Virginia Law Review最新文献

{"title":"Transracial Adoption and the Unblinkable Difference: Racial Dissimilarity Serving the Interests of Adopted Children","authors":"Jennifer L. Swize","doi":"10.2307/1073997","DOIUrl":"https://doi.org/10.2307/1073997","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1079"},"PeriodicalIF":2.6,"publicationDate":"2002-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1073997","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204048","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":"Dissing States?: Invalidation of State Action During the Rehnquist Era","authors":"R. Colker, K. M. Scott","doi":"10.2307/1073985","DOIUrl":"https://doi.org/10.2307/1073985","url":null,"abstract":"The \"federalism revolution\" under Chief Justice Rehnquist's leadership has been the subject of considerable discussion with some legal commentators suggesting that the Court has invalidated federal action in order to protect state sovereignty. By contrast, political scientists routinely argue that ideology rather than federalism can best explain the voting behavior of Supreme Court Justices. Neither of these arguments has involved close examination of the Rehnquist Court's record with respect to invalidating state action. In this article, Ruth Colker and Kevin Scott use quantitative and qualitative analysis to ask what factors predict a vote to invalidate state action during the Rehnquist era for individual Justices, paying particular attention to the federalists. They find that conservative ideology as well as some criteria for federalism can help explain the invalidation results for Justices Rehnquist and Thomas and, to a lesser extent, Scalia. But they also find that Justices O'Connor and Kennedy do not fit the pattern found for the other federalists. In fact, they find that four different versions of \"federalism\" explain the voting behavior of the federalists on the Rehnquist Court. Colker and Scott's data do not support the argument expressed by some political scientists that federalism plays virtually no role in explaining the voting behavior of the Supreme Court. Their data, however, do support the argument that the labels -- activist, conservative, and federalist -- best describe the legacy of the Rehnquist Court in considering its pattern of invalidating state action. Law is not only politics, but acting consistently with a conservative ideology is an important predictor of the voting behavior of the core federalists on the Rehnquist Court.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1301"},"PeriodicalIF":2.6,"publicationDate":"2002-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1073985","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203964","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 First Amendment and New Forms of Civil Liability","authors":"Rodney A. Smolla, R. O'neil","doi":"10.2307/1074021","DOIUrl":"https://doi.org/10.2307/1074021","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"919"},"PeriodicalIF":2.6,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203919","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 Ambiguous Basis for Chevron Deference: Multiple-Agency Statutes","authors":"Dan Lovejoy","doi":"10.2307/1074020","DOIUrl":"https://doi.org/10.2307/1074020","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"879"},"PeriodicalIF":2.6,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203868","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":"Perpetual Restrictions on Land and the Problem of the Future","authors":"J. Mahoney","doi":"10.2139/SSRN.291537","DOIUrl":"https://doi.org/10.2139/SSRN.291537","url":null,"abstract":"Support for land preservation is in large part rooted in the conviction that present generations have an obligation to benefit future generations by affording them the opportunity to enjoy and appreciate environmentally sensitive lands. The recent emergence of perpetual restrictions on land use as a popular conservation strategy, however, means that land preservation often involves the deliberate attempt to restrict the options available to future generations. Commonly known as conservation easements, these perpetual restrictions are designed to limit or prohibit the development of land, thereby preventing those who come after us from making their own decisions regarding both land preservation in general and the value of particular parcels. This paper explores the tension between preserving nature and ensuring that future generations have sufficient flexibility to respond to advances in scientific knowledge and changes in cultural values.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"739"},"PeriodicalIF":2.6,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68430415","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":"Future Claims in Mass Tort Cases: Deterrence, Compensation and Necessity","authors":"G. Rutherglen","doi":"10.2139/SSRN.311882","DOIUrl":"https://doi.org/10.2139/SSRN.311882","url":null,"abstract":"Future claimants have been, until recently, the neglected stepchildren of mass tort litigation. Without actual claims themselves, and often without separate representation, they have had their claims systematically devalued and exploited by other parties more prominently represented before the court and in settlement negotiations. Academic commentary, and now judicial decisions, have protected future claimants from the excesses of what might justifiably be condemned as \"litigation without representation.\" But in restoring to future claimants the procedural rights to which they are otherwise entitled, the current trend in protecting their interests may well leave them worse off - and the rest of us as well. A fastidious concern with the rights of future claimants might leave most of them worse off than under a system of less precise but more effective remedies. This essay seeks to document this point from three different perspectives: the deterrence perspective implicit in regulating the underlying conduct that gives rise to claims; the compensatory perspective assumed by advocates of the rights of future claimants; and the perspective of necessity that justifies mandatory class actions under existing law.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"52 1","pages":"1989"},"PeriodicalIF":2.6,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68563654","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 Hollow Promise of Tribal Power to Control the Flow of Alcohol into Indian Country","authors":"M. T. Baker","doi":"10.2307/1073981","DOIUrl":"https://doi.org/10.2307/1073981","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"685"},"PeriodicalIF":2.6,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1073981","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203664","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 Arrival of History in Constitutional Scholarship","authors":"G. White","doi":"10.2139/SSRN.287032","DOIUrl":"https://doi.org/10.2139/SSRN.287032","url":null,"abstract":"A \"turn to history\" by American constitutional scholars has become one of the familiar chapters in accounts of legal scholarship at the end of the twentieth century. But despite a widespread assumption within the legal academy that historical inquiry has become a central, and statured, dimension of contemporary constitutional scholarship, the causes of the arrival of history in constitutional jurisprudence have not yet been fully explored. This article advances an explanation for the historical turn. Reduced to a nutshell, the explanation first posits a connection between three casual elements: a conception of history as a progression of qualitative change over time, in which time is structured in discrete segments (the \"past,\" \"present,\" and \"future\"); confidence, among scholars, about the distinctive identity and relative homogeneity of \"present America\" as a culture with shared ideals and values; and a sharp separation between the disciplinary inquiries of historians and legal scholars. In the terms of the article, a historicist theory of historical change, a perception of current cultural consensus and stability; and sharply perceived distinctions between the \"past\" and the \"present\" compliment and reinforce one another. In periods of twentieth-century American history when this configuration has occurred, historians have tended to define their scholarly enterprise as structured by the canon of objectivity, by which a historically oriented scholar, situated in one time frame, faithfully renders \"the past\" without injecting \"presentist\" concerns or ideological agendas into that inquiry. In those same periods, constitutional scholars in the legal academy have defined their scholarly enterprise as primarily ahistorical, focusing on contemporary constitutional issues and setting those issues in analytical and theoretical frameworks borrowed from the contemporary social sciences, especially the institutional and behavioral theories of political science. Conversely, in periods of twentieth-century American history where alternatives to a historicist theory of historical change have some prominence, where uncertainty exists among scholars about the consensual values that define the American \"present,\" and where sharp segmentations between \"past,\" \"present,\" and \"future\" time seem less coherent, historians have tended to recoil from strong versions of the canon of objectivity, and to emphasize the inherent \"presentism\" of all historical inquiry. Legal scholars, in such periods, have exhibited less confidence that field theories drawn from political science can serve as universal frameworks for addressing issues in constitutional law. The result has been a shift from a sharp separation of the disciplinary inquiries of historians from those of legally trained constitutional scholars to a comparative integration of the inquiries of the two groups. Legal scholars have reached out from the uncertainty of their present to reconsider the past as a source of","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"485"},"PeriodicalIF":2.6,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.287032","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68405229","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 Clash of Values: Classified in Information in Immigration Proceedings","authors":"K. B. Snyder","doi":"10.2307/1074003","DOIUrl":"https://doi.org/10.2307/1074003","url":null,"abstract":"The U.S. principle of separation of powers provides an established institutional mechanism for protecting both national security and due process rights. While courts are expert at deciding what procedures are required to protect an alien's interests, the executive is best positioned to protect national security. This Note will argue that allowing the judicial branch to balance national security interests against individual rights will lead to results skewed by current events: In times of crisis, national security concerns may supersede respect for aliens' rights, but in times of peace, national security may be treated too lightly. The better alternative is to return to the executive the difficult choice of how best to further national security, given the need to take action in an individual case as well as to protect ongoing investigations and critical sources of information. The executive branch should be constrained by a judicial review of due process rights that ensures that aliens subject to final immigration determinations are able to respond to allegations against them. Complete deference to the executive would allow this branch to ignore individual rights concerns, especially when the group targeted is unpopular or suspect. With the additional protection of judicial review, however, the powers of each may be properly allocated. This Note will first briefly review the due process rights of aliens and pivotal early Supreme Court cases that laid the groundwork for the continuing use of classified evidence in immigration proceedings, as well as the terrorism exception recognized in dicta by the Court in Zadvydas v. Davis. The Note will then consider two lower court rulings that are emblematic of pre- September 11 decisions, both holding that the use of classified information violates the due process rights of aliens: In these cases, the courts reached their holdings by balancing the government's national security interests against the aliens' due process rights. Next, the Note will discuss legislation passed in the mid-1990s that created new procedures for using classified evidence in deportation proceedings. Finally, the Note will compare the Classified Information Procedures Act (\"CIPA\") with the Alien Terrorist Removal Court (\"ATRC\"), two different mechanisms governing the use of classified information in immigration proceedings. The Note will conclude that CIPA is preferable because it eliminates the need for the judiciary to balance national security concerns against individual rights.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"49 1","pages":"447"},"PeriodicalIF":2.6,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204158","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":"Delegation and Original Meaning","authors":"Gary Lawson","doi":"10.2139/SSRN.288433","DOIUrl":"https://doi.org/10.2139/SSRN.288433","url":null,"abstract":"The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is \"yes.\" The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"327"},"PeriodicalIF":2.6,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68416703","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}