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One Year Post-Bruen: An Empirical Assessment

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon …

By Eric Ruben, Rosanna Smart & Ali Rowhani-Rahbar
110 Va. L. Rev. Online 20

Editing Classic Books: A Threat to the Public Domain?

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books …

By Cathay Y. N. Smith
110 Va. L. Rev. Online 1

The Zero-Sum Argument, Legacy Preferences, and the Erosion of the Distinction Between Disparate Treatment and Disparate Impact

In a complaint recently filed with the Department of Education, a group of civil rights organizations allege that Harvard University’s legacy preference unlawfully discriminates against minority applicants in violation of Title VI of the Civil …

By Deborah Hellman
109 Va. L. Rev. Online 185

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

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

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

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

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

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

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

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

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

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

Noncitizens, Mental Health, and Immigration Adjudication

When a noncitizen commits a crime in the United States, they become vulnerable to the possibility of the government instigating removal proceedings against them. According to the Immigration and Nationality Act, the noncitizen can argue in their …

By Mishan Kara
109 Va. L. Rev. Online 162

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

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

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

Catalyzing Judicial Federalism

In response to a U.S. Supreme Court that is retrenching many important civil rights, some advocates are turning to state courts and constitutions as alternative means of protection. The Court’s regression follows a recent ideological change, a …

By Adam B. Sopko
109 Va. L. Rev. Online 144

Chronic Nuisance Ordinances, Impossible Choices, and State Constitutions

When Lakisha Briggs’s partner attacked her in April 2012, her daughter called the police. Their response ensured that neither Ms. Briggs nor her daughter would ever take that risk again. Once officers arrived at Ms. Briggs’s home, they told her …

By Sean Gray
109 Va. L. Rev. Online 124

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