Retributive legal systems fail survivors of intimate partner violence. In criminal cases, when the government and the offender are the parties to the matter, the legal status of a survivor is reduced to that of a mere witness. Survivors then must surrender their agency in the fight against their own trauma. Survivors of intimate partner violence (“IPV”) who turn to civil litigation to recover after their experiences may experience further trauma as a result of time-consuming, extensive, and often invasive contact with the legal system. Even restitution, a largely restorative remedy, lacks the agency, finality, and emotive opportunities that IPV survivors in particular often desire. The retributive legal system displays a critical gap in addressing the needs of survivors. Restorative justice methods showcasing victim-offender mediation (“VOM”) can fill that gap for a substantial number of survivors.

A truly just—a truly fair—society benefits everyone. In order to benefit everyone, the corresponding just legal system should include emphatic consideration for the needs of the survivors and offenders of those crimes in order to encourage healing on all sides, including that of the community at large. Restorative justice principles and methods, commonly including victim-offender conferencing, have been successfully implemented in numerous settings, including in juvenile cases, drug crimes, and sexual assault and rape cases. Courts should consider balancing various positive and negative factors in each case of IPV to determine whether survivors, offenders, and the community at large would benefit better from restorative victim-offender conferencing than from traditional retributive justice practices.

Ren Warden*

*J.D., cum laude, 2022, University of Richmond School of Law.

Born in 1933 in Richmond, Virginia, Henry Marsh was a protégé of legendary Virginia civil rights attorney Oliver Hill, who was a member of a civil rights legal team with Spotswood Robinson and commissioned by Charles Hamilton Houston to investigate school inequalities and prepare a legal strategy for dismantling segregationist laws. Growing up in Virginia during the 1930s, 40s, and 50s, Marsh was reared in the apartheid culture of Jim Crow society. Later, under Oliver Hill and Samuel W. Tucker’s mentorship, Marsh studied Virginia’s legal and educational systems and learned how to navigate Virginia’s seemingly tranquil Jim Crow politics called “the Virginia Way.” Marsh is an ideal figure for offering insight into how a movement lawyer and politician navigated the Virginia Way because his career intersected law, politics, and Black leadership in Virginia from the 1950s into the early years of the twenty-first century.

Danielle Wingfield-Smith*

*Visiting Assistant Professor of Law and Fellow, Gonzaga University School of Law,
Center for Civil and Human Rights.

Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges and incidents” of slavery. What constitutes an incident of slavery is clear: the incidents of slavery are the legal restrictions, such as submission to a master and a ban on the ownership of productive property, that were inherent in the institution of slavery itself. What constitutes a badge of slavery is far less certain, and relatively few legal scholars have examined the historical meaning of the metaphor. Nevertheless, there has emerged a renewed interest in Section 2, such that the literature now abounds with proposals for eliminating contemporary badges of slavery. Section 2 has been cited as grounds for addressing hate speech, the removal of Confederate monuments, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, sweatshop labor, and more.
Yet there is a widening gulf between those who invoke the badges metaphor in support of contemporary legislative proposals and those who have examined the history of the metaphor itself. For legal scholars like Jack Balkin, Akhil Amar, Alexander Tsesis, and Andrew Koppelman, the badges metaphor can be used to characterize a number of present day injustices, injustices that Congress can address via its Section 2 authority. Lending support to this view is a series of modern cases, beginning with Jones v. Alfred H. Mayer Co., in which the Supreme Court of the United States held that Congress may “determine what are the badges and the incidents of slavery” and “translate that determination into effective legislation,” subject only to rational basis review. If this view is correct, Congress’s Section 2 authority is more expansive than is commonly recognized and Section 2 can be used to address a number of contemporary injustices.

Nicholas Serafin*

*Assistant Professor of Law, Santa Clara University School of Law.

The Chevron doctrine enables courts to defer to authoritative, legally binding agency interpretations of ambiguous statutes. Though more frequently applied when reviewing rulemaking, the doctrine is actually more powerful when applied to an adjudication. In an adjudication, the agency can attach consequences to past actions made before the interpretation announced in the adjudication itself. Since such a determination will receive deference on review, this declaration effectively becomes a new rule, having gone through neither public notice or public comment. Not only does it become a new rule, it becomes a new rule that is effective retroactively. It is illogical to have a system that gives more power to a less democratic process, and Chevron deference should therefore not apply to adjudication.
The notice and comment process that Chevron more typically defers to is the best method yet devised to enable an agency to benefit from not only its own expertise but that of the general interested public as well. Public comment can point out potential problems with the agency’s preferred approach that the agency has not otherwise foreseen as well as present solutions not yet considered by the agency.
This type of input could be beneficial for ambiguities that come to light in an adjudication as well as those initially addressed in rulemaking. Agencies should therefore be encouraged to undertake rulemakings when ambiguities arise in adjudications. But because of the retroactive nature of adjudication itself, these rules would need to (at least potentially) be used retroactively in the adjudication that gave rise to them, or there would be no incentive for the agency to undertake the delay and effort of the rulemaking.

This Article argues that not only should adjudications not receive Chevron deference, but a limited exception should also be created to the current ban on retroactive rulemaking to encourage agencies to engage in the rulemaking process to address ambiguities arising in adjudication. This exception could be specifically cabined to apply only in these unique situations. Enabling such an exception would provide the agency and the public with the benefits arising from public participation.

Gwendolyn Savitz*

*Visiting Assistant Professor, University of Tulsa College of Law.

The limits of expungement are where the hope for real reentry meet the desire for criminal justice transparency. That a criminal record, ordered expunged by a judge after a long and arduous process, continues to exist in the world of private actors is a cold, harsh reality for those attempting to reenter civil society. It is also reassurance for parents hiring a babysitter, school districts seeking new employees, and employers concerned about workplace liability. Not to mention, the thought that all records of criminal justice adjudication could be purged forever intuitively sounds Orwellian, even in an age where surveillance, whether governmental or corporatized, is the norm. Expungement—the process by which the official, public data of a criminal record is erased, sealed, or made private—remains an important tool in the battle against stigma and over-punishment after one formally leaves the criminal justice system. But technological and big data realities, coupled with transparency norms, will forever affect its efficacy. The internet is not going away, and private actors will always feel entitled to hold a default position that allows for the dissemination of public information about the criminal justice system, as that sentiment finds support in the history and expectations underlying the transparent administration of the legal system. For the successful expungement petitioner, a game of whack-a-mole is and will remain the norm. A sense of powerlessness to move on from one’s past, like the criminal record, persists.

Brian M. Murray*

*Associate Professor of Law, Seton Hall University School of Law.

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that
school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to
educators’ claims that student speech could be substantially disruptive. Second, the substantial disruption standard allows speech to be restricted not because it is in some way unlawful, but rather because of what others’ reactions might be to it. As I discuss below, government regulations with either one of these defects would generally be found unconstitutional in a nonschool context, because they give government officials too much discretion to burden or proscribe unpopular speech—the very harm the First Amendment’s free speech guarantee is designed to guard against.

For these reasons, I argue that Tinker’s substantial disruption standard ought to be replaced by something like the public forum doctrine, which tailors governments’ power to restrict speech in a
given forum based on the forum’s traditional use and the government’s role in creating it and is highly skeptical of government discretion in determining what expression will be allowed in the forum. In my view, schools should be allowed to regulate student speech only when they create or control the forum in which it is expressed. Otherwise, they should be without the power to regulate student speech. Even within the forums that they control, I argue that schools’ ability to regulate student speech should be circumscribed.

Noah C. Chauvin*