1L Students
v.
Virginia Law Review et al.
75 U.Va 18 (2023)
Allen, J. delivers the opinion of the court.
I. Factual and Procedural Background
The case before this Court concerns one of the quintessential facets of the law school experience—journals. 1L students have recently completed the Unified Journal Tryout, submitting their personal statements, along with their editing and writing components, to be judged against one another in a process much akin to law school admissions. Several 1L students, as representatives of their class, have filed an emergency application alleging multiple procedural defects which combine to deprive them of their due process. Petitioners seek to prevent grading of their submitted materials, along with an injunction requiring changes to the tryout process. We granted a temporary stay in order to consider arguments on the merits.
II. Discussion
The first question is an issue of standing. Students allege a harm based on the inconsistency of dates listed in communications on personal statement prompts, resulting in the deadline for these statements being pushed back. Additionally, those running the journal tryouts originally indicated that no physical copies would be produced, with students left on their own to print nearly two-hundred pages of material if they desired. They eventually changed course, providing hard copies which had to be picked up and returned at specified times. In both these behaviors, Petitioners allege they suffered harm insofar as their ability to complete the requirements of the journal process was impaired due to uncertainty and changing circumstances, forcing them to change plans.
Defendants counter that no harm actually occurred, as all changes or uncertainty were eventually resolved in Petitioners’ favor. Further, even conceding a harm, no remedy is available from the Court to redress the harm, as forcing students to engage in another round of journal tryouts would surely inflict more harm to the class.
These objections are well-taken and would likely prevail in a lesser court. However, the Court of Petty Appeals derives its jurisdiction from pettiness. What complaints are pettier than those which lack a reasonable solution? As such, these standing objections only strengthen Petitioners’ case and reinforce the authority of the Court to hear the dispute.
Having considered the positions of the parties at argument, the Court sua sponte raises the issue of the originalist understanding of due process requirements for journal tryouts. The earliest law review was founded in 1852,[1] and journals were thus known at the time of the Fourteenth Amendment’s passage in 1868. Some argue that due process requirements are not fixed to those existing at the time of passage, either evolving over time or allowing for limited changes that reflect longstanding historical practice. While these concessions square with reality and allow for the functioning of society, we must reject them and insist on a return to the procedures known in 1868.[2] I do not know what these procedures were—I am no historian. I presume it would require handwritten editing and writing components, as computers are a modern invention. Students probably wrote in cursive back then, so that will be required as well.
The Court recognizes that such a requirement is backwards, obnoxious, and unreasonable. Unfortunately, our hands are tied by the interpretive methodology we have chosen to accept and apply, which compels this outcome. Accordingly, we hold that in all future journal tryouts, the procedures need to conform to those employed in 1868, leaving to journal administrators the task of discovering what such procedures were. Additionally, we require the administrators to do a better job proofreading the materials and information provided to 1Ls to ensure dates are correct. Given the emphasis on editing and accuracy which the tryout process demands, and which journals expect from their staff, we can require nothing less.
Coleman, J., concurring in part.
The originalist methodology employed by my Brother Allen is obviously correct. But I am forced to write separately, as I would never defer to historians. Instead, it is the duty of this Court to clearly state what the law was in 1868.
The lens through which we look is this: the plain meaning of the due process clause to an educated reader in 1868. The next step is to determine who you would like to win. As I regularly dine with 1Ls and have yet to be invited to the Virginia Law Review, I choose Petitioners. Finally, I now choose which historical documents support my preferred outcome.
But Brother Allen’s deference to historians makes this methodology unpredictable. For example, there is debate among historians as to what powers the Presidency was actually delegated. If I were to come to a measured conclusion based on the weight of that evidence, then it would destroy my ability to pick between various Federalist Papers or dictionaries based on the political views of the sitting President. This is an untenable state of affairs because historians are far too squishy in their conclusions, and the law needs bright-line rules.
While imposing the standards of 1868 onto present-day journal tryouts is well and good, as it redounds to the benefit of Petitioners, one must never forget that it is the Justice who is empowered with that insight into the past.
Morse, C.J., dissenting.
All that is old, is new again. So it is, that once again the burden falls upon the more experienced members of this Court to explain to both 1L petitioners and 1L members of this Court the error of their ways. In both instances the result, as always, is that 1Ls lose. Accordingly, I respectfully dissent.
First, concerning Petitioners’ claims of pain and suffering of which they so loudly protest, is simply a fact of life at a reputable law school, not some malicious torture targeted solely at this newest crop of aspiring lawyers. For one thing, every single thing that Petitioners misdiagnose as a harm was experienced by the current 2Ls. Confused and sometimes contradictory communications? Check. Having to pick up and return printed materials at specified times and locations? (Gasp). Check. But again, all of this is mere tautology since Petitioners are 1Ls, and under this Court’s precedent they must lose.
Second, the Majority’s analysis errs in two respects. First, the majority considers an argument not raised in briefing or at oral argument. As heartening as it is to know the 1Ls of this Court have heard the words sua sponte, have access to Google, and a tenuous grasp of the English language, they mistakenly conflate what this Court may consider sua sponte with what prudence and precedence command. Prudentially, this Court, in recognizing a more appropriate basis for a challenge, should dismiss the suit as improvidently granted. Thereby, 1Ls lose and we have to do less work. Precedentially, the majority (this is what happens when you let 1Ls write opinions) neglect this Court’s most important, and oft-repeated precedent: 1L’s always lose.[3] I don’t know how many times we need to say this.[4] So, just to be as clear as possible: 1L’s always lose. Any other result is irreconcilable with the very foundation of liberty.
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