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The Impermissibility of Sex as a Voter Qualification

Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender …

By Holl Chaisson
110 Va. L. Rev. 985

Importance and Interpretive Questions

In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of …

By Ilan Wurman
110 Va. L. Rev. 909

Sacred Easements

In the last forty years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. When confronting threats to sacred lands, Native Americans stridently assert constitutional and statutory free …

By Patrick E. Reidy, C.S.C.
110 Va. L. Rev. 833

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

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

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

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

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

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

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 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

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

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

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

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

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

20/20 Hindsight and Looking Ahead: The Vision of the Five Eyes and What’s Next in the “Going Dark” Debate

The so-called “encryption debate” made national headlines in 2016 after Apple Inc. (“Apple”) declined to enable the Federal Bureau of Investigation (“FBI” or “the Bureau”) to unlock an iPhone recovered from one of the shooters involved in a …

By Hayley S. Brower & Daniel S. McCray
110 Va. L. Rev. Online 70

Cyber Vulnerabilities as Trade Secrets

Can a cybersecurity vulnerability—like a bug in code or a backdoor into a system—be a trade secret? Claiming a flaw as a trade secret may sound strange. Usually, talk of trade secrets conjures up images of scientists in laboratories or complex …

By Samantha L. Blond
110 Va. L. Rev. Online 52

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