Jilted Students v. Journals
74 U.Va 6 (2021)
Tonseth, J. delivered the opinion of the Court.
TL:DR
I’m not going to lie to you, today’s legal analysis is groundbreaking for a few reasons. First, I attempt to learn, reason through, and apply the regulatory takings doctrine, much to the chagrin of my Property professor.[1] Second, I acknowledge that student journals actually possess some useful qualities. But, most importantly, this Court today establishes a categorical rule, as concrete as our holding in 1L Gunners v. Everyone Else, 324 U.Va 22 (2019)[2] that journals also always lose. They cannot pass “Go,” cannot collect $200, and will never earn the “get out of jail free” card.
Background
So what had happened was, I received a text from a friend. This unnamed friend wished to submit a cert petition with this Court for a class of jilted students. Initially, the Court was inclined to deny this cert petition, both due to the fact that one case a week is a lot of work for 3Ls to write an opinion on, but also because the concerned class of jilted students was composed of 3Ls and obnoxiously smart law students. These students already get “prestigious” clerkships, higher bonuses to big name firms, and specially ordered hats for graduation solely due to how much the administration blows smoke up their you-know-whats. And yet, here we are. What case could be so pressing as to change this esteemed Court’s mind, you ask? Journals potentially violating the Takings Clause. By that, I mean journals, and especially the ‘prestigious’ Virginia Law Review, devaluing student submissions to a level that blatantly violates the Constitutional text of our dearly beloved Fifth Amendment.[3] While this Court values working smarter, not harder, the allure of being published for high quality work and the reward for the intellectual stimulation that these student pieces add to the field is something this Court needs to protect. Let’s get down to business, to defeat the Huns/Journals.
Pseudo-Analysis
As the judicial offspring of Antonin Scalia and Clarence Thomas, with a sprinkling of RBG’s pizzazz, let me do you an educate on the Takings Clause. Although UVA Law is a separately licensed entity from Main Grounds, and thus private, that doesn’t fit with how I plan to rule in this case, so we’re going to ignore that fact. Therefore, UVA Law, through its affiliation with the public university that is UVA, is a public government entity and must act under the color and guidance of the U.S. Constitution. Since the Law School finances and supports its “illustrious” journals, it also applies to them.
What is the Taking’s Clause, you may ask? Apparently, it states that the government is required to pay compensation for the taking of property from its citizens. The Supreme Court has generally interpreted this clause in one of two ways: first, the dynamic changing of society and its associated property means the value and interests of property are to evolve as we do; second, property in itself is sacrosanct and should be immune from government interference. As the unfailing textualist/originalist on this Court, I must first analyze the actual Takings Clause to see what it means. SURPRISE! There is no additional information provided in the Fifth Amendment, meaning I can make up whatever textual original argument that supports my end goal![4] However, and I am aggrieved in saying this, this Court will not support nor advance the judicial Takings Doctrine, as an overactive Court is not the proper role we are to assume.
What does all of this mean for the present case? Well, as you already know, the journals and ‘vaunted’ VLR lose. But how do we traverse Rainbow Road to get there? Through the transitive property, VLR is a government entity. Therefore the Takings Clause applies with full force. Because of this, VLR has to compensate those students who submit their labors of love[5] in a just manner, or they violate the Constitution they claim to so dearly love. This inference chain is supported both by the fact that this Court will not advance a judicial Takings Doctrine, combined with the fact that I believe in the other Court’s (read SCOTUS) analysis of the dynamic doctrine of property. In earlier years, students may have been willing to write off any illegitimate takings by journals simply because the student was “happy to be here.” Hogwash. Today’s students know their worth and they want credit where it is due. Solely because I want to one day attend oral arguments in my aforementioned friend’s private box at SCOTUS, I’m agreeing with him and on his side.
Ruling
The dissent is quick to point out that this case should be moot, as VLR rejected all of the submissions by the class of Jilted Students before us. Sounds pretty elitist, but what else would you expect from an actual member of VLR? Whether the students have or will be published isn’t a material fact in this case. The fact that VLR solicited contributions, accepted the submissions, and could only send a rejection email with poorly concocted excuses for why the piece didn’t meet their “arbitrary” criteria is enough to decide this case on its face. And yet, I don’t even have to resort to my standard pettiness to do so, as today’s case is a clear and violative taking. What’s the remedy? TBD. I think my buddy owes me a few pitchers at the next Bar Review since I don’t have enough influence to make VLR publish the piece in question, but the next best option is to start publishing student notes in the Law Weekly. Talk about exciting your readers.
Birch J., concurring.
I fully agree with the precedent established by my colleague that “journals also always lose,” but my concurrence in this case comes from a different understanding of a governmental entity. Echoing the Chief Justice’s apologies to our Property professor, I would also like to extend this court’s apologies to our Constitutional Law professor.[6] Before beginning my opinion, this Justice notes personal concerns about violation of child labor laws for a few of the K-JDs that make up membership of the Jilted Students class.
Requiring and absconding with labor and energy from students who don’t know any better, Journals represent everything wrong with an administrative body taking private property and rights without just compensation.
While my holding stems from the Takings Clause as well, the Chief Justice made several leaps to establish a governmental relationship when none of them were necessary. It is a clear and obvious fact to anyone that has ever attempted to join a selective group within the Law School that VLR is a governmental body, albeit, a shadowy one. The only reason the organization does not fully come into the light is to allow the actual Law School administration the ability to turn a blind eye to the actions of this rogue organization. While I would never indulge them with comparisons to Kanye’s former shadow government, the cold, self-interested hand of VLR can be felt by anyone not listed on the tacked-up sheet of paper across from SRO.
Now you may ask the question, “If VLR is not a United States governmental entity, why would they have to respect the Constitution?” That is an apt legal query, but it misses the larger game of chess the public side of the journal must face. If it is not to be beholden to the Constitution, one of the most prestigious journals in the country would have to outright claim in this petty court that “The Constitution of the United States does not matter to us.” If this happens, I will readily reverse my ruling and happily expel our sovereign-citizen of an uncle from this university.
Should you think this Justice has gone off a deep-end and looks a lot like Charlie Day trying to find Pepe Silvia, remember that I go senior status come the end of May.[7] Journals also always lose. As the primary culprit and self-assessed “best journal” at the Law School, VLR proves to be the “best defendant” for constitutional grievances raised by students. Through the taking of hope, time, energy, effort, and the will to live from its members, VLR must provide some form of just compensation.[8]
Peterson J., dissenting.
While I would tell you my allegiances lay solely with the Law Weekly, I am sure to now be deemed a turncoat despite my disproportionate time spent writing articles as opposed to notes.
Accordingly, it is not changed allegiances that drive this dissent. It is logic and a devotion to the Constitution, a devotion which the esteemed Justice Birch calls into question. First, while property rights are certainly some of the most important protected by the Constitution, freedom of contract is another essential constitutional principle on which journals generally, but certainly VLR with its multitude of cite checks, are founded upon. Jilted Students, sorry, not sorry. Take what you want but eat what you take—don’t come complaining to the Court when two sophisticated parties make a contract and you don’t read all of the terms.
Further, and finally, VLR is decidedly not a governmental entity. As my clearly median-or-below colleagues point out, yet seem to not appreciate, the Takings Clause of the Fifth Amendment applies only to governmental entities. If there is one thing I learned in my VLR orientation,[9] it is that VLR is an independent foundation, a separate entity from UVA, and therefore exempt from any attack through the Takings Clause.
Due to the above, I pedantically dissent.
---
pjt5hm@virginia.edu
sfb9yu@virginia.edu
jtp4bw@virginia.edu
[1] Professor Nicoletti, if you’re reading this, I’m going to apologize before I get any further. Please let me into your class next semester <3.
[2] Ergo, 1Ls always lose.
[3] I was today years old when I learned the Fifth Amendment covered more things than just “pleading the Fifth”. Crim investigations is going really well, thank you for asking.
[4] And that’s how originalists justify their positions. You’re welcome 1Ls, I just passed ConLaw for you.
[5] I.e., the intellectual property of their thoughts, and the physical property of the paper they pay for when they submit their notes.
[6] Professor Nachbar, thank you for your patience, and I blame Phil.
[7] Dean Goluboff and whoever is the EIC of Virginia Law Review at the time, willing.
[8] This compensation must be more than “exposure and connections” that every Instagram baddie swears will help a starving artist more than money.
[9] Besides having my love of free food reaffirmed.