Young Children Terrorize North Grounds

Eric Hall '18
(he/him/his)
Managing Editor

Last Monday, on the eve of All Hallows Eve, miniature monsters and munchkin-sized superheroes overtook Spies Garden at the annual Halloween Carnival. Professors, law students, and faculty brought their kids to school to sample the tricks and treats 1L sections had on offer. Groups of 1Ls offered all variety of sweet eats including frosted donuts dangled from strings, and spooky cupcakes handed out without fuss. For games, 1Ls delivered a wheel of fortune with prizes, witch’s hat ring-toss, and—our personal favorite—Section C’s professional mummy wrapping services. 

Cdr. Emma Ospina trains with a donut in anticipation of a zero gravity environment. Photo courtesy of Eric Hall.

Cdr. Emma Ospina trains with a donut in anticipation of a zero gravity environment. Photo courtesy of Eric Hall.

The Community Fellows group brought a basin of apples for bobbing where sisters Kyoko and Ryoko (pictured) could be found sparring with a pair of Honeycrisps that refused to be bit. Their mother, Shoko Terasaka, is an LLM candidate from Japan.  Nearby, LLM-candidate Maria Londono’s daughter Commander Emma Ospina (pictured; dressed in a NASA flight suit) took chunks out of a suspended frosted donut. Charles Cain, a 1L, and his wife Anita brought their human child, Teddy, and their canine child, Chevy, both dressed as Paddington Bear. 

Olivia and her mother, Kate Duvall, attempt to rehab the scary image of witches. Photo courtesy of Eric Hall.

Olivia and her mother, Kate Duvall, attempt to rehab the scary image of witches. Photo courtesy of Eric Hall.

Professors and faculty were eager to get in on the fun. Kate Duvall, appeared escorted by Batman (son Charlie) and a mysterious cat-like witch (daughter Olivia). And Professor George Geis was stalked into the courtyard by terrifying T-Rex. With the latest Halloween Carnival, UVa Law continued a time-honored tradition of gathering law school families for some fall-time fun.

Ryoko Terasaka gets some assistance with her apple bob as her sister, Unicorn Kyoko looks on. Photo courtesy of Eric Hall

Ryoko Terasaka gets some assistance with her apple bob as her sister, Unicorn Kyoko looks on. Photo courtesy of Eric Hall

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ech8vm@virginia.edu

In Search of Common Ground

Jenna Goldman '18
(she/her/hers)
Editor-in-Chief

From left to right, Hamna Ahamad and Robert Smith participate in the CLG discussion. Photo courtesy of Eric Hall.

From left to right, Hamna Ahamad and Robert Smith participate in the CLG discussion. Photo courtesy of Eric Hall.

Common Law Grounds’s first symposium titled “Of Bubbles and Biases: The Press and Democratic Dialogue,” took place last Friday, October 20th, in Caplin Pavilion.

Professor Deborah Hellman, faculty sponsor and founder of Common Law Grounds, began the day by quoting a portion of the organization’s mission: “To encourage discussion and debate among students and faculty across the ideological spectrum with the goal of identifying and articulating areas of agreement about core values and practices.”

She introduced Dean Risa Goluboff, who gave introductory remarks.

“How do you create dialogue across our differences?” Goluboff asked the audience. “With mutual respect.” She answered— a point woven through her speech. 

“We are in a profession that is all about dialogue, open discourse, and persuasion,” Goluboff reminded the audience. “We don’t always agree, and that’s not the assumption that will happen at the end of the day.” 

She believes that the Law School is uniquely situated to tackle difficult conversations because of the school’s reputation for collegiality and the diverse intellectual community on North Grounds.

“I think we are a place that has dialogue across difference because we are committed to each other and we are committed to our community.” 

The first panel brought together four editors and reporters to discuss “Challenges Facing Journalists.” 

Richard Leiby, senior writer at the Washington Post, started the remarks off with a satirical description of the “Fake News desk at the Washington Post,” garnering laughs as he illustrated a news room out of a Donald Trump fantasy. He went on to discuss the problem of normalizing the term “fake news.”

Quoting a Politico poll, Leiby said, “Nearly half of all voters believe that the news media fabricate news stories about President Trump.” He went on to say that even though three-quarters of the public think the media is biased, three-quarters of the public also think that the media is important in keeping politicians accountable.

Media bashing is not a new phenomenon. Leiby noted that Thomas Jefferson was not always a fan of how he was portrayed by the press during his Presidency and famously said, “Nothing can now be believed which is seen in a newspaper.” 

In that same breath, Leiby quoted a letter Jefferson wrote to Edward Carrington in 1787 on the subject of freedom of the press:

“And were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.”

He ended his introduction with a call to action: “Report as rigorously as possible. Nothing is riding on it except the freedom of the press, the first amendment, and maybe the future of the country.”

Robert Blau, a managing editor at Bloomberg News, echoed Leiby, “The cries of fake news come daily, the very legitimacy of reporting has come into question.”  He referenced the reporter who was body-slammed by Montana Congressman Greg Gianforte and the recent murder of the investigative journalist Daphne Caruana Galizia in Malta. 

From left to right, Professor Deborah Hellman and Robert Blau, Managing Editor at Bloomberg News, speak at CLG Symposium. Photo courtesy of Eric Hall.

From left to right, Professor Deborah Hellman and Robert Blau, Managing Editor at Bloomberg News, speak at CLG Symposium. Photo courtesy of Eric Hall.

“How did this remarkable shift come about?” posed Blau. He surmised it was a building combination of mistakes of judgment, the inability to read carefully ideological shifts, and the failure to report on stories that have been hiding in plain sight for decades (like sexual harassment at the hands of public figures and the opiod epidemic). 

Paige Lavender, Senior Politics Editor and Assignment Editor at Huffington Post, focused on the problem of perception. “People have different understandings of what truth is,” said Lavender. “You can’t just say ‘Trump tweeted this’ without immediately getting pushback.” 

Lavender gave the example of the announcement by President Trump that transgender service members are no longer welcome to join the military. Soon after, CNN reported that Trump did not speak to the Joint Chiefs of Staff before issuing the ban. “Just repeating those facts directly puts into people’s minds a bias.” 

“Even when you are working in facts there will be some interpretation, and that’s something that I think about every day and am mindful of in my reporting.”

Peter Hasson, an associate editor at The Daily Caller, suggested that the most serious problem facing journalists now is the lack of trust, which he says underscores the importance to have honest journalism in all arenas.

“It’s not entirely surprising that as people segregate themselves politically, they are doing it in how they consume their news as well.” Hasson elaborated, “There are going to be people who don’t trust the Washington Post, even though it produces great journalism, and will turn to sources like Alex Jones or Breitbart, and that’s not good for anyone.” He ended with the point that it is the responsibility of right and left leaning publications to report the facts, regardless of what their audience wants to hear.

Michael Barthel, of Pew Research, and Dr. Meredith Clark, a UVa Media Studies professor, participated in the second panel called “State of the Media.” Moderated by former Time reporter and 2017 UVa Law graduate Adam Sorenson, the discussion centered on the empirics of studying the media.

Barthel shared facts discerned from Pew’s polling during the election. “There’s a fifty-seven point gap in approval ratings of the media between Democrats and Republicans, the largest gap we have seen since we began tracking in 1995.” 

Fox News was the main campaign news source for Trump voters, while no single source was as pronounced for Clinton voters. 

The way Americans consume media is dramatically changing; Barthel reported that the web is closing in on television as a source for news (going from a ninteen-point gap in 2016 to a seven-point gap in 2017). Two-thirds of US adults get news from social media. 

Dr. Clark’s research focuses on the intersection of race, media, and power. “Four out of ten black people say the news they consume does not accurately reflect their community” says Clark. “The people I interview say they don’t see their communities covered in the legacy media, so they don’t look to those outlets anymore.” 

The ideological rift grows because the default news source for many Americans is social media: “Filter bubbles and algorithms mean that we can have two distinct experiences,” making it difficult to parse fact from opinion.  

The solution? Clark says, “Reach out and build trust in those communities by covering them.”

When addressing the elephant in the room, Sorensen asked, “Even when confronted with facts that may counter what they believe, some people hold to their beliefs even more strongly. What do we do?”

A difficult question, to which Barthel replied, “Now we have access to more facts than ever before, maybe we just like to watch them wiz by?” He ended by recounting a quotation written on the wall at Pew, “Give the people the facts and let them decide.”

The event concluded in an exercise and discussion called the “Bubble Challenge.” The exercise involved reading a series of articles by different publications about Army Sgt. Bowe Bergdahl, and ended with a long term charge to “consume media from sources students would not normally read for two weeks in an effort to get out of our bubbles.”

Keisha James ’18, who attended the event and participated in the exercise summarized it like this: “One of the main takeaways—for me—from the last presentation was that we should continue engaging in these conversations even if we don’t think we’ll be able to persuade someone else of our view.”

As for the challenge, “There are some ‘sources’ that I view as being abhorrent and will never view or read, but I do think I’ll consider looking at more conservative news sources as part of the challenge.” 

James said she particularly enjoyed learning more about Dr. Clark’s research on media coverage of communities of color. “I think one of the main challenges is getting more voices in the room, and making sure these dialogues are inclusive.” 

If you missed the event but want to watch the first panel, it will be posted on the UVa homepage in the coming days.

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jmg3db@virginia.edu

Clashes at City Council

Jenna Goldman '18
(she/her/hers)
Editor-in-Chief

The Charlottesville City Council meeting on Monday, October 16 attracted a crowd of over 100 residents to participate in public comment on the city council’s response to the violent “Unite the Right” rallies in Charlottesville on August 11 and 12. 

Charlottesville citizens listen to public comments. Photo courtesy of Jenna Goldman.

Charlottesville citizens listen to public comments. Photo courtesy of Jenna Goldman.

Though there were no metal detectors or bag searches that occurred before entering the City Hall building on East Main Street on the Downtown Mall, there were two police officers at the door of the building, two more at the front of the city council meeting room, and one patrolling the hall. 

Roughly twenty minutes before the start of the meeting, the room was filled and a palpable anger hung in the air. Sixty-five days after the protests, emotions were still raw. 

Vice Mayor Wes Bellamy opened the meeting outlining the agenda, from the start of the public hearing about the proposed responses to the KKK rallies on July 8, and the “Unite the Right” rallies on August 11-12. In reference to the extended public comment period, Bellamy said, “Those who are passionate in the quest for change and equity, and those who are emotionally scarred must be heard.” Each member was allotted three minutes to speak.

After the public comments the commission was slated to discuss an independent citizen review board about housing rent vouchers. Bellamy also remarked that he hoped the meeting would remain civil so the council could address the remaining agenda items.

Councilor Kristin Szakos presided over the public comment portion of the meeting and made a point that disruption and use of foul language would not be tolerated, motioning to the police officers standing in the back of the room. Protestors had shut down the previous week’s meeting.  

The meeting lasted two hours, and two dozen people stood up to speak before the council on a variety of issues. 

Many members discussed the changing of the hastily named “Emancipation Park,” formerly known as “Lee Park,” where the now-shrouded statue of Robert E. Lee still stands at the center of the downtown district, blocks from city hall. One woman suggested the name be changed to a more neutral “Charlottesville City Park” or “Court Square Park” in reference to its proximity to the courthouse. 

Another heated topic was the school district’s slow response to FBI intelligence about threats to a Charlottesville elementary school. “I’m afraid for my life every day I walk out the door, my children are threatened at school. I can’t even sleep at night,” said one resident, a sentiment that was echoed throughout the evening.

Meeting attendants passed out flyers that detailed a list of demands, including the dropping of charges against DeAndre Harris, a black man who was beaten by several white attackers in a parking garage on August 12. The City Manager Maurice Jones responded to comments about Harris by stating that the issue is now being handled by the judiciary and will be up to the Commonwealth’s Attorney to drop or move forward with charges.  

Charlottesville citizens listen to public comments. Photo courtesy of Jenna Goldman.

Charlottesville citizens listen to public comments. Photo courtesy of Jenna Goldman.

The consensus of the meeting was “Something needs to be done. I’m hurt, I’m frustrated, and I’m tired.” Many simply wanted an apology to be made by the City Council and an acknowledgement of its failure.

Professor Molly Brady’s State and Local Government class was in attendance to observe the process of Charlottesville local government. 

Sarah Legault ’18, who attended for the class made a few observations. “The visceral tension at the meeting reminded me of the tension in St. Louis in 2014 when protests broke out in Ferguson and St. Louis City.” Legault, a graduate of Washington University in St. Louis, worked at that time for a small law firm that did work for local governments and followed the protests closely.

“I think I knew St. Louis better and felt more integrated into the community,” said Legault, contrasting her experience in Charlottesville: “I’ve been disconnected from the extent of the tension in some parts of the city.” 

 “Watching the public hearing, I felt like the city council had a hopeless job when it came to responding to the citizens’ concerns.” She said from a budding lawyer’s perspective, “There is no way to make the First Amendment seem relevant to people who feel truly threatened.”

One by one, audience members spoke about their frustration with the police department and the unequal protection of “free speech.” The frustration was best encapsulated by a comment made by one black Charlottesville resident, who motioned to his body as he said, “If I was carrying a tiki-torch, I would not have been free to go like the KKK were.”

Alli Herzog ’18 agreed. “I definitely sympathize with the frustration expressed at the meeting, that police appeared to treat the Nazis with a lot of respect and carefulness.” As for the intersection of their legal studies and the public comments before city council, “There is a communication barrier because of the legal aspects, which seems to increase frustration.” 

Legault expanded, “Discussions about the First Amendment and the law may just not be able to encompass the lived experiences people at the meeting voiced.” 

Mayor Signer weighed in, “These [events] are not free speech, this is now conduct that is meant to hurt, intimidate, frighten, threaten and make people feel unwelcome here.”

The meeting ended with Bellamy introducing a request from the Police Citizen’s Advisory Panel to amend its bylaws to have more authority in the panel’s responses. The council voted unanimously to authorize the panel to either amend its bylaws or to create a citizen review board in place of the panel to advise the Charlottesville Police Department.

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jmg3db@virginia.edu

 

Domestic Violence Awareness Month

Liesel Schapira '18
(she/her/hers)
Guest Columnist

Dean Goluboff and members of Virginia Law Women wear purple to raise awareness for the Domestic Violence Project. Photo courtesy of Virginia Law Women.

Dean Goluboff and members of Virginia Law Women wear purple to raise awareness for the Domestic Violence Project. Photo courtesy of Virginia Law Women.

Legal process is of vital importance for victims of domestic violence. Without a court order of protection (known as a restraining order in some states), victims are often unable to leave their abusers, and a cycle of violence can continue indefinitely. Because victims depend on confusing and lengthy state court processes to escape these dire situations, lawyers are instrumental to their success. 

Over the summer I saw firsthand the crucial role of lawyers as advocates for victims of domestic violence. As part of the Courtroom Advocates Program (CAP) in New York, I accompanied a young woman to Bronx Family Court as she filed for an order of protection from her ex-boyfriend. She shared a child and a home with her ex, who refused to move out after their relationship ended. He was both physically and verbally abusive to her. 

For this woman, and many others, the only way to move on or to end an abusive cycle is through the court system. She came in to Bronx Family Court because after the most recent incident of physical violence against her, she feared for her safety. She was afraid to return to the shared home, but had to go back to get clothes and supplies for herself and her son. She had no idea the process would take an entire day—nor did she realize that she would need to secure childcare for her adjournment date four days later. 

As an advocate, I was trained by CAP’s attorneys—who regularly worked with victims of domestic violence. I was armed with a manual, written by lawyers, describing the process of obtaining an order of protection in this particular court and how to craft a narrative describing the abuse. I was instructed that filing for an order of protection could take all day, and it would require a subsequent court visit a few days later. I also had a list of nearby shelters and non-profit organizations that could loan her clothing and supplies while she was sleeping out in order to stay away from her abuser. We were successful in obtaining a temporary order of protection, but that is only the very first step. 

Lawyers are crucial for victims of domestic violence because it is rare that a domestic violence case only involves getting an order of protection. Additional legal questions usually arise, such as the initiation of divorce proceedings, child support or custody issues, immigration issues, and even property issues. Allegations of physical abuse can also lead to a criminal trial. Aside from knowledge of the law however, lawyers are uniquely capable of supporting and lending their voice to victims who proceed in court. Domestic violence victims often stay in abusive relationships because they feel they are without resources—financial or otherwise, to escape. Lawyers educate victims about the legal process so that victims can leave bad situations, and move on with their lives. Lawyers stand by and lend their voice to victims in court, which can ease the re-traumatization that occurs when a victim of domestic violence has to face her abuser and recount upsetting instances of past abuse.

As we consider our future legal careers, including potential pro bono projects or volunteer activities, please keep in mind the enormous impact we can have by assisting victims of domestic violence.

If you are interested in getting involved on grounds this month:

October 16-20: Stop by the Domestic Violence Project’s table in Hunton & Williams all week where you can purchase t-shirts, thermoses, and baked goods to raise money for Charlottesville’s Shelter for Help in Emergency, an organization dedicated to assisting local women, men, and children who have been impacted by domestic violence.

October 26 at 1:15pm: Attend a presentation on forced marriage, immigration, and domestic violence (Lunch provided; co-sponsored by the Human Rights Program and the Immigration Law Program). 

October 27 at 12pm: Attend a presentation by staff from the University’s Title IX and Equal Opportunity and Civil Rights Office on processes and protections available for students in instances of sex or gender-based harassment or violence. (Lunch provided to those who RSVP to Cory at cks2fm@virginia.edu). 

November 4: Run (or walk) in a 5K on the Downtown Mall; proceeds will benefit Charlottesville’s Shelter for Help in Case of Emergency (the 5K is on Saturday, November 4th; sign up here: http://www.shelterforhelpinemergency.org/5k-runwalk-shelter/). 

Key Facts from the National Coalition Against Domestic Violence:

1 in 3 women and 1 in 4 men have been physically abused by an intimate partner

Domestic violence is prevalent in every community, and affects all people regardless of age, socio-economic status, sexual orientation, gender, race, religion, or nationality

Domestic violence can include physical violence, sexual violence, threats, stalking, economic abuse, and emotional/psychological abuse

To sign up for any of the above events, or to join the Domestic Violence Project e-mail list, please contact Cory Sagduyu at cks2fm@virginia.edu.

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lns5ah@virginia.edu

 

As Dust Settles, Law School Rises

Eric Hall '18
(he/him/his)
Managing Editor

White Nationalists rally on Main Grounds during the night of August 11. Photo courtesy of Yahoo News.

White Nationalists rally on Main Grounds during the night of August 11. Photo courtesy of Yahoo News.

On August 11 and 12, armed white men and women—shrieking, bearing oddly comical garden torches—paraded through our town. They bore assault rifles and riot shields, and they protected themselves with the Constitution we, as lawyers, will swear to uphold. Although only a few of us were literally in the line of fire, the catastrophic weekend affected all of us at the Law School in a unique way.  As UVa students, Charlottesville is our adopted home. Heather Heyer was murdered on the same street where, months from now, Uber drivers will deliver students to Barrister’s Ball. Chris Cantwell was filmed skipping past the same restaurants where law firms host receptions. To many, the name of our city is synonymous with the resurfacing of unmasked KKK members and neo-Nazis. 

Tenacious UVa students circle the Thomas Jefferson statute on August 11, 2017. Photo courtesy of Daily Progress.

Tenacious UVa students circle the Thomas Jefferson statute on August 11, 2017. Photo courtesy of Daily Progress.

    But as future lawyers, our connection to the rally goes deeper than domicile. The rally touched another institution we claim: the U.S. Constitution. When a federal court cited the First Amendment to block the city’s attempt to move the rally, the freedom of speech we defend was in turn used to defend hate groups. The gossamer line between lawful and unlawful assembly was thrust into the hands of an overwhelmed police force. In the lead-up and aftermath, county officials aided by UVa professors continue to tread the murky contours of Equal Protection doctrine. Each headlining event was fraught with uncharted legal issues. More than a month later, debate surrounding the legality of removing the Lee statue, and the interaction between First and Second Amendment law thrives in the national dialogue. 

        For many in the law school, however, the rally was a more personal assault. Rather than an adopted home or the lofty principles of our profession, the rally assaulted our innate characteristics. Their hatred was directed at the colors of our skin, the ways we feel love, and the faiths we follow. The UVa Law community—especially students and faculty of color—were shoved into the national spotlight to respond to the violence and hatred—at once its victims and its first responders. The burden of leading the response fell to Charlottesvillians, custodians of democracy, and people of all races, sexual orientations, and faiths. 

    Over the past few weeks, the Virginia Law Weekly heard from nearly a dozen law students and faculty—many of whom were in Charlottesville on August 11 and 12. We scrutinized the Deans Working Group report and the university’s official timeline of the Friday march. We found the burden spread throughout the Law School, on each of its major departments and throughout its student groups. Faculty and students rose to the challenge of either opposing the rally or mitigating its fallout. The admissions office gathered new students and fielded their challenging questions. And Dean Risa Goluboff stepped up to lead the whole university’s response, lighting the way for future towns and universities to avoid mistakes that happened here. Though we never asked for terrorists to come to our town, we dutifully hoisted the mantle of responding to them. 

A black tarp shrouds the Lee statue in Emancipation Park. Photo courtesy Law Weekly.

A black tarp shrouds the Lee statue in Emancipation Park. Photo courtesy Law Weekly.

 

August 11, 2017

 

Around 8:10 p.m. on August 11, according to the official timeline jointly produced by the University Police Department (UPD) and the Office of University Counsel, details of the surprise torchlight rally started to emerge. Rumors had been swirling since early Friday afternoon, and the UPD was frantic to connect with the organizers of Unite the Right (referred to in official documents as “UTR”). The University and Charlottesville Police Departments established cooperation early in the day which lead to the evening’s first blunder. After making contact with a UTR organizer, the Charlottesville Police Department, failing to understand that “Nameless Field” referred to a location on Grounds, told University Police that UTR refused to give a location for their march. Nearly forty-five minutes passed before the mistake was corrected, leaving both police departments barely a half an hour to prepare for the march. 

By the time the rally began, Professor Anne Coughlin and her husband were going to bed early. They had volunteered to help drive vans at 7:00 a.m. the next the morning.  No strangers to activism, the Coughlins always participate in marches and protests they believe in, and consciously decided not to be legal observers this time because they couldn’t remain impartial on the issue of racism. 

Back on North Grounds, a group of 2Ls split on the same decision. Elizabeth Sines and Leanne Chia, who would later be featured in, among others, The New York Times, decided they couldn’t be impartial legal observers. Courtney Koelbel arrived at the opposite conclusion. “[As law students,] we are in a unique position to do this job,” she tells the Law Weekly, “not everyone can do it.” But watching the protests on Friday night, Koelbel admitted she had second thoughts. “As I watched what Elizabeth and Leanne were posting and what was shown on television, I became very scared. If I hadn’t made the commitment, I might not have gone to either rally.” 

Professor Barbara Armacost made the same commitment but had a chance to preview the protestors she would be observing the next day. “I saw a group of men gathering on Nameless Field,” Armacost told the law school’s communications department, “as I watched from the parking lot in front of\Memorial Gymnasium, the group got bigger and bigger, and they began to light torches and march toward the lawn of\my university. It was one of the most terrifying and horrible sights I have ever seen. I called 911.”

According to the official timeline, at 9:52 p.m. the marchers mobilized gripping tiki torches and flying drones overhead, presumably to capture video from the air. Despite the University’s “Open Burn and Open Flame” policy that expressly prohibits burning an open flame without prior approval, and a Virginia state law that makes it a felony to burn an object “with the intent of intimidating any person or group of persons,” the University Police made no attempt to extinguish the flames that illuminate the most iconic and terrifying images from that night. They did, however, intervene to ground the drones. 

Chia and Sines were there too, keeping their distance but trying to capture video. “We knew very few [counter-protestors] would be there because it was a last -minute, surprise rally,” Chia said. By official estimates, only sixteen minutes passed from the time UTR men arrived at the Rotunda to the time police declared an unlawful assembly, but to Chia and Sines, it felt like an eternity. They watched as the UVa students circling the Jefferson statue were “punched and kicked with no one to defend them.” From their position, they saw noted white supremacist and UVa alumnus Richard Spencer, flanked by a security detail, attempt an unheard rallying cry. When the UPD finally broke up the chaos around 10:30 p.m., Sines and Chia agreed to join the counter-protests the next day. Said Chia, “I wanted to see them in the daylight, maybe I thought something would be different if they couldn’t hide their faces in darkness.”

 

August 12, 2017

 

On the morning of the rally, the Coughlins woke up to news of the Friday night march, and saw for the first time the huge numbers of angry white supremacists on their doorstep. Although they were shocked, “staying home was not an option,” said Professor Coughlin.

By 7:30 a.m., the air was already thick with tension and pepper spray. “I thought maybe the protest wouldn’t be so bad because I didn’t see any protestors in the area I was observing. But as I was walking with the group to another park I saw a man get out of his car parked on the street and start loading up an assault rifle,” said Courtney Koelbel, the 2L legal observer and a woman of color. “I was scared to be targeted,” she told the Law Weekly, “I thought maybe the official green ‘legal observer’ hat would protect me. I held onto that thought as I moved through more densely populated areas and saw more and more white supremacists.” Each of the students and faculty we spoke to recognized that their safety was at risk, and for some the police presence offered little comfort. “We were about as afraid of the police reaction as we were the white supremacists,” Professor Coughlin said, “but we were an old white couple, our organizer reminded us that the police wouldn’t use force against us.”

Precedent supported the Coughlins’ fear of a police overreaction. Only a month earlier, when robed Klansmen appeared in Justice Park, police appeared to usher the KKK members out of the crowd, and then returned only to declare an unlawful assembly and tear-gas the counter-protestors. At a recent panel discussion in Caplin Pavilion, Professor Armacost called the earlier rally “terrible optics” for the police. According to her, police insisted that counter-protestors refused to disperse, and counter-protesters insist they were never told to. Regardless of whether they felt their actions were justified, police were aware of the scrutiny they would be under in the latest rally. “That history may have affected August 12,” said Armacost.

Making sure history didn’t repeat itself was part of the reason Koelbel and Armacost were there. “As a legal observer on Market Street, I was there to hold the government accountable,” Armacost told the students at the panel discussion on September 12. “Legal observers were paired into twos, and our job was to mostly observe police, to take down the names of people who [were] arrested, to watch for civil rights violations,” said Koelbel. 

After the criticism of their overreaction to the July protests, police arguably underreacted on August 12.  By some estimates, 800 UTR protestors and perhaps a thousand counter-protestors arrived downtown. Police lined three sides of Emancipation Park and a side-street adjacent to it, leaving one side of the park open to rally-goers. By Professor Armacost’s account, police stood by passively as the fourth unguarded side was “becoming a tinder box.” 

At the First United Methodist Church, less than a block from Emancipation Park, the Coughlins led sorties into the crowd to retrieve injured counter-protestors and shuttle them to medical assistance. Professor Coughlin remembers watching a man in neo-Nazi regalia point a gun at a counter-protestor. “The experience was life-shaking; I had no idea what was going to happen at any moment.” Both Koelbel and Armacost confirm that police only watched. “As people were getting pepper sprayed and tear gassed, the police did nothing. People were pulling guns and the police only held the perimeter,” said Koelbel. At the September 12 panel, Armacost recalled asking over and over, “Why aren’t the police doing anything?”

Hours passed before police finally declared an “unlawful assembly” and the governor declared a state of emergency. Dean Kevin Donovan was just wrapping up the annual callback session that happens right before the start of callback season. “My phone started buzzing with people calling to tell me to wrap it up and get people home,” Donovan told the Law Weekly. Back at Emancipation Park, police were attempting to wrap up the rally. They closed in on the UTR protestors pushing them out of the park. “For a brief shining moment, the counter-protesters moved into the park,” said Armacost, shedding her impartiality for a moment. 

Sines and Chia described the feeling of victory in an interview with the Law Weekly. “We both had tears in our eyes; I had never felt such an outpouring of love and raw emotion. We truly did feel like we had won. There were no white supremacists in sight, and it felt like we had reclaimed our town,” said Sines. Watching from the sidelines, however, Professor Armacost retained some trepidation. With the white supremacists gone, she listened for the order to disperse that would herald a repeat tear-gassing of the counter-protestors. When no order came, Armacost literally took off her legal observer hat and approached the police line. “I wanted to confirm their decision to stand down,” she said. Although they held their position, police left counter-protestors alone. 

The victory was fleeting. When police declared an unlawful assembly, they forced UTR protestors into the streets near Emancipation Park where a young malice-filled Ohio man would fire up his black Dodge Challenger. “We were at the front of the crowd, about halfway up Water Street, when we began to hear screams,” said Sines. “[W]e both leapt to the side of the street just as a Dodge [Challenger] came barreling through the crowd. People were hit in front of us; they laid in the middle of the street. We were three feet away from being hit.”

The black Challenger that would take the life of Heather Heyer narrowly misses law students Leanne Chia and Elizabeth Sines. Photo courtesy Daily Progress.

The black Challenger that would take the life of Heather Heyer narrowly misses law students Leanne Chia and Elizabeth Sines. Photo courtesy Daily Progress.

Sines and Chia would talk about their experience later. They agreed that, while terrifying, neither had any regrets about being there. In a joint statement they released to the press, they summarized with a quotation frequently attributed to Edmund Burke: “The only thing necessary for the triumph of evil is for good people to do nothing.”

 

One Administration Cowers; Another Springs into Action

 

On Saturday the 12th, President Trump—usually a bottomless reservoir of bile spewed freely at Kaepernicks or Khans—was dry-heaving at Klansmen. As the Trump administration’s limp statements failed to denounce neo-Nazis, our own law school administration took action. In interviews with the Law Weekly, Deans Faulk, Donovan, and Goluboff each said their first concern was the safety of their students in Charlottesville. “As the dean of the law school, my first priority has to be to the people who are, in a sense, under my care are safe,” said Dean Goluboff. “My first instincts were towards my own law school community, making sure that people who were fearful, or vulnerable, or new or in town and felt like targets—which they were in a collective sense, if not an individual sense—were as safe as they could be and felt supported.”

Senior Assistant Dean of Career Services Kevin Donovan was returning home from a callback training session with students when news broke that the protests had turned violent. “We . . . reached out to a few student groups to let them know that if people felt unsafe, they were welcome to come out to our house for as long as things were unstable” said Donovan, whose first concern was for students in physical danger.an offer he also extended to 2Ls gathered at the callback session. “My secondary concern was for students who experienced a loss of a sense of personal safety because of the events.\ Concern for OGI was really third.” Thankfully, OGI appeared to carry on successfully. Although Donovan offered to call firms on behalf of students who felt they couldn’t go through with callbacks, no students asked him to. “The students showed extraordinary resiliency and strength in being able to move forward and do what had to be done,” Donovan said.

Because the rally happened on the weekend after OGI and nearly two weeks before the start of 1L classes, many students and faculty were either out of town or leaving. The ones who remained, however, may have been the most vulnerable. On that Saturday, most of the LLM students—many of whom had never having been to the United States before—“arrived in the midst of hate and violence much of which is xenophobic in addition to being racist and intolerant,” said Goluboff. According to Assistant Dean of Admissions Cordel Faulk, there was also a contingent of incoming 1Ls in town who, without a network of friends yet, “were just kind of sitting in their apartments watching, and they didn’t know anybody so they didn’t have anyone to process this with.” Although both deans were out of town, Dean Faulk recalls getting a phone call from Dean Goluboff on Saturday and putting into action a plan to support some of the new 1Ls. 

Dean Goluboff was particularly concerned for minority students. On the Saturday of the rally, Dean Goluboff took a phone call with the mother of an incoming woman of color. Her daughter had arrived in Charlottesville early as part of the Law School’s Community Fellows program only to find violence and white supremacy. “She said, ‘I’m inclined to just fly her home and have her go to a different law school. Why shouldn’t I do that?’” In talking to the Law Weekly, Goluboff paraphrased her reply, “I can’t guarantee her safety, I wish I could. And, as a mother, I understand why you might want to bring her back, but, I said, let me tell you why I think she chose us and who we are. Who we are today is just as much who we were yesterday, and maybe even more so.”

The administration’s response was not limited to comforting words, however. After her calls with the student’s mother and Dean Faulk, Dean Goluboff recruited 2L Toccara Nelson to pick up the new student. Within a half an hour the two law students were together hanging out. Nelson, hesitant to take credit for her own heroics, credited Dean Goluboff for her “amazing” leadership. “I’m very encouraged” she said. “They’re meeting with us to get our perspectives and that’s a start.”

One of those meetings happened Sunday after the rally. Dean Faulk returned to Charlottesville where he and Senior Director of Law Firm Recruiting Patrice Hayden immediately set to work reaching out to a larger group of 1Ls. “Dean Goluboff and I decided to do something to try to get them together as a group so they [could] at least talk to each other and ask us questions,” said Faulk in an interview last week. Under different circumstances, planning a large last-minute dinner might have been a challenge. “By the time I had the guest count back it was probably four o’clock in the afternoon and we were going to dinner at six-thirty.” Faulk said.So, I called Burton’s, and I talked to one of the managers there and told them what we were trying to do. And they gave us their private room, no charge, on two hours’ notice. They were amazing.”

To plan the dinner, Faulk drew on his experience from past national moments including the discredited 2014 Rolling Stone article, and the violent arrest of Martese Johnson that happened just before the open house for the class of 2018. “Unfortunately, we’re reusing lessons the lessons that we’ve learned from those terrible incidents”,” Faulk said. During the admissions cycle, the admissions team fans out across the country to “bring admits together in small groups and let them ask any questions that they have regardless of how tough they are, and then answer with utter honesty,” Faulk said, “and then invite them to come to Charlottesville to look for themselves.”

The questions at Burton’s that Sunday were, by Faulk’s own description, “really tough.” Although Faulk was unwilling to repeat them to maintain the askers’ confidentiality, he went on record to say, “The thing that impressed me most was that the 1Ls had such mature questions about what had happened, what the university had done, what the university was going to do moving forward . . . these are 1Ls who just moved to town, had not had a day of classes, and they were asking questions you would want a lawyer to ask.”

Miles away, Dean Goluboff also drew on a pool of experience supplied by tragic incidents. “There’s a listserv for everything, and it’s not something you think about as a student, but there’s a listserv for law school deans,” Goluboff revealed. Her comments, reprinted here verbatim, are a reminder that UVa is not alone:

Law schools now have joint resources to share for responding to major civil unrest, and responding to stark racial inequalities, and violence. It wasn’t that the events were the same as ours but it’s both a sad thing and a gratifying thing that there are so many places that have had to respond to these kinds of things in recent years to know that we have been gathering these resources and they’re not going to waste, that we’re sharing them each other and helping each other cope and improve.

In the days following the rally, Dean Goluboff relied on her counterparts at other law schools for their support and ideas. She shared with them her Monday email to the law school community, and read the messages they were sending to their own students. “That was when I really felt like this was a national moment,” said Goluboff. “Most of the deans felt like they had to say something to their communities who were not even in school yet. You could imagine university presidents doing that, but the law school deans felt like this was something they had to address.” Goluboff hypothesized that their special interest stemmed from the event’s unique relationship to the law and to law schools as engines of social change. 

As much as she relied on her peers at other schools, Dean Goluboff also relied on her administrators here. When she heard that Faulk and Hayden had taken a group of students to dinner, and that Donovan had opened his home, she was heartened. By her own account, she teared up when thanking them at the annual faculty luncheon. “I wrote in my email that we have to live our values of diversity and humanity and belonging,” Goluboff said, “and we did in the response to that moment. People really went above and beyond.” 

The Deans Working Group

In her message to the Law School community and her interview with the Law Weekly, Dean Goluboff applauded her school’s response to the violence and hatred. Mere days after the rally, however, her focus broadened from praising the Law School’s response to evaluating the entire University’s. Around August 18, University of Virginia President Teresa Sullivan appointed Goluboff to chair the Deans Working Group, a congregation of deans from each of the university’s schools and departments charged with evaluating and guiding the university’s response. The group’s composition was unique because, as Goluboff explained, university decision-making doesn’t usually involve the deans directly. With the working group, however, President Sullivan wanted information from sources closer to the students and faculty. The deans were also eager to open lines of communication between schools so they could better coordinate their own responses. “Just as I was fortunate to get resources from the deans of other law schools, [we wanted] to share resources from all the other schools at UVa,” said Goluboff. Sullivan charged the working group with scrutinizing the events on three levels that, broadly summarized, are (1) safety and security; (2) self-examination; and (3) academic mission. 

“We spent the most time on safety and security,” Goluboff told the Law Weekly in an interview that took place several days after the working group released its first official report on the Friday protests. Pursuant to this directive, the working group coordinated with consulting firm Margolis Healy, the University Police Department (UPD), the Office of University Counsel and others to evaluate the risk to student safety on August 11, and generate a timeline of events. 

The report, which posted on September 11, is limited in scope to the August 11 unannounced march through Main Grounds.1 Goluboff declined to discuss any of the fact-finding used to generate the timeline and report, but it is clear that university officials, including UPD officers, were interviewed for their recollections of the evening. Their subjective beliefs about how the rally was going to play out color the report’s modest proposals.  For example, the report prefaces its recommendations with the assertion that “University officials’ frame of mind was shaped by a decades-long history of non-violent protests on Grounds that led them to approach the march with the assumption that it was constitutionally protected and should be accommodated with minimal police intrusion.” Statements like these appear to justify the UPD’s passive reaction to violent torch-bearing white supremacists. Furthermore, they fail to explain why the UPD allegedly remained passive even after their assumption proved false. Taken together, they reflect a cautious working group, eager to enact concrete change without pointing fingers.

Goluboff was willing to comment on one of the reports’ more startling findings. According to the reports, University Police had two independent opportunities to extinguish the white supremacist march long before any violence occurred. They failed to take either. The report states: 

The University’s “Open Burn and Open Flame Operations at the University of Virginia” policy, prohibits open flame devices (which includes but is not limited to candles and tiki torches) on University property and facilities unless that use has been approved by the Office of Environmental Health and Safety (EHS) or the University of Virginia Medical Center Fire Protection Inspector’s Office, as appropriate, and is conducted in accordance with the Virginia State, County and City codes and regulations. 

Obviously, no office in the university approved UTR’s use of torches on Grounds, but the UPD did not think to (and was not required to) check with the proper university officials, and university officials were not required to notify UPD of approvals. Goluboff backed up the report: “We’ve long had a policy that you have to apply for an approval, but those approvals were never communicated to the police so they were never in the business of enforcing those.” Therefore, the failure to use the university’s “Open Burn and Open Flame” policy to obstruct the UTR march might be seen as a mere lapse in communication. But the report leaves open the possibility that UPD knew about the policy but mistakenly believed the protestors had a permit for their torches.

Workers pry Confederate plaques off the Rotunda's facade. Photo Courtesy Daily Progress.

Workers pry Confederate plaques off the Rotunda's facade. Photo Courtesy Daily Progress.

The official timeline shows that University police weren’t the only law enforcement present Friday night. Local Charlottesville Police (CPD) were also on hand. Neither police department attempted to enforce Virginia Code section 18.2-423.01, a state law enacted in 2002 that makes it a felony to intimidate others by burning objects in a public space. The legislative history of the act makes it clear that the law was meant to target precisely the sort of race-based intimidation the marchers sought to evince. The report cites a “lack of any recent incidents of intimidation by fire” to explain the UPD’s ignorance of it. In a certain light, that explanation is cause for celebration, but its non-enforcement surely led to violence on the steps of the Rotunda. 

Though these missteps might appear egregious, they are essentially self-correcting. Now that police are aware that these rules exist, police stand a better chance of enforcing them. Dean Goluboff agreed that some of the working group’s achievements would come from merely enforcing the laws that are already on the books, but she also told the Law Weekly about a few other changes the working group had to seek proactively. For example, the Office of Environmental Health and Safety is now required to notify the University Police about open flame approvals and the Lawn is now a designated “facility” so firearms are no longer permitted there.

Speaking about safety more broadly, Dean Goluboff showed empathy for the police and university officials who were caught off guard by the violence. She told the Law Weekly:

The mindset was that this was going to be a non-violent demonstration, and that is not what it turned out to be at all. It turned out to be intimidation and violence and threats. It blew up conventions that we had become accustomed to. And it’s not that these conventions were never blown up before, but it did so in such a dramatic fashion. And it came on the heels of other demonstrations that happened that looked a lot different. UVa is not alone in not having thought out the First Amendment and Second Amendment relationship, and in not having tailored the way we think about free speech to make sure we equip our police officers with the information and authority they need to stop violence and intimidation from happening when it comes under the guise of non-violent demonstration. The articulated stance of these groups is that they are coming to “speak,” and it is true that you have to be content neutral in responding to threats, but when speech is violent threats, well, then you might have justification. I think you’re going to see a real turning point.  That is not to say that we should develop rules that quash free speech. The goal is to continue to make the effort that it takes to make a robust free speech community. And so I have asked a number of faculty members who are First Amendment experts to think about how to come up with time, place, and manner policies that continue to foster demonstrations that are not violent. 

The working group has made progress on President Sullivan’s other two directives too. Dean Goluboff described the second piece, self-examination, as a process of “continuing to ask questions about how we are doing and what we can do better,” and reaffirming our values of diversity, inclusion, belonging, and equity. Already the University has drafted a “pan-university survey” to identify which students feel most targeted and, although the working group wasn’t directly involved, the Board of Visitors voted to remove the plaques honoring Confederate soldiers that were displayed on the face of the Rotunda. “Living those values isn’t something we say or do once, we have to keep recommitting to them.”

Professor John Mason describes his role on the Blue Ribbon Commission on Race at the Sept. 12 panel. Photo courtesy of law.virginia.edu.

Professor John Mason describes his role on the Blue Ribbon Commission on Race at the Sept. 12 panel. Photo courtesy of law.virginia.edu.

There were, however, some positions to which Dean Goluboff could not commit. One of the working group’s initiatives was to assemble an advisory group to help answer questions about the university’s “historical landscape.” The advisory group comprises, among others, historians and architects whose expertise should help the University identify what else needs to be done in conjunction with the president’s Commission on Slavery and the university. Dean Goluboff declined to say whether the Black Student Association’s demand to “re-contextualize” Thomas Jefferson’s statue with a plaque about white supremacy would be on the agenda. 

Finally, President Sullivan’s third agenda item, to examine the events through the university’s academic mission, was already under way before UTR set foot on Grounds. “We, as an academic community, will and should respond to these events by asking scholarly questions,” Goluboff said. “The relationship between the First Amendment and the Second Amendment might be [a question we] thought about before, but not nearly as much as when white supremacists and neo- Nazis arrived in Charlottesville armed to the hilt.” Indeed, the panel discussion on September 12 was planned long before the UTR rally, but it took on much greater significance afterward. 

At the event, Professor Leslie Kendrick discussed the First Amendment status of hate speech and clarified for many that the Constitution does protect it. Professor Armacost shared her observations as a legal observer during the protests. Professor John Mason from the UVa History Department described the racist origins of the Lee statue and called for its removal saying it “is no longer separable from the blood of Heather Heyer.” He and Professor Kim Forde-Mazrui disagreed subtly on the fate of our own Thomas Jefferson statue. 

Though the instruction was to generate scholarly questions throughout the university, many of the most important answers will need to come from us, the lawyers, the Bill of Rights interpreters, and law journal editors. Coming from UVa, the town where armed Nazis marched, our voices carry distinct authority. And on the question of how to treat our Founders’ legacies, our opinions, as the modern custodians of Thomas Jefferson’s legacy, are even weightier.

There is another striking quality to the working group report that, in our interview, Dean Goluboff confirmed was intentional. The report seems written for an outside audience, as if it were a guide for future towns and campuses who witness the modern face of hatred. “People are looking at us, and they are watching to see what we do and that means recommitting to our values and recommitting to our mission in ways that look different after these events,” Goluboff said. The incoming 1Ls seemed to already understand this when they had dinner with Dean Faulk and Director Hayden. We asked Dean Faulk if he sensed any fear or regret in the new students; he was categorical in his reply: “No. No, I sensed law student. I sensed resolve. They were strong. And they were glad they were here at this time. The sense I had from them is that they had a mission here, this was the right place for them.” 

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ech8vm@virginia.edu

1 https://response.virginia.edu/system/files/public/observations-improvements-uva-response.pdf

Foxfield: Off to the Races

David Ranzini '20
(he/him/his)
Staff Reporter

The bus sweeps out of the roadside hedges of kudzu and into wine country. On either side the vinyl post-and-rail fences of Albemarle County—the estates of people with in-ground pool money, but not enough for Thoroughbreds to crop the grass. Good Charlotteville people; a Lexus in the carriage house, or at least a Subaru. Seniors yoga. I’m With Her. A glass or two of wine in the evening while the grandkids play with Daddy’s Bean Boots. Were you in town for the… demonstrations? Awful. To think that we’ve become this… political... as a society. Oh yes, I know. There was just so much... rage. And to think. How many of those kids even remember what the Civil War was all about? Personally, I just wish he wouldn’t tweet so much. 

Photo courtesy of David Ranzini.

Photo courtesy of David Ranzini.

Inside the bus, more than half the seats are empty. It makes the passengers uncertain; in the air is the nervous bravado of boys trying to make new friends at sleepaway camp. Nah, dude, if I’m day drinking I’ll just get some tequila and then get beer to tide me over. I still have the nudes she sent but her personality was a little too much for me… you know? Dude I once did like ten shots of vodka and… With the women the boys search, slightly desperately, for common ground. It smells exactly like a bowling alley in here—you know, right? The sun is hot in the windows. It’s going to be a long day. 

There is Foxfield, out the left side—a ring-fenced grassy parking lot, sparsely dotted with family wagons wearing craft beer bumper stickers and Audis with bike racks. Here and there, good Charlottesville people walk to and from their cars, hand in hand with their fair-haired toddlers.We are the last of the UVa group to arrive, and as the buses pull away, it’s not at all clear where we’re going. Toward the bouncy castle? The ranks of cornhole boards? The announcer, in his best Derby-day twang, is calling a race in progress, but as Purple pulls ahead of Green in the third turn, we can see that it’s Montessori kids astride pool noodles with brown felt manes. The only horses in evidence are a team of stolid chestnuts pulling the hayride wagon round the infield. 

Photo courtesy of David Ranzini.

Photo courtesy of David Ranzini.

Finally the UVa tailgate comes into view beyond the Vineyard Vines pavilion, with a cluster of porta-potties, a jumbo dumpster, and a decent interval of open ground interposed as a tasteful hedge between us and the pony petting. 

When we reach the law school tents, the precautions seem ludicrous. Perhaps it’s the midday heat and perhaps everyone is waiting in solemn anticipation of the evening’s community moment of Dave Matthews healing, the Concert for Charlottesville, but for an event billed as UVa Law’s wild answer to Hunter Thompson’s decadent and depraved Kentucky Derby, there’s nothing more outré going on here than a knot of 1Ls wearing their church clothes and self-consciously sucking on half-lit, punky gas station cigars. From time to time a desultory circle of shotgunners form, but what’s being drunk the fastest in the shimmering heat is bottled water. A rumpled cop on a quadbike is there to show the flag, but you can tell, even through his mirrored ‘tactical shades’ that he’s got nothing much to look at and he knows it. On the other side of the fence, a rank of racing horse trailers wait in the shade, but by noon we haven’t seen so much as a trace of their occupants. One of our number has visited the children’s side of the paddock and returned with a Peppa Pig birthday balloon looped around his wrist. 

1:30. The beer is beginning to run thin. Does anyone have any liquor left? Someone disappointedly rummages through the wreckage of the food tables for an unemptied handle. The ground is strewn with Solo cups and crushed cans of Keystone. It’s a house party pregame that’s gone on too long, and the first buses don’t leave until half past two. The only riders in sight are the marshals, dressed in huntsmen’s red coats, but checking their cell phones in the saddle as they lazily pace back and forth. We’re too far from the PA to hear the announcer. A recorded hunting horn announces… what? Somewhere over yonder where the craft tent blocks the view, the faint sound of whickering and hooves. All but the last eighth of the last quesadilla has been eaten. 

Photo courtesy of David Ranzini.

Photo courtesy of David Ranzini.

Then—a rumble of distant excitement from behind the craft tent—there they go! Real racing horses with color-coded jockeys bouncing in their numbered saddles! On the horizon they round a bend behind the car park at an easy gallop and disappear from view behind a low rise. People look up, waiting a long moment for them to come around our uphill corner.

Have they rounded the bend yet? From behind the hill, the sound of hoofbeats grows, a rhythmic bass note that competes with the cell speaker party anthems. And there they are! A tight pack of racers, their jockeys crouched low over their necks. They’re gawky-looking youngsters being ridden steady, but as they cut close into the third turn fence, they’re still something to see. 

Yeah ponies! someone yells. Go ponies! 

Around the bend and into home straight the horses go, disappearing once again behind the craft tent. There is a long pause as everyone wonders what comes next. Does anyone actually know how horse racing works? Is there like, a lap 2? A shortish man in blue and white casually steps under the fence and begins to walk across the track. 

Hey dude! 

—What?

Dude! 

—I can’t hear you! 

 Watch out, dude! 

The man pulls his jockey’s helmet off and shakes out a full head of dreadlocks. Watch out?

They’re coming back! 

—No they aren’t! That’s it! 

That’s it? 

—Yeah?

… Who won? 

Not the horse with the rider in blue silks, apparently. 

The shadows lengthen and the crowds thin as the first of the buses arrive and the last of the last of the thirty-racks grow warm and flat. The horses, slick with sweat but tossing their heads and prancing in excitement, are led back to their trailers. The straggling students, bowties askew, toss bags of trash into the dumpster. The good Charlottesville people lead their tow-headed youngsters back to their cars. And that’s all. 

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dwr7ed@virginia.edu

Manufacturing an Epidemic

Julie Dostal '19
(she/her/hers)
Features Editor

The U.S. population accounts for 80 percent of opioids consumed globally. The continued growth in American opioid use and abuse has led to a staggering increase in opioid overdoses. In 2015, opioids were involved in the overdose deaths of 33,091 people.1 Drug overdoses now kill more people than cars and handguns combined.2 States experiencing the toll of the human loss, healthcare costs, and enforcements costs of the epidemic formed a broad coalition to investigate what role manufacturers may have played in contributing to the opioid epidemic. State attorneys general in forty-one states have served major opioid manufacturers and distributors with subpoenas seeking information concerning marketing, sales, and distribution of prescription opioids.3 

On September 19, 2018, New York Attorney General Eric Schneiderman announced a move by the coalition to expand its investigations into the nationwide opioid epidemic. The forty-one-state coalition is now pooling resources to address the most pressing public health issue in decades. Attorney General Schneiderman’s state has not been immune to the effects of the opioid epidemic; the crisis contributed to 2,754 deaths in New York State in 2015, a number that has quadrupled since 1999.4 Opioids accounted for a staggering 41 percent of deaths in Sullivan County, 37 percent in Erie County, and 32 percent in Nassau County.5

Since he entered office, Schneiderman has launched a multi-step strategy to address the escalating health emergency in New York. He stated at a press conference announcing the action of the coalition: “We’re committed to getting to the bottom of broken system that has fueled the epidemic and taken far too many lives.”6 Schneiderman has attempted to both ease the process of rehabilitation for opioid addicts and bring suit against actors supplying the sustenance of the epidemic: pills. His reforms include settling with major insurers to remove barriers to life-saving treatments for opioid use disorder, creating an internet tracking system so relevant prescription history is known to doctors, and obtaining an agreement for reduced-priced Naloxone, a life-saving overdose reversal drug.7 Schneiderman has also used the prosecutorial capacity of his office to convict ten licensed pill prescribers as “pill mills,” as well as cracking down on illicit drug trafficking networks.8 

Attorneys general from other states experiencing the shocking impacts of the epidemic also initiated dramatic efforts to mitigate the impacts of the crisis, starting with legal suppliers of opioids. In the past year, at least twenty-five states, cities, and counties have filed civil cases against manufacturers, distributors, and large drugstore chains that help supply $13 billion-a-year industry.9 The coalition filed suit against five major prescription opioid manufacturers and three major distributors. The strategy echoes the effort against major tobacco companies in the 1990s in attempts to lessen the increasing costs of the public health crisis. Ohio Attorney General Mike DeWine brought suit against five drug manufacturers stating, “If they’re not going to do it voluntarily, we’re going to drag them to the table and make them.”10 These suits will likely be difficult to win. 

If these companies’ representation strategy for their upcoming suits mirrors that of past tobacco litigators, the companies will settle rather than try and defend themselves against dozens, perhaps hundreds, of claims.11 Tobacco companies drove up the cost of litigation until defendants finally settled. In the 1990s, forty-six attorneys general collaborated to sue tobacco companies, reaching a settlement of over $200 billion.12 Manufacturers, distributors, and pharmacy chains are expected to argue that they cannot be held liable for what occurs when prescription pain pills travel down the supply chain. Once the pill leaves the distributor, a great number of bad actors may intervene. Pills mills, doctors who over prescribe, and patients who give or sell their prescribed medication others, all may constitute breaks in the causation chain aiming to establish responsibility for opioid manufactures and suppliers. In a blow to this defense, the D.C. Court of Appeals rejected arguments from a drug distributor that would have undermined the DA’s ability to hold companies responsible for pain pills that are directed to the black market.13

While past precedent may favor the opioid suppliers, prosecutors at all levels of state and local governments are pursuing lawsuits and policy reform to counteract the irresponsible distribution of opioids to the American people. Two congressional panels, the Senate Homeland Security and Governmental Affairs Committee and the House Energy and Commerce Committee, are also investigating the practices of the industry, much to the dismay of the massive pharmaceutical lobby. 

As prosecutors and policymakers all over the country work to reform and pursue a more effective strategy to slow the opioid epidemic, responsibility will also fall on suppliers. Pharmaceutical companies and drug distributors alike publically condemned the current status of opioid use and abuse in the United States. Teva Pharmaceuticals, a company that reported $327 million in earnings last year, released a statement asserting the company is “committed to working with the healthcare community, regulators, and public officials to collaboratively find solutions.” Proactive work in the private sector will remain imperative in efforts to deescalate the crisis. Hopefully, reform in both the public and private sector will break the upward trend in opioid related deaths and costs in 2017.

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jpe5pd@virginia.edu

1 CNN Library, Opioid Crisis Fast Facts, Edited 09.18.2017. http://www.cnn.com/2017/09/18/health/opioid-crisis-fast-facts/index.html

2 Id.

3 Kounang, Nadia, 41 State Attorneys General Subpoena Opioid Manufacturers, 09.20.2017. http://www.cnn.com/2017/09/19/health/state-ag-investigation-opioids-subpoenas/index.html?sr=twCNN091917state-ag-investigation-opioids-subpoenas0528PMStoryGal

4 A.G. Schneiderman Office Press Release, Bipartisan Coalition of AGs Expand Multistate Invetsigation into the Opioid Crisis, 09.19.2017. https://ag.ny.gov/press-release/ag-schneiderman-bipartisan-coalition-ags-expand-multistate-investigation-opioid-crisis

5 Id.

6 Id.

7 Id.

8 Id.

9 Higman, Scott and Lenny Bernstein, Drug makers and Distributors Face a Barrage of Lawsuits Over Opioid Epidemic, Washington Post, 07.04.2017. https://www.washingtonpost.com/investigations/drugmakers-and-distributors-face-barrage-of-lawsuits-over-opioid-epidemic/2017/07/04/3fc33c64-5794-11e7-b38e35fd8e0c288f_story.html?utm_term=.36efbd0ca49a

10 Id. 

11 Id. 

12 Id.

13 Id.

Champions Born From C Section

Kimberly Hopkin '19
(she/her/hers)
Columns Editor

Section C, 1L softball champions, pose for a photograph. Photo courtesy of Kim Hopkin.

Section C, 1L softball champions, pose for a photograph. Photo courtesy of Kim Hopkin.

This past Sunday at Copeley Field, North Grounds Softball League (NGSL) hosted the 1L Softball Tournament, which pitted the 1L Sections and the LLM Section against each other to determine a champion. Jonathan York, Head Commissioner of NGSL and Head PA, explains the purpose behind the tournament as “an opportunity to form close friendships both inside and outside of [the] 1L sections.” Indeed, a “perfect break from the stresses of starting 1L,” this year’s tournament was impressively run. The bracket was determined based on Dandelion results and the outcomes of each team’s first regular-season game. 

The tournament started at 9:00 a.m. with the #7 seeded team, Section C’s Cases Loaded, competing against the #10 seeded team, Section E’s Liabilit-E’s. Cases Loaded pulled ahead winning 7-6 and advanced to the next round. At 10:00 a.m., the #6 and #11 seeded teams played with Section B’s Bad News Bearisters securing a decisive victory against the LLMs1 outscoring them 9-5. Section G’s Grand Slamicus and Section F’s F is for Phenomenal commenced their offensively impressive game at 11:00 am; Grand Slamicus managed to secure a victory by scoring a hotly contested run during extra innings after the teams were tied at 9. When the Moe’s BBQ arrived at noon, Cases Loaded headed back on the field to challenge the #2 seeded team, Section I’s Inglawrious Batters. While there was some initial back and forth over the lead, Cases Loaded came roaring back to pull off an upset, winning 11-7. Bad News Bearisters then had to face off against the #3 seeded team, Section J’s Juris Daddies. The fact that Bad News Bearisters won 14-5 was indicative of the game in general. At 2:00 p.m., Section D’s Do It for the JD managed to best Grand Slamicus winning 9-8. Completing the last quarterfinal at 3:00 p.m., Section A’s Accidentally in Law dominated over Section H’s Hoos on First? by shutting them out 7-nothing with a stifling defense. 

Heading into the semifinals, Accidentally in Law completed a double-header against Do It for the JD. Benefitting from some clutch hitting up and down their lineup, Accidentally in Law prevailed over Do It for the JD 5-3. Bad News Bearisters and Cases Loaded faced off at 5:00 p.m. Reinvigorated after the break,2 Cases Loaded triumphed over Bad News Bearisters through a combination of impressive outfielding and base-clearing home runs, winning 9-5. Cases Loaded celebrated briefly and exuberantly as Accidentally in Law prepared their strategy under the shade of trees at the far end of the field. 

Photo courtesy of Kim Hopkin.

Photo courtesy of Kim Hopkin.

The final started at 6:00 pm—a double-header for Cases Loaded. In the games leading up, Accidentally in Law adhered to the 1L tournament spirit to play all section members who wanted to play, while Cases Loaded opted for the “best ten players will play” strategy. The atmosphere still elicited the sense that Cases Loaded was an underdog. Playing the first game of the tournament and dressed in mismatched blue shirts compared to Accidentally in Law’s late start time and polished jerseys certainly added to that impression. Accidentally in Law exhibited a strong defense and notable team leadership under captains Eleanor Schmalzl3 and Peter Dragna. The first inning reflected Accidentally in Law’s strength, as they pushed ahead with a 6-4 lead. However, as the Cases Loaded team captain Reese Gwin stated, “It was all about having fun—until we got to the championship. Then, it was only about winning.” That competitive attitude served the team well as Cases Loaded managed to shut the opposing team out for the next five consecutive innings. Accidently in Law slipped defensively in the third and fifth innings allowing Cases Loaded to pull ahead 10-6. Feeling the pull of defeat, Accidentally in Law strategically forced the end of the sixth inning to start a seventh inning.4 After some incredulous pushback from Cases Loaded fans5 about a new inning starting fifty-four minutes into the game, Cases Loaded team captain Jackson Stallings energized Cases Loaded players and fans alike by assuring them that, with continued effort, victory would be theirs. Seizing that slight momentum, Cases Loaded scored an additional run in the top of the seventh inning. That’s not to say that Accidentally in Law didn’t exhibit some exemplary defensive moments during the last inning. Heading into the bottom of the seventh inning, Accidentally in Law scored an early run, but, unfortunately for them, were ultimately unable to capitalize on this momentum. Cases Loaded became the champions winning 11-7. 

When asked about the win, Cases Loaded team captains stated that the team’s tenacity depended on a feeling of comradery and trust within the section: “We knew we had to have each other’s backs, and we did. We are all we have.” They also credited their non-playing section mates and PAs for supplying solid cheers and chants6 that energized the team throughout the day. And with that, both teams shook hands, retired their gloves and bats, and headed to the library to complete an impending LRW assignment.7

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knh3zd@virginia.edu

Contributions courtesy of Eleanor Schmalzl

mes5hf@virginia.edu

1 Seemingly nameless.

2 And in search of further procrastination of LRW assignments according to some team members.

3 Proud Law Weekly staff member.

4 NGSL regulations restrict umpires from allowing the start of a new inning more than 55 minutes into the game. Accidentally in Law denies the allegation.

5 Mostly Section C PAs.

6 As well as pizza and "unbelievable dance moves."

7 And for Cases Loaded, to showcase their winning trophy to leave no doubt in their classmates’ minds who the winners were.

 

Panel Confronts Enforcement of Civil Rights

Kimberly Hopkin '19
(she/her/hers)
Columns Editor

    

A panel on “Enforcing Civil Rights under the Trump Administration” brought four civil rights and diversity-focused attorneys together on Friday, September 15 to respond to the August 12 Charlottesville rallies and to discuss how lawyers can continue to work towards a more progressive America. This panel was supported by multiple UVa student groups including Lambda Law Alliance, Black Law Students Association, Jewish Law Students Association, Asian Pacific American Law Students Association, Latin American Law Organization, and the American Constitution Society, and by Gibson Dunn & Crutcher LLP.  Lambda Law Alliance President, Raphaelle Debenedetti, opened the panel by broadening the scope of the discussion from the events of August 12, in which white supremacist protestors violently clashed with counter-protestors in Emancipation Park resulting in the death of Heather Heyer, to the larger issue of ensuring equal protection under the law for all minorities.

Stuart Delery, a litigation partner at the D.C. office of Gibson Dunn & Crutcher LLP, started by reviewing the history of Confederate statues within the broader history of Jim Crow laws and the judicial system’s unwillingness to help the disenfranchised. Putting forward a theory that exclusion of black Americans from the political process in the late 19th century followed a progressive pattern of violence, restrictive voting laws, and a lack of federal enforcement of equal protection, Mr. Delery noted that current events echoed history too much.  As a former Acting Associate Attorney General in the Department of Justice under the Obama administration, Mr. Delery brought an informed perspective on the obligation to build federal judicial policy that will appropriately and vigorously protect minorities. In his opinion, the Trump administration has started a wholesale retreat from this responsibility. He cited the Arpaio pardon, withdrawal of transgender rights in schools, and restrictive voting laws. While acknowledging the allure of believing that we have no more work to do, Mr. Delery closed by urging students to push for a more perfect union and to remember that current events cannot be separated from the past. 

Chantale Fiebig, of counsel at the D.C. office of Gibson Dunn & Crutcher LLP, brought a uniquely personal viewpoint to the discussion by sharing her experiences as an African American attending UVa as an undergraduate. Born in Central Africa, Ms. Fiebig shared her African mother’s disbelief upon learning about the enslavement and subsequent disenfranchisement of black Americans when they first moved to the United States. Ms. Fiebig felt disconnected from the weight other black Americans had to bear until she attended UVa. During an orientation event, she recalled how the university played country rock music on the front lawn and rap music on the back lawn promoting a de facto segregation of students. To this day, she wonders why they couldn’t just “turn off the music, and let people talk.”  During her first experience at a protest, Ms. Fiebig recalls being marginalized by another student insisting that the protestors were protesting being black by wearing black; they were actually protesting a homophobic line in “The Good Ole Song.” She denounced those who hide behind excuses of history and tradition because they often fail to see that the history itself is what feels so oppressive. To fight against this, Ms. Fiebig advises lawyers to stay vigilant and to “choose kindness.” When discussing career options, she reminded the audience that private sector lawyers still have opportunities to contribute through pro bono work and choosing to take civil rights cases. 

Angela Ciolfi, Director of Litigation and Advocacy at the Legal Aid Justice Center and UVa Law alumna, addressed what the August 12 rally meant and what it changes. Ms. Ciolfi contended that it may have started a discussion, but that racism was present before and is still present today. Citing multiple statistics, including the fact that black Americans are stopped and frisked by police nine times more often than white Americans and that 0.04 percent of government contracts in the local area go to female, veteran, or minority owned companies, Ms. Ciolfi challenged the audience to seek structural change at the state level. Although charity and passion are important, she implored the audience to understand the need for a strategy when confronting systemic injustice. Ms. Ciolfi also reminded the audience that change is not about politics; it’s about reaching across the spectrum to build the right policies. 

The final panelist, James Hingeley, a public defender for Albemarle County and elected member of the executive committee of the Ablemarle-Charlottesville NAACP, started his remarks by commemorating the 67th anniversary of Gregory Swanson enrolling as the first African-American UVa Law student. After recounting the UVa Law faculty’s unanimous support through Swanson’s court battle, Mr. Hingeley called Mr. Swanson a hero and urged the audience to remember his legacy. Then, Mr. Hingeley pivoted his speech towards the August 12 rally and the ways the legal system could have been used to procure a better outcome. Following the July 8 protest, Charlottesville was inundated with requests to silence the white supremacist group by denying their protesting permit. Recognizing the hateful message this group perpetuated, Mr. Hingeley said the city did a poor job of communicating to its citizens that the First Amendment still allowed this speech. Rather than even insisting it was a negative consequence, Mr. Hingeley urged the audience to understand and celebrate the power of the First Amendment in combatting inequality. He felt that focusing on the expression the white supremacist groups would espouse instead of the high amount of violent threats leading up to the August 12 rally was the reason the city was enjoined from moving the protest to an area that could have been controlled better. For this reason, he pushed the importance of communicating and giving weight to the proper arguments in this type of legal work. He urged the audience to use non-violent tactics and celebrate the First Amendment even when it seems like an assault on our values. 

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kmh3zd@virginia.edu

 

The New Wolf of Wall Street

Jenna Goldman '18
(she/her/hers)
Editor-in-Chief

“As future attorneys, we must know the language of finance in order to effectively interface with clients,” says Allie Hemmings ‘18, who recently took over as Chief Investment Officer of the only student run investment organization at an American law school. Rivanna Investments began in 2010 with $100,000 of seed money from alumni and in the seven years since has grown to $160,000.

Photo courtesy of Rihanna Investments

Photo courtesy of Rihanna Investments

Despite the impressive gains, the purpose of the organization is focused on education, not risk. Its stated mission is “to promote opportunities for UVa law students to learn about financial concepts, through programming and speakers series, before entering the business world as attorneys.”

“We want to make this club accessible,” says Hemmings. “Our goal is to get everyone active in coming to meetings, even if they are coming in with zero knowledge about finance, to learn enough throughout the year to be able to give their own stock pitch by spring.” 

The organization’s investment strategy is to follow the S&P 500 Index and limits all stock pitches to S&P 500 companies. Throughout the year, students will learn about companies from the ground up in preparation for a stock pitch to the ten 2Ls and 3Ls who make up the executive committee. The executive committee then votes on which stocks to add to the organization’s portfolio. The current portfolio holds stock in companies like Apple, Boeing, Chipotle and Netflix.  

Rivanna’s emphasis on education is what initially drew Hemmings in as a member in the fall of her 1L year.  

Though she graduated with a B.A. in economics from Reed College and wrote her senior thesis on the economics of parking in Portland, Oregon Hemmings said she had to teach herself finance on the fly when she started her job in equity research. 

“I studied economics, so I understood the broader concepts, but when it came down to key words and the practical, day-to-day finance, I had to play catch-up.” Hemmings recalls, “There would be days where I would have a textbook open next to my computer, and an assignment due to my boss in an hour. I loved it, but I definitely would have benefited from the skills I learned through Rivanna at that time.” 

Adding to the difficulty of the job was that, despite her firm’s location on the West Coast, it operated on New York hours so she would arrive at work at 4:30 a.m. and leave at 3:30 p.m. 

But the most disarming aspect of starting her job, Hemmings recounts, was the glaring absence of women in her office. “Of the twelve researchers, only two of us were women. It was always disheartening to feel so outnumbered at work.” 

That’s one reason why Hemmings is looking forward to her term as Chief Investment Officer: She will be the first woman to hold the position in the organization’s history. 

“The financial field is still intensely male-dominated, and I think there are lots of reasons for that. Two of which, I believe, are the lack of accessibility to the field and the lack of approachability. If you don’t know anything about investing and you don’t see anyone you can identify with, of course you will be more reluctant to join both the organization and the field.” She says jokingly, “I mean, have you seen Wolf of Wall Street?” 

As Chief Investment Officer, Hemmings will oversee the active portfolio, teach educational programming, and facilitate the speakers series and stock pitching along with her board. “I feel fortunate to work with a board of incredibly talented and passionate people.” This year’s board also has a record-breaking number of women and students of color serving in positions, Hemmings notes.

“In the past I think students have seen us as serving a very niche interest, but I want to get the message across that finance is for everyone. It can sound very serious when you hear the term ‘investment management,’ but it’s a very fun group of members. They have a good time and we work hard to make these concepts approachable.” 

What Hemmings finds most exciting about the organization is the opportunity to learn about different industries. “My first pitch was for a cyber-security software company and my second pitch was for Ulta, which required a lot of research into makeup marketing dynamics.” 

Hemmings looks forward to focusing on renewable energy financing at Norton Rose Fulbright in the Project Finance and Power group in Washington, D.C., after graduation. 

 Rivanna Investments meets every Friday at noon, location to be announced in the weekly SBA email. Hemmings and Max Hare will be co-teaching a lesson on financial statements and valuation methods this week. Everyone is welcome.

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jmg3db@virginia.edu

Is DACA Constitutional?

Jansen VanderMeulen '19
(he/him/his)
Executive Editor

Is DACA Constitutional?

When President Donald Trump announced this week that he was ending the Deferred Action for Childhood Arrivals (DACA) program instituted under his predecessor, reaction from critics understandably focused on the consequences of the executive action. With DACA rescinded, approximately 800,000 unauthorized immigrants living in the United States will now be subject to deportation, where previously they were permitted a semblance of legal presence in the United States. Under DACA, those 800,000 or so immigrants were permitted to obtain driver’s licenses, attend college, and pay income taxes.1 With DACA now facing a March 2018 execution date, those immigrants’ continued protection from deportation is in question. President Trump has urged Congress to act, but it is uncertain exactly what sort of legislative fix he has in mind.

While the ramifications of DACA’s rescission are grave and receive more in-depth treatment in other sections of this newspaper, this columnist is stuck in 2012, when President Barack Obama issued the landmark protections for immigrants brought to the United States as children without legal authorization. Was that executive order legal? Legal scholars differ on that all-important question, and several states, led by Texas, had threatened suit against the order. States had already successfully sued to enjoin DACA’s more wide-reaching twin, Deferred Action for Parents of Americans (DAPA), which offered protection from deportation to the parents of U.S. citizens and lawful permanent residents.2  The position of those attorneys general challenging DACA’s legality can be summed up by a statement of one of their own, Attorney General Derek Schmidt of Kansas. Schmidt, in a statement to the Lawrence (Kansas) Journal-World, said, “The problem with DACA is that it is unlawful; under our Constitution, only Congress, not the president, has the power to change immigration law. Those who understandably feel strongly that the law should accommodate children brought to the U.S. at a young age and raised here would be well-advised to focus on persuading Congress to act.” Mr. Schmidt’s statement sums up the legal opposition to DACA: Congress has acted and declared that those who immigrate to the United States without legal authorization are to be subject to deportation. The president, they argue, lacks the power to unilaterally grant a sort of quasi-legal status to a group of immigrants whose presence in the United States is unlawful. That decision, should it be made, is Congress’s alone.

Not so fast, say DACA advocates. Writing in The New York Times, columnist Linda Qiu points to the Department of Homeland Security’s own DACA “Frequently Asked Questions” section, in which the department refers to DACA as “a form of prosecutorial discretion.”3,4 Scholars who support DACA’s constitutionality dispute that the program’s recipients have received any kind of legal status. Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, writing for the Sacramento Bee, noted, “[P]residents always have discretion as to who to prosecute or deport. DACA did not confer citizenship on anyone.”5 Defending the constitutionality of President Obama’s order, Chemerinsky also noted immigration’s proximity to foreign policy, which he called “uniquely in the domain of executive power and control.”6

So what does DACA do, exactly? Does it, as critics claim, create a legal or quasi-legal status for unauthorized immigrants? Or, as Chemerinsky insists, is it merely a legitimate exercise of the president’s prosecutorial (in this case, deportation) discretion? The conservative Heritage Foundation insists that DACA recipients have been granted what they call “pseudo-legal status,” saying President Obama “promised them that they wouldn’t be deported and provided them with work authorizations and access to Social Security and other government benefits” despite the fact that Congress rejected proposals to do just that.7 The liberal ThinkProgress calls that “nonsense,” citing longstanding federal regulations from 1981 that allow an unauthorized immigrant granted deferred status the right to an employment permit.8 Critics argue that granting access to benefits, confirmed reprieve from deportation, and the ability to obtain a driver’s license is tantamount to conferring legal status upon individuals whose presence in the United States is proscribed by Congress. Supporters say the limited set of benefits given to DACA recipients is nowhere close to legal status, and that the president is empowered and, indeed, required to use his discretion to decide which unauthorized immigrants will be deported.

What is clear is that this issue is highly litigable and depends greatly on how “legal status” is defined. Both critics and supporters of DACA seem to agree that the president lacks the power to confer legal status on unauthorized immigrants. They disagree on whether DACA conferred that status. Reportedly, it was the suit threatened by the Texas-led attorneys general that led president Trump and Attorney General Jeff Sessions to announce the program’s termination.9 The Department of Justice lost the battle to preserve parent-focused DAPA when the United States Court of Appeals for the Fifth Circuit upheld a district court’s preliminary injunction against the program. While the program’s end fits conveniently with President Trump and Attorney General Sessions’ well-known disfavor of unauthorized immigration, a charitable observer of the administration might argue that the Department of Justice’s uncertainty of its ability to win the suit against the state attorneys general in court led to the president’s decision. 

With the executive order now rescinded, the legal question may be moot—for now. If Congress cannot pass a fix, it seems likely that a future Democratic President would implement a similar policy. But one of this newspaper’s core values is “there is never a bad time to discuss the separation of powers.” No doubt, the debate will rage on, and if there is any hope of coming to a consensus, defining what it means to have legal status seems to be the key.

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jmv5af@virginia.edu

1 http://www.cnn.com/2017/09/04/politics/daca-dreamers-immigration-program/index.html

2 http://www.politico.com/story/2017/06/29/texas-attorney-general-end-daca-dreamers-240121

3 https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca

4 https://www.nytimes.com/2017/09/08/us/politics/why-common-critiques-of-daca-are-misleading.html?mcubz=0

5 http://www.sacbee.com/opinion/california-forum/article172670771.html

6 Id.

7 http://www.heritage.org/immigration/commentary/daca-unconstitutional-obama-admitted

8 https://thinkprogress.org/trump-admin-constitutional-case-daca-a3134e0059e3/

9 http://www.businessinsider.com/what-is-daca-trump-decision-obama-immigrant-program-dreamers-2017-9

 

DACA Repeal: What Comes Now?

Julie Dostal '19
(she/her/hers)
Features Editor

Photo courtesy of Andrew Shurtleff/The Daily Progress

Photo courtesy of Andrew Shurtleff/The Daily Progress

DACA, the acronym for Deferred Action for Childhood Arrivals, is a program created by the Obama administration in 2012. The immigration policy allows young people unwittingly brought across the border without documentation by others to receive a temporary reprieve from deportation and permission to work, study, and obtain a driver’s license. Individuals could only receive protections from DACA after meeting a series of requirements. Applicants need to have been younger than 31 years of age at the date of program implementation. Applicants must prove they have lived in the U.S. continuously since June 15, 2007 and that they had arrived in the U.S. before the age of 16. Further, applicants must show they have clean criminal records; they must not have been convicted of a felony, certain significant misdemeanors (including a single DUI), or three or more misdemeanors of any kind.1 Beneficiaries of the program must also all be enrolled or have completed high school, a GED program, or college, or serve in the military. These administrative requirements help to narrow eligible recipients to individuals most likely to further the declared purpose of the program, which was to protect from deportation eligible immigrant youths who came to the United States when they were children.  A DACA beneficiary’s status was renewable every two years based on information supplied and recorded by U.S. Citizenship and Immigration Services. This same information may now be used by the United States Justice Department to deport unprotected recipients beginning in 2018.

Following its implementation, DACA provided relief from deportation and granted work permits to unauthorized immigrants than any other immigration policy since the 1986 Immigration Reform and Control Act.2 There are approximately 800,000 DACA recipients now living in the U.S.3 Since 2015, the vast majority (81.3%) of DACA applications have been renewals. Most DACA beneficiaries arrived from Mexico (78.5), El Salvador (3.6%), Guatemala (2.5%), and Honduras (2.3%). They live primarily in California, Texas, and Illinois. The average recipient of DACA protections is 22 years old and employed. The majority are students and 17% are pursuing advanced degrees.4 

After the implementation of DACA in 2012, academics began to monitor its effects. Many found the immigration policy directly translated into positive outputs in the education and employment sectors. Research conducted by Roberto Gonzales, a professor at Harvard’s Graduate School of Education, focused on the factors that promote and impede educational progress for immigrants and Latino students. Gonzales noted that DACA has provided a “tremendous boost” to its recipients, helping them contribute to their families, communities, and the U.S. economy.5 DACA had large effects on eligible individuals’ labor market outcomes, and there is evidence that suggests it altered recipients’ education decisions. Many respondents to Gonzales’ research study reported that DACA led them to enroll in community college or in job-training programs sponsored by community based organizations. Education has been and remains a key barrier for undocumented immigrant children, with 40% failing to complete high school.6

DACA helped recipients find jobs. “69% of respondents reported moving to a job with better pay.”7 Within two years of implementation, DACA moved 50,000 to 75,000 unauthorized immigrants into employment.8 Generally, research indicates that DACA benefited labor market outcomes and increased the likelihood of employment for beneficiaries. The positive economic outcomes for beneficiaries of DACA were the same outcomes placed under scrutiny when the Justice Department commented on its concerns with the program. Attorney General Jeff Sessions stated that the program had “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.”9 

The Department of Homeland Security (DHS) has scheduled a six-month phase-out for the program. “The DHS timeline ensures that a new group of beneficiaries will lose their status and accompanying benefits every day from March 2018 through early 2020.”10 Therefore, the consequences of the DACA repeal will continue uninterrupted for the next two years, damaging the lives of hundreds of thousands of recipients and the American economy. DHS has already outlined a schedule for the loss of DACA protections. Starting September 6, 2017, DHS will not accept new DACA applications. Current beneficiaries whose status expires between September 5, 2017 and March 5, 2018 must apply for renewal by October 5, 2017. Individuals who renew their status by October 5th will keep their DACA protections for two years. The unluckiest of DACA recipients will lose their protections on March 6, 2018. The final group of DACA-protected immigrants will be stripped of their status in January or February of 2020. 

The ramifications of repealing DACA will be swift and severe for its recipients. Former beneficiaries will lose their work permits. In several states, beneficiaries will lose their in-state college tuition.11 Others will be expelled from higher education altogether, where a handful of states lifted the bar on undocumented immigrants attending public universities for DACA beneficiaries. Texas has already declared it will cancel driver’s licenses of DACA recipients, and more states are likely to follow.12 DACA beneficiaries serving in the U.S. Armed Forces will also lose their protected status and may be discharged from the military. 

Perhaps the most concerning element of the DACA repeal is that the same information that immigrants voluntarily submitted by unauthorized immigrants seeking to benefit from a government-offered immigration policy could now be given to immigration authorities for the purpose of their deportation. However, the future of DACA is uncertain. President Donald Trump urged Congress to pass a replacement piece of legislation to take the place of DACA. President Trump specifically called on Congress via Twitter to “legalize DACA.” The words of the President seem to imply he would be willing to sign into law a legislative equivalent of the DACA executive order. For the moment, the fates of 800,000 individuals raised in the U.S. remain uncertain. A large majority of the American people agree DACA beneficiaries should continue to receive legal protection. The fate of DACA beneficiaries is now in Congress’ hands.

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jpd5pd@virginia.edu

1 Stern, Mark J. “The Slow Death of DACA Will Be a Rolling Catastrophe that Trump Can’t Escape,” http://www.slate.com/blogs/the_slatest/2017/09/06/rolling_daca_cancellations_will_dog_the_trump_administration.html Slate, 09.2017. 

2 Baker, S. “Effect of the 1986 Immigration Reform and Control Act on Crime,” Stanford Law and Economics Olin Working Paper No. 412 (2014).

3 U.S. Citizenship and Immigration Services, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr2.pdf

4 Wong, Tom K., “Results of Tom K. Wong, National Immigration Law Center, and Center for American Progress National Survey,” (Washington: National Immigration Law Center and Center for American Progress, June 2015), https://cdn.americanprogress.org/wp-content/uploads/2015/07/DACA-Wong_NILC_CAP-Codebook-PDF.pdf.

5 Stern, “The Slow Death of DACA…,” Slate, 09.2017.

6 Id.

7 Wong, Tom K., “Results of Tom K. Wong, National Immigration Law Center, and Center for American Progress National Survey,” 

8 Pope, Nolan G., “The Effects of DACAmentation: The Impact of Deferred Action for Childhood Arrivals on Unauthorized Immigrants” 2014

9 Shear, Michael D. and Julie Hirschfeld Davis, “Trumps Moves to End DACA and Calls on Congress to Act,” New York Times, 09.2017.

10 Id.

11 Stern, “The Slow Death of DACA…,” Slate, 09.2017. 

12 Id.

 

 

 

 

 

 

 

 

 

Virginia Law Weekly Wins ABA Newspaper Award

 

“The Virginia Law Weekly blends its roots as a news source for the school of law community with an occasional slightly satirical tone. Its staff of roughly 20 accepts articles on any topic of interest to students from guest writers, giving access to students, faculty, and a wide cross-section of the school. The paper covered elections for the student-run disciplinary system; the denial of organization status to DREAMers on Grounds and the controversy surrounding the decision; and their SBA’s reform of its bylaws and constitution. The VLW also examined “Hoos Got Your Back,” the campus-wide initiative to end sexual violence. And we commend you on your continued commitment to discovering and sharing the truth.” 

- ABA Law Student Division award notes

Rain or Shine, We Dandelion

Greg Ranzini (he/him/his) '18
News Editor

Photo courtesy of Greg Ranzini

Photo courtesy of Greg Ranzini

Dandelion made a damp and dreary return to its traditional Friday timeslot this past week. 

It may have been a surprise to some that the event went off at all in the half-flooded Park, as NGSL’s alcohol permit did not allow for a rain-out location. However, a clever change to the traffic pattern around the wristband checkpoint and a fortuitous break in the weather allowed for a wilted Dandelion to proceed.

In keeping with our ancient traditions, the Law Weekly submits the following roast:

 Section A, named “Accidentally in Law” kicked off the event. After several false starts, however, it became apparent that they had taken “skit” far too literally, given that their dialogue was inaudible. The Shrek theme didn’t really help. Cute dog, though.

Section B followed, corrupting their section softball team (“Bad News Barristers,” get it?) into “Bad News Bear Suits” before transitioning into a left-field dig at Chris Christie’s recent beach closure scandal. With only two costumes for thirty section members, it seems sadly probable that they will return to their usual attire by the time the playoffs roll around.

Section C’s theme was, in a word, “indeCipherable.” “I Can’t Wait to ‘C’ You Again” suggested an audience member next to me; other possibilities include “unClear” and “Confused.” Whatever the case, switching to Fountains of Wayne did not avail them. “Drag, but not even committed drag,” opined another 3L nearby.

Section D went for “Do It for the (J)D,” although I have it on good authority that they were originally thinking about “Darden” before they chickened out. Even so, this was probably the best of the day, thanks to crisp choreography, solid costuming, and enthusiastic stripping.

Section E was solidly competent with “Part-E Bus Karaok-E,” a medley of 80s power ballads. Good commitment to the theme, if not particularly funny.

Section F confused us all by holding up a book labeled “Swag Statute.” Could it be that they really don’t know how to spell their section name? They do know how to dance, at least, even if their choice of “Safety Dance” deepened the mystery—as did their decision to shout “The F is for Phenomenal” at the end.

Section G’s participation seemed to be in doubt. They began with one of the longest pauses in recent memory (Sadly, not the first nor the last of the day). After several minutes, a man with a pool noodle duct-taped to his shoulders and a plastic dinosaur claw down his sleeve screamed something unintelligible into a mic, indicating that... something was happening, at least. To their credit, they did gamely attempt to continue their skit under a half-hearted rain of discarded Solo cups. I’m still not entirely sure what their theme was, but considering they had the leather jacket already, they might have been better served to just go with “JumpinG the Shark” and own it.

Section I continued the trend of taking a full three minutes to set up, although their acrobatic “I” might legitimately have taken some coordination. Their theme, “What 1Ls Expect,” proved more surprising. Apparently 1Ls expect purse snatchers to be camp stereotypes. A proper attempt at dancing prompted loud and vaguely wistful cheers.

Section J took even longer to begin. Channeling Shia LaBoeuf and shouting “Section JUST DO IT” at them had no effect. “Justice League / Soulja Boy” might have been a clever theme, but the dog they dressed in a cape looked positively terrified. “Justice League” on the trash bag capes matched well with “Superman that ho,” I guess. The judges disagreed: “Team is disqualified for animal cruelty. That poor beagle.”

The LLMs declined to participate, having seemingly concluded that America is beyond parody this year.

Official winners: 

First place: Section D. They looked horrified to learn of the “prize.”

Second place: Section I.

 

The Law Weekly’s verdict: 

Section D, followed by Section I. Well done, NGSL!

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gpr7qx@virginia.edu

Letter from the Editor

Jenna Goldman (she/her/hers) '18
Editor-in-Chief

The welcome letter from the editor of the Virginia Law Weekly usually includes quips about drinking at Bilt, war stories about gorging on free pizza, and tips on how to sneak jalapeno potato chips into 8:30am Civ Pro, ending with a desperate call for you to write for us. My first draft of this welcome letter written earlier this summer was full of such advice. As we prepared for production and I re-read my letter, it felt distant and out-of-touch with the events that transpired and the gravity accompanying the start of this particular year. 

On Friday, August 11th, the day white supremacists and neo-Nazis marched through Main Grounds with tiki-torches, our staff learned that we had won the American Bar Association’s award for Best Law School Newspaper. Instead of celebrating, I felt numb and indifferent to this accomplishment.

The award was supposed to be a celebration of free speech; the heralded First Amendment we are charged to nobly defend as lawyers and budding journalists. A right we hold dear at the Law Weekly because it affords us the opportunity to critique, to praise, to disagree, to discuss, to applaud, and to mourn all aspects of the law school. It was all the more gut wrenching to watch the armed hate groups descend on Main Grounds and the Downtown Mall because they did so under the guise of “freedom of speech.” 

Writing this new welcome letter was difficult because it invoked such feelings of guilt and hopelessness. How could I possibly welcome new students to a place where such a show of hate had occurred? How could I welcome new students when I didn’t feel welcomed back to Charlottesville myself? 

These horrific events have provided a rude awakening that we (this school, this town, this country) have a long way to go on the proverbial “arc of the moral universe” that, from this vantage point, does not appear to bend towards justice.

 Combatting racism, sexism, anti-Semitism, and homophobia are daunting tasks, and in the aftermath of the violent rally I found it nearly impossible to know where to begin. But watching the brave counter protestors fight back with markers and posters, exercising their own freedom of speech, reminded me of the positive power of words. 

We at the Law Weekly have always believed the best way to combat ignorant arguments is with informed ones. We are a stronger paper and a better school when everyone participates in the conversation. My goal for this paper is to foster discussions that educate and include all members of the UVa Law community.  

Our major initiative is to hand the microphone (or the pen – OK, keyboard) over to marginalized communities in the law school. Though many of us were told to go to law school because we “love to argue” or “can’t stop talking,” the most valuable skill I have learned in the last two years is when and how to listen. Over the course of the coming year, the Law Weekly will feature stories by those who witnessed the white supremacist and neo-Nazi rally and who participated in the peaceful counter-protests, along with an ongoing feature by many UVa Law affinity groups.

Although we all came to law school for different reasons, I suspect our motivations share a common thread: we hope to learn how to use the law as a tool to right the injustices we see in the world. All of you 1Ls have already proven to be the best and brightest. Many of you are seasoned community activists and advocates. Therefore, I will only leave you with one piece of unsolicited advice. Hold on to whatever passion it was that brought you to UVa Law and participate in organizations that help you further those interests.

So, volunteer for the Innocence Project, run for your section’s First-Year Council, join Virginia Law Women, join Black Law Student Association, or make some other positive impact on UVa Law. 1L time commitment for the Law Weekly, and most other organizations, is truly less daunting than it may seem. We meet every Monday at 6pm in SL 279 to edit submitted work, listen to Kesha, and eat free pizza (thanks Domino’s).  

Now I will end, as promised, with the traditional shameless plug to write for the Law Weekly. Whether it is your discontent with the school alcohol policy, an opinion about foreign elections, or an amicus brief for the esteemed Court of Petty Appeals, we want to publish your writing. If domestic terror groups can invoke the First Amendment, so can we. Submit your pieces to us in 800-1500 words to editor@lawweekly.org. 

On behalf of the staff of writers and editors at the Virginia Law Weekly, good luck and welcome to law school! 

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jmg3db@virginia.edu

 

Dean Welcomes Class of 2020

Risa Goluboff (she/her/hers)
Dean of the Law School

Photo courtesy of content.law.virginia.edu.

Photo courtesy of content.law.virginia.edu.

A year ago, I welcomed my first UVa Law class as dean of this law school. I spoke to them at orientation, I met with them in their small groups, and I had the pleasure of getting to know many of them individually over the course of the year. 

In many ways, I identified with them. For although I had been at UVa for 14 years already, last year, I knew, would be transformative for me. As a new dean, I would have the opportunity to meet new people, master new skills, embrace all kinds of new challenges.

So it was with real delight that I watched the Class of 2019 go through a similar transformation. I rooted for them through it all. I was thrilled that so many came up to me after their last exams to say, with appropriate pride, that they now saw how far they had traveled, that they felt like different people from when they had arrived. I knew that they would be transformed, as that is what law school does. It transforms how we think and what we can do in the world. 

As I welcome you to the Law School and you begin your own journeys, I do so from a slightly different vantage point. I can tell you now not only because your predecessors told me, but also because I witnessed it myself, that you can and will succeed in the first year of your law school adventure. You will come out the other side the same person that brought you to law school—whether it was a desire to change the world or do world-changing deals—but also a different person. You will have new skills, new ways of thinking, and new intellectual resources at your disposal.

Your first year of law school will be different from that of your predecessors, however. You are now residents of a city that has experienced immense trauma in recent weeks, and you begin your law school career at a time unlike any other. For the heaviness that carries with it, I am deeply sorry. We grieve the loss of life, and we mourn the vulnerability and alienation that so many of us continue to feel. I am confident that in time and with the support of our community, these feelings will give way to a renewed sense of security and belonging. 

My hope is that you have already witnessed that this town, this University, and this country are not defined by what happened a week ago. And I believe that you will see the profound contrast between those who marched last weekend, driven by hate, violence, anger and exclusion, and the members of this community, driven by equity, diversity, respect and love. In the week since you arrived, I hope you’ve already seen these values at play. I hope you also see the role you, individually and as a class, will play in nurturing them. You have inherited a wonderful community. It is now yours to shape, to maintain, and to deepen. 

Doing so will require deep engagement with this community and with the life of the law. I am sure you have heard that the first year of law school can be challenging. That is not because anyone has set out to make it challenging. Rather, it is because you are learning new approaches to information and to life that are just that: new. They take rigor and application to comprehend, and you will want to apply yourself with zeal as you learn them. When I was a 1L, I recall my own realization of what it would require to complete law school, the endurance it would take to master this new vocabulary and set of skills. Over time, I learned that “thinking like a lawyer”—the analytical reasoning, the precision with words and concepts—was not something that was just going to happen to me. It was something that I would participate in, embrace, and do in my own brain. I could not simply sit back and expect to become a part of the “learned profession” that is the law. I had to make myself a real partner in the endeavor. I encourage you to take ownership of the education that lies before you, and collaborate with the professors and peers that surround you. 

That does not mean, however, that studying is all you will do this year.  As I hope the admissions process has already made clear, a core value of this institution is a commitment not only to your career success, but to your thriving as a whole person. As much as you learn in the classroom, you will learn as well from your fellow students. The honest and respectful exchange of ideas both in and out of the formal curriculum is a key part of what we do here. Your fellow students will become colleagues, friends, future networks, and deeply important intellectual and professional influences on you.

I am so excited to watch you learn, grow, and transform this year. There is no better place to become a lawyer than UVa Law. Welcome, let’s get to work, and enjoy.

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goluboff@law.virginia.edu

 

Rosenbloom Award Goes to Former Teacher

Jansen VanderMeulen '19
Executive Editor

Teaching and mentoring have always been part of the life of Andrew Manns, the UVa Law 3L chosen as the recipient of this year’s Rosenbloom Award. The award honors one student per year with a strong academic record “who has significantly enhanced the academic experience of other law students by volunteering support and assistance to them.”1 Originally from Leicester, Vermont, Manns graduated with a degree in government from Dartmouth College in 2011. Before coming to UVa, Manns spent three years teaching—two in Brooklyn and the other in Austin, Texas. “My parents always cared a lot about education, and I always enjoyed teaching and mentoring,” Manns said. While in Brooklyn, Manns taught special education, primarily with dyslexic fifth- and sixth-graders, as a part of the Teach for America program. He described his experience as “very rewarding.”  In Austin the next year, Manns taught reading and writing to sixth-graders and continued to help with special education. Both districts faced substantial challenges; more than ninety percent of pupils in each district received free or discounted lunches due to low incomes. Those challenges made the work all the more rewarding for Manns, who saw the disadvantaged areas as fertile ground for the helping hand of a teacher.

So how does a sixth-grade reading teacher end up on track to be a lawyer? Easy, Manns said. As a teacher, he felt like he was in the trenches fighting social inequality head-to-head. “You work with and help your students succeed,” he said, “but you can’t do as much as you want to.” Manns sees the job of a lawyer as working to alleviate the greater causes of systematic social problems. With that goal in mind, Manns hopes either to work for the Department of Justice or to get into academia. First, though, Manns has two years of clerking ahead. After graduating, he will clerk for Judge T.S. Ellis III of the United States District Court for the Eastern District of Virginia. After that, he’s off San Francisco to clerk for Judge William A. Fletcher of the Ninth Circuit Court of Appeals. Manns said he selected his judges based on their penchant for mentoring clerks. As for advice about clerking, “Don’t count yourself out,” Manns said, noting that UVa professors are excellent resources with deep connections to many judges. Manns’ mantra about clerking would make Ruth Payne proud: anyone who wants to clerk and is willing to work for it can clerk, he said, and he highly recommends that even skeptics look into the idea.

While Manns has been involved with a wide range of activities while at UVa Law, the one he recalled most fondly was his time as a Research Assistant (RA) to Professor Rachel Harmon, whom he called “amazing.” While working with Professor Harmon, Manns had the opportunity to help her write a casebook and assist her in crafting other legal writings. He recommended that anyone who has the chance to take Professor Harmon’s Criminal Procedure class or Law and Police seminar seize the opportunity to do so. After lauding Manns’ academic accomplishments, Professor Harmon had effusive praise for what she called “his unfailing commitment to helping other students.” Professor Harmon claimed to have taken advantage of that quality often. “At my request,” she said, “he has advised several classmates and trained a bunch of my newer research assistants.” She went on to say, “All told, Andrew is a great illustration of UVa Law’s best qualities, and I will be sorry to see him graduate.” Assistant Dean of Student Affairs Sarah Davies echoed Professor Harmon’s warm comments: “Andrew embodies UVa’s spirit of community,” she said.

In addition to his position as an RA to Professor Harmon, Manns also served as an Articles Editor for the Virginia Law Review (“Sometimes you have to teach the professors things, like the Bluebook”) and as a Dillard Fellow. The latter position, yet another teaching and mentoring role, is, according to Manns, a great way to give back and get to know first-year students. Manns’ enthusiasm for teaching was evident in the giddy excitement with which he talked about his role as a Dillard Fellow. His past as a teacher, he said, helped him get students motivated for Legal Research and Writing, which first-year students sometimes find difficult. He also enjoyed watching students’ writing progress and their confidence grow from the beginning of fall semester to the time the first-year brief is turned in.

Reflecting upon his time at UVa, Manns offered up some advice for current 1Ls and 2Ls: “Take time to enjoy the place,” he said. “Law school can be stressful in a lot of ways, but this is a great community to spend three years as a part of. Spend time with your section-mates, spend time with your friends here. The work will always be here.”

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jmv5af@virginia.edu

1 http://www.law.virginia.edu/html/academics/awards.htm
 

Lynch Awarded Jefferson Medal

Anand Jani '19
Production Editor

Ali Zablocki '19
Arts Editor

Dean Golubuff’s final remark before giving former Attorney General Loretta Lynch the podium last Thursday, April 13, was, “It is not only that she has done amazing things, but she will inspire you to no end.” Dean Golubuff, holding true to Virginia Law’s vaunted Honor Code, did not lie. As the granddaughter of a sharecropper and the second black person, second woman, and first black woman to assume the title of the nation’s top law enforcement officer was welcomed to the podium by the first woman dean of UVa Law, it was hard to not to recognize the historic irony and symbolic significance of the moment. As she bestowed the Thomas Jefferson Foundation Medal in Law upon General Lynch, the University of Virginia acknowledged “the contradictory nature of its founder,” as General Lynch artfully put it. 

Photo courtesy of content.law.virginia.edu

Photo courtesy of content.law.virginia.edu

Representing the University of Virginia’s highest external honor, the Thomas Jefferson Foundation Medal is awarded jointly by the University and the Thomas Jefferson Foundation, the nonprofit organization that owns and operates Monticello. The award is also issued in architecture, civil leadership, and global innovation. General Lynch’s remarks, titled “The Role of Lawyers in a Post-Truth World,” were given in acceptance of the award. 

“When we do confront a truth, if that truth is uncomfortable or challenging, do we turn towards it to expand our world? Or do we simply yell our views more loudly? Where is our pursuit of truth today?” General Lynch began. Over the course of the next forty minutes, General Lynch wove together a narrative that explained the role of an attorney: the empathizer, the justice seeker, the nuanced observer, but, above all, the champion of and for the truth. “You are all entitled to your own beliefs, but you are not entitled to your own facts,” General Lynch fervidly declared, alluding to Daniel Patrick Moynihan’s famous maxim. Continuing in this vein, she emphasized that mere repetition of a claim does not make it true. On the contrary, General Lynch propounded the idea that truth is the product of maintaining a breadth of perspective and “the openness of mind necessary to see both sides of an issue,” or, as the case may be, all facets of a problem rather than a simple dichotomy of black and white. It was clear that in her mind, truth unblinded by dogma is the foundation of law, which in turn is the most powerful tool with which to fight injustice and promote equality. “Facts mean truth, and once we adhere to truth, the law comes to our aid naturally,” is a Gandhi quote which General Lynch repeated for emphasis. 

Throughout her remarks, General Lynch grounded her reasoning in anecdotes from her life in public service, including as Attorney General and U.S. Attorney for the Eastern District of New York. She advocated for a fact-based approach to voting rights and in implementing community policing initiatives, noting that those communities with the most successful such initiatives have made pointed efforts to include the people whom they are meant to protect in planning them. Additionally, General Lynch emphasized the importance of public service regardless of which political party is in power, noting that, even if on a personal level one does not support policies being implemented or believe they serve justice as one may hope, there is valuable training to be had, and ultimately such experience may prove valuable in attaining leadership positions through which greater influence may one day be exerted.

It was evident from the time the law school announced the title of General Lynch’s speech that the 2016 presidential election would loom heavily over the talk. However, aside from a few brief mentions, General Lynch refrained from directly referencing the election or mentioning names. Instead, the former Attorney General opted for a broader theme of how distrust erodes the foundations of democracy and how common truths must be accepted by all. 

In particular, General Lynch built on the idea that because truth is not the sole property of one faction of a conflict and, rather, each side’s unique reality informs its perspective, the distillation of all sides’ truths is necessarily the starting point of successful problem-solving. In searching out truth and considering these dual perspectives and realities, compassion and understanding are key. Finding a platform from which to solve the existing problem is the paramount consideration, not convincing the opposing side that they are wrong. Unless such common ground can be found—whether in public or private practice—there can be no solid ground from which to build a solution. As General Lynch succinctly put it, whenever a client walks in the door, his or her complaint is likely only a symptom of an underlying problem. In order to figure out the true concern, it is necessary to actually spend time with them. 

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ahj3ez@virginia.edu

amz2ea@virginia.edu

 

 

Gorsuch Survives Nuclear Fallout

Jansen VanderMeulen '19
Executive Editor

More than a year after Justice Antonin Scalia died unexpectedly, the Senate last week confirmed Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to take Scalia’s place on the Supreme Court; he was sworn in earlier this week. Gorsuch was confirmed Friday by a vote of fifty-four to forty-five, with three Democrats joining all fifty-one present Republicans to confirm President Donald Trump’s nominee for the nation’s highest court. A day before, the Republican majority failed to overcome a Democratic filibuster of Gorsuch’s nomination, with only fifty-five of the sixty senators needed voting to move Gorsuch’s nomination forward. In response, Senate Majority Leader Mitch McConnell (R-Ky.) invoked the so-called “nuclear option,” replacing by majority vote the longstanding sixty-vote threshold for Supreme Court nominees with a simple-majority requirement.

The battle to name Scalia’s replacement has roiled the Senate and drawn cries of hypocrisy from Republicans and Democrats alike. In March of last year, then-President Barack Obama nominated Judge Merrick Garland of the D.C. Circuit Court of Appeals to take Scalia’s place, but the Republican-controlled Senate declined to act on Garland’s nomination. Shortly after Obama announced Garland as his pick, McConnell, citing Senate tradition, announced the Senate would refuse to hold hearings or a vote on any nomination made for the Supreme Court during the year of a presidential election. Democrats cried foul, noting Garland’s sterling credentials and moderate profile. They decried Republicans’ refusal to hold hearings on Garland’s nomination as a breach of Senate norms and an escalation of the judicial nomination wars that have raged in the Senate for decades. 

The nuclear option has been looming over judicial nominations for more than a decade. Invoked for lower court nominations by then-Senate Majority Leader Harry Reid (D-Nev.) in 2013 to end what Obama called a “pattern of obstruction,” the procedural change to allow simple-majority cloture for judicial nominees was floated most prominently in 2005 by Republicans frustrated with Democrats’ filibuster of several of then-President George W. Bush’s lower court nominees. That crisis was averted by the efforts of the so-called “Gang of 14,” a bipartisan group of senators that agreed to allow streamlined consideration of Bush’s nominees while keeping the sixty-vote threshold in place. This week, that agreement proved to be a temporary reprieve for the Senate’s beleaguered sixty-vote threshold. Each side blames the other for the escalation in the judicial wars. Republicans point to Democrats’ defeat of Robert Bork’s nomination to the Court in the 1980s and Reid’s invocation of the nuclear option for lower court nominees in 2013. Democrats counter by accusing Senate Republicans of an unprecedented blockade of lower court nominees during the tenures of Obama and President Bill Clinton.

Few deny that judicial nominations have become vastly more polarized along partisan lines in recent decades. Within living memory, Supreme Court nominations were relatively uncontroversial affairs. In 1986, Scalia was approved with ninety-eight senators voting aye and none voting to reject, while his ideological opposite Justice Ruth Bader Ginsburg was approved ninety-six to three just seven years later. Such margins are unimaginable today. While Chief Justice John Roberts was approved with seventy-eight votes in 2005, bipartisan support for nominees has waned recently, with Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan all receiving fewer than seventy votes despite solid credentials. Meanwhile, lower court nominees of presidents of both parties have met with increasing obstruction. Republicans declined to hold hearings for many of President Clinton’s lower court nominees in the late 1990s, while Democrats successfully filibustered several Bush nominees and delayed many others in the mid- 2000s.

No matter on whom can be laid the blame for the increasing bitterness of the battles over presidents’ nominees to fill the courts, Republicans’ decision to deploy the nuclear option works in their favor, at least in the short term. Scalia’s seat will now be filled by Gorsuch, seen by most as a reliable conservative during his time on the Tenth Circuit Court of Appeals. While Scalia was a symbol of American judicial conservatism, his devotion to originalism occasionally led him to side with the Court’s liberals on such issues as the Sixth Amendment’s Confrontation Clause and the permissibility of technologically advanced searches and seizures under the Fourth Amendment. It is unclear if Gorsuch holds similar idiosyncrasies, or if his jurisprudence will tend more toward the mold of a conventional conservative like Alito. 

Assuming Gorsuch fulfills the ideological expectations of critics and supporters alike, hisconfirmation leaves the Court in roughly the same ideological position it held before Scalia’s death: four more-or-less conservative justices, four more-or-less liberal justices, and conservative-leaning-but-swingy Justice Anthony Kennedy. Kennedy will celebrate his eighty-first birthday this summer, and Ginsburg, the ideological heart and soul of the Court’s liberal wing, just turned eighty-four. Should either Kennedy or Ginsburg retire in the next three years, the Court would be poised for a dramatic ideological shift to the right. With the sixty-vote threshold for Supreme Court nominees now a thing of the past, little would stand in the way of Trump filling either seat with another name from the list of possible justices he provided during the campaign. Any of those jurists would likely be far more conservative than Kennedy and Ginsburg. For now, the Senate’s nuclear showdown looks like a major win for Trump and Senate Republicans. But political winds shift, and no party remains in control forever. What looks like a clear-cut victory for Republicans today will likely aid Democrats one day as well. One thing is certain: the partisan battles that have politicized Supreme Court nominations show no sign of abating. Bitter though the fight over this vacancy surely was, the Senate’s decision to go nuclear means there is no reason to believe the next vacancy will prove any smoother.

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jmv5af@virginia.edu

1 https://www.washingtonpost.com/news/powerpost/wp/2016/03/16/republicans-refuse-to-budge-following-garland-nomination-to-supreme-court/?utm_term=.b044d23c2b45

2 http://www.myajc.com/news/national-govt--politics/senate-democrats-slam-republican-blockade-garland-visits-capitol-hill/QNSaadfG00NEgLwRI9RCtL/

3 http://www.politico.com/story/2016/08/obama-courts-judicial-legacy-226741

4   https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.b3402f89cbf7

5   http://www.nbcnews.com/id/7384708/ns/politics/t/gop-eyes-nuclear-option-judges/#.WOrlPIjys2w

6   http://www.cnn.com/2005/POLITICS/05/24/filibuster.fight/

7   https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm

8 Id

9   http://www.npr.org/templates/story/story.php?storyId=4575047

10   http://www.nbcnews.com/id/7384708/ns/politics/t/gop-eyes-nuclear-option-judges/

11   http://fivethirtyeight.com/features/neil-gorsuch-supreme-court-trump/

12   http://articles.latimes.com/2011/nov/24/nation/la-na-court-scalia-20111125

13 http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_was_often_a_friend_of _criminal_defendants.html

The Solar Option

Julie Dostal '19
Features Editor

What do you think about putting solar panels on the rooftops of UVa Law? Would you care if you could see them or not? What if they paid for themselves in ten years or fewer? You wouldn’t be the first person to think about it. Our law school is actually a pretty good candidate for rooftop solar panels. Anyone who enjoys being outside in the courtyard knows why. We’re in a sunny spot: a simple truth we can capitalize on. Some estimates suggest the average payback period for rooftop solar instillations is seven years, after which time the system begins making money. Whether or not you’re excited about solar as way of reducing emissions, putting solar panels on the roof could save the Law School money on its energy bills. Those funds could then be spent on other important law school expenditures, like buying fancy lunches for students.   

Photo courtesy of Andrew Shurtleff

Photo courtesy of Andrew Shurtleff

In 2009, the University of Virginia Board of Visitors (BOV) pledged to reduce the University’s green house gas emissions twenty-five percent by 2025. Thus far, UVa is not on track to meet its emissions reduction goal. The production, use, and conservation of energy are the primary challenges preventing UVa from meeting its reduction target. The University has engaged in the easiest actions to reduce emissions. There was a noticeable five percent reduction in emissions between 2014 and 2015; however, the warmer weather, increased use of natural gas, and emission reductions from stationary sources accounted for 144 percent of this promising statistic. In order for UVa to meet its reduction objective, the administration will need to take bolder action. 

Notably, in 2016 and early 2017, the BOV and the Grounds Committee made sustainability a major goal for the upcoming year. For the first time, the Office of Sustainability is currently working on step one of a Carbon Action Plan and a Rooftop Solar Inventory. In December of 2016, Facilities Management and the BOV announced a 21 Megawatt King William County solar facility with Dominion Virginia Power. Darden Business School is actively participating in the project. By 2020, Darden’s portion of the project will enable the school to achieve its carbon neutrality goal for Scope 2 emissions. Darden’s administration is also considering rooftop solar panels for its parking deck to address Scope 3 emissions. Currently, UVa is evaluating a second utility-scale solar project with Dominion. 

By installing solar panels on the roof of the Law School, UVa Law has an incredible opportunity to help the University in totality with its greater greenhouse gas emission goals, while also significantly decreasing its own carbon footprint. UVa facilities management is currently considering the possibility of placing solar panels on the roof of the school. A recent estimate of our rooftop’s potential suggests we could install a 575 kW system, one that could generate an estimated 752,596 kWh a year, or fourteen percent of the school’s current electricity load. The Law School could engage in a structured power purchase agreement, which is a financial contract that provides a price hedge against increasing energy prices and generates renewable energy certificates to offset greenhouse gas emissions. Understandably, questions regarding cost may arise when discussing alternative energy installations. A study by the Sustainable Endowments Institute evaluating seventy-nine green revolving funds in 2012 found a median return on investment of twenty-eight percent and a median payback of three and a half years. Let’s just say I wish my payback plan for law school had such a short-term payback schedule.

In addition to cost savings, UVa, and more specifically the Law School, have other key reasons to prioritize a reduction of greenhouse gas emissions. Investments in renewable energy and energy efficiency mitigate long term exposure to fuel price volatility. Also investments have the ability to mitigate long-term exposure to a potential carbon tax and negative public relations, as climate related events reflect back on the actions of major institutions. Furthermore, UVa law has the unique potential to demonstrate leadership in the field of alternative energy. UVa has failed to invest in energy efficiency at the same rate as other comparable universities. UVa has invested approximately one million dollars into energy efficiency funds compared to the 12 million invested by Harvard or the 10 million invested by Stanford. Investment in solar energy by UVa represents a valuable chance for the school to lead in large-scale sustainability and lend credibility to both the promises made by the BOV, as well as the phenomenal scholarship produced by the school on the topic of alternative energies. 

As law students, we are in an exceptional position to help UVa bring solar panels to the Law School and meet more general goals in the reduction of greenhouse gases. The Law School could set its own emissions reduction goal. This goal would likely be easily met through an investment in rooftop solar and participation in a structured power purchase agreement. UVa’s facilities management is already considering the possibility of rooftop solar panels for the Law School. As law students, we can use our voices to promote a positive viewpoint on investments into solar energy and show a greater overall commitment to leaving the Law School a cleaner, greener, and more sustainable place for future Wahoos. 

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jpd5pd@virginia.edu