Virginia Law Review最新文献

{"title":"The God Cure: Spirituality as Therapy.","authors":"","doi":"10.1093/schizbullopen/sgac057","DOIUrl":"10.1093/schizbullopen/sgac057","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"34 1","pages":"sgac057"},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11206115/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90930341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Designing Business Forms to Pursue Social Goals","authors":"O. Eldar","doi":"10.2139/SSRN.3369354","DOIUrl":"https://doi.org/10.2139/SSRN.3369354","url":null,"abstract":"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 largely based on the idea that firms increase long-term shareholder value when they contribute (or appear to contribute) to society. Contrary to this trend, this Article argues that the pressing issue is whether policies to create social impact actually generate value for third-party beneficiaries—rather than for shareholders. Because it is difficult to measure social impact with precision, the design of legal forms for firms that pursue social missions should incorporate organizational structures that generate both the incentives and competence to pursue such missions effectively. Specifically, firms that have a commitment to transacting with different types of disadvantaged groups demonstrate these attributes and should thus serve as the basis for designing legal forms. \u0000 \u0000While firms with such a commitment may be created using a variety of control and contractual mechanisms, the related transaction costs tend to be very high. This Article develops a social enterprise legal form that draws on the legal regime for community development financial institutions (CDFIs) and European legal forms for work-integration social enterprises (WISEs). This form would certify to investors, consumers, and governments that designated firms have a commitment as social enterprises. By obviating the need for costly social impact measurement, this form would facilitate the provision of subsidy-donations to social enterprises from multiple groups, particularly investors (through below-market investment) and consumers (via premiums over market prices). Thus, this social enterprise form would be to altruistic investors and consumers what the nonprofit form is to donors. \u0000 \u0000Moreover, the proposal could facilitate the flow of investments by foundations in social enterprises (known as program-related investments, “PRIs”) because it would help foundations verify the social impact of their investees. In addition, by giving subsidy-providers greater assurance that social enterprises pursue social missions effectively, the proposed legal form could facilitate public markets for social enterprises.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"106 1","pages":"937"},"PeriodicalIF":2.6,"publicationDate":"2020-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48272967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Isolated Lambdoid Craniosynostosis.","authors":"Vedant Borad, Emma J Cordes, Katie M Liljeberg, Tonye S Sylvanus, Paul K Lim, Robert J Wood","doi":"10.1097/SCS.0000000000006058","DOIUrl":"10.1097/SCS.0000000000006058","url":null,"abstract":"<p><strong>Introduction: </strong>Lambdoid craniosynostosis is an extremely rare anomaly in which there is premature fusion of one or both lambdoid sutures. The mainstay of treatment is surgical intervention, for which various procedures have been described, but there is a paucity of data on long-term outcomes. This study examines the long-term outcomes in the surgical management of this challenging condition, showing that accurate diagnosis and careful planning can lead to safe and consistent results.</p><p><strong>Materials and methods: </strong>A retrospective chart review was performed looking at all cases of isolated lambdoid craniosynostosis treated with surgical intervention by the senior author from 1999 to 2016. Data collected included gender, age at diagnosis, age at surgery, length of follow up, method of diagnosis, side of affected suture, pre-operative and post-operative physical exam findings, surgical technique, complications, re-operation rate, and associated torticollis.</p><p><strong>Results: </strong>Twenty-five patients (N = 25) were included in the study. All patients underwent posterior calvarial remodeling with/without barrel stave osteotomies and full thickness calvarial bone grafts. Mean length of follow up after operative intervention was 43.8 months (+/- 23.2 months). All patients were judged to have significantly improved head contour which was near-normal at conversational distance during post-operative follow up by the senior author. Residual plagiocephaly was present in 24% of patients. There were no major complications in this series. Reoperation rate was 8%. Seventy-six percent of patients also presented with torticollis, of which 37% had refractory torticollis that required sternocleidomastoid (SCM) release by the senior author.</p><p><strong>Discussion: </strong>The authors present one of the largest series of operative cases of isolated lambdoid craniosynostosis to date. Our data show that with accurate diagnosis and careful planning, safe and consistent long-term results can be achieved with surgical intervention. A significant number of patients in our series also presented with concomitant torticollis. The authors recommend that all patients being evaluated for posterior plagiocephaly should also be evaluated for torticollis, because without recognition and intervention, patients may continue to have residual facial asymmetry and head shape abnormalities despite optimal surgical correction of the lambdoid synostosis.</p>","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"77 1","pages":"2390-2392"},"PeriodicalIF":0.9,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90180669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unconstitutionally Illegitimate Discrimination","authors":"Brandon L. Garrett","doi":"10.2139/SSRN.3120413","DOIUrl":"https://doi.org/10.2139/SSRN.3120413","url":null,"abstract":"When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the Executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that a legitimacy-focused approach towards constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"105 1","pages":""},"PeriodicalIF":2.6,"publicationDate":"2018-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43742100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sovereign Immunity and the Constitutional Text","authors":"William Baude","doi":"10.2139/SSRN.2714540","DOIUrl":"https://doi.org/10.2139/SSRN.2714540","url":null,"abstract":"Despite the opprobrium heaped on the Supreme Court’s modern doctrine of sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule, a “backdrop,” that is not directly incorporated into the Constitution but is shielded by the Constitution from most kinds of change.That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt the Court nearly overruled Hall, and its future hangs by a single vote. The backdrops theory suggests that Nevada v. Hall is rightly decided, consistent with modern doctrine, and should not be overruled.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"103 1","pages":"1"},"PeriodicalIF":2.6,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48524848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Textualism and Statutory Precedents","authors":"Anita S. Krishnakumar","doi":"10.2139/SSRN.2724077","DOIUrl":"https://doi.org/10.2139/SSRN.2724077","url":null,"abstract":"On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial discretion, and the need to preserve the legitimacy of the Court as an institution. Yet, in practice, textualist jurists — at least at the Supreme Court level — have proved quite willing to abandon statutory stare decisis and to argue in favor of overruling established statutory precedents. Why? This paper advances a twofold thesis. First, it argues that textualism suffers from a “correct answer” mindset, which makes it especially difficult for its proponents to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. While others have noted that this tension between accuracy and stare decisis poses problems for textualists, they have tended to brush it off as a tension that also affects other interpretive theories and to insist that textualism can and does give way to statutory stare decisis as a matter of necessity. Second, and more importantly, this paper argues that textualist jurists tend to view statutory precedents that create a test for implementing a statute as different from more ordinary parsing-the-text statutory interpretation. That is, textualist jurists regard implementation-test precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test” exception to the heightened stare decisis protection typically afforded to statutory precedents.The paper begins by providing several examples of cases in which textualist Justices on the U.S. Supreme Court have rejected statutory stare decisis and voted to overturn a statutory precedent. The argument is largely descriptive but has significant theoretical and normative implications. In particular, the implementation-test insight suggests a new and previously unexplored explanation for the judicial treatment of congressional overrides and the shadow precedent phenomenon that some scholars have observed. The distinction between implementation tests and text-parsing statutory construction also highlights important and underappreciated differences between textualist and purposivist visions of the judicial role in statutory interpretation. In the end, the paper both supports and critiques the implementation test exception to statutory stare decisis. It argues that the Supreme Court should be free to reexamine implementation tests that have been criticized by lower courts as confusing or unworkable in practice. But for separation of powers reasons, and in order to preserve stability and predictability, the Court should limit this implementation test exception to only those contexts in which substantial lower court criticism is present.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"104 1","pages":"157"},"PeriodicalIF":2.6,"publicationDate":"2017-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44926287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Declaratory Theory of State Accountability","authors":"James E. Pfander, J. Dwinell","doi":"10.2139/SSRN.2722242","DOIUrl":"https://doi.org/10.2139/SSRN.2722242","url":null,"abstract":"Debate persists over the meaning of the Eleventh Amendment and the degree to which it supports the lines drawn by the Supreme Court on fraught questions of state sovereign immunity and accountability. Scholars disagree both as to the legal and historical accuracy of the Court’s expansive conception of sovereign immunity and as to the proper scope of the Ex parte Young action, the primary tool for ensuring state accountability. Characterized as a body of law devoid of principle and subject to arbitrary stops in reasoning, the doctrine has yet to strike a balance between immunity and accountability that enjoys anything close to a consensus. In this Essay, we propose to blend current law and scholarship into a new, historically grounded, declaratory theory of state accountability. Our account builds on the willingness of federal courts to entertain applications for declaratory relief and their reluctance to entertain money claims against the states. We argue that the states should take responsibility for money claims, at least in cases where Congress cannot abrogate state immunity. We suggest a framework within which states give preclusive effect to federal declarations in follow-on suits brought by individuals who seek monetary relief in accordance with state law. Such an approach would honor a surprisingly strong tradition of reliance on declaratory judgments as a tool of government accountability, would preserve state control over the purse strings, and would give state governments a role in securing the effectiveness of judgments against the states comparable to that played by Congress and the executive branch in connection with judgments against the federal government.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"102 1","pages":"153-235"},"PeriodicalIF":2.6,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68273690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Corporate Criminal as Scapegoat","authors":"Brandon L. Garrett","doi":"10.2139/SSRN.2557465","DOIUrl":"https://doi.org/10.2139/SSRN.2557465","url":null,"abstract":"A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop original empirical data detailing the path of individual prosecutions accompanying federal corporate prosecution agreements. Only 34 percent of federal corporate deferred and non-prosecution agreements from 2001-2014 were accompanied by charges against individuals. Those prosecutions produced uneven results. Only 42 percent of those charged received any jail time. There were large numbers of outright losses: 15 percent terminated in acquittals or dismissals. Only a handful of the cases involved high-level executives. These findings illustrate the challenges posed by organizational complexity and the manner in which it can obscure fault. Contrary to the calls of prominent critics, I argue that bringing more individual criminal cases cannot adequately substitute for prosecuting companies. Instead, corporate prosecutions should be leveraged to enhance individual accountability. In conclusion, I propose statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"101 1","pages":"1789"},"PeriodicalIF":2.6,"publicationDate":"2015-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68202819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Capacity and Executive Power","authors":"Andrew Coan, Nicholas Bullard","doi":"10.2139/SSRN.2558177","DOIUrl":"https://doi.org/10.2139/SSRN.2558177","url":null,"abstract":"The budget of the United States executive branch is roughly 500 times greater than that of the judicial branch. The executive workforce is more than 50 times greater. How do these enormous disparities affect the practical ability of courts to police executive power? Our judicial capacity model of Supreme Court decision-making is the first attempt to take this question seriously. Briefly, in most executive-power domains, the limits of judicial capacity create strong pressure on the Supreme Court to adopt hard-edged categorical rules, defer to the political process, or both. The reason is straightforward. In these domains, a departure from deferential or rule-based decisions would invite more litigation than the Court could handle without sacrificing minimum professional standards. Our model explains why the Supreme Court has historically deferred to congressional delegations of power and interference with presidential administration, despite significant ideological temptations to intervene. It also explains the few areas of executive power in which the Court has been willing to act aggressively, as well as the one area in which the Court has employed indeterminate standards — as opposed to categorical rules — to invalidate government action. In so doing, the judicial capacity model clarifies when, if at all, it is sensible to urge the courts to constrain executive power in future cases. Finally, the judicial capacity model sheds light on some of the most significant issues in constitutional theory, including judicial competence, judicial independence, and the formalist-functionalist divide in separation of powers. For all of these reasons, judicial capacity deserves a central place on the agenda of executive power scholarship and constitutional theory more generally.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"102 1","pages":"765-831"},"PeriodicalIF":2.6,"publicationDate":"2015-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68202996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Rule of Lenity for National Security Surveillance Law","authors":"Orin S. Kerr","doi":"10.1017/9781316148488.020","DOIUrl":"https://doi.org/10.1017/9781316148488.020","url":null,"abstract":"This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “rule of lenity,” ambiguity in the powers granted to the executive branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the State. A rule of lenity would push Congress to be the primary decision maker to balance privacy and security when technology changes, limiting the rulemaking power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"100 1","pages":"1513"},"PeriodicalIF":2.6,"publicationDate":"2014-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781316148488.020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56928669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}