Law Review to Vote Friday on Selection Overhaul


Jansen VanderMeulen ‘19
Editor-in-Chief

The editorial board of the Virginia Law Review (VLR) will vote Friday on a contentious plan that would overhaul how this Law School’s flagship journal selects its members. The new plan, obtained by the Law Weekly, would limit the number of members admitted on the basis of grades and select half the membership on the basis of a holistic review of applicants’ grades, writing competition performance, and personal statement. The managing board approved the plan by a narrow 16-11 vote.

Current VLR policy is this: The students with the top fifteen GPAs are automatically admitted to VLR, as are the top fifteen performers on the write-on not already admitted by grades. After that, the five students with the next highest grades who also score in the top half of the write-on are admitted, as are the next five highest write-on performers in the top half of the class in grades. Finally, up to ten students are admitted through the Virginia Plan, which considers personal statements specifically tailored to diversity, but is restricted to students in the top half of the class in both GPA and write-on score.

 The new plan replaces the Virginia Plan with an authentically holistic review—eliminating the top-half requirement—and removes the Virginia Plan’s quasi-requirement that candidates come from a historically disadvantaged group. Some of the plan’s features are the same as in years past: the ten students with the highest GPAs would be automatically admitted (down from fifteen), as would the students with the top fifteen write-on scores. But the other twenty-five would be selected by VLR’s Membership and Inclusion Committee.

The seven-person committee would be made up of VLR’s Editor-in-Chief, Managing Editor, a new “Membership and Inclusion Editor” (all three selected by the outgoing managing board) and four members selected by the editorial board and new managing board. The committee would select between fifty and seventy-five students based on an evaluation of their personal statements and their written competition (with the understanding that some of their picks will make VLR through other means and the hope that they would have about fifty candidates to choose from after that). Those students’ information would be sent to the Student Records office, which would send back the students’ cumulative grade information based on relative GPA tier—the committee would not know students’ exact GPAs, just their position in tiers relative to their classmates. And for students whose GPAs come back in the bottom third of the class, VLR would receive no tier information; they would know only that the student is in the bottom third. The members of the committee would then weigh the students’ grade information, their write-on scores, and their personal statements to select twenty-five of them for membership on VLR. Students must receive the votes of five of the committee’s seven members to be admitted.

Supporters and opponents disagreed markedly about the new plan’s merits. Most VLR members who spoke with the Law Weekly did so on condition of anonymity: several pointed to an email sent by VLR Managing Editor Aparna Datta ’19—obtained by the Law Weekly—that informed members that the proposal was “internal and confidential to VLR.” (VLR sources say this was meant to avoid panic among the 1Ls at a stressful time.) Nonetheless, the Law Weekly spoke with nearly a dozen VLR members about the plan, including members of the managing board.

Supporters contend the plan will strengthen VLR by allowing for greater diversity of membership and removing arbitrary hurdles to getting the best students on Law Review. Opponents criticize the plan’s concentration of power in a small number of people, its potential for abuse, and its dilution of what it means to “be on Law Review.”

Several VLR members who spoke with the Law Weekly agreed the current lack of underrepresented students on VLR is a problem, but expressed concern with leaving the selection of half of Law Review’s members to a committee they claim is secretive, opaque, and rife with potential for abuse. “The opposition,” one member told me, “agrees the current lack of diversity is a problem, but thinks this plan is fundamentally flawed because it gives too much power to too few people.”

Another member concurred: “It’s problematic that our current system—one written exam graded on a curve—leaves an unrepresentative group at the ‘top’ of the class,” they told me. “Perhaps [grades and the writing competition] are arbitrary, but discretionary selection from a committee is surely more arbitrary.” Another VLR member agreed: This process “will create opacity, confusion, and stress among 1Ls” unsure how exactly one “gets on Law Review.” Other members worried about the potential for backroom politics, or at least the perception of unfairness. “People will inevitably wonder whether popularity, politics, networking, or other inappropriate factors played a role,” a member said. “Especially since the personal statements will be impossible to keep totally anonymous.”

Another member—who supported last year’s expansion of the Virginia Plan but opposes this plan—echoed that concern, worrying that this “gooey process” could spawn selection based on popularity or even corruption and collusion among the members of the committee, who, though required to give weight to each of grades, the write-on, and the personal statement, are under no obligation to disclose their weighting or have a consistent metric for balancing the three factors. One member called the committee’s discretionary power “insane.”

Supporters of the plan respond that these concerns are overblown or just plain wrong. Editorial board member Kareem Ramadan ’20 told the Law Weekly that while the small number of people selecting half of VLR is a “valid concern,” the concern that the committee would pick members based on politics or favoritism instead of merit is misguided. “I can’t imagine five of the seven people on the committee won’t care about grades,” Ramadan said.

Several supporters also pointed out that scores on the writing competition and GPA are highly correlated; perhaps unsurprisingly, those who do well on law school exams also tend to do well in the writing competition. This means that under the new plan, while the committee wouldn’t see the grades of applicants until after it has narrowed the pool to fifty-or-so candidates, it would have a good idea of candidates’ caliber based on their writing competition results. What’s more, supporters dispute the idea that grades and write-on scores are any less arbitrary than the holistic process that will be applied by the committee. “[M]argins for admission to the law review are incredibly fine,” one member told me, “and there are a vast number of extraordinarily qualified candidates.”

Supporters also contend the holistic review will allow the committee to take into account compelling life experiences that would benefit VLR. “[G]rades and journal tryout scores are clearly not the only markers of success,” Dana Raphael ’20, an editorial board member, told the Law Weekly. “People with fascinating and varied backgrounds—particularly backgrounds that would make adept members such as prior editing experience—should be considered fully for VLR.”

Another member concurred, telling the paper, “I believe that an array of skills, perspectives, and experiences prior to law school is not only valuable but necessary to the continued strength of this publication.” Responding to criticism that too much power is vested in the seven committee members, this member told the paper, “It is set up so that, functionally, the outgoing Managing Board is able to choose about half of the members and the full membership of VLR is able to choose the other half, and any student who is accepted to VLR through the committee process must receive a supermajority of votes, which I think will both do a good job of allowing various perspectives of the broader Law Review to be heard and ensuring that so-called ‘back-room politics’ are virtually impossible.”

Most contentious was the idea, pitched by some opponents of the plan, that selecting half of VLR’s membership through a holistic process will lead to a dilution of what it means to be on Law Review. “I worry that the new discretion-heavy process may take away from some of VLR’s cachet in job and clerkship interviews. Before, being on VLR meant you finished your 1L year at the top of your class or as one of the standouts in the writing competition,” the source told the Law Weekly. “I’m not sure what being on law review will mean to employers or judges if no one knows how students are chosen for membership.”

Another member told the paper the new plan would be “catastrophic in the long term” as it becomes clear that law review membership is no longer a proxy for either high grades or stellar writing. One member was blunter: “Excellent grades—grades good enough to place a student in the top 10 percent of the class—do not happen by accident but are the result of hard work. This plan diminishes the value of grades while vesting discretionary authority in a committee of seven.”

Supporters of the plan sharply disputed the idea that the plan would lessen VLR’s cachet, pointing to the law reviews of Harvard and Columbia Law Schools, which both utilize holistic admissions processes and have not suffered corresponding reputational damage. “The University of Virginia produces exceptional graduates,” Raphael said, “and changing the process by which students are admitted to VLR is unlikely to affect anyone’s employment opportunities.” Another member added, “I think that the implication that [the prestige element] will change is an exaggeration, if not patently false” but also said the worry about prestige “misses the mark,” and that the value in Law Review is not conferring the benefits of membership on its students, but “in the quality and diversity of its scholarship.”

VLR Editor-in-Chief Campbell Haynes ’19 voiced support for the plan in his personal capacity, writing to the Law Weekly, “This membership reform proposal is the result of months of hard work, research, and outreach to other law reviews.” He wrote that the new process “will make our membership process fairer and more open to all” because “selecting a sizable portion of the Review through holistic review will allow VLR to ensure that all students have the opportunity to be fully considered.” Haynes concluded, “It will also allow us to identify potential editors who are strong across the board. That will make us even better at our main job: publishing thought-provoking legal scholarship.”

This is the last edition of the Law Weekly for the semester; there will be no follow-up to this report until January. The leak that produced this piece, as well as long experience with law students, leave us skeptical that we will have to wait until then to hear of the result of Friday’s vote, however. Readers are encouraged to keep their ears perked on Friday. And a timely reminder: tips may, as always, be sent to editor@lawweekly.org.

 

*Editor’s Note: This article has been edited to reflect that the initial review of candidates for VLR will take into account not just candidates’ personal statements, but also their writing competition scores. It has also been edited to reflect that the managing board approved the plan by a vote of 16-11, not 14-11.

Justice Kennedy Swings by Law School


Jansen VanderMeulen ‘19
Editor-in-Chief

Retired U.S. Supreme Court Associate Justice Anthony M. Kennedy visited the University of Virginia School of Law on November 15 and 16, christening the new Karsh Center for Law and Democracy and displaying a humorous side rarely seen from the bench.

 Retired Justice Kennedy onstage. Photo Kolleen Gladden ‘21.

Retired Justice Kennedy onstage. Photo Kolleen Gladden ‘21.

Kennedy, 82, was originally scheduled to visit the Law School in September, but the visit was postponed due to Hurricane Florence’s approach. This rescheduled visit took place on the Thursday and Friday preceding the Thanksgiving Recess, but attendance at Kennedy-related events was undiminished.

Several venues in the Law School played host to the retired justice—Professor Micah Schwartzman ’05 described Kennedy as “generous with his time”—starting with a combined sitting of Professor J. Scott Ballenger ’96’s Civil Liberties and Professor Schwartzman’s own Religious Liberties courses on Thursday. There, Justice Kennedy—the author of famed civil and religious liberties cases such as Church of the Lukumi Babalu Aye v. City of Hialeah, Lawrence v. Texas, and Obergefell v. Hodges—lectured on his jurisprudence and took questions from students.

Next on Thursday, Kennedy participated in a lunch in the faculty lounge with a group of students selected from diverse backgrounds. The justice talked about his own experience in the law: law school at Harvard, returning home to take over his father’s law practice in Sacramento, and being appointed by President Gerald R. Ford to the Ninth Circuit. He quoted Aristotle, stuck up for the Socratic method, and recalled the very different days during which he began his law practice in Sacramento, days he said lived up to the term “old-boys club.” Asked his favorite film, Kennedy gave a classic Kennedy answer: Guess Who’s Coming to Dinner, the 1967 version starring Spencer Tracy, in which Tracy’s daughter is set to marry a black man, which makes her parents uneasy. As Kennedy describes the film, Tracy’s character stands out on his San Francisco balcony wrestling with his convictions, finally realizing that he’s wrong, that his opposition to the marriage was derived from his prejudice.

Readers needn’t be experts in Justice Kennedy’s jurisprudence to know he was often held to have changed his own mind. From Planned Parenthood v. Casey, in which he joined the joint opinion upholding the core of Roe v. Wade despite previous opposition to legalized abortion, to Fisher v. Texas, in which he upheld the University of Texas’s affirmative action program after previously voting to strike it down, Justice Kennedy was renowned on the bench for his willingness to reconsider his own previous positions. Kennedy largely avoided providing answers to substantive legal questions, responding to Molly Cain ’20’s thoughtful question about how his opinion in Town of Greece v. Galloway—upholding explicitly Christian prayer by councilmembers in municipal meetings—might influence zoning variance decisions relating to religious minorities with a fascinating story about his own experience representing a client before a zoning commission.

On Friday, Justice Kennedy appeared in Caplin Auditorium as part of the kickoff of the Karsh Center for Law and Democracy. Funded by a record $44 million donation from philanthropist financiers Bruch Karsh ’80 and Marth Lubman Karsh ’81, the Karsh Center promotes “civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law.”[1] Justice Kennedy’s visit was the perfect fit for the Karsh Center’s kickoff. Professor Schwartzman told the Law Weekly, “Justice Kennedy—both in the classroom and at his public interview—emphasized the importance of reason-giving in judicial decision making. The Court’s only power is the power to persuade by the reasons it gives. The mission of the Karsh Center is to foster civil discourse, which is about the exchange of reasons and about justifying how we relate to one another under the rule of law.”  

Dean Risa Goluboff introduced the Karshes to talk about their gift and about Justice Kennedy. Telling the story of how he moved to California to clerk for then-Judge Kennedy, Bruce Karsh reflected on Kennedy as a boss, calling him “courteous and kind” and recalling how the judge would invite him over to his house for dinner to spend time with his young family. Bruce Karsh went on to work for O’Melveny & Myers and then in private equity, co-founding Oaktree Capital Management. Martha Karsh spoke next, calling Kennedy “a beacon of wisdom, jurisprudence, and leadership.” She thanked Kennedy for welcoming Bruce and her to their family and California and quoted Jefferson: “Honesty is the first chapter in the book of wisdom.”

After the Karshes finished speaking, Dean Goluboff introduced David Rubenstein, who interviewed Kennedy for the event as part of his David Rubenstein Show on PBS. The conversation between Rubenstein and Kennedy centered on Kennedy’s years on the court and his reasons for leaving. To the latter question, Kennedy answered, “It’s hard leaving something you love, but you can do it for something you love more,” telling of how he had spent too many years working away from his wife Mary. Quizzed about his feelings toward his successor, Justice Brett M. Kavanaugh—who clerked for Kennedy and endured a brutal confirmation process that included accusations of past sexual misconduct—Kennedy ducked the direct question, but said, “The public will see that the system works” and reassured the audience that the Court “is operating in a collegial, thoughtful way.” When Rubenstein noted there were now two former Kennedy clerks on the Court (Kavanaugh and Justice Neil M. Gorsuch), Kennedy quipped, “All we need is one more and we can rule the world,” drawing laughter from the unsuspecting audience. That wasn’t his only laugh line; Kennedy caused laughter throughout the audience with his surprisingly on-point imitation of President Ronald Reagan, who knew Kennedy when he was governor of California and who nominated Kennedy to the Supreme Court.

After talking with Kennedy about the inner workings of the Court, Rubenstein asked about his plans for the future. Writing and teaching, Kennedy replied. He also expressed an openness to sitting on the lower courts and brought up Aristotle again. Aristotle thought, Kennedy said, that democracy was a bad form of government because it could not mature. “Our destiny—our duty—is to prove him wrong.” Kennedy wrapped up by telling the crowd what he wanted the American people to know. He reiterated his faith in the Supreme Court, telling the audience that the Court “is dedicated to finding what the law is,” that its work is “not a partisan exercise,” and that “the work of freedom is never done.”


[1] https://www.law.virginia.edu/karsh/about.

Tomorrow We May Die: PILA Auction Last Chance at Pre-Exam Social Life


Jacob Jones ‘21
Sarah-Jane Lorenzo ‘21
Tyler D’Ambrose ‘21
Staff Editors

 

The PILA Auction is a special annual event that allows UVA Law students and professors to join in courageously consuming inordinate amounts of alcohol while bidding on hot-ticket items ranging from poker with professors to choosing someone else’s next tattoo. The proceeds go towards cash-strapped UVA Law students who earn grants to work in low-paying public interest jobs over the summer.  For the first time, the event was split into two separate auctions: a live auction on Thursday evening (featuring free alcohol and professors being pied in the face), and the Yule Ball-themed silent auction on Saturday night. Dividing the events proved successful this year: around 600 tickets were sold to Saturday’s “Law School Homecoming”—many more than were sold last year—and on Thursday, one lucky student paid $350 to pie Professor Mitchell in the face[1].

 

 Silent Auction attendees mill excitedly around the auction tables. Photo Kolleen Gladden / The  Virginia Law Weekly

Silent Auction attendees mill excitedly around the auction tables. Photo Kolleen Gladden / The Virginia Law Weekly

The division of events allowed professors to bid on fancy items, such as private band performances and music lessons with guitarist extraordinaire Read Mills, without interacting with students over the weekend. It also excused students and professors alike from having to mutually acknowledge how much the student body likes to drink, and for that reason, many awkward interactions were avoided. Eager Thursday bidders spent more than twice as much during the live auction this year than last, which will hopefully enable students to do more public interest good in summers to come.

 

Saturday’s silent auction[2] featured men donning their best JCPenney or Sears suits and women puttin’ on the ritz with their snazziest dresses. Over 600 students and their dates crammed into a hotel ballroom for the event. Silent auction ticket items featured common themes including dog sitting, gift cards,[3] and various offers from talented people promising to teach the rest of us skills we can use to impress our mothers over winter break.[4] It seemed everyone had pregamed sufficiently to feel just fine about placing max bids on items ranging from stick-shift driving lessons and home-cooked meals to the chance to choose somebody’s next two-inch tattoo. Students who were most inebriated were easy to recognize by the trails of max bids in their names scrawled illegibly around the room.[5]

 

For many items, competition was fierce: Multiple items quickly reached their maximum bid amounts, and law students desperately tried to outbid those maximums. Sometimes, people left mean comments in the margins for their competitors. Fortunately, a good samaritan scribbled over nasty comments and wrote “I ‘heart’ you” instead. There was no shortage of items to bid on, and since there were no announcements of who won, everyone got to go home feeling like a winner. The hottest ticket item was a 2”x 2” tattoo of the bidder’s choice offered by the bold Andrew Sexton ’19, which quickly reached its $650 buyout. The legality of buying rights to a part of someone’s body is sketchy at best, so it is important to make sure we all normatively enforce this contract through peer pressure.

 

While the event was supposedly Harry Potter-themed, there were no magicians promising to make all of our dreams come true.[6] On the other hand, there were several elixirs offered at the cash bar, which seemed to boost law students’ spirits when consumed in the right amount. Students without the foresight to bring cash were forced to locate the lone ticket booth amidst the drunken crowd. Their struggle was rewarded once they got to see their tickets magically transformed into intoxicating elixirs.

 

The event provided students with plenty of food, and all were challenged to eat back some of the $35 ticket cost.[7] 3Ls led by Daniel Grill ’19 could be heard grumbling about the price difference between 1L and 3L. “Tickets were what, forty bucks when we were 1Ls?” Grill said. “And we got two drink tickets!” One PILA representative, who spoke off the record with the Law Weekly’s editors, blamed the Omni for driving prices up. The Omni lavishly provided “chicken nuggets,” mystery meat on a stick, pulled pork sliders, and $8 rum and cokes. Many law students hit the dance floor when they were not busy walking around the bidding tables in a magic-potion-induced stupor. While the dance floor was flooded with nerdy law school students, the dancing was surprisingly classy. Most students left plenty of room for Jesus, or whichever religious figure they prefer. As one attendee stated, “Thank God I didn’t see any twerking.” Both flossing and the robot are still considered classy and appropriate dances for a law school shindig, however.

 

After pre-pregaming, pregaming, and then sweating a lot in an environment that felt like a high school gymnasium for around three hours, many students went home. Those with the courage and stamina to continue the party rallied at Rapture, where their long trek was rewarded with the familiar siren songs of Gunners n’ Roses.[8] For many students, this was the last official chance to go out and party with classmates while collectively and negligently blowing off our outlines.[9] According to meteorologists,[10] winter is coming, and it is time for students to move into the library for the next month. We will now settle down into our favorite corners of the gunner pit to hide away as we slowly become one with our outlines.


[1] Between the live-auction bidding and the pre-event donation war to choose the lucky professors, students spent a total of $537.48 on pieing Mitchell alone.

[2] Which was actually very noisy from all the music and conversation.

[3] Hopefully not for JCPenney.

[4] Other than 1Ls newfound ability to say a string of facts and then declare “res ipsa.”

[5] This author’s heart goes out the drunken guy or gal who bid over $75 for a basket of life savers and beauty products.

[6] However, Lena Welch was particularly on-theme, with a homemade robe and a time-turner in her bun.

[7] Or $30, or $40, depending how early or late you were to the game.

[8] This author takes no official position with regards to the recent Court of Petty Appeals decision concerning Gunners n’ Roses and Panic! At the District Courthouse.

[9] “Res ipsa.”

[10] Also according to Jon Snow and the maesters.

Collins, Macomber Take Lile Title; Harmon is Best Oralist


Jansen VanderMeulen ‘19
Editor-in-Chief

M. Eleanor Schmalzl ‘20
Executive Editor

The final round of the 2018 Lile Moot Court competition took place on Thursday, November 8 in the Caplin Pavilion. Lights illuminated the podium, sitting front-and-center in the pavilion, as well as the tables covered in black cloth meant for the esteemed jurists who had ventured to Charlottesville for the special occasion. Students and professors alike huddled around the back and along the sides of this packed “courtroom,” with seats hard to find thanks to the large crowd the opponents had drawn to the event. Katharine Collins ’19 and Christopher Macomber ’19 faced Kendall Burchard ’19 and Scott Harman-Heath ’19 in front of Judge Karen Nelson Moore of the Sixth Circuit, Judge Albert Diaz of the Fourth Circuit, and Vice Dean Leslie Kendrick ’06, who substituted for Judge Stephanos Bibas of the Third Circuit. Judge Bibas was unable to attend due to bad weather. As the room buzzed with excited anticipation, the judges entered the room, the crowd stood in respect, and the finalists put their months of hard work to the test.

 

 Katherine Collins and Christopher Macomber after their victory. Photo Jenny Lamerth ‘19 / The Virginia Law Weekly.

Katherine Collins and Christopher Macomber after their victory. Photo Jenny Lamerth ‘19 / The Virginia Law Weekly.

This event was the culmination of many months of preparation. Collins, Macomber, Burchard, and Heath began the Lile competition in the fall of their 2L year and progressed through an individual brief (arguing both on- and off-brief) the quarterfinals, and semifinals to reach this final round. After all this work, the finalists faced the problem for the final round, written by Derek Keaton ’19. This final prompt was centered on James Herek, a fictional plaintiff in a § 1983 suit against a police officer. In the fictional problem, the officer interviewed Herek in connection with a scandal in the police department’s forensic lab. The officer told Herek he could be fired if he did not cooperate with the investigation, and Herek admitted to some misconduct. On the basis of Herek’s statements, the officer referred the case to the district attorney, who used the statements at a pre-trial, probable cause hearing. Herek’s statements were suppressed as a coerced confession, and the charges were dropped. Herek brought suit against the officer under 42 U.S.C. § 1983, alleging he was deprived of his Fifth Amendment right against self-incrimination. The litigants addressed two questions: (1) Does the Fifth Amendment’s right against self-incrimination apply at pre-trial probable cause hearings? And (2) Is the officer protected by qualified immunity because his constitutional violation was not “clearly established”?

 

Annie Chiang ’19 introduced the contestants. Arguing for Appellant Herek, Collins and Macomber led off by arguing that the Fifth Amendment’s protection against self-incrimination extends to pre-trial probable cause hearings and that Officer Bautch violated clearly established law by referring a coerced confession to the DA. Macomber argued that the Fifth Amendment’s application in sentencing hearings made clear that the protection against self-incrimination was not merely a trial right, but one that protected criminal defendants throughout court proceedings. Judges Diaz and Moore pushed back at this point. What about grand jury proceedings? Macomber admitted the right against self-incrimination appeared not to apply in front of the grand jury, but argued that formal proceedings in front of a judge were different. The judges sought a limiting principle: Where does the right against self-incrimination stop? Macomber was ready with an answer: Defendants have a right not to incriminate themselves in formal, in-court, judicial proceedings, not just at trial.

 

Burchard came next to speak, arguing for Appellee Eugene Bautch that the Fifth Amendment applies only when penalty is at stake, which explains why it can cover sentencings but not the pre-trial probable cause hearing at issue in the case. Noting that Herek had spent a weekend in jail prior to his hearing, Judge Diaz called Herek’s ordeal a “stiff penalty,” but Burchard pushed back, calling the weekend in jail “de minimis.” Burchard acknowledged that the prevalence of plea bargaining had broadened the reach of the right against self-incrimination, but insisted that the right should apply only in adversarial proceedings, which a probable cause hearing is not.

 

Collins went next, arguing that Bautch’s conduct was barred by clearly established law that prohibits using coerced statements in criminal prosecutions. The judges took turns questioning Collins about how Bautch’s conduct—using a coerced statement at a probable cause hearing—could be a “clearly established” violation of the law when only a few courts had declared the Fifth Amendment applicable at such hearings. Collins urged the judges to zoom out and look at the officer’s conduct more broadly. Bautch referred Herek for criminal prosecution on the basis of his coerced statements; he didn’t know they would be used only at a probable cause hearing, but expected them to be used at trial, when their use would be a clear violation of the Fifth Amendment. Judge Kendrick expressed concern that Collins’s standard muddied the water of qualified immunity doctrine.

 

Harman finished for Appellee. He argued that widespread disagreement among the circuits about the starting point of the right against self-incrimination precludes a finding that Bautch violated clearly established law. A right is clearly established, he noted, when no reasonable officer could think his conduct was permissible. Haman noted that the purpose of the qualified immunity doctrine of § 1983 law is to give officers space to operate in the gray area of the law. By awarding money damages against officers like Bautch who have no notice that their conduct is a violation of constitutional rights, the courts would pervert the purposes of § 1983, Harman argued.

 

After a brief rebuttal by Collins, the judges left the room for about fifteen minutes. The guests—students, faculty, and assorted guests—whispered with anticipation when Lile President Amanda Lineberry ’19 brought the judges back in the room. Judges Diaz and Moore both complimented the advocates and assured them they could hold their own in any courtroom in the country; they noted wryly that the students were often better prepared than the professional lawyers who argued before them. Vice Dean Queen Kendrick self-deprecatingly commented that she was out of place among such distinguished jurists (she was not) but complimented the advocates nonetheless, telling Collins, Macomber, Burchard, and Harman that they made her proud to be affiliated with UVA Law. After these compliments, the judges declared that Collins and Macomber were the narrow winners of the contest, and that Harman had won the award for Best Oralist. Harman’s forceful and persuasive tone stood out to judges and observers alike, and all the finalists excelled in their ability to advocate for their clients while maintaining excellent poise and strong skills staying composed in the moment.

 

Reached for comment, Collins told us, “It’s pretty cool we could get a victory where my answer to a question was, verbatim, ‘Yes. No. Kind of.’ Also have you heard Ted Kennedy is on the plaque too??” Collins also expressed a gratitude toward her and Macomber’s “tireless mooters,” including one N.S., who wore a robe and brought a hammer to make the experience realistic. Macomber expressed disappointment that he was unable to fit the phrase “skrt skrt” somewhere into his argument—he had apparently engaged in a “prop bet” to do just that—but asked that the Law Weekly communicate his gratitude to his section friends who helped him prepare, especially Sarah Ingles ’19, currently in Australia. Harman declined comment. Burchard told us, “It was an honor to compete and I’m grateful for the learning opportunities the competition provided.”

Thanks S'More the Memories: 3Ls "Toast" Autumnal Outing


Kim Hopkin ‘19
Development Editor

Last Thursday evening, approximately 130 members of the class of 2019 gathered at a bonfire[1] at the base of the Blue Ridge Mountains to celebrate friendships, kick off the start of graduation festivities, and, of course, eat s’mores.

 3Ls gather around thier cozy mountain “bonfire.” Photo Kim Hopkin / The Virginia Law Weekly

3Ls gather around thier cozy mountain “bonfire.” Photo Kim Hopkin / The Virginia Law Weekly

Organized by Julia Wahl ’19 and Robbie Pomeroy ’19, the 3L bonfire was an exceptionally smooth event, all things considered. Tickets were sold for the reasonable price of $10 and covered transportation, food, and beverages. Bus pick-up and drop-off was staggered among three shifts: green, yellow, and red. This did mean that the green and red ticketed groups had only about ten minutes with each other at the bonfire, but a little planning when buying tickets ensured you could still catch everyone by going on the yellow bus. Perhaps for this reason, yellow bus tickets sold out first.

The night of the event, the buses headed toward the bonfire were delayed due to a traffic accident. Fortunately, a timely email sent to all those who purchased tickets helped keep the start of the evening relatively seamless. The bus ride took about twenty minutes, and for at least one of the red buses, it was (as the kids say) “lit.” Christopher Macomber ’19 described the yellow bus as “not bad at all—why? What happened on the other buses?”

When we arrived at the destination, it was a short yet perilous walk to reach the bonfire. One source said, “Maggie Echols [’19] tripped over a log. I heard she didn’t get up for a while.” This reporter was unable to personally verify this fact, but since said reporter also tripped over one of the two full trees laying at knee level across the unlighted path, it seems reasonable. Alison Malkowski ’19, another Law Weekly reporter on the scene, was able to verify that a rumor was indeed started to that effect, and also that she was told her repeated calls of “LOG!” were “unhelpful.”

Chicken, green beans, and mac n’ cheese from Waysides, as well as a s’mores station, greeted those who arrived at the bonfire safely. In true law student fashion, this was accompanied by a thoughtful selection of kegs: two beer and one cider. Many students reportedly got their fill, including Kat Collins ’19 and Dave Gremling ’19. Collins was extremely happy about the food selection for the evening saying, “Wayside doesn’t get the acclaim it deserves.” However, Gremling noted “a lack of drummies – which are the ideal handheld option.” Perhaps this is why Gremling could be seen stealing food off Collins’s plate throughout the evening.

Although the night was unseasonably warm compared to the rest of the week, the environment was comfortable and fun. The beer stayed cold, the food was definitely delicious, and the fire stayed crackling thanks to the mysterious volunteer fire-tender who emerged from the woods unsolicited, threw wood into the flames for three hours, and then insisted on a ride back because he “is a law student.” While it was difficult to get close enough to the fire to roast marshmallows without burning yourself, several experienced students stepped up so that gooey s’more goodness could be widely enjoyed.

Since the fire provided all of the light and heat, some students complained that they couldn’t see anything or anyone. Nicole Llinares ’19 summed it up perfectly when she said, “The lighting was non-existent. I had a hard time identifying people so I had to spend the whole time talking to the same three people I always talk to, and I didn’t get seconds on the potato salad because I couldn’t find the plates, forks, or potato salad.” However, Macomber, one of Llinares’s three friends, said, “It was so dark I couldn’t see my friends. Then I realized I didn’t have any friends there. So that all balanced out. The s’mores were a nice touch.” Llinares is seeking the identity of the person she met at the bonfire so that she can have a fourth friend. Other than increasing social circles, the darkness also made drinking the pure beer foam that came out of the empty kegs go down easier, so some sources count the lack of light as a win. As Malkowski put it, “I definitely told a lot of people they should go for ‘the views’ and realize now that the event was at night and also in the woods. That said, I have no regrets other than not making more Blair Witch Project jokes.”

The atmosphere of the bonfire was relaxing and friendly. It even included a recitation of “Happy Birthday” for our very own Editor-in-Chief, Jansen VanderMeulen ’19. His heartfelt response was “It’s not my birthday…?” In the words of Pomeroy, “It was so great to see so many people from different corners of our class come together. It was a beautiful night to sit by the bonfire, eat s’mores, and reconnect with everyone.” I can personally echo those statements since I ran into friends from 1L year who I had not been lucky enough to catch up with recently.

All in all, it was a wonderful way to spend a Thursday night with friends—without having to brave the undergrads at the Corner. Personally, I could have done without the antiphonal singing on the bus ride back, when one brave soul decided that being out of range of the radio signal wasn’t going to dampen his ability to party, but it was quite festive. 10/10, would bonfire again.


[1] Eds. Note: It was more of a medium-sized campfire rather than a bonfire, but no one goes to celebratory medium-sized campfire rallies, so we don’t blame the organizers for exaggerating.

Unlocking Justice: Yates Addresses Public Service Students


Lena Welch ‘20
New Media Editor

UVA Law students trekked up to Crystal City, Virginia for the Equal Justice Works Conference and Career Fair Friday and Saturday. Students took part in a couple of marathon days, interviewing for public interest jobs, introducing themselves to employers through table talks, and learning more about some of the social justice issues facing the legal profession. The students also had the opportunity to listen to a conversation with former Deputy Attorney General Sally Yates, moderated by Judge Ann Claire Williams.

Yates voiced a clear message to the aspiring public interest lawyers: unlock justice. Yates recounted not only her 27-year career as a public servant, but her early exposure to the legal profession through her father and grandfather, who both served as judges in her native state of Georgia. Although Yates initially tried to resist the family business, after two years working on Capitol Hill, she began law school.

Yates maintained an interest in government. She developed the interest at a young age, recognizing that people “want to have a voice in the things that are impacting you day-to-day.” She also maintained a fondness for Washington, D.C., because she said it was always exciting. “Our local news in D.C. was everybody else’s national news, and I liked sort of being in the center of that.”

After discussing meeting her husband when they were associates at King & Spalding, Yates took a moment to reflect on losing her father––just days before her law school graduation.

“My dad was a high-achieving, Type A kind of person, and he had suffered from depression for a number of years,” Yates said. “My mom and my sister and I really pushed him hard to get help. But, particularly for men at that time, he felt like there was a real stigma associated with any kind of mental illness, and so he resisted getting help. It was an up-an-down kind of thing, and in the months leading up to his death, it was particularly acute. And gosh, I just think back now of just what an incredible race that was. We know that depression can often times be treated as long as people seek the help that they need, and so after sort of this time when I seemed to have some sort of––I guess I’m not entirely sure what this is––but my thought was if I can do anything to help destigmatize mental illness and depression, to encourage people who are suffering to get help, or family members or friends of those who are suffering to be able to get help, that’s the most important thing I can do now.”

Yates also offered some advice for students during their time in law school. Reminding them not to get caught up in the ugly side of competition, Yates noted that someone else’s failure is not your accomplishment, and in fact, “that’s such a really lousy way of thinking or a lousy type of person to be.” She also implored the students to take their charge seriously; lawyers are entrusted with pursuing justice.

“The fact of the matter is, you’re not just a regular person anymore when you’re a lawyer,” Yates said. “You have an ability to be able to obtain justice for people that regular folks just don’t have. You have to be a lawyer, whether it’s in a civil context or a criminal context, to be able to do that. So, there are people out there who are counting on all of us, and in my view that’s different from any other profession. There’s lots of other worthy occupations out there, but there’s not really another occupation that is essential for everybody else in the world to be able to obtain justice, and that’s really going to be in your hands.”

Yates noted that the big, headline-grabbing cases are not what define you as a lawyer; it’s the opposite. The routine cases profoundly impact ordinary people, according to Yates, and those are the cases that move the gears of our justice system.

Yates and Williams recounted some such cases during Yates’s career, including a case which relied on a theory of adverse possession that returned a verdict by an all-white jury in Georgia for her black clients. The pair also discussed the importance of being a trustworthy lawyer as they examined Yates’s prosecution of Eric Rudolph, the Olympic Park bomber, and her work with his attorney to identify where he had buried the remaining dynamite.

The two touched on Yates’s brief time serving as acting Attorney General and her thought process behind coming out against President Donald Trump’s first travel ban. Yates noted that she was not convinced that it was “lawful or constitutional,” and could not allow her attorneys to argue that this ban had nothing to do with religion because “no lawyer should go into court and argue something that’s not grounded in truth. The Department of Justice surely shouldn’t do that, and particularly when you’re talking about something that’s as fundamental as freedom of religion.”

Yates closed by tasking the students in the audience with unlocking justice themselves.

“I think you’re going to find during the time of your career,” Yates said, “that the work that you’re gravitating toward now, public interest work, will be the most satisfying way that you can use the legal diploma that you’re getting. You know, I’ve told people before: it’s worth every penny you don’t make because there is nothing like a mission to be satisfied. And look, I know lots of lawyers in lots of different roles that make a ton of money, and that is absolutely miserable. . .Having a mission, something you believe in, and knowing that you are using this special ability as a lawyer to make the world a better place, you’re going to find it to be the most gratifying professional choice you’re going to make.”

 

----

Lena Welch

lw8vd@virginia.edu

Substitute 'Fauxfield' Bash a Surprise Hit


Jacob Jones ‘21
Staff Writer

Even without galloping horses, prancing ponies, wide open fields to frolic in, and some other fourth thing that defines the otherwise-annual event,1 the UVA Law student body turned out to show how much they like to get together and day-drink. The 1Ls seemed to be there in the greatest numbers because the pizza was unlimited, and UVA Law students put the true meaning of “unlimited” to the test. After trekking up a narrow stairway that burned nearly as many calories as the pizza contained, students were treated to barbeque bacon, pepperoni, and some sort of pizza with mushrooms on it.2 If you came to this event and did not meet your weekly carb quota in just a few hours, you missed out. Crozet Pizza has some of the best pizza in Charlottesville, and I would like to thank them for hosting our somewhat-sloppy selves.  

 A spirited performac from Panic! At the District Court. Photo Kolleen Gladden,  Virginia Law Weekly .

A spirited performac from Panic! At the District Court. Photo Kolleen Gladden, Virginia Law Weekly.

Two Law School bands showed up to demonstrate how amazingly talented some students here are apart from their ability to write case briefs. First to take the stage, Panic! at the District Court—the new band composed entirely of 1Ls—made its premiere performance with Dean Dixon on drums, Matt Hoffer-Hawlik on keyboard, Christian Sheets on guitar, Jaqueline Foley singing and slapping the bass, and Zane Clark doing what he does best 3 (playing guitar and singing with a stunning cowboy hat to crown his performance). The band was breaking hearts from the moment they opened up with “1985.” After following with what were surely memorable songs, which were somewhat country in nature, Panic! at the District Court made a graceful exit. Rumor has it they have signed with Interscope Records and will be asking Dean Faulk for a deferral to pursue their true dream of being a legal-pun rock band.  

Their performance––impossible to follow––was followed by a spectacular Gunners N’ Roses performance. Country hits like “Sweet Home Alabama” and “Wagon Wheel” were a few hints to the event’s theme. Both bands created plenty of opportunity for law students who can’t dance to pretend that they can, and this writer took advantage of the occasion. The music was undoubtedly the best part of the event, and we are all grateful our friends and classmates took time to entertain us. 

FYC and SBA put a lot of effort into this and deserve as much applause as Gunners N’ Roses. However, a few things were noticeably missing. The first was an advertised photobooth that turned out to be no more than a pile of hay bales. And speaking of hay, any gathering in the fall is incomplete without a hay ride from an old farmer on this tractor. Where was he, SBA? What could be better than bottomless pizza on a tractor? 1Ls were also required to buy tickets to an event and were given no option to pay less for non-drinking tickets unless they had religious or moral objections. Not drinking was apparently not a good enough excuse, forcing those who didn’t want to drink to subsidize the bad decisions of their peers. This is the sort of injustice this paper strives to call out.4 

With UVA Law students unable to show off their preppiest clothing that I assume they would otherwise wear to an event as bougie as a horse race, they had to make do with the second-whitest5 event theme possible. A cowboy/country theme for this gathering led to many men donning flannels and making other questionable fashion choices, clearly doing their best to look like Woody from Toy Story. In that effort, UVA Law boys donned vests and boots that sadly did not have the spinning spikes on the back that real cowboys wear. Several brave men (although not nearly enough) wore cutoff jean shorts, giving the event some real country credibility.  Turning to women’s fashion, flannels also dominated, with pointy boots and skirts (all impractical for riding horses) making appearances as well. Enough flannels were tied around waists to give the event a slight ’90s feeling, and cowboy hats were everywhere. Many students must’ve used those ten-gallon hats to smuggle in their extra booze.   

While the fashion was fierce, the friendship was fiercer, and the recently formed class of 2021 had a chance to let loose and shake off stress from midterms and two hard months of classes.  More friendship would have been had if Crozet had not run out of their much-anticipated Jello shots far too early in the afternoon.  

Overall, Fauxfield was fun and memorable, and 1Ls should be glad they got to miss the chance to subsidize an over-priced day at the races.  


1 I am a 1L. I have never been to the real Foxfield.
2 Mushrooms are gross.
3 Aside from being a softball dad 
Editor’s note: While the Editorial Board may agree with the statements criticizing the non-drinking ticket option, we also feel the need to call out the 1Ls complaining about paying $25 dollars for the replacement of Foxfield. Given that the normal event usually requires the 1Ls to use hundreds of dollars of their 1L funds to subsidize free eating and drinking for all upperclassmen, these lucky 1Ls have no idea how good a deal they got.  
5 Second most horse-related as well 

PILA 2018: Welcome to the Wizarding World of Public Interest


Lena Welch ‘20
New Media Editor

UVA Law’s annual PILA Auction has undergone a makeover that would make even Neville Longbottom jealous. The Live Auction will take place Thursday, November 8 from 5:30 p.m. to 8 p.m. in Caplin Pavilion, and the Silent Auction at the Omni Charlottesville Hotel will be Saturday, November 10 from 9 p.m. to midnight. Not only is the PILA Auction a highlight of students’ social calendars, it is the main fundraiser for the guaranteed funding of students participating in public interest summer internships. 

“The reason for having the PILA Auction is to raise money to fund the grants that are given to 1Ls and 2Ls who summer in the public sector and have met the prerequisites for the grant,” Auction Director Shivani Patel ’19 said. “Taking into account faculty and student feedback, we figured that the best way to increase the efficacy of the Auction was to separate the Live Auction from the Student Silent Auction, enabling greater faculty and student involvement. Since we’re holding the Live Auction in Caplin Pavilion during the week, it’s easily accessible to everyone, and bidding on items will be made easier as noise and lighting will not be an issue. Furthermore, we plan on publishing the Auction Program in advance of the Live Auction and will indicate the times that certain items will be auction[ed] off so students and faculty can filter in and out.” 

This makeover is an effort to allow law students, who tend to work with limited individual budgets, to coordinate as groups for bids on high desired items as well as to open the Auction up to faculty. The Live Auction will retain the big-ticket items such as Dean Risa Goluboff and Professor Richard Schragger’s ice cream social, while the Silent Auction will feature donations from local businesses as well as student donations. Patel added that surprises may be in store at the Live Auction. 

“Professors Mitchell and Ferzan are our hosts for the Live Auction, meaning they will have to share the stage, so I’d say expect the unexpected,” said Patel. Professor Mitchell has suggested that he might have a surprise planned that goes beyond the orange suit he donned at the auction a few years ago, so we’ll see.” 

Additionally, the live auction will feature the chance to pie a professor in the face. As part of this year’s PILA Week––which also features the Women in Public Service event sponsored by Virginia Law Women on Wednesday, November 7––students will be able to bid for the opportunity to pie their favorite, or least favorite, professor.  

“We hope that watching a professor get pied in the face at some point during the Live Auction will also attract students and other faculty to the event,” Patel said. 

The separation of the live auction and silent auction is not the only exciting announcement about this year’s PILA Auction. The theme: Yule Ball. Break out your cloaks and wands, Potterheads! Represent your house as you aim to raise money for your classmates who intern at public interest organizations. Accio a good time, am I right? 

“We have promotional Auction videos coming out soon, which, in my opinion, are really awesome, so look out for those!” Patel said. “Some of them will also be showcasing some of the cool items we have received as donations this year.” 

Ticket sales will begin Wednesday, October 31 in Hunton & Williams Hall and run through Wednesday, November 7, with price increases as the PILA Auction nears. According to Patel, “It’ll be a magical night that allows you to forget your muggle status for the evening.” 

Del. Danica Roem Gives Keynote at First Ever ELE(Q)T Symposium


Christina Luk ‘21
Staff Editor

On Wednesday, October 3, the ELE(Q)T Project for LGBTQ Leadership launched its first symposium: an afternoon-long series of workshops and speaker-panels aimed at training and empowering young LGBTQ leaders to run for political office. The event was capped by a keynote address by Virginia Del. Danica Roem, a Democrat who sits in the Virginia House of Delegates representing the 13th District, which includes the City of Manassas Park, Town of Haymarket, and Prince William County portions of Manassas and Gainesville.

 Delegate Roem addresses attendees in Caplin Pavilion. Photo Kolleen Gladden / Virginia Law Weekly.

Delegate Roem addresses attendees in Caplin Pavilion. Photo Kolleen Gladden / Virginia Law Weekly.

A big shout out to the student organizers of this event: Michael Denton, Co-Chair for Fundraising & Lambda Law Alliance Liaison; Cody Reeves ’19, Co-Chair for Fundraising; Courtney Koelbel ’19, Chair for Operations; Joe LoPresti ’20, Chair for Marketing; Chance McCraw ’21, Chair for Programming; and Timothy Sensenig ’20, Founder and Event Director. 

Sensenig opened the event and gave the audience a few statistics to bear in mind: Over 50 percent of all politicians and presidents are lawyers. Compared to the 5 percent of people in the general population who think about running for office, up to 58 percent of lawyers consider running for office. LGBTQ lawyers are therefore well positioned to make a big difference because, even though 10 percent of the population identifies as LGBTQ, only 0.1% of all elected offices identify as such.

Following Timothy’s address, Dean Risa Goluboff took the stage to introduce Del. Roem, who gave the Dean several thumbs-ups throughout her introduction. Del. Roem is the first openly out transgender woman to be elected to state legislature, ousting Republican incumbent Bob Marshall, who held the seat for twenty-five years. Del. Roem is a thirty-four year old stepmom; she’s lived her entire life in her district, and she was a journalist for the Gainesville Times for nine years, winning seven Virginia Press Awards during that time. For young leaders everywhere, Dean Goluboff said, “Delegate Roem represents hope and opportunity.”

Del. Roem had one central message that night: “Be who you are and be that well, because we need you. Your commonwealth needs you.” In her words, there is no picture-perfect candidate for office. She points to herself as an example. As a transgender woman, a stepmother, and a minimum-wage journalist, Danica Roem does not present the image of a typical candidate, but her experiences make her a unique candidate who brings unique skills that the legislature needs. Del. Roem espouses the value of playing to one’s own strengths. She reminded the audience that they can succeed because of who they are and not in spite of it. Personal identity can be a great source of strength. Del. Roem gestured to herself, a self-described Italian woman who loves to talk and who uses her own exuberant sense of humor to combat negativity. Her outgoingness, willingness to engage, and resilience served her well during her door-to-door walking campaign, winning her the votes she needed to win out in her race.

The number one key to her success? Unwavering focus on the issue most important to her constituents: fixing the terrible traffic and road conditions of Route 28. When people opened their doors to her, they all had one very obvious observation and question, and Del. Roem refused to let that constrain her conversation. As she put it, people might not understand what it means to be a transgender woman, but everyone understands traffic. At the same time, Del. Roem recognizes the significance of her election for the LGBTQ community. As the very first transgender woman elected to office, whether she wills it or not, Del. Roem is an effective ambassador. For her, it is both a privilege and a responsibility, and, for the young LGBTQ leaders waiting in the wings, it remains a privilege and a responsibility.

Del. Roem’s speech can be found on the UVA Law YouTube page. For the exclusive benefit of the readers of this publication, this reporter caught up with Del. Roem after the event and scored a really sweet selfie asked a few questions:

What’s one message you’d like to give to people who weren’t able to make it tonight? If you’re well qualified and you’ve got good ideas, then get your ideas to the table. You can succeed by being who you are not despite of it.

What’s the one core attribute that makes a good politician? Constituent service above all else. Don’t single out and stigmatize your constituents.

Do you have any advice for people who feel caught between public service and the private sector? Think of someone who really needs you and, if you weren’t there, think of who would support them. And if you think, in that moment, that a firm is still where you ought to be, then go. But if the thought of that human being who needs your help sticks in your mind, then figure out how to help them.

This reporter also caught up with Sensenig:

Where did you get the inspiration for this event? From Kendall Burchard, current president of Virginia Law Women, who hosted an event last year called “Elect Her.” We also wanted to host an event that would support people going out for office.

What are your next steps? We’re currently deciding now if we want to stick to a one-day symposium format or if we want to do smaller events throughout the year. In either case, we’re done for this year, but please be on the lookout for another ELE(Q)T event next year.

Would you like to say a few words to our readers? VOTE, VOTE, VOTE! There are great student organizations on grounds helping to get people registered: Virginia Law Democrats and Virginia Law Republicans.  Also, come to Lambda events and be a good ally. If we’re something you care about, come out and support us.

"Porpoises" Whale on Competition


M. Eleanor Schmalzl
Executive Editor

Despite the weather’s best efforts, the 1L tournament came and went this past weekend on the soggy diamond known as Copeley Field. While Stephen T. Parr tried to drown the overeager 1Ls with more rain during the 10 a.m. game, his efforts were ultimately futile as the teams began the day of “friendly” competition. After several weeks of regular season play during which the 1Ls (and only the 1Ls) managed to play on wet turf and the occasional muddy Copeley, Section H managed to secure the number-one seed despite their overall lacking performance at Dandelion. Going undefeated leading up to this past Sunday, the team came in ready to fight for ultimate victory. However, Section H was not the only team competing for that prized trophy. According to Brooke Swann ’20, NGSL member and overall badass at all things but especially all things softball, every team had some standout talent. Swann remarked that clutch hits and major defensive plays carried some teams through games, and the 1Ls who participated and supported “had way more fun than all of their peers who chose to spend the day in the library.” Head Ump Carly Crist echoed Swann, remarking that the overall talent of the 1L class made for a fun day of softball.

 Members of the victorious Habeas Porpoise warm up. Photos Kolleen Gladden, ‘21 / Virginia Law Weekly

Members of the victorious Habeas Porpoise warm up. Photos Kolleen Gladden, ‘21 / Virginia Law Weekly

 

Kicking off the day at 9 a.m. was #7 Justice RBIs vs. #10 C’s and Desist, with Section J securing the W with a 14–7 victory. After their victory, Section J members enjoyed a few cold ones as they prepared for the foul language and taunting they feared they’d endure from the #2 F Bombers in their upcoming 12 p.m. game. At 10 a.m., #6 Rip’s RAngers[1]  faced #11 Good Not Great, with the latter living up to their reputation of being good but not, well, great. Section A, with a first baseman who does not use a glove, advanced by a score of 15–8, ready to challenge the #3 Legal-E’s at 1 p.m. in the afternoon. First round of play finished up with #8 Beyond A Reasonable Out defeating #9 Bam’s I’s 12–5, with the #1 seeded Habeas Porpoise as their next opponent in the late afternoon 3 p.m. time slot.

 

After no upsets in the first round of play, the former favorites in the first round prepared to fight an uphill battle as they went into second round against the well-rested, top-seeded teams. Justice RBIs fought but ultimately fell to the F Bombers with a final score of 15–6, bringing Section F forward to secure a semi-final position. Rip’s RAngers managed the first upset of the day at 1 p.m., defeating the Legal E’s by a narrow 13–10 margin and lots of chants about “friendship.” Section A’s victory secured their spot in the semi-final against Section F at 4 p.m.

 

On the other side of the bracket, #4 Docket Like It’s Hot[2] defeated #5 SoftbaLLMasters 14–7. While the LLMs may have been defeated in their first game of the day, the Law Weekly still maintains they’re the real winners after Attending the T-Pain Concert and skipping the downpour that was Dandelion. Given that most of them had never played softball, they knew how to hit some real dingers that rallied great support from the crowd. But alas, Docket Like It’s Hot secured their position in the semi-finals just before the Habeas Porpoise took down Beyond a Reasonable Out 13–6, meaning D and H would face off in the semis before the championship game.

 

After a busy second round, Section A came into game three with high hopes that were ultimately crushed by the F Bombers. With a final score of 10–3, Rip’s RAngers left feeling proud of their journey through the day, leaving the field singing the High School Musical soundtrack that boomed from their radio throughout the team’s games. The F Bombers still had a game left to play, spending their downtime nursing injuries and preparing their obscene vernacular for the championship game yet to come. Habeas Porpoise roared into the 5 p.m. game against Docket Like It’s Hot, winning 5–0 before the game that followed directly after. Lucky for Section H, the team did not follow the lead of #1 seed UVA Men’s Basketball during last year’s March Madness and actually met expectations in their big moment.[3] After long days for all teams, the championship game had arrived.

 

 The Law Weekly’s camera catches another Porpoise. Photo Kolleen Gladden ‘21

The Law Weekly’s camera catches another Porpoise. Photo Kolleen Gladden ‘21

Section F, despite a valiant effort and a left-center fielder who could literally throw the ball from the road to home, the team couldn’t find its stride against the powerhouse batting of Section H. With a 10-1 final score, the F Bombers left cursing themselves, wishing they had found their swing in time to rally. Meanwhile, Section H sang along to Mariah Carey’s “All I Want for Christmas is You” for unknown reasons. Regardless of their odd victory music, the team found victory and crushed the hopes of underdogs everywhere.

 

Due in part to great musical choices and a few thrilling upsets, the 1L tournament lived up to expectations as a thrilling and competition-inducing event. Now we can hope the 2Ls and 3Ls can follow suit and, you know, actually play some softball.

Brooke Swann ‘20 contributed on-the-ground reporting for this article.


[1] GO SECTION A!!!

[2]With a man who would only came up to bat if allowed to bring his beer with him. Every time.

[3] Anyone else still not over it? Just me? Bueller?

One Year After August 12: UVA Law Looks Back


Law Weekly Staff

The University of Virginia and the Charlottesville community marked one year since the August 11 and 12 alt-right rallies with a series of events last Thursday and Friday, including a set of panels and speakers hosted in the Law School. 

 Panelists address the assembled students at the A12 symposium. Photo Kolleen Gladden /  Virginia Law Weekly.

Panelists address the assembled students at the A12 symposium. Photo Kolleen Gladden / Virginia Law Weekly.

Thursday night’s event at the Paramount Theater in downtown Charlottesville featured Yale Law School professor James Forman, Jr., author of “Locking Up Our Own: Crime and Punishment in Black America,” a 2018 winner of the Pulitzer Prize. Forman was introduced by University Provost and Executive Vice President Tom Katsouleas, who noted the importance of trying to understand the biases and underlying racism that led to the tragedy of August 11 and 12, 2017. After Katsouleas’s introduction, UVA hip-hop Professor A.D. Carson performed a surprise rap about police brutality, leading into President James E. Ryan ’92’s introduction of Forman. 

Forman grew up in Detroit and Atlanta, coming of age in the tumultuous ’70s and ’80s. He recalled—to begin his discussion in Charlottesville as well as in his 1991 Yale Law Journal note Driving Dixie Down—watching with disgust as the African-American janitor at his nearly all-black high school in Atlanta raised the Georgia state flag, which at that time contained a miniature of the Confederate battle flag. His parents met during the civil rights movement; his mother was the white daughter of British aristocrat Jessica Mitford, while his father was a prominent black leader active in the Black Panthers and the Student Nonviolent Coordinating Committee (SNCC). The effect of racist society had real effects for Forman; in the year he was born, the Supreme Court’s decision in Loving v. Virginia overturned the anti-miscegenation laws that made his parents’ interracial marriage illegal in swaths of the country. 

Forman’s talk focused on the myths underlying white supremacy—namely that blackness is inherently violent—and on American society’s inability to respond to white-on-black violence. He mentioned Dr. Paul Barringer, the racist medical doctor who headed UVA’s faculty from 1895 to 1903 and who believed abolition of slavery was wrong and that slavery was a positive good that controlled people of African descent’s supposed natural impulse for criminality. These myths, Forman argued, underlie the justice system’s targeting of black Americans and its inability to handle violence against blacks committed by whites. The KKK stands out: based paradoxically on “law and order,” it perpetuated violence against black Americans with impunity. Forman also mentioned Dylann Roof, the mass murderer who killed nine black worshippers at a church in South Carolina in 2015. Forman pointed out that when Roof committed that atrocity, the question everyone asked was, “What is wrong with this kid?” encapsulating the inability and unwillingness of the American mind to deal with white-on-black violence. 

Despite his thorough condemnation of American attitudes toward race and criminal justice, Forman ended his talk on a hopeful note. Insisting he is not naïve, Forman urged members of the crowd to participate in “maximum allyship,” which begins with a mindset of being big hearted, open minded, and looking beyond distrust. He acknowledged that it is hard to work with people who hold different views, but making allies means building connections and finding common ground. He recommended starting conversations with questions like, “Where are you from? What are your needs? How did you get here?” and then building on the core values that emerge. 

Friday’s events at the Law School were opened by Dean Risa Goluboff and consisted of four panels: Panel 1 – The Body; Panel 2 – Policing Communities; Panel 3 – Institutions; and Panel 4 – Social Mobility. Between Panels 2 and 3, University of North Carolina Law Professor Theodore M. Shaw gave the keynote address. 

Courtney Davis ’20 was the student moderator for Panel 1. Davis explained that the first panel “discussed American conceptualizations of race and racism from historical, theological and scientific perspectives. For example, Dr. [Jonathan] Kahn discussed the dangers of making implicit bias the primary explanation for racism. And Dr. [Khiara] Bridges explained how ‘the double-edged sword’ of white privilege is bad everyone and can negatively impact white people too, using Buck v. Bell as an example.” 

Asked about her experience on the panel, Davis noted that she was “nervous at first . . . sitting next to such accomplished and intelligent scholars” but became so interested in what the panelists were saying that she “began furiously taking notes.” She is looking forward to reading the work that comes out of the symposium. 

Toccara Nelson ’19, who moderated Panel 4, explained how her panel analyzed American social mobility through a race-conscious lens. “Through empirical, anecdotal, and historical data, the panelists discussed how communities of color and other marginalized groups face obstacles in achieving upward social mobility. Panelists discussed such obstacles under the lenses of our social and familial networks, education system, public spaces, and the news. Simultaneously, our panelists presented data showing how non-marginalized identities face such obstacles at more muted frequencies and intensities.” Nelson expressed her hope that the Law School community was enlightened by the whole conference, and she looks forward to more programming of this nature.  

 

Robbie Pomeroy ’19 moderated the policing panel, which he said “brought together the world of academia and the consequences of policing to a real-world situation that had a direct impact on our community.” Pomeroy, too, was optimistic one year after the rallies: “Together we were able to reflect how, in the wake of last year, we can push for more care in law enforcement policies.” 

Panel Looks Ahead to Next Supreme Court Term


Sarah-Jane Lorenzo ‘21
Staff Reporter

Members of the Law School faculty unpacked the Supreme Court’s most recent takes on privacy, free exercise of religion, and election law at this year’s Supreme Court roundup. Noting the court’s state of change in the wake of Justice Anthony Kennedy’s retirement, professors reflected on his legacy and reviewed the possible impacts of a more conservative nominee. 

Professor Anne Coughlin began the panel by addressing the privacy implications of two key cases: Carpenter v. United States, which involved cell phone privacy, and Collins v. Virginia, a property rights case with roots in Albemarle County. Crediting Justice Antonin Scalia with setting precedence for both, Coughlin noted that while Carpenter was a very high-tech case involving cell-site records, Collins was quite the opposite; police simply walked up a man’s driveway to inspect a motorcycle.  

Coughlin first reviewed Carpenter, a case where cell-site information linked the defendant to a string of armed robberies. Cell phone companies keep records for business uses, but those records can also be used to reconstruct a defendant’s movement over a period of time. On review, the Supreme Court held that the government could not legally access such data without a warrant.  

Noting that while precedent provides no expectation of privacy in public, Coughlin said the court found in Carpenter that technology has changed; cell phones can now serve the same function as ankle monitors. Through cell-site records, police can track not only current information, but can also review five years of past location data. Coughlin remarked that the court has seemed to treat cell phone cases differently from other privacy cases, and reasoned that Carpenter’s implications may have felt personal to many of the justices on the court. 

The Collins case arose from a high-speed chase near Charlottesville; the defendant evaded police on a stolen motorcycle, and police later observed what they suspected was that motorcycle on his residence. To confirm, they walked up his driveway and lifted a tarp covering the vehicle. Coughlin noted that to search a house, police need a warrant, but to search an automobile, police need probable cause. In Collins, the court determined that entry onto the defendant’s curtilage trumped their search of his vehicle, and police will need a warrant in similar situations. 

Professor Daniel Ortiz followed Coughlin with remarks on election law through review of Gill v. Whitford, a partisan gerrymandering case, and Husted v. A. Philip Randolph Institute, which involved Ohio’s efforts to purge its voting rolls. Ortiz noted that, under pressure of the upcoming census and its redistricting mandates, the Court’s unanimous decision to sidestep key issues raised in Whitford and remand the case on standing grounds was essentially a punt. While liberals may have joined the decision in effort to keep hope alive for the future, Ortiz predicted that there is a great chance a conservative court would find against their interests should the issue arise again soon.  

Professor Micah Schwartzman was next in the line-up, and reflected on two of the past term’s most high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii. Rooted in the First Amendment’s freedom of religion clause, both cases centered on religious hostility.  

Schwartzman noted that while Masterpiece was much-covered by the media, its holding was fairly narrow, and centered more on what the court identified as religious hostility by the Colorado Civil Rights Commission than the extent to which anti-discrimination law protects the LGBTQ community from religious objections.   

Similarly spotlighted on national news, Trump v. Hawaii explored the legality of the government’s proposed travel ban on Muslim-majority countries—a ban rejected by three lower courts as motivated by religious hostility. Despite those lower courts’ decisions, the Supreme Court upheld the ban as justified on national security grounds. Schwartzman remarked that the Court has never before been confronted with more evidence of religious animus than in the Trump case, and described the Court’s ruling to affirm the policy as an “empty gesture” towards the president, who suggested on national television that the ban’s target is religion rather than territory. By failing to criticize the president’s statements, Schwartzman said, the Court exhibited a loss of integrity.   

Looking ahead to the courts’ coming term, Professor A. E. Dick Howard, who moderated the panel, questioned the potential impacts of nominating yet another conservative justice to the court. Should the court gain a conservative majority, he predicted limits on affirmative action, abortion, and election finance rules, coupled with an expansion of gun rights and increase of religion in public life. As the court commences its 2018–19 term, his forecasts will soon be put to the test.  

Clinic Students Argue Before Fourth Circuit


Taylor Elicegui ‘19
Features Editor

On Tuesday, September 25, 2018, four members of the Appellate Litigation Clinic—Amanda Lineberry ’19, Kendall Burchard ’19, Sarah Crandall ’19, and Lizard Joynes ’19—argued two cases before the U.S. Court of Appeals for the Fourth Circuit. They traveled to Richmond, where the Fourth Circuit heard several cases. I spoke with all four and learned a lot about their experience. 

 Clinic participants Sarah Crandall ‘19, Amanda Lineberry ‘19, Kendall Burchard ‘19, and Elizabeth “Lizard” Joynes ‘19 on the steps of the Federal Courthouse in Richmond. Photo courtesy Amanda Lineberry / Instagram.

Clinic participants Sarah Crandall ‘19, Amanda Lineberry ‘19, Kendall Burchard ‘19, and Elizabeth “Lizard” Joynes ‘19 on the steps of the Federal Courthouse in Richmond. Photo courtesy Amanda Lineberry / Instagram.

Lineberry and Burchard argued Mangum v. Hallembaek, on behalf of Mr. Mangum. Burchard explained, “Mangum v. Hallembaek, is a habeas-turned-administrative-law case. Mangum was sentenced first by a federal judge in North Carolina and then by a state judge in Oklahoma. The state sentencing judge directed that his federal and state sentences run concurrently. However, after he served his state sentence, the Federal Bureau of Prisons (BOP) refused to honor the directive and told him his sentences were to run consecutively. Mangum filed a nunc pro tunc request to have the time served in the state prison count toward his federal sentence, and it was denied. Mangum sued, and the Appellate Clinic represented him before the Fourth Circuit in 2016. Mangum won, and his case was remanded to the district court. The district court directed the Bureau of Prisons to reconsider his nunc pro tunc request. The BOP did so, and again denied his request. Our case begins with that denial. Mangum filed a motion to compel compliance with the Fourth Circuit’s opinion in the first iteration of this case. The district court denied Mangum’s motion to compel, and instead found ‘the BOP . . . evaluated all of the relevant factors under [the statute] in a manner that is consistent with the Fourth Circuit’s opinion.’ [We disputed] that, and [contested] the adequacy of the BOP’s review.”  

Lineberry did the initial argument and Burchard tackled the rebuttal. Lineberry said, “I was given a substantial amount of uninterrupted time at the beginning of my argument, but otherwise had a very hot bench! In particular, Judge Harris drilled down on one piece of the case. It was the toughest part of the argument, but it also made me feel respected. I felt that she wasn't trying to trip me up or make me feel nervous. Instead, she was trusting me to help her work through the stickiest parts of our case. That was a gift.” Burchard had a pretty hot bench as well, with the judges keeping her for an extra four minutes or so with their questions. 

Crandall and Joynes argued Battle v. Ledford, on behalf of Mr. Ledford. According to Crandall, “We argued that the district court erred in dismissing our client's Section 1983 claim as barred by the statute of limitations, because the court failed to consider two of our client's valid reasons for tolling the statute of limitations while he exhausted his administrative remedies.” Joynes added, “Our issues on appeal were whether the statute of limitations was tolled either statutorily or equitably such that his complaint would have been timely.” Crandall started with a cold bench (no questions from the judges), which she described as “more nerve-wracking” because she “couldn’t tell what the judges thought of [her] argument at first.” Joynes had a hot bench—she got through her “road map without interruption, but Judges Motz and Duncan didn’t spare another moment of the next ten minutes after that point.” 

Both teams invested a lot of time and effort in preparing. Joynes explained, “We read the record and all of the briefs and then Professor Braga instructed us to read all of the cases cited in the briefs––that was quite a task.  From that point though, we crafted our initial arguments and began mooting.  The advice and time given to us by our clinic colleagues, professors, friends, and family was invaluable.  We ran our arguments many times over the weeks leading up to our argument, and each time, someone helping us gave us a new perspective on our issues and how to convey our positions.  Professors Braga, Mitchell, and Spencer each mooted us, and their input was immeasurably helpful.” After finishing reading the record and cases, Crandall “focused on addressing the concerns raised by opposing counsel and finding a simple way to explain the rather complex statutory framework relevant to my argument. Lizard and I mooted our argument with Professors Braga, Mitchell, and Spencer, as well as with our classmates, to make sure we were ready for hot or cold benches. That was certainly the most helpful part of my preparation––running through various permutations of the argument to make sure I was comfortable with whatever the judges threw at us.” Similarly, Burchard and Lineberry mooted “almost every day from the beginning of the year.” Burchard elaborated, “I read, and reread, and reread again, the record, and talked about the case and our litigation strategy as much as possible.” Linreberry remarked “The most helpful parts of my preparation were (1) having a ton of friends moot us (you know who you are––THANK YOU!), and (2) having the most poetic and noble land mermaid, Kendall Burchard, talk me through my nerves and the toughest questions for our case.”  

The real thing is both similar to and different from Moot Court. “Arguing on behalf of a real client certainly raised the stakes for me, and I felt that the judges really cared about reaching the right outcome, which is not usually the case with moot court arguments. It was also odd not needing to stop on a dime when my time ran out! But overall, the experience of working my way through my argument and fitting it around the judges' concerns carried over from my moot court experiences,” Crandall stated. According to Burchard, “The biggest difference is the record. At the moot court level, you’re confined to about 4 pages of facts. In this case, our record extended close to 300 pages. It made things feel that much more real and consequential. Mr. Mangum’s certificates from classes he’s taken in prison were included, and it removed the distance between us. This wasn’t just a matter of law, this was about a man’s life.”  

For students contemplating prepping for their own arguments, Burchard, Lineberry, Crandall, and Joynes had some good advice. Burchard said, “Speak your argument aloud as much as possible. Anticipate questions, and prepare for them. Give your argument in front of a mirror, and look yourself in the eye while speaking—if you can convince yourself, you can convince anyone of your position. Remember that you are there to be helpful to the court, and that immediately relieves the pressure.” Lineberry added, “Approach oral argument as a conversation, not an argument. In other words, do your best to be (and sound) helpful to the judges hearing your case. This means you should know your record and cases inside and out, identify the toughest questions in your case, come up with the best possible answers to those questions, and be ready to give those answers in way that feels helpful to a judge rather than defensive. Also, remember to breathe.” According to Crandall, “I’d recommend that students view the experience as a conversation rather than an argument. Certainly, you want to bring the judges to your way of thinking and advocate zealously on behalf of your client, but the most effective way to do that is often to let the judges' concerns shape the conversation. It won't matter how eloquent you are if you leave the judges with significant unanswered questions. Oral argument is your one opportunity to interface directly with the decisionmakers, so make the most of it. Mooting your argument with a variety of people will also help you become more flexible in how you approach the argument, because everyone zeroes in on different issues and details.” Joynes said, “The most helpful preparation for me was to get as many different perspectives as possible on my argument, set my expectations, and go in with confidence.  Most of all, before I approached the podium, Professor Braga passed me a note that said, ‘have fun!’” 

Deans Convene Political Dialogue Panel


Michael Schmid ‘21
Staff Reporter

On Thursday, September 20, a group of law students attended a panel discussion in Caplin Pavilion featuring Dean Risa Goluboff, Vice Dean Leslie Kendrick ’06, and University Dean of Students Allen Groves ’90.1  The event, entitled “A Panel Conversation about Talking, Listening and Engaging across Perspectives,” dealt with the right to free speech, particularly its outer limits, and the complicated issues that can arise regarding controversial speech in a university setting.  

Goluboff 1.jpg

Dean Kendrick began the discussion with an overview of free-speech law in this country. The United States protects free speech more stringently than anywhere else in the world, and Dean Kendrick highlighted that this expansive right means speech that is controversial, provocative, and even reprehensible should be protected, often on the bases of liberty and equality. However, this does not mean just because an idea is free to be expressed that it ought to be accepted. Dean Kendrick noted that America’s free-speech regime not only welcomes debate and refutation of unmeritorious arguments, but thrives on it. Turning to the specific issue of controversial speakers being invited to universities, Dean Kendrick urged students to personally reflect whether the speaker has ideas with which they can reasonably disagree, and whether they are morally bound to tolerate the ideas in question or if they are beyond the pale. Free speech, Dean Kendrick concedes, is a complicated doctrine and, on the margins, there are few easy answers to the difficult issues debated in university settings and in society. 

Dean Goluboff pointed out that, as a historian of the 1960s, she knows the battles that raged over free speech on campus then in many ways parallel the battles we see now. Today, as in the ’60s, Dean Goluboff sees a “real moment of generational tension,” as well as a moment of potential legal change. That generational tension in both time periods is exemplified by the conflict between student protestors and administrators who do not understand the substance or tactics of the student demonstrations. As some of those student protests of the ’60s helped lead to changes in the law regarding who is protected by free speech and what action is taken against controversial speech, Dean Goluboff noted that today there is potential for changes in the law pertaining to the extent to which hate speech should be protected. 

Dean Goluboff also noted the disparate effects of speech on minority groups and marginalized populations, and asked the students in attendance whether they thought that the law should account for the unequal effects of certain types of speech. She cautioned against the use of free speech to insulate speakers from repercussions. It would be incorrect, she contended, to presuppose that once something is said that, in the name of free speech, no response or critique can be leveled. Instead, the right to exercise free speech invites response and engagement, something the dean noted is part of UVA's institutional culture. 

Dean Groves chose to highlight a few examples of controversial speech on Grounds, and how those events can serve as a model for balancing free speech with the rights to dissent and disagree. One of those incidents involved the invitation of a highly controversial speaker on Grounds about a decade ago; another involved an incendiary tweet by a university lecturer. Dean Groves stated his belief that the takeaway from those incidents is that the best way to engage with ideas that are unsavory—or even morally troubling—are for students to use their minds and their voices to win the intellectual battle and challenge people to try to defend indefensible positions. The instance regarding the tweet from the lecturer, Dean Groves noted, also serves as a reminder that just because something can be said does not always mean that it should be said, especially in light of the disparate effects of speech noted by Dean Goluboff. 

After the trio of deans spoke, they asked students to discuss in small groups the issues of free speech, engagement, and protest as each of the panelists spent time joining the conversations with the students.  Specifically, students were asked to discuss what they thought were appropriate guidelines for protest and dissent in a university setting. 

Panel 1.jpg

One theme resonated with each of the panelists: that the doctrine of free speech can be thorny and no easy answers exist for the complicated issues that arise. Dean Goluboff addressed this tension by indicating that, while we have the right to free speech, there is little guidance for the correct exercise of and responsibilities pursuant to that right. Dean Goluboff concluded her segment by noting that UVA perhaps has the most diversity of thought and background of any peer school, and that her hope is that UVA Law can serve as a model of an institution where real engagement can thrive in a community of trust. 

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ms3ru@virginia.edu


1 Dean Groves was observed reading a copy of Virginia Law Weekly before the event began. We hope he liked what he read.

Debate and Controversy as SBA Postpones Blood Drive


Jansen VanderMeulen ’19 Editor-in-Chief

The Student Bar Association (SBA) voted last week to postpone the semiannual blood drive and appoint a committee led by Toccara Nelson ’19 and Tim Sensenig ’20 to study how to proceed in light of the Food and Drug Administration’s (FDA) policy restricting blood donations from men who have had sex with men. Fourteen senators voted for postponement, one senator voted against, and one abstained. Students of the Law School began debating the issue immediately, with supporters hailing the decision as a victory against discrimination and detractors criticizing halting the flow of blood to those in need.  

At its heart, the dispute around this Law School’s continued participation in the blood drive lies with the policies of the FDA. For decades, the FDA completely prohibited the donation of blood from the category of “men who have had sex with men” (MSM) on the theory that blood from MSM was more likely to carry risk of HIV infection. In 2015, the FDA changed the MSM blood-donation policy from indefinite prohibition to a one-year deferral policy. That is, MSM may give blood one year after their last sexual contact with another man.[1] For advocates of allowing MSM to give blood, that change, while welcome, retains what they call a scientifically unsound and unnecessary policy.[2]

The decision to postpone the regularly scheduled blood drive was months in the making. Astute readers of the Law Weekly will recall Kyle O’Malley ’19’s criticism of the FDA’s MSM policies and the University’s toleration of “the discrimination the FDA’s regulation engenders” in his guest column for this paper last spring.[3] According to SBA officials who spoke with the Law Weekly, last year’s blood drive—held during Diversity Week—sparked calls to end the Law School’s participation in the blood drive, or at least couple participation with activism demanding an end to the FDA’s MSM policies. Nelson and Sensenig backed that version of events, writing in a statement to the Law Weekly that “students called on the SBA to discontinue its practice of hosting blood drives until the FDA policy becomes more inclusive and no longer stigmatizes men who have sex with men,” while other students “called on the SBA to reform its programming and promotion surrounding Blood Drives, while petitioning to keep Blood Drives on UVA’s Law Grounds.”[4]

The result of last spring’s controversy around the blood drive was the vote to create the Special Committee on Blood Drives. Nelson and Sensenig explained the special committee “did not obtain an adequate level of participation to properly represent the diversity of perspectives” on the blood drive issue and therefore “tabled discussions until Fall 2018 to seek more student representation.” Meanwhile, the SBA’s Health and Wellness Committee went forward with scheduling the semesterly blood drive, apparently unaware that the Special Committee on Blood Drives had not yet produced a recommendation.  

One student familiar with both years’ SBA deliberations, who spoke to the Law Weekly on condition of anonymity, told the paper that the Health and Wellness Committee, staffed primarily by 2Ls, did not know of the Blood Drive Committee’s existence or mandate, and scheduled the blood drive as usual. That student, supportive of the blood drive but sympathetic to allowing the special committee to finish its work, stressed that the postponement of the drive was much more about allowing a duly appointed committee to finish the work it was assigned than about ending the Law School’s participation in the blood drive.  

Nelson and Sensenig stressed the same point: “We are cognizant of and sensitive to the need for [b]lood donations in the midst of Hurricane Florence,” they wrote, while emphasizing the need for the special committee to complete its work. The SBA is offering reimbursement of up to five dollars for those students who traveled to town to give blood September 17 and 18. 

Reaction to the SBA’s postponement of the blood drive was mixed. Some students and student organizations reacted positively. Lambda Law Alliance President Eleanora Kaloyeropoulou ’20 wrote to the Law Weekly that she supports the special committee’s mission “of planning future, inclusive blood drives.” She went on to add that “Lambda supports the use of the committee that SBA created to handle the planning of future blood drives.”  

SBA Treasurer MacLane Taggart ’19 described the postponement as “purely a reflection of SBA’s commitment to follow through with the promise made last spring to allow for a productive dialogue regarding how best to address the discrimination inherent in the FDA’s policy to not allow blood donations by men who have sex with other men.” Taggart added that he personally “support[s] blood drives at the Law School, despite [his] inability to donate blood as a gay man.” He also supports the decision to postpone the drive “until the special committee has the opportunity to make recommendations.”  

Kyle O’Malley ’19 expressed support for the SBA’s decision to postpone the drive, but indicated frustration at the FDA’s continued exclusion of MSM from the blood-donation pool and at student leaders who “continue to schedule blood drives.” “My personal opinion is that individuals who are not subject to ‘deferral’ and who want to donate blood may do so,” O’Malley said, “But they are not entitled have their donation collected on Grounds. It might be inconvenient to travel off-Grounds to donate, but that can hardly be an excuse. That is—we’re either seriously committed to nondiscrimination or we’re not.” 

Other students expressed frustration and disappointment that the SBA was taking out LGBTQ students’ and allies’ righteous anger on the wrong target. Wade Foster ’19, a former Lambda board member studying abroad in Australia, wrote to Nelson and Sensenig in a message shared with the Law Weekly that “protesting the UVa Law blood drive is not going to change FDA policy. It is only going to deprive the Albemarle County area of much needed blood at a time when Virginia is in a critical blood shortage.”  

In comments provided to the Law Weekly only with the promise of anonymity, another student familiar with SBA deliberations said, “SBA allowed itself to be bullied away from providing desperately needed help to communities in need, especially with a major natural disaster hitting our region. This was done in the name of an ill designed political statement.”  

Taylor Elicegui ’20 echoed Foster’s comments. “While I think the FDA’s policy is discriminatory and wrong, eliminating the blood drive only hurts people who need blood. I also know it’s much easier for students to access the blood drive when it’s on Grounds, even with the SBA’s reimbursement for going to town,” she said. “I hope students will contact their representatives in an effort to have this policy changed.” 

Whatever their positions on the merit of the decision to postpone the blood drive, everyone involved was clear in their desire for the students of the Law School to get involved with the process, which Nelson and Sensenig hope to have wrapped up in a few weeks at the latest.  

SBA President Frances Fuqua ’19 told the Law Weekly in a statement, “SBA wants to make sure everyone in this community has an opportunity to be heard and we will work towards the most collaborative solution possible when it comes to the blood drive.”  

Nelson and Sensenig echoed the same idea: “We embrace the diversity of perspectives from students . . . . All members of the Law School community who are interested in this issue are welcome to join or send comments to the leaders of the special committee.” Fuqua can be reached at fhf5jm@virginia.edu. Nelson and Sensenig encourage anyone who wants to be on the committee to contact them at tmn2aa@virginia.edu for Nelson or tps4zf@virginia.edu for Sensenig. 

[1] https://www.fda.gov/forpatients/illness/hivaids/safety/ucm117929.htm

[2] Li Zhou & R.T. Winston Berkman, “Ban the ban: A scientific and cultural analysis of the FDA’s ban on blood donations from men who have sex with men.” Columbia Medical Review June 22, 2015. https://medicalreview.columbia.edu/article/ban-the-ban/

[3] Kyle O’Malley, “Tainted Love.” Virginia Law Weekly March 14, 2018. https://www.lawweekly.org/col/2018/9/16/tainted-love

[4] Nelson and Sensenig’s full statement: For over a decade, the Student Bar Associate has been hosting a blood drive every semester on UVA’s Law Grounds. In Spring 2018, the SBA created the Special Committee on Blood Drives in response to growing controversy over the presence and timing of SBA blood drives (the Spring 2018 Blood Drive was held during Diversity Week). Several law students publicly criticized the FDA policy that prohibits blood donations from any “man who has had sex with another man during the past 12 months.”

Finding this policy discriminatory and homophobic, some of these students called on the SBA to discontinue its practice of hosting blood drives until the FDA policy becomes more inclusive and no longer stigmatizes men who have sex with men. Other students called on the SBA to reform its programming and promotion surrounding Blood Drives, while petitioning to keep Blood Drives on UVA’s Law Grounds. These students cited the important life-saving outcomes of the blood drive and the national shortage of blood, particularly in under-resourced communities. The SBA voted to create the Blood Drive Special Committee in response to this issue.

We sought student members for the Blood Drive Special Committee shortly after its formation. However, we did not obtain an adequate level of participation to properly represent the diversity of perspectives surrounding Blood Drives at UVA Law. While we brainstormed potential solutions and obtained peer school information on Blood Drives, the Special Committee did not communicate any final recommendations on the state of Blood Drives at UVA Law. We tabled discussions until Fall 2018 to seek more student representation. The SBA understood that the Blood Drive Special Committee would continue to work during the early parts of the Fall 2018 semester to resolve this issue.

Due to an institutional miscommunication, the SBA Blood Drive Special Committee was not notified about the Blood Drive that was originally planned for September 2018. Furthermore, several members of the Health and Wellness Committee were not made aware that the Blood Drive Special Committee did not have an opportunity to produce a report. Citing the lack of proper institutional procedure in allowing the Blood Drive Special Committee an opportunity to analyze student perspectives and provide recommendations, the SBA voted to postpone, and not cancel, the September 2018 Blood Drive.

We are cognizant of and sensitive to the need for Blood donations in the midst of Hurricane Florence. We, with the help and funding of the Health and Wellness Committee, encouraged student-driven carpools to Virginia Blood Services on September 17th and 18th to donate blood. The student-drivers will be reimbursed mileage by the SBA. However, we recognize that this is only a temporary and not permanent solution to the Blood Drive debate.

The Blood Drive Special Committee is working rapidly to analyze student perspectives and provide final recommendations to the SBA. We’ve again solicited requests for student membership on the Special Committee, and plan to organize another Special Committee meeting within the week. The Blood Drive Special Committee plans to provide the SBA with its recommendations within the next few weeks, if not sooner.

Our student body has a wide variety of perspectives on Blood Drives. This diversity of perspectives is evident both within and outside the LGBTQIA+ community. We embrace the diversity of perspectives from students. SBA hopes that the Blood Drive Special Committee will reach a peaceful resolution that reconciles multiple sides of this issue and unites our student community. All members of the law school community who are interested in this issue are welcome to join or send comments to the leaders of the special committee, Toccara Nelson (tmn2aa@virginia.edu) or Tim Sensenig (tps4zf@virginia.edu).

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jmv5af@virginia.edu

The Power of State Constitutions: Judge Sutton Speaks

Taylor Elicegui ‘20
Features Editor


On Tuesday, September 4th, Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit visited the Law School to discuss his new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, at the invitation of the Journal of Law and Politics and the Virginia Law Review. Judge Sutton is a great friend of UVA Law—the book grew out of a talk he gave at UVa and an article published in the Virginia Law Review. Judge Sutton’s book argues state supreme courts should have a more important position in the world of constitutional law, allowing states to have different rights and making it easier for a polarized nation to continue to exist as one. As he explained, lawyers tend to focus on federal rights, seeing the federal Supreme Court as the ultimate arbitrator of constitutional questions. Judge Sutton proposed a détente between the right and left’s lawyers: lawyers should focus on state court and state constitutions, allowing the flexibility of federalism and eschewing a one-size-fits-all solution.

Professors A.E. Dick Howard, Richard Schragger, Aditya Bamzai, and Molly Brady all discussed different aspects of the book and its four main topics (school funding, exclusionary rule, compelled sterilization, free speech, exercise of religion, and mandatory flag salutes), providing more insights and raising questions about the feasibility of a détente (which Judge Sutton acknowledges would be difficult to achieve, if not impossible). Professor Howard pointed out another benefit of state constitutions: the ease with which they can be amended. Since state constitutions can be amended much more easily than the federal constitution, voters can respond to state supreme court decisions by changing the constitution. He gave the example of Kelo v. City of New London, a federal decision about the meaning of “public use” in the takings clause which inspired states to tighten the state requirements of the government’s eminent domain power. Schragger focused on the importance of city power and reminded us we live in a three-tiered system, not a two-tiered system. Bamzai emphasized the Fourth Amendment. The states were the original innovators of the exclusionary rule among a variety of potential approaches to protecting against unreasonable searches and seizures, including money damages and trespass claims. He focused on the difficulty of striking a balance between federal and state protections. For states to have room to innovate, the federal rights must be set below state rights yet still high enough to achieve the desired policy outcomes.

Professor Brady took a different approach and discussed property rights, where state innovation has not come to fruition. She explained she shares Judge Sutton’s hope about the potential of state constitutions, but not his optimism. Ohio and other states invented the easement of access, which the Supreme Court eventually adopted. Professor Brady acknowledged some states responded to Kelo by specifically defining the Fifth Amendment’s “public use” as not to include economic development. Twenty-seven states added “or damaged” to their takings clauses, which initially seems like a positive development. As Professor Brady explained, though, the states all use the same “Alaska test” to assess if a property has been damaged by government action. Can you guess what the Alaska test is? You guessed it—the good ol’ Penn Central balancing test. In general, states have declined to interpret their own takings clauses differently than the federal takings clause.

Professor Brady also explored the impulse lawyers have to take cases to the United States Supreme Court. Because people tend to think they will win (although they know they could, theoretically, lose), they want to win at the national level. For public-interest organizations with limited resources, taking cases to the federal Supreme Court can be a more efficient use of resources since they can’t reasonably take a fifty-state approach. Professor Brady acknowledge a détente could be effective, but questioned the feasibility, given these considerations.

Judge Sutton also stressed the need for advocates to take their second shot. As he explained, by focusing on federal rights, advocates ignore their clients’ rights under state constitutions, to the peril of the client. Utah v. Strieff is the ultimate explain of the oft-ignored second shot. In Strieff, a narcotics detective began surveying a suspected drug house and observed Edward Strieff leaving the residence. The office detained Strieff and realized Strieff had an outstanding warrant, so the officer proceeded to arrest and search Strieff. The officer found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing the officer did not have probable cause to stop him. The Utah Supreme Court held 5-0 that the evidence must be suppressed as tainted by the initial, illegal stop. Utah appealed to the United States Supreme Court, which overruled Utah and considered the evidence to be admissible. Had Strieff’s lawyers also raised his right to be free from unreasonable searches and seizures under the Utah state constitution, the United States Supreme Court would not have been able to overturn the decision and the evidence still would have to be excluded.

Overall, Judge Sutton was a persuasive advocate for state supreme courts and federalism. He explained that, while not all judicial activism is ideal, at least state judicial activism has more democratic legitimacy. Although I too share concerns about the feasibility of a détente, I am intrigued by the argument. At the very least, I have a much greater appreciation for the second shot.


1 Judge Sutton also hires many UVA Law grads as clerks, including Professor Aditya Bamzai, a panelist at the event.

2 545 U.S. 469 (2005)

3 Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)

4 1Ls, you have so much property to look forward to. You’re welcome for the preview, filled with jargon that is currently meaningless. I promise, though, these words will one day all make sense.


tke3ge@virginia.edu

1L Spirits Undampened by Rainy Dandelion

M. Eleanor Schmalzl ‘20
Executive Editor


As another great year at UVa Law begins, the traditions of the Dandelion Parade continue. Started in 1984 as a calm and respectable parade, Dandelion now serves as the opportunity for upperclassmen to record videos of future attorneys at top jobs across the country doing ridiculous dances and is the nudge for all the 1Ls to realize that they truly can’t take themselves too seriously if they chose to come to school in Charlottesville. Beyond overcoming the nerves of dancing in front of all their peers,1 this year’s 1Ls faced an additional obstacle to their dream of gold medal finish in the form of heavy rain.2 Winners will get the best seeding in the upcoming 1L softball tournament, held on September 23, so a lot rides on each year’s competition.

 

Section A kicked off the rain dance, setting the bar high with scene changes and well-choreographed moves. While dancing to classics such as Uptown Funk, Wipeout, and Just Got Paid, “Rip’s RAngers” also threw 100 dolla dolla bills with CORDEL FAULK on the front3 into the crowd and delivered a handle of Jack Daniels to the NGSL commissioners with “This is not a bribe” written on the front. Securing second place by the NGSL judges, this crew walked away feeling rightfully pleased about their showing.

 

Section B was up next, and after a solid two minutes of trying to lift some of their sectionmates into a cheerleading elevator stunt, a member of the crowd was overheard asking, “Is that it?” After an effort to recover from their slow start, “Beyond a Reasonable Out” managed to avoid any booing and were seen heading to the keg for another round of beers, likely in an attempt to forget the embarrassment that was their 1L Dandelion performance.

 

Section C benefitted from the downpour, with a performance set to “Under the Sea” as the song for the section’s performance. While most of the section swayed back and forth making big C’s with their arms every time the chorus rang out, their merman stole the show by not only frolicking into the crowd but also worming on the wet concrete. And, as the grand finale, his bikini-shell top bust off the section’s performance. Clever idea and a solid effort by the “C’s and Desist” team, but I may be biased given my love of all things Little Mermaid.

 

Section D, known as “Docket Like It’s Hot,” really tried to be coordinated to their dance set to “Drop it Like It’s Hot,” but their only saving grace was the inclusion of a dog in the section performance. Big fan of dogs.

 

Section E, the “Legal E’s,” came with posters of giant E’s and danced to the classic “It’s Gonna Be Me.” While yelling “It’s Gonna Be E!” to the chorus, the section seemed to be having enough fun to make up for their overall lack of hard-core dance moves. I wrote “I’m a fan” in my notes about their skit, so they must’ve done something right.

 

Section F, the gold medalists of the event, grooved to “Fergalicious” in all black. They had men chugging beers and partial nudity—exposing their stomachs which had “DANDELION” spelled out across them—so the group really hit home on all the requirements for a solid placement in this year’s competition. While this unbiased PA thinks Section A’s Cordel Faulk dolla dolla bills were more clever than painting up, I’ll tip my hat and respect the “F Bombers.” But, as an aside, I’d just like to note that I’m not sure how the “F Bombers” got approved as y’all’s team name. Can’t wait to hear what professors think of that when you wear your jerseys to class. Good luck.

 

Section G had raining men . . . and that was it. With that, your team name is fitting: “Good, not Great.”

 

Section H was the only group to attempt the dreaded skit that can never be heard, but their spoof on Jeopardy! was at least appropriate given they have a sectionmate trying out for the show.4 I honestly had no clue what was happening throughout their entire performance, but they incorporated The Lion King soundtrack, The Beach Boys, and a guy in a Narwhale5 costume who slid into the giant puddle in front of the NGSL announcers. Respect for turning boos into cheers, “Habeas Porpoise,” well done.

 Section H poses for the  Law Weekly’s  camera before their less-than celebrated performance. Photo courtesy of Kolleen Gladden ‘21.

Section H poses for the Law Weekly’s camera before their less-than celebrated performance. Photo courtesy of Kolleen Gladden ‘21.

 

Section I, cleverly named “Bam’s I’s” worked off of Britney’s “Oops! I Did It Again” classic.  There’s not much to report except that it was, overall, a hot mess of a performance. And, unlike section D, they didn’t have a dog to wow the crowd. The dog always works, people. Always bring a dog!

 

Sections J and F had the same “all black” idea, but that didn't deter section J from standing out in the crowd. I don’t remember much about their dance other than the stripping and the great puddle smash at the end, but something impressed the judges, as the “Justice RBI’s” secured third by NGSL rankings.

 

To finish off, the LLMs pulled the ultimate power move by not even showing up to perform in the heavy rain that clouded the event. After attending the T-Pain concert last week, the LLMs clearly grasped the American mindset to disregard authority and do whatever they wanted. The LLMs are likely the only group to survive Dandelion without a cold or an extremely embarrassing video of their dance skills and, consequently, the traditional Dandelion winners secured another victory in my eyes.

 

While people may grumble about Dandelion, it’s a strong tradition that, like softball, sets UVa apart from several other law schools in the country. Here’s to hoping this class survives all the colds and flus they contracted during the rainy Saturday and keep the tradition alive for years to come.

 

_______________

1 Thank you, NGSL, for providing free kegs and pizza to enhance performances and viewing pleasure.

2 Weatherman Stephan T. Parr refuses to comment on why he has allowed such dreadful Dandelion weather two years straight, but promises sunshine for the 1L tournament.

3 Starting the petition now to make the official change on real paper money. I think Trump could be persuaded.

4 Would be better if they had the 1L who actually won Jeopardy! in his pre-law school career, but I digress.

5 Or dolphin? Again, no clue what was happening.


mes5hf@virginia.edu

Students Share Public Interest Summer Experiences

By Law Weekly Staff


The Law Weekly interviewed members of the classes of 2019 and 2020 about their summers. Last week, the paper ran interviews with students who worked for firms. This week, students who worked for government, judges, or non-profits were interviewed.

What drew you to that geographic location and/or employer?

E.D.N.Y. Judicial Internship ’20: I wanted to go to New York because I have family and friends there, and because I just love the city. 

D.C. Government ’19: The opportunity to participate in high-level legal and policy discussions in the federal government (specifically, the Department of Defense). 

D.C. DOJ ’19: I'm focused on doing public service environmental law work, a lot of which happens in D.C. 

Nashville USAO ’20: Hometown and interest in government. 

Phoenix Air Force ’19: Tuition scholarship requirements. 

Alaska State Public Defender ’19: The Alaska State Public Defender allows students with a 3L practice certificate to represent clients in court, including trials.

 

What type of work did you do? Were you able to become involved with pro bono work? If you had a favorite matter (billable or pro bono!), can you describe it at all?

 

E.D.N.Y. Judicial Internship ’20: I wrote one Report & Recommendation for a petition for a writ of habeas corpus and did research on employment discrimination, international service, reverse mortgages, permissible intervention in a class action, and other random issues the clerks needed help with. It's hard to choose just one favorite matter, but my favorite part overall was getting to see the different litigants, especially the pro se ones. The Eastern District has a lot of colorful characters! 

D.C. Government ’19: I helped attorneys research a variety of issues involving international law, the law of the sea, the law of armed conflict, and government ethics. 

D.C. DOJ ’19: I worked on all aspects of litigation from a government/environmental enforcement perspective. 

Nashville USAO ’20: Mainly criminal matters and a few civil investigations. 

Phoenix Air Force ’19: Mostly criminal litigation on the prosecutor side, but the Air Force offers free legal assistance in the form of answering questions, drafting wills, power of attorney and notaries. 

Alaska State Public Defender ’19: I represented clients in court every day at bail hearings and change of pleas, handled a misdemeanor caseload, and second-chaired a felony robbery trial.

 

What was your favorite “fun” summer class activity? 

E.D.N.Y. Judicial Internship ’20: The court had a celebration for Judge Jack Weinstein's 97th birthday. He's a really big deal in the Second Circuit, but he’s very humble and funny. I got to watch him hold a trial about Bitcoin. He's 97, and he still knows more about Bitcoin than me! 

D.C. DOJ ’19: We had a softball team that was super fun to play with. There was also a really cool hike, but I actually missed it because I was sick.

Nashville USAO ’20: We got to do all kinds of interesting "field trips." For example, we went to the state prison and toured the facilities, talked with an appellate judge, district court judge, magistrate judge, etc.

Phoenix Air Force ’19: Courts-martial that I was able to work on.

 

What was the most surprising thing about your summer?

E.D.N.Y. Judicial Internship ’20: I was surprised at how much responsibility I was trusted with. For example, the R&R I wrote was ordered and is now on WestLaw. That's crazy!

D.C. Government ’19: It was surprising to hear high-level international law issues, which I really thought only arose in classroom settings, being discussed in our office. It was interesting to see the practical consequences of differing legal interpretations, which I thought I’d only encounter in a classroom setting.

Nashville USAO ’20: The amount of substantive work I was able to get.

Alaska State Public Defender ’19: Being able to travel around Alaska and see amazing things, whether it was hiking a glacier, or camping with some of the attorneys.

 

What would you suggest to someone moving to your market (professional advice, recommendation of something fun to do, where to live, favorite restaurant—sky’s the limit!)?

E.D.N.Y. Judicial Internship ’20: My favorite bar in New York is called The Keep. It's in Ridgewood, which is kind of far out, but WORTH IT.

D.C. Government ’19: If you’re headed to DC, take time to see the sights, especially Arlington National Cemetery. 

D.C. DOJ ’19: The environmental law community is small, especially within a specific geographic area, so it's important to always be professional and make a good impression. You never know who's talking to who.

Nashville USAO ’20: I would make sure to find coworkers who know the city and can show you around. Nashville has so many fun/cool things to do and it's even better when you can experience it with a friend.


editor@lawweekly.org