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CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND 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 applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, manyVIRGINIA LAW REVIEW
2 II. Order of Authorities (Cross Reference Bluebook Rule 1.4) VLR follows the updated Rule 1.4 for order of authorities, which requires authorities within each signal to be ordered in a “logical manner.” VLR defers to Author preference for the order of authorities. III. Parenthetical Information (Cross Reference Bluebook Rule 1.5, p. 64; Rule 5.2, p. THE MYTH OF COMMON LAW CRIMES Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an importantrole in modern
DIVERSITY AND INCLUSION Acknowledgement of History The Virginia Law Review, established in 1913, has enjoyed a reputation of publishing leading scholarship—pieces that have changed laws, been cited in Supreme Court opinions, and spotlighted the ideas of both prominent scholars and emerging voices. The Review is proud of the many pieces it has published that have strengthened democratic institutions (OVER)VALUING UNIFORMITY Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for OF GUNS, ABORTIONS, AND THE UNRAVELING RULE OF LAW Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms. I am unable to join in the jubilation. Heller represents a MEASURING THE IMPACT OF PLAUSIBILITY PLEADING Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, DOCTRINAL FEEDBACK AND (UN)REASONABLE CARE GIBSON_BOOK 10/20/2008 1:20 PM 2008] Doctrinal Feedback and (Un)Reasonable Care 1645 constitute more than reasonable care, because reasonable care draws its definition from the typical conduct of those it regulates. In other words, the ultrasound’s ubiquity will make itpart of the
THE FOREIGN COMMERCE CLAUSE COLANGELO_PRE_PP 8/19/2010 11:08 AM 2010] The Foreign Commerce Clause 951 That is about to change. As foreign commerce in our globalized economy reaches deeper inside state boundaries to touch local ac-tivity, and as the United States more aggressively projects a wide VIRGINIA LAW REVIEWPRINTONLINEANNOUNCEMENTSSUBMISSIONSABOUTCONTACT Mail-In Ballots and Constraints on Federal Power Under the Electors Clause. Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. . By John J.Martin.
CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND 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 applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, manyVIRGINIA LAW REVIEW
2 II. Order of Authorities (Cross Reference Bluebook Rule 1.4) VLR follows the updated Rule 1.4 for order of authorities, which requires authorities within each signal to be ordered in a “logical manner.” VLR defers to Author preference for the order of authorities. III. Parenthetical Information (Cross Reference Bluebook Rule 1.5, p. 64; Rule 5.2, p. THE MYTH OF COMMON LAW CRIMES Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an importantrole in modern
DIVERSITY AND INCLUSION Acknowledgement of History The Virginia Law Review, established in 1913, has enjoyed a reputation of publishing leading scholarship—pieces that have changed laws, been cited in Supreme Court opinions, and spotlighted the ideas of both prominent scholars and emerging voices. The Review is proud of the many pieces it has published that have strengthened democratic institutions (OVER)VALUING UNIFORMITY Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for OF GUNS, ABORTIONS, AND THE UNRAVELING RULE OF LAW Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms. I am unable to join in the jubilation. Heller represents a MEASURING THE IMPACT OF PLAUSIBILITY PLEADING Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, DOCTRINAL FEEDBACK AND (UN)REASONABLE CARE GIBSON_BOOK 10/20/2008 1:20 PM 2008] Doctrinal Feedback and (Un)Reasonable Care 1645 constitute more than reasonable care, because reasonable care draws its definition from the typical conduct of those it regulates. In other words, the ultrasound’s ubiquity will make itpart of the
THE FOREIGN COMMERCE CLAUSE COLANGELO_PRE_PP 8/19/2010 11:08 AM 2010] The Foreign Commerce Clause 951 That is about to change. As foreign commerce in our globalized economy reaches deeper inside state boundaries to touch local ac-tivity, and as the United States more aggressively projects a wide JUSTICIABILITY AND REMEDIES–AND THEIR CONNECTIONS TO Conventional thinking divides lawsuits into three distinct stages. First, the court determines justiciability – involving whether the plaintiff has standing, the suit is ripe, and so forth. Second, if the suit is justiciable, the court rules on the merits. Finally, if the plaintiff prevails, the court determines the remedy. Sophisticated commentators have long derided this 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 litigation. Under the Colorado River abstention doctrine, only “exceptional circumstances,” beyond the mere pendency of a parallel state case, MASTHEAD - VIRGINIA LAW REVIEW Hayley Hahn Grace E. Hauser Ariel K. Hayes Austin Hetrick Anthony R. Jadick Chloe M. Knox Kevin J. Krotz Rishi Kumar Trust Kupupika Caitlin H. Kutchi Jordan M. LaPointe WHITE PRIVILEGE AND WHITE DISADVANTAGE The task of defending and rehabilitating the concept of white privilege by identifying poor white people’s race-based advantages is the goal of this paper. Carrie Buck—the plaintiff at the center of the Supreme Court’s 1927 decision Buck v. Bell —provides the foundation for the inquiry. Part I gives a history of the litigationthat
VIRGINIA LAW REVIEW ONLINE COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 115 VIRGINIA LAW REVIEW ONLINE VOLUME 107 JUNE 2021 115–142 ESSAY WHY BIPOC FAILS Meera E. Deo* INTRODUCTIONVIRGINIA LAW REVIEW
COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 431 VIRGINIA LAW REVIEW VOLUME 107 MAY 2021 NUMBER 3 ARTICLES INTERPRETIVE ENTREPRENEURS Melissa J. Durkee* Private NOTE - VIRGINIALAWREVIEW.ORG COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 640 Virginia Law Review [Vol. 107:639 Virginia Law Review [Vol. 107:639PORTIA PEDRO
In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area INVOKING CRIMINAL EQUITY’S ROOTS COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 495 INVOKING CRIMINAL EQUITY’S ROOTS Cortney E. Lollar* Equitable remedies have begun to play a critical role in KATHLEEN DELANEY THOMAS Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. VIRGINIA LAW REVIEWPRINTONLINEANNOUNCEMENTSSUBMISSIONSABOUTCONTACT Mail-In Ballots and Constraints on Federal Power Under the Electors Clause. Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. . By John J.Martin.
CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND 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 applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, manyVIRGINIA LAW REVIEW
2 II. Order of Authorities (Cross Reference Bluebook Rule 1.4) VLR follows the updated Rule 1.4 for order of authorities, which requires authorities within each signal to be ordered in a “logical manner.” VLR defers to Author preference for the order of authorities. III. Parenthetical Information (Cross Reference Bluebook Rule 1.5, p. 64; Rule 5.2, p. DIVERSITY AND INCLUSION Acknowledgement of History The Virginia Law Review, established in 1913, has enjoyed a reputation of publishing leading scholarship—pieces that have changed laws, been cited in Supreme Court opinions, and spotlighted the ideas of both prominent scholars and emerging voices. The Review is proud of the many pieces it has published that have strengthened democratic institutions THE MYTH OF COMMON LAW CRIMES Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an importantrole in modern
(OVER)VALUING UNIFORMITY Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and forVIRGINIA LAW REVIEW
Virginia Law Review The Foreign Commerce Clause 951 That is about to change. As foreign commerce in our globalized economy reaches deeper inside state boundaries to touch local ac-tivity, and as the United States more aggressively projects a wide VIRGINIA LAW REVIEWPRINTONLINEANNOUNCEMENTSSUBMISSIONSABOUTCONTACT Mail-In Ballots and Constraints on Federal Power Under the Electors Clause. Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. . By John J.Martin.
CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND 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 applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, manyVIRGINIA LAW REVIEW
2 II. Order of Authorities (Cross Reference Bluebook Rule 1.4) VLR follows the updated Rule 1.4 for order of authorities, which requires authorities within each signal to be ordered in a “logical manner.” VLR defers to Author preference for the order of authorities. III. Parenthetical Information (Cross Reference Bluebook Rule 1.5, p. 64; Rule 5.2, p. DIVERSITY AND INCLUSION Acknowledgement of History The Virginia Law Review, established in 1913, has enjoyed a reputation of publishing leading scholarship—pieces that have changed laws, been cited in Supreme Court opinions, and spotlighted the ideas of both prominent scholars and emerging voices. The Review is proud of the many pieces it has published that have strengthened democratic institutions THE MYTH OF COMMON LAW CRIMES Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an importantrole in modern
(OVER)VALUING UNIFORMITY Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and forVIRGINIA LAW REVIEW
Virginia Law Review The Foreign Commerce Clause 951 That is about to change. As foreign commerce in our globalized economy reaches deeper inside state boundaries to touch local ac-tivity, and as the United States more aggressively projects a wide THE MYTH OF COMMON LAW CRIMES Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an importantrole in modern
JUSTICIABILITY AND REMEDIES–AND THEIR CONNECTIONS TO Conventional thinking divides lawsuits into three distinct stages. First, the court determines justiciability – involving whether the plaintiff has standing, the suit is ripe, and so forth. Second, if the suit is justiciable, the court rules on the merits. Finally, if the plaintiff prevails, the court determines the remedy. Sophisticated commentators have long derided this 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 litigation. Under the Colorado River abstention doctrine, only “exceptional circumstances,” beyond the mere pendency of a parallel state case, VIRGINIA LAW REVIEW ONLINE COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 115 VIRGINIA LAW REVIEW ONLINE VOLUME 107 JUNE 2021 115–142 ESSAY WHY BIPOC FAILS Meera E. Deo* INTRODUCTIONVIRGINIA LAW REVIEW
COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 431 VIRGINIA LAW REVIEW VOLUME 107 MAY 2021 NUMBER 3 ARTICLES INTERPRETIVE ENTREPRENEURS Melissa J. Durkee* PrivateMEERA E. DEO
Introduction. Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice. 1 1. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times INVOKING CRIMINAL EQUITY’S ROOTS COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 495 INVOKING CRIMINAL EQUITY’S ROOTS Cortney E. Lollar* Equitable remedies have begun to play a critical role inNATHANIEL C. SUTTON
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 litigation. KATHLEEN DELANEY THOMAS Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. NOTE - VIRGINIALAWREVIEW.ORG COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 640 Virginia Law Review The Foreign Commerce Clause 951 That is about to change. As foreign commerce in our globalized economy reaches deeper inside state boundaries to touch local ac-tivity, and as the United States more aggressively projects a wide ONLINE - VIRGINIA LAW REVIEW The Virginia Law Review Online offers a quick turnaround for timely, relevant pieces. Please review submission guidelines below to submit a piece to the Virginia Law Review Online. Please note that students at the University of Virginia School of Law must follow different submission procedures than all other authors. Online Submissions Virginia Law Review Online is the Virginia Law Review's LOCKSTEPPING THROUGH STOP-AND-FRISK: A CALL TO 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 litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting JUSTICIABILITY AND REMEDIES–AND THEIR CONNECTIONS TO Conventional thinking divides lawsuits into three distinct stages. First, the court determines justiciability – involving whether the plaintiff has standing, the suit is ripe, and so forth. Second, if the suit is justiciable, the court rules on the merits. Finally, if the plaintiff prevails, the court determines the remedy. Sophisticated commentators have long derided this 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 system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a formWHY BIPOC FAILS
Introduction Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice.1 1.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Bethe Largest
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 specific performance, operate as an unappreciated and underutilized safety valve that protects against the proceduralINTERVENTION
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, including many of the highest-profile cases that the federal courts hear. Yet it raises fundamental CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND 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 applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many THE DEATH PENALTY AS INCAPACITATION Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be moredifferent.
DOES FRYE OR DAUBERT MATTER?: A STUDY OF SCIENTIFIC Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter?Skip to:
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