

Issue 7

The National Convention Constitutional Amendment Method: Defects, Federalism Implications, and Reform

By Michael Rappaport
96 Va. L. Rev. 1509

Multiple Gatekeepers

By Andrew Tuch
96 Va. L. Rev. 1583

The Hidden Function of Takings Compensation

By Gideon Parchomovsky & Abraham Bell
96 Va. L. Rev. 1673

Taking “Due Account” of the APA’s Prejudicial Error Rule

By Craig Smith
96 Va. L. Rev. 1727

Issue 6

Ex Ante Regulation of Computer Search and Seizure: A Reassessment

By Orin Kerr
96 Va. L. Rev. 1241

Taxing Punitive Damages

By Dan Markel & Gregg Polsky
96 Va. L. Rev. 1295

Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism

By Martin H. Redish & Colleen McNamara
96 Va. L. Rev. 1361

The Invisible Hand in Legal and Political Theory

By Adrian Vermeule
96 Va. L. Rev. 1417

The Future of Locke v. Davey

By Cleland Welton
96 Va. L. Rev. 1453

Issue 5

An Ideal Colleague

By Paul G. Mahoney
96 Va. L. Rev. 939

“Charge to the Class” in Honor of Lillian BeVier

By John C. Jeffries, Jr.
96 Va. L. Rev. 943

The Foreign Commerce Clause

By Anthony J. Colangelo
96 Va. L. Rev. 949

Jurisdiction-Stripping Reconsidered

By Richard Fallon
96 Va. L. Rev. 1043

District Court Opinions as Evidence of Influence: Green v. School Board and the Supreme Court’s Role in Local School Desegregation

By David Rhinesmith
96 Va. L. Rev. 1137

The Costs of Religious Accommodation in Prisons

By Taylor Stout
96 Va. L. Rev. 1201

Issue 4

Countering the Majoritarian Difficulty

By Amanda Frost and Stefanie A. Lindquist
96 Va. L. Rev. 721

Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present

By Sophia Z. Lee
96 Va. L. Rev. 799

Prospects for Judicial Review of Arbitration Awards Under State Law

By Stephen Murphy
96 Va. L. Rev. 887

Issue 2

An Empirical Examination of Business Outsourcing Transactions

By George S. Geis
96 Va. L. Rev. 241

Unbundled Powers

By Jacob E. Gersen
96 Va. L. Rev. 301

Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency

By James Pfander and Theresa Wardon
96 Va. L. Rev. 359

Confusion and Coercion in Church Property Litigation

By Brian Schmalzbach
96 Va. L. Rev. 443

Issue 1

Placebo Ethics

By Usha Rodrigues∗ and Mike Stegemoller
96 Va. L. Rev. 1

Close Enough for Government Work: The Committee Rulemaking Game

By Paul J. Stanci
96 Va. L. Rev. 69

Reasonable Agencies

By David Zaring
96 Va. L. Rev. 135

When Injury Is Unavoidable: The Vaccine Act’s Limited Preemption of Design Defect Claims

By Nitin Shah
96 Va. L. Rev. 199

Volume 95 — 2009

Issue 8

Making Good on Good Intentions

By Katharine T. Bartlett
95 Va. L. Rev. 1893

The State of State Anti-takeover Law

By Michal Barzuza
95 Va. L. Rev. 1973

Incarceration, Accommodation, and Strict Scrutiny

By James Nelson
95 Va. L. Rev. 2053

Internet Radio: The Case for a Technology Neutral Royalty Standard

By Andrew Stockment
95 Va. L. Rev. 2129

Issue 7

Interrogation Stories

By Anne M. Coughlin
95 Va. L. Rev. 1599

Constitutional Enforcement by Proxy

By John F. Preis
95 Va. L. Rev. 1633

Counterinsurgency, The War on Terror, and The Laws of War

By Ganesh Sitaraman
95 Va. L. Rev. 1745

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

By Fiona McCarthy
95 Va. L. Rev. 1841

Issue 6

National Security Fact Deference

By Robert M. Chesney
95 Va. L. Rev. 1361

Intent to Contract

By Gregory Klass
95 Va. L. Rev. 1437


By Gideon Parchomovsky and Alex Stein
95 Va. L. Rev. 1505

Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

By David K. Roberts
95 Va. L. Rev. 1551

Issue 5

Standing for the Public: A Lost History

By M. Elizabeth Magill
95 Va. L. Rev. 1131

Full Faith and Credit in the Early Congress

By Stephen E. Sachs
95 Va. L. Rev. 1201

Is O Centro Really A Sign of Hope for RFRA Claimants?

By Matt Nicholson
95 Va. L. Rev. 1281

The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act

By Scott Schwartz
95 Va. L. Rev. 1325

Issue 4

The SEC in a Time of Discontinuity: Introduction to Virginia Law Review Symposium

By Joel Seligman
95 Va. L. Rev. 667

The Race for the Bottom in Corporate Governance

By Frank H. Easterbrook
95 Va. L. Rev. 685

Redesigning the SEC: Does the Treasury Have a Better Idea?

By John C. Coffee, Jr. and Hillary A. Sale
95 Va. L. Rev. 707

Top Cop or Regulatory Flop? The SEC at 75

By Jill E. Fisch
95 Va. L. Rev. 785

Commentary On Redesigning The SEC: Does The Treasury Have A Better Idea?

By Steven M.H. Wallman
95 Va. L. Rev. 825

Securities Law and the New Deal Justices

By A.C. Pritchard and Robert B. Thompson
95 Va. L. Rev. 841

The Securities Laws and the Mechanics of Legal Change

By Barry Cushman
95 Va. L. Rev. 927

Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC

By James D. Cox
95 Va. L. Rev. 941

Treatment Differences and Political Realities in the GAAP-IFRS Debate

By William W. Bratton and Lawrence A. Cunningham
95 Va. L. Rev. 989

The SEC, Retail Investors, and the Institutionalization of the Securities Markets

By Donald C. Langevoort
95 Va. L. Rev. 1025

Whither the SEC Now?

By Brian G. Cartwright
95 Va. L. Rev. 1085

A Requiem for the Retail Investor?

By Alicia Davis Evans
95 Va. L. Rev. 1105

Issue 3

The Common Law Prohibition on Party Testimony and the Development of Tort Liability

By Kenneth S. Abraham
95 Va. L. Rev. 489

Managers, Shareholders, and the Corporate Double Tax

By Michael Doran
95 Va. L. Rev. 517

Chevron Has Only One Step

By Matthew C. Stephenson and Adrian Vermeule
95 Va. L. Rev. 597

Chevron’s Two Steps

By Kenneth A. Bamberger and Peter L. Strauss
95 Va. L. Rev. 611

Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis

By Rebecca Schoff
95 Va. L. Rev. 627

Volume 94 — 2008

Issue 8

There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy

By Dotan Oliar and Christopher Sprigman
94 Va. L. Rev. 1787

The Uneasy Case for Transjurisdictional Adjudication

By Jonathan R. Nash
94 Va. L. Rev. 1869

Authority and Authorities

By Frederick Schauer
94 Va. L. Rev. 1931

San Antonio Independent School District v. Rodriguez and Its Aftermath

By Jeffrey S. Sutton
94 Va. L. Rev. 1963

The Unrealized Promise of Section 1983 Method-of-Execution Challenges

By Liam Montgomery
94 Va. L. Rev. 1987

Issue 7

(Over)Valuing Uniformity

By Amanda Frost
94 Va. L. Rev. 1567

Doctrinal Feedback and (Un)Reasonable Care

By James Gibson
94 Va. L. Rev. 1641

Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

By John Monahan, Laurens Walker, and Gregory Mitchell
94 Va. L. Rev. 1715

Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

By Tyler Welti
94 Va. L. Rev. 1751

Issue 6

A Tribute to Earl C. Dudley, Jr.

By John C. Jeffries, Jr. and George Rutherglen
94 Va. L. Rev. 1281

A Tribute to Glen O. Robinson

By John C. Jeffries, Jr. and Kenneth S. Abraham
94 Va. L. Rev. 1289

Linkage and the Deterrence of Corporate Fraud

By Miriam Baer
94 Va. L. Rev. 1295

State Action and the Thirteenth Amendment

By George Rutherglen
94 Va. L. Rev. 1367

Is OSHA Unconstitutional?

By Cass R. Sunstein
94 Va. L. Rev. 1407

Destabilizing Discourses: Blocking and Exploiting a New Discourse at Work in Gonzales v. Carhart

By Rebecca Ivey
94 Va. L. Rev. 1451

Choice of Law, the Constitution, and Lochner

By James Y. Stern
94 Va. L. Rev. 1509

Issue 5

Cities, Economic Development, and the Free Trade Constitution

By Richard C. Schragger
94 Va. L. Rev. 1091

Patent Claim Construction

By Thomas Chen
94 Va. L. Rev. 1165

How Automobile Accidents Stalled the Development of Interspousal Liability

By Elizabeth Katz
94 Va. L. Rev. 1213

The Chicken and the Egg: Kenneth S. Abraham’s “The Liability Century”

By Adam F. Scales
94 Va. L. Rev. 1259

Issue 4

A Theory of Procedural Common Law

By Amy Coney Barrett
94 Va. L. Rev. 813

Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State

By Anne Joseph O'Connell
94 Va. L. Rev. 889

Judicial Sincerity

By Micah J. Schwartzman
94 Va. L. Rev. 987

Citizenship Denied: The Insular Cases and the Fourteenth Amendment

By Lisa Maria Perez
94 Va. L. Rev. 1029

Issue 3

Delaware’s Compensation

By Michal Barzuza
94 Va. L. Rev. 521

The Suspension Clause: English Text, Imperial Contexts, and American Implications

By Paul D. Halliday & G. Edward White
94 Va. L. Rev. 575

The Taxation of Carried Interests in Private Equity

By David A. Weisbach
94 Va. L. Rev. 715

The Right to Education in Juvenile Detention Under State Constitutions

By Katherine Twomey
94 Va. L. Rev. 765

Issue 2

Issue 1

Information and the Market for Union Representation

By Matthew T. Bodie
94 Va. L. Rev. 1

Overcoming Procedural Boundaries

By Issachar Rosen-Zvi & Talia Fisher
94 Va. L. Rev. 79

From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory

By Jody S. Kraus
94 Va. L. Rev. 157

Finding the Proper Balance: A Look at the Continuing Development of Campus Suicide Policies

By Karin McAnaney
94 Va. L. Rev. 197

A Doctrine of Full Faith and Credit

By Brian Vines
94 Va. L. Rev. 247

Volume 93 — 2007

Issue 8

Jurisdictional Exceptionalism

By Michael G. Collins
93 Va. L. Rev. 1829

The Questionable Use of Custom in Intellectual Property

By Jennifer E. Rothman
93 Va. L. Rev. 1899

A New Model of Administrative Enforcement

By Robert J. Jackson, Jr. & David Rosenberg
93 Va. L. Rev. 1983

The Case for For-Profit Charities

By Anup Malani & Eric A. Posner
93 Va. L. Rev. 2017

Better a Catholic Than a Communist

By James Zucker
93 Va. L. Rev. 2069

Issue 7

Domesticating Sole Executive Agreements

By Bradford R. Clark
93 Va. L. Rev. 1573

What is Standing Good For?

By Eugene Kontorovich
93 Va. L. Rev. 1663

The People or the State?: Chisholm v. Georgia and Popular Sovereignty

By Randy E. Barnett
93 Va. L. Rev. 1729

Not-So-Serious Threats to Judicial Independence

By William H. Pryor, Jr.
93 Va. L. Rev. 1759

Democratic Failure and Emergencies: Myth or Reality?

By James McDonald
93 Va. L. Rev. 1785

Issue 6

The (Hidden) Risk of Opportunistic Precautions

By Ehud Guttel
93 Va. L. Rev. 1389

Originalism, Popular Sovereignty, and Reverse Stare Decisis

By Kurt Lash
93 Va. L. Rev. 1437

Fair Use Harbors

By Gideon Parchomovsky & Kevin Goldman
93 Va. L. Rev. 1483

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

By Ross Goldman
93 Va. L. Rev. 1533

Issue 4

Structural Reform Prosecution

By Brandon L. Garrett
93 Va. L. Rev. 853

Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty

By Nestor M. Davidson
93 Va. L. Rev. 959

Delegation Really Running Riot

By Larry Alexander and Saikrishna Prakash
93 Va. L. Rev. 1035

Entrapment, Punishment, and the Sadistic State

By Andrew Carlon
93 Va. L. Rev. 1081

Anticipated Judicial Vacancies and the Power to Nominate

By Matthew Madden
93 Va. L. Rev. 1135

Religion and Public Education in a Constitutional Democracy

By Robert Audi
93 Va. L. Rev. 1175

Issue 3

Economic and Legal Boundaries of Firms

By George G. Triantis & Edward M. Iacobucci
93 Va. L. Rev. 515

Treaties’ Domains

By Tim Wu
93 Va. L. Rev. 571

International Human Rights in American Courts

By William A. Fletcher
93 Va. L. Rev. 653

The Myth of the Shareholder Franchise

By Lucian A. Bebchuk
93 Va. L. Rev. 675

The Many Myths of Lucian Bebchuk

By Martin Lipton & William Savitt
93 Va. L. Rev. 733

Too Many Notes and Not Enough Votes: Lucian Bebchuk and Emperor Joseph II Kvetch About Contested Director Elections and Mozart’s Seraglio

By Jonathan R. Macey
93 Va. L. Rev. 759

Professor Bebchuk’s Brave New World: A Reply to “The Myth of the Shareholder Franchise”

By John F. Olson
93 Va. L. Rev. 773

The Mythical Benefit of Shareholder Control

By Lynn A. Stout
93 Va. L. Rev. 789

The Shareholder Franchise is Not a Myth: A Response to Professor Bebchuk

By E. Norman Veasey
93 Va. L. Rev. 811

Issue 1

Ambivalence About Formalism

By Jonathan T. Molot
93 Va. L. Rev. 1

The Missing Interest: Restoration of the Contractual Equivalence

By Eyal Zamir
93 Va. L. Rev. 59

Why Summary Judgment is Unconstitutional

By Suja A. Thomas
93 Va. L. Rev. 139

Result or Reason: The Supreme Court and Sit-In Cases

By Brad Ervin
93 Va. L. Rev. 181

How to Construe a Hybrid Statute

By Jonathan Marx
93 Va. L. Rev. 235

Volume 92 — 2006

Issue 7

On Belling the Cat: Rawls and Corrective Justice

By Kevin Kordana & David Tabachnick
92 Va. L. Rev. 1279

Eliminating Corrective Justice

By Steven Walt
92 Va. L. Rev. 1311

Making and Keeping Contracts

By Daniel Markovits
92 Va. L. Rev. 1325

Is As Ought: The Case of Contracts

By Barbara Fried
92 Va. L. Rev. 1375

Private Order and Public Justice: Kant and Rawls

By Arthur Ripstein
92 Va. L. Rev. 1391

Freedom and Enforcement: Comments on Ripstein

By John G. Bennett
92 Va. L. Rev. 1439

Public Legal Reason

By Lawrence B. Solum
92 Va. L. Rev. 1449

Private Law and Public Reason

By George Rutherglen
92 Va. L. Rev. 1503

The Role of Formal Contract Law and Enforcement in Economic Development

By Michael Trebilcock & Jing Leng
92 Va. L. Rev. 1517

Contract Theory On and Off the Grid

By Terrance O'Reilly
92 Va. L. Rev. 1581

Libertarianism, Utility and Economic Competition

By Jonathan Wolff
92 Va. L. Rev. 1605

Liberties and Markets

By A. John Simmons
92 Va. L. Rev. 1625

An Efficiency Model of Section 363(B) Sales

By Jason Brege
92 Va. L. Rev. 1639

Issue 6

Emergencies and Democratic Failure

By Eric A. Posner & Adrian Vermeule
92 Va. L. Rev. 1091

Two Models of Tort (and Takings)

By Scott Hershovitz
92 Va. L. Rev. 1147

European Corporate Choice of Law

By Benjamin Angelette
92 Va. L. Rev. 1189

“True Threats” and the Issue of Intent

By Paul Crane
92 Va. L. Rev. 1225

Issue 5

Risk and Redistribution in Open and Closed Economies

By Mitchell A. Kane
92 Va. L. Rev. 867

Intergovernmental Liability Rules

By Amnon Lehavi
92 Va. L. Rev. 929

The Right to Judicial Review

By Yuval Eylon and Alon Harel
92 Va. L. Rev. 991

Return on Political Investment: The Puzzle of Ex Ante Investment in Articles 3 and 4 of the U.C.C.

By Christopher Termini
92 Va. L. Rev. 1023

Issue 3

What Makes the D.C. Circuit Different? A Historical View

By John G. Roberts, Jr.
92 Va. L. Rev. 375

A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients

By John Monahan
92 Va. L. Rev. 391

Exclusionary Amenities in Residential Communities

By Lior Strahilevitz
92 Va. L. Rev. 437

The Law Clerk Who Wrote Rasul v. Bush

By Joseph T. Thai
92 Va. L. Rev. 501

The Promise of International Law

By Andrew T. Guzman
92 Va. L. Rev. 533

Issue 2

Chevron Step Zero

By Cass R. Sunstein
92 Va. L. Rev. 187

Rule-Based Dispute Resolution in International Law

By Rachel Brewster
92 Va. L. Rev. 251

Modernizing the Critique of Per Diem Pain and Suffering Damages

By Martin V. Totaro
92 Va. L. Rev. 289

The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception

By Thomas Windom
92 Va. L. Rev. 327

Issue 1

Habeas Settlements

By Anup Malani
92 Va. L. Rev. 1

Predictive Decisionmaking

By Michael Abramowicz
92 Va. L. Rev. 69

Intellectual Property, Innovation, and Decision Architectures

By Tim Wu
92 Va. L. Rev. 123

Information Markets: Using Market Predictions to Make Today’s Decisions

By Matthew Einbinder
92 Va. L. Rev. 149

Volume 91 — 2005

Issue 8

Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories

By Kimberly D. Krawiec & Kathryn Zeiler
91 Va. L. Rev. 1795

Property as Entrance

By Eduardo M. Peñalver
91 Va. L. Rev. 1889

A Test for Criminally Instructional Speech

By Leslie Kendrick
91 Va. L. Rev. 1973

“Clothed with the Legitimate Authority of the People”

By Keith E. Whittington
91 Va. L. Rev. 2023

Issue 7

The Federal Courts, the First Congress, and the Non-Settlement of 1789

By Michael Collins
91 Va. L. Rev. 1515

Exiting Treaties

By Laurence Helfer
91 Va. L. Rev. 1579

Constitutional Calcification: How the Law Becomes What the Court Does

By Kermit Roosevelt III
91 Va. L. Rev. 1649

A Simple Proposal to Halve Litigation Costs

By David Rosenberg & Steven Shavell
91 Va. L. Rev. 1721

Administrative Reconsideration

By Daniel Bress
91 Va. L. Rev. 1737

Issue 5

Relocating Disorder

By Nicole Stelle Garnett
91 Va. L. Rev. 1075

The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies

By Eugene Kontorovich
91 Va. L. Rev. 1135

A Normative Theory of Business Bankruptcy

By Alan Schwartz
91 Va. L. Rev. 1199

Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court

By Sarang Vijay Damle
91 Va. L. Rev. 1267

Issue 3

A Forest with No Trees: The Supreme Court and International Law in the 2003 Term

By John K. Setear
91 Va. L. Rev. 579

The Constitutional Right Against Excessive Punishment

By Youngjae Lee
91 Va. L. Rev. 677

Prosecuting Batterers After Crawford

By Tom Lininger
91 Va. L. Rev. 747

Preserving Collective-Action Rights in Employment Arbitration

By John B. O'Keefe
91 Va. L. Rev. 823

Restoring Restitution

By Ernest J. Weinrib
91 Va. L. Rev. 861

Issue 2

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

By Thomas B. Colby
91 Va. L. Rev. 249

What is Textualism?

By Caleb Nelson
91 Va. L. Rev. 347

Textualism and Legislative Intent

By John F. Manning
91 Va. L. Rev. 419

A Response to Professor Manning

By Caleb Nelson
91 Va. L. Rev. 451

Does Frye or Daubert Matter?: A Study of Scientific Admissibility Standards

By Edward K. Cheng & Albert H. Yoon
91 Va. L. Rev. 471

The Concealmeant of Religious Values in Judicial Decisionmaking

By Scott C. Idleman
91 Va. L. Rev. 515

Reviewing Premarital Agreements to Protect the State’s Interest in Marriage

By Karen Servidea
91 Va. L. Rev. 535

Volume 90 — 2004

Issue 8

Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds

By Jack M. Balkin
90 Va. L. Rev. 2043

Enforcement Costs and Trademark Puzzles

By Robert G. Bone
90 Va. L. Rev. 2099

The Option Element in Contracting

By Avery Wiener Katz
90 Va. L. Rev. 2187

Toward a Controlling Shareholder Safe Harbor

By Steven M. Haas
90 Va. L. Rev. 2245

Lawrence Lessig’s Dystopian Vision

By Julia D. Mahoney
90 Va. L. Rev. 2305

Issue 7

Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles

By Jonathan T. Molot
90 Va. L. Rev. 1753

Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment

By Randy J. Kozel & David Rosenberg
90 Va. L. Rev. 1849

The Limited Domain of the Law

By Frederick Schauer
90 Va. L. Rev. 1909

Crime Severity and Constitutional Line-Drawing

By Eugene Volokh
90 Va. L. Rev. 1957

A Law and Norms Critique of the Constitutional Law of Defamation

By Michael Passaportis
90 Va. L. Rev. 1985

Issue 6

What Brown Teaches Us About Constitutional Theory

By Jack M. Balkin
90 Va. L. Rev. 1537

The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation

By Kevin Brown
90 Va. L. Rev. 1579

Time, Change, and the Constitution

By John Harrison
90 Va. L. Rev. 1601

Brown at 50

By Michael J. Klarman
90 Va. L. Rev. 1613

Brown, School Choice, and the Suburban Veto

By James E. Ryan
90 Va. L. Rev. 1635

Black on Brown

By Cass R. Sunstein
90 Va. L. Rev. 1649

Both Victors and Victims: Prince Edward County, Virginia, the NAACP, and Brown

By Kara Miles Turner
90 Va. L. Rev. 1667

Some Legacies of Brown v. Board of Education

By Mark Tushnet
90 Va. L. Rev. 1693

The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege

By Amy Stuart Wells, Anita Tijerina Revilla, Jennifer Jellison Holme, and Awo Korantemaa Atanda
90 Va. L. Rev. 1721

Issue 5

Issue 1