By Gary Lawkowski '11
Staff Writer

On Friday the 6th of February at 3:30 three Law School alumni–who all sit as Justices of the same Supreme Court–will return to the Law School for a panel presentation on key topics in appellate practice in the state-federal context. A free reception in honor of these distinguished graduates, with refreshments, will follow the program.

The program at 3:30 in Caplin Pavilion will feature Justices Barbara Keenan, Donald Lemons, and Bernard Goodwyn, all of whom currently sit on the Supreme Court of Virginia. All three hold law degrees from UVA. Justice Keenan has an LLM and Justices Lemons and Goodwyn got their JD’s here. All of these Justices have sat on other courts – at all levels from trial to intermediate appellate tribunals – before their appointment to the highest Court in Virginia, and have vast experience at all levels of the litigation system. Their experience will be of interest to students interested in clerking, and those who may litigate or advise clients on a range of state and federal law issues.

The February 6 panel will provide an unusual insight into appellate practice and the concerns of overlapping state and federal jurisdiction. Ample opportunity to raise your questions will be given throughout the program.

How the Systems Work. Justice Lemons will address the history and structure of the Virginia judicial system and its relationship to other courts, especially the federal system. Appellate practice distinctions between appeals of right and appeals by “petition” (so-called discretionary appeals) will be explored along with jurisdictional issues. The nature of appellate review has important impacts on the way cases are tried and upon the ability of litigants to vindicate important interests in the legal system. The “original jurisdiction” of an appellate court will also be noted. Judicial selection – appointment and election processes – is also a key problem in modern American courts and will be addressed.

Constitutional Disputes, “First Year” Courses in the Real World, and Two Especially Problematic Torts. Justice Barbara Keenan will explore the interplay of state and federal constitutional law principles. The “resurgence” of state constitutional law is an important phenomenon which Dick Howard on this faculty has noted. Justice Keenan will also address the practical, real world appellate context in which “first year” law school courses have major impact and have raised current disputes. In the torts area, medical negligence is a prominent feature of the landscape along with automobile and personal injury cases. Two specific torts are especially problematic in modern appellate review: intentional infliction of emotional harm (a “disfavored” tort that is easy to plead, hard to prove, and even harder to review on appeal) presents a common-law example. The constitutionally-infused tort of defamation, which has both common law and Constitutional features, is the other tort currently being hotly litigated to its limits.

Seemingly well-established doctrinal areas from the first year curriculum, such as contracts and property law, also create many modern disputes of considerable difficulty, as land use and zoning issues overlay these topics.

Criminal Justice Issues. Justice Bernard Goodwyn, who taught at the Law School for several years in the Trial Advocacy program, will address concerns in criminal law, particularly 4th and 5th amendment issues. Trial rulings and appellate review of search and seizure and interrogation issues poses special problems today. The so-called “mixed” standard of review for suppression rulings presents tricky issues for lawyers taking such cases – and for the judges deciding them.

In addition, the Virginia Supreme Court, where all three of these graduates now serve as Justices, presides over a jurisdiction which is one of the three most active states in the country in imposition of the Death Penalty. Justice Goodwyn will address both direct appeals and habeas corpus applications in “death cases,” which present unique challenges and special concerns.

Sexual crimes are another category where – around the country – the post-conviction, and post-sentence completion “commitment” of “sexually violent predators” is a current battleground. The Supreme Court of the United States has addressed these programs and Virginia has several recent decisions on this controversial social policy legislation which can lead to indefinite commitment of an offender who cannot control sexual conduct – even AFTER the convict has completed serving the sentence originally imposed upon him for the sexual offense on which he was prosecuted.

Professor Kent Sinclair will moderate the program and student questions will be welcome. The program begins at 3:30 in Caplin Pavilion and refreshments will follow.

Professor John Cannon left big shoes to fill when he took leave to assist the Obama transition team. The University has found Professor David Markell ’79 is up to the challenge of teaching his Environmental Law class.

For Markell, the timing was fortuitous. Professor Markell was on research leave at Florida State University College of Law when the Law School called. “It was a very serendipitous situation where I could do this without interrupting my teaching schedule.” Once Markell got the call, he was happy to help out his alma mater.

Returning to Charlottesville is exciting, according to Markell. “It’s a treat to be back in Charlottesville. I have a lot of fond memories of my time. I feel a sense of real loyalty and commitment to this school. I’ve had a very satisfying career so far, and I think my experiences [at UVA] have helped.”

Markell’s career led him to environmental law after completing pro bono work for the Humane Society in Washington, D.C. He relocated to Boston and worked for the Environmental Protection Agency before moving on to work for the Department of Justice. At the DOJ, Markell directed one of the first Superfund cases in the United States. This trial included interesting personal encounter for Markell: he had to cross examine an expert witness who happened to be teaching his significant other at the time.

In 1992, Markell left the federal government to begin teaching at the Albany Law School in New York. He split the next few years between Albanay and Montreal, where he worked on environmental issues related to the North American Free Trade Agreement. But Markell soon began “thinking about warmer weather” and accepted a chaired professorship at Florida State in 2002.

In addition to his professional accomplishments, Professor Markell has an illustrious sports history. He won a state table tennis championship “a long time ago.” He also played baseball through college, and later joined a semipro baseball team in Delaware. In keeping with Law School tradition, he also played softball in Charlottesville.

When asked if he would be able to take the diamond at Copley again, Markell said, “If I’m in town and a team asks me to play . . .” before quickly adding “I don’t promise anything. I’m probably quite rusty.” Markell went on to observe, “I haven’t played in a long time,” preferring instead to coach his kids’ softball teams.

Markell’s experience coaching youth sports reflects is only one indication of his longstanding interest in working with students. Professionally, he has worked to create mentoring directories and groups to help improve student access to experienced alumni. And while he was a student at the Law School, he also participated in the Street Law program.

Professor Markell grew up in Delaware, where his brother now serves as governor. He earned his Bachelor of Arts at Brandeis University in Massachusetts. He and his wife Mona have three daughters, Rebecca, Jenny, and Rachel.