One Year After August 12: UVA Law Looks Back

Virginia Law Weekly October 4, 2018

Law Weekly Staff

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

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

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

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

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

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

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

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

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

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

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

Panel Looks Ahead to Next Supreme Court Term

Virginia Law Weekly October 4, 2018

Sarah-Jane Lorenzo ‘21
Staff Reporter

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

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

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

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

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

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

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

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

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

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

Clinic Students Argue Before Fourth Circuit

Virginia Law Weekly October 4, 2018

Taylor Elicegui ‘19
Features Editor

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

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

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

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

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

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

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

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

Deans Convene Political Dialogue Panel

Virginia Law Weekly September 26, 2018

Michael Schmid ‘21
Staff Reporter

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

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

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

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

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

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

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

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ms3ru@virginia.edu

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

Debate and Controversy as SBA Postpones Blood Drive

Virginia Law Weekly September 19, 2018

Jansen VanderMeulen ’19 Editor-in-Chief

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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jmv5af@virginia.edu

The Power of State Constitutions: Judge Sutton Speaks

Virginia Law Weekly September 12, 2018

Taylor Elicegui ‘20
Features Editor

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

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

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

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

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

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

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

2 545 U.S. 469 (2005)

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

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

tke3ge@virginia.edu

1L Spirits Undampened by Rainy Dandelion

Virginia Law Weekly September 12, 2018

M. Eleanor Schmalzl ‘20
Executive Editor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_______________

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

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

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

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

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

mes5hf@virginia.edu

Students Share Public Interest Summer Experiences

Virginia Law Weekly September 11, 2018

By Law Weekly Staff

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

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

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

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

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

Nashville USAO ’20: Hometown and interest in government.

Phoenix Air Force ’19: Tuition scholarship requirements.

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

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

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

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

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

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

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

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

What was your favorite “fun” summer class activity?

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

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

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

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

What was the most surprising thing about your summer?

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

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

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

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

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

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

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

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

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

editor@lawweekly.org

LLMs Attend T-Pain Concert

Virginia Law Weekly September 11, 2018

Lena Welch ‘20
Staff Reporter

A group of LLM students attended the University-sponsored T-Pain concert Saturday, August 25. While the group arrived late, they took the opportunity to enjoy the event.

“It was free, and it was in an email,” Eduardo Carvalho said.

“We read our emails,” Cosi Piehler added.

While no one in the group who attended described themselves as T-Pain fans, they did gather some important takeaways from the concert—or, one important takeaway.

“‘I’m in Love with a Stripper apparently is a hit?’” Carvalho asked for confirmation from this reporter.

With the confirmation in hand, Carvalho added, “And it was funny because I saw on Instagram the President, Jim Ryan, he went to the concert and he posted something that said, ‘I was really happy that Mr. T-Pain…he was great! Marvelous concert.’ You can check it. I saw it online.”

In fact, President Ryan’s post said, “Finally checked this off my bucket list: Mr. Pain was terrific!”

New UVa President Jim Ryan welcomes T-Pain to UVa in his inimitable style. Photo courtesy Twitter.

Terrific, indeed, but the free concert is not the only thing the LLM students have enjoyed in Charlottesville.

Carvalho and some of the other LLMs have supported the Cavaliers at sporting events, including at Virginia’s season-opening football game against Richmond. A weather delay did not prevent a group of LLM students and some of their families from attending the 42–13 win. For most LLM students who attended, it was their first time watching an American football game in person, but not for Carvalho, who once saw the New England Patriots lose in a home game.

Carvalho is not only a fan of watching sports; he is also an avid tennis player.

“I’m going for tryouts at the tennis club, but I’m thinking about the Outdoors club (OVaL). I want to go hiking and do those sorts of things. Hiking and tubing.”

Carvalho has enjoyed socializing with the other LLM students and his PAs. He even complimented this reporter before Piehler cautioned him, saying, “she’s recording that, and she’s just going to play it over and over!”

The Belo Horizonte, Brazil-native who now resides in São Paulo, said is he is actually most excited for the classes and professors at UVa Law, although some of the professors are a little intimidating. “Specifically, Jim Donovan. He was as good as I expected. In the first class, amazing. The guy is amazing. It’s so different because he told us, ‘This is not a law class. This is an MBA class.’ So, it was different. It was nice. At first, I was literally shaking because he asked us to read a really short case about Wal-Mart, and I read it, but all the other readings were big and stuff, and this was just a short case. I made some notes of what I thought and stuff, but when he started asking questions, he was asking stuff that I did not think about. And I said, ‘He’s going to call me, and I don’t know what you’re saying.’ And I was shaking. But by the middle of the class I stopped shaking, and I could speak and it was okay. It was good.”

However, Carvalho, Piehler, and fellow LLMs noted that there is another thing the LLM students were not prepared for: the frosty interiors of the Law School. Carvalho noted that he wished he had known about the heat. “I didn’t think it would be so hot.” And Ernst added, “And I didn’t think it would be so cold inside.”

The group echoed the sentiment before making fun of this reporter for the Snuggie she wears during exams and making fun of Chinny Sharma ’19 about wearing running shorts in class.

Nevertheless, the group asserted: “Every single LLM student is freezing!”

While Carvalho is excited for his year in Charlottesville with his classes, professors, LLM and JD classmates, and tons of opportunities for outdoor activities, he loves his home country of Brazil.

“I really like it here, and I think I’ll really enjoy the year here, but I will miss home. I would like to be there. We have several problems in Brazil, like violence. But our culture, it’s something very special for us, obviously. Maybe that’s like this for everybody, but in the end, I really miss Brazil. Our way of life is really good.”

lw8vd@virginia.edu

Suing White Supremacists: Elizabeth Sines '19 Takes on August 11-12 Organizers

Virginia Law Weekly August 31, 2018

Ali Zablocki '19
Articles Editor

Elizabeth Sines '19 counter-protested the white supremacist rallies of August 11 and 12, 2017. She is currently suing the organizers of the Unite the Right rally in what is reported to be “the most notable—and comprehensive—lawsuit filed against white supremacists in years.”[1]

Law Weekly Articles Editor Ali Zablocki '19 interviewed Sines about this groundbreaking lawsuit.

AZ: Let's start with the basics. Who exactly are you suing?

ES: I am one of several Charlottesville residents suing over two dozen white supremacists and affiliated groups. The most well-known defendants are probably Jason Kessler, Richard Spencer, and the KKK.

AZ: Who are you represented by?

ES: We are represented by lawyers from two firms: Kaplan Hecker & Fink LLP and Boies Schiller Flexner LLP. Roberta Kaplan and Karen Dunn are two of the lead attorneys. Karen is a former advisor to Hillary Clinton and served as associate counsel to Barack Obama. She was also a federal prosecutor. She is now a partner at Boies Schiller Flexner. Robbie is best known for representing Edie Windsor in United States v. Windsor (which invalidated a section of the Defense of Marriage Act and required the federal government to recognize same-sex marriages). She is also an adjunct professor at Columbia Law School. They both are absolutely incredible. Integrity First for America is providing financial support for the suit.

AZ: What are the claims?

ES: The main claim is civil conspiracy. We argue that defendants conspired to commit violence in Charlottesville, in violation of the Ku Klux Klan Act of 1871. In online discussions and posts, on websites like Discord and The Daily Stormer, to name a few, the rally’s organizers encouraged violence and planned how violence would be enacted.

AZ: Why did you decide to become a plaintiff in this lawsuit?

ES: I never want anything like this to happen again. No one should have to go through what the residents of Charlottesville have gone through this past year. I joined the lawsuit because black lives matter, because antisemitism is on the rise around the world and cannot be left unchecked, and because white supremacy is a disease. White supremacy will not go away by itself. And the fight against white supremacy must be waged everywhere—in our homes, in the voting booth, in our schools, the streets, and in the courts. Everywhere. The recent anniversary Unite the Right Rally that happened in DC? Lasted less than an hour and only thirty Nazis showed up. Because last year, activists relentlessly identified them, and so many Nazis lost their jobs, or were kicked out of schools, or were sued for brutalizing innocent people, particularly young black men, like DeAndre Harris.

AZ: What is the status of the suit?

ES: The defendants’ motion to dismiss was just denied by Judge Moon of the Western District of Virginia. We are expected to go to trial in July 2019.

amz2ea@virginia.edu

[1] https://thinkprogress.org/oral-arguments-begin-in-lawsuit-against-charlottesville-white-supremacists-203a1d6658dc/

Minority Rights Coalition leaders address a packed Caplin Auditorium. The event had to be moved after the original venue couldn't contain all the attendees.

In Hate's Wake, Frustration and Hope

Virginia Law Weekly April 24, 2018

**In order to avoid any “doxxing” related to this article and to protect the identities of those who agreed to speak with us, this article does not refer to the person who caused the incident by name, choosing instead to call him "the intruder." We obtained permission from everyone quoted in this article to use their full name, their initials, or to have their names omitted.

The Virginia Law Weekly has sought out various and diverse perspectives on the turmoil brought by last week’s intrusion. As a newspaper, we do not necessarily endorse the views of any of the quotations in this article, nor do we attest to the factual accuracy of the statements. Our focus is on reporting the incident as it occurred and recording reactions of members of the Law School community.

On the afternoon of Wednesday April 18, the organizer of last August’s white supremacist “Unite the Right” rally that resulted in the death of Heather Heyer paid an unexpected visit to the Law School library. His appearance—and the subsequent reactions and non-reactions by members of the Law School community—sparked days of uncertainty, trepidation, and then action at the Law School.

Word of the “Unite the Right”-affiliated blogger’s appearance at the Law School spread quickly through the student body around lunchtime. He came to the first-floor reference desk of the library and indicated that he had come to North Grounds to conduct legal research. As he moved upstairs to the second-floor study area, law librarian Ben Doherty, whose office faces out to the circulation desk, swiftly detected his presence.

“As soon as I saw him, I knew there was going to be trouble and that he would recognize me because of my work with the racial justice organizations in the community,” Doherty said. Doherty is an organizer for Showing Up for Racial Justice Charlottesville and has worked on a number of projects, including advocating for the removal of Confederate monuments and getting charges dropped against the black men, including DeAndre Harris, who were assaulted by white supremacists during the rallies of August 11 and 12. Doherty said he frequently sees the intruder at City Council meetings and has known him for years, since members of the alt-right made racist attacks against City Councilman Dr. Wes Bellamy.

Doherty told the Law Weekly, “I immediately left the library and went straight to the Dean’s office, and after discovering she was out of town, I explained to [Senior Associate Dean for Administration] Stephen [T.] Parr who was in the library.” It was then that Parr notified Main Grounds and called the police. Being familiar with the intruder’s tactics, Doherty remained away from his office and out of sight, afraid that his presence might exacerbate the already volatile situation. The tactical decision proved to be the right one: the intruder saw Doherty’s name on his office door, made a note of the “pride flag” in his window, and immediately went to the third floor to file a complaint with Stephen T. Parr about Doherty.

Doherty notified his wife and friends that the intruder was at the Law School, and that he would be removing himself for the safety of others. Those friends quickly alerted the various organizations around the city that focus on non-violent opposition of white supremacy and neo-Nazism. Geoff Schmelkin ’20 received a text from his wife, a Rabbi and member of an interfaith organization. The text warned him that the intruder was in the UVa Law Library, so he went to the second floor of the library to investigate and confirm the message.

“I quickly spotted him on the second floor,” Schmelkin told us. “Virtually none of the other students would have recognized him, and unfortunately many students didn’t even recognize his name. I recognized that he probably had a public right to use the library, but I felt something had to be done.” He went to talk to the library administration and warned them that the situation could get out of hand, and implored them to send an alert email out to students. Schmelkin then sent messages to his section and to JLSA about the intruder’s presence.

“It was difficult to figure out how to respond in a way that expressed my values but didn’t escalate the situation,” Schmelkin explained. “In the end, I felt that I had to say something. Before leaving the library to get to my 2:10 p.m. Property class, I walked up to [the intruder] with a simple message. I told him, ‘I know you have a right to use the library. But on behalf of many of the students here, I want you to know that we know who you are. We hate what you stand for. And, we wish you would leave.’ I may be one of those ‘Jewish-looking men’ that he was ranting about, and I am okay with that.”

At some point, soon after entering the library, the intruder began video livestreaming to his Periscope account, which was also broadcast on Twitter. He seemed to be egging students on in an attempt to get more publicity, though only about one hundred Twitter users were viewing the stream live at the time—many of them apparently curious law students. Comments by supporters on his livestream likely contributed to the feelings of discomfort on North Grounds. Many of the online comments were abusive and threatening with respect to the people shown on camera and toward UVa generally.

Paul K. heard the intruder was in the library, but didn’t know what he looked like, “I was walking to MyLab to get coffee and I walked past him at the free public computers. As I got closer he pointed his phone at me and said, basically, ‘Look another Jew, this school is filled with them,’” said Paul K., who is Jewish. “I honestly can’t say I was that offended, but obviously it doesn’t feel pleasant to hear.”

In a matter of minutes, approximately six police officers arrived at the Law School. About half were seen posted at the front entrances, and the other two to three accompanied the intruder as he wandered around the first and second floors of the Law School. It was not apparent whether the police were there to protect the intruder, or to stop him from harming others. Some students told the Law Weekly that the police appeared to be “protecting him.” Eyewitnesses also reported that an officer told a law professor to “go about your business,” to which the law professor replied, “My business is fighting Nazis.”

One student who spoke with us on condition of anonymity was studying on the second floor just twenty feet away from where the intruder sat. “He was videotaping, not doing any work [when I saw him]. At one point, he left the library to go to the third floor to file a complaint against Ben Doherty.” The student recalled a crowd gathering around him, also videotaping, and some-—who the student believes were mostly undergrads-—verbally engaging with the intruder. At this point, the student left and stood with friends in front of the library where they commiserated and comforted each other, all in shock. “He came back downstairs, walked toward our group and started videotaping. He was trying to catch people’s faces, so all of us were protecting our faces to make sure he didn’t get us.” It was then that the intruder started walking toward the front of the school, and the group thought they were safe to uncover their faces. “He then turned back around and started walking towards me and my friend, who was trying to comfort me. [The intruder] turned towards my friend and said, more or less, ‘With institutions like this, you always see a bunch of Jewy looking people.’”

A black law student, K.D., requested that students ignore the intruder to deprive him of the publicity he sought. The intruder seemed to mock the request as the small crowd began to disperse. K.D.’s request was amplified by various student groups who used their listservs to warn their members of the intruder. Student reaction to the requests to ignore the intruder were mixed. Anand Jani ’19 agreed that depriving the intruder of the controversy and attention he desired was the right path, telling the Law Weekly, “I trusted that the administration and local authorities would deal with the incident, which they did.” Other students thought that protesting the intruder was the right thing to do; Robbie ’19 told us, “I don't think the administration should advise students to ignore white supremacists and ‘not give him the audience he wants.’ I think the message should empower students to take whatever action they need.” The SBA email was the first on a school-wide listserv; it directed students to vacant classrooms and informed them that Dr. Gibson would be available for counseling.

Via Dean Parr, Dean Risa Goluboff communicated her personal distress, and announced she would be attending a student-organized town hall, to be held the evening of April 19 at 5 p.m.

Students applaud the librarian–activist who first identified Thursday's unwelcome visitor.

Faculty and law school staff filled the wings in support of the brave students who spoke.

A packed Caplin auditorium was the second location after the original location proved too small.

On April 19, representatives from the Law School’s Minority Rights Coalition hosted a town hall meeting in Caplin Auditorium to give students a forum to discuss their reactions and experiences, to hear from faculty members and the deans, then to break into smaller groups to come up with action items to submit to the school administration.

Before the speeches began, rumors swirled about the possibility the intruder would attend that evening. “This was a student-organized and -led event and it was not widely circulated, so we believe it is unlikely. But members of the community are here, so there’s a non-zero percent chance,” Dean Kendrick told the Law Weekly. The school’s regular security guard showed up early to be present for the event and a plainclothes officer was seated in the audience.

First to speak were representatives from the Jewish Law Students Association (JLSA), who recounted the anti-Semitic statements made while the intruder walked around the hallways. He confronted students for “looking very Jewish” and filmed another Jewish student in the hallways, saying that it was evidence of a Jewish conspiracy to harass him. He said to another student that women and Jews should not be allowed in law school.

“Stereotyping and vilification of Jews is not new; it’s the same tactics used by Hitler and the Nazis in Europe, who murdered 6 million Jews during the Holocaust,” the pair of JLSA representatives explained. “We remember those who were killed during the Holocaust every day, but the timing of his visit to the Law School was not lost on Jewish students, as Yom HaShoah, the Holocaust Remembrance holiday, was last Wednesday.” They ended their remarks by explaining the Jewish concept of tikkun o’lam, that the world was created broken and everyone has the responsibility to make their communities whole and the world a better place.

Representatives from BLSA followed with their remarks about the event. Courtney Davis ’20, BLSA’s education chair, related to the group how she stepped out of the library briefly during the incident, leaving her belongings at a table on the second floor. Davis recounted how having to leave the library made her feel. “People were trying to be helpful by asking me if they could grab my backpack for me,” Davis said. She explained her feelings of embarrassment and alienation in that moment—that this was no longer her school if she did not feel safe to go into the library because of the color of her skin.

“Later in the day I stopped into the library to print,” recalled the second speaker. “Someone who I didn’t know asked me if I was doing okay. I appreciated that check-in from a member of our community.” The speaker ended by challenging those in the audience to “think critically about what being an ally looks like.”

Alex Viner ‘20, a representative from Lambda, took to the stage next, and said, “At first I didn’t know who this person was, so I looked at his Twitter account.” Notably, a majority of students who spoke to the Law Weekly had also never heard of the intruder before Wednesday. “After scrolling through and reading his feed, I called my mom, whose family were refugees from the former Soviet Union who came to the United States to escape anti-Semitism.” According to Viner, after he told his mom what he had seen, she replied, “This is what we were escaping.”

“My experiences were really frustrating,” said Adele Stichel ’19, Lambda’s second representative. “ I was told that the police had done a walk-through, but this is someone who will provoke people or even punch people. I was afraid he would bump into someone and accuse someone of assaulting them. He knows how to manipulate the criminal justice system—he is dangerous.” Stichel said that one of the police officers asked her why she was there, and accused her of making the intruder feel unsafe. Taken aback by the question, Stichel suddenly felt alone in the confrontation with the officer, until she turned her head and saw a group of classmates standing behind her. “They had my back.”

Robbie ’19, former president of LALO, and A.D., a member of SALSA, addressed the fact that many students had trouble concentrating in class, some decided not to attend class at all out of fear that the intruder carried a weapon. “What a privilege it must be to have this event occur and it not affect you.”

Michelle and Stanley represented APALSA in their speech at the town hall. Michelle began by exclaiming, “I don’t have time for this!” The statement was met with nods and snapping fingers in agreement. “Nobody acknowledged this was happening, [and] I was reevaluating why I came here. I felt like I didn’t matter because of the color of my skin,” Michelle said, echoing the anger felt by many students of color on Wednesday. “If the school is serious about the school’s commitment to inclusion, we should change our curriculum to have classes that talk about [race], and professors that acknowledge that.”

Stanley was also present at school during the event and witnessed the intruder walk around the first floor while videotaping students. "He was telling the police that he felt threatened by the crowd, and that he was just minding his own business in the library when students came to harass him. But that’s not what happened,” Stanley told the Law Weekly. Other students interviewed confirmed that the intruder came to the library without pens or paper; one witness said they saw him pull an old statute book from the shelf—despite the unwelcome visitor’s claim that he came to the law library to conduct legal research on his current cases.

“I think he came here because he felt emboldened as a white supremacist to step into this school to make his point. He must not have felt very threatened [when he chose] to stay on Grounds for over an hour, walk through our halls and library, stream his tour here to his followers on Twitter, and look at a student and say, ‘Why is it that these really Jewish looking guys are always the ones that are running their mouths?’" recalled Stanley.

Courtney Koelbel ’19, Director for the UVa National Lawyers’ Guild chapter and a representative of Women of Color, was a legal observer during the rallies in August, and felt the memories of trauma from that day flood back to her on Wednesday. “On August 12, I watched as Nazis walked passed me, that all came back to me when I heard that [the intruder] was in the library.”

Doherty was the first member of the faculty to speak at the town hall event. He reminded students that there is a “community of people in the town that are here to love and protect all of you as well,” pointing to about a dozen community members gathered in the audience. “I have confronted [the intruder] in public settings and I have been outspoken in the resistance to his views and settings,” Doherty said, but he acknowledged that he did not want his activism to put people at his place of work in danger. “I will continue to confront [the intruder]’s racist views and actions,” Doherty said, and encouraged students to do the same. “You all have power, you really do,” he said, while asking students to contact members of the administration at UVa to issue a no-trespass order. In a moment of levity, Doherty announced, “We will be cooking grilled cheese in the library, and [that man] can’t have any.” His statement was met with whoops and cheers from the audience.

Professor Anne Coughlin spoke next, discussing her ongoing efforts to pursue legal action against the intruder and other white supremacists who threaten students and community members. She began her work even before the August 11 and 12 rallies. “I kept telling people, ‘don’t worry, we will get him next time,’ but this was the next time.” She believes that by now the University Police have gathered all the facts needed for UVa to issue a no-trespass order against the intruder and for Albemarle County to bring criminal charges against him and other perpetrators of the violence on August 11. She urged students to get in touch with the Commonwealth’s Attorney and demand that the individuals be brought to justice. Professor Coughlin also encouraged students to continue protesting and demanding action against known white supremacists by UVa. “Contact your local [Board of Visitors] member; tell them I sent you.”

In a tearful response to student questions about why the school did not issue an email until six hours after the event, Dean Kendrick and Dean Goluboff jointly apologized to the audience. “I want you all to know how glad I am to be here, how proud I am of all of you. We can do better and we will do better. I apologize, I see that was my job to protect my students and I failed,” said Dean Goluboff. At the time of the incident, she was travelling in the Northeast and Dean Kendrick was in Richmond preparing for oral arguments, which she gave before the Virginia Supreme Court the morning of the town hall. Stephen T. Parr took the reins and the deans collectively spent time weighing their response. During the library incident, the intruder confronted Dean Parr in an attempt to file a complaint against Doherty, who was remaining out of sight.

Both deans stayed for the entirety of the town hall and participated in the brainstorming session. “I have enormous pride; I am looking forward to hearing what you come up with. My door is always open, my door is always open,” said Dean Goluboff. Many students who spoke to the Law Weekly remained critical of the administration’s response, but felt the apology was genuine and trust the deans will implement the suggestions given by students during the brainstorming session.

In a formal statement, the deans reiterated, “Our students and the Law School community responded to this event in the most constructive way possible. Going forward we will be listening to our students and communicating with them about our obligations under university policy and the law. As always, we will face challenges together as a community.”

Schmelkin also noted after the deans spoke, “I hope people are able to recognize how profoundly Dean Goluboff and Dean Kendrick have been impacted by the alt-right, and not only in their professional capacities. I know that they stand shoulder to shoulder with the students who showed up to the town hall. Charlottesville, UVa, and the Law School will doubtless have future run-ins and confrontations with [the intruder] and the alt-right. The students, staff, and faculty at the town hall give me hope that we will manage whatever comes our way.”

The action items discussed varied from crisis-situation training and instant notifications; setting up a clear chain of command; implementing a diversity class requirement along with PR and Professional Skills classes; and using funds from the Bridge Project to encourage conversations among diverse groups. Other suggestions included printing and distributing “Know Your Rights” pamphlets that students may use in real time should another event like this occur where police are present.

The importance of a unified emergency response system was highlighted by one black student who spoke to the Law Weekly: “I was heading to the library with my softball bat in hand at that time because I had a game at 6 p.m., which is totally innocent and also a very UVa Law thing, but I imagine a large black man coming near the intruder with an aluminum bat would not have been seen in the light most favorable to me, and this potentially incendiary situation was only prevented because I was alerted to the situation and knew not to go into the library with a bat via the Lambda GroupMe.”

“We attend a public school, and I recognize that means our facilities are open to the public—as they should be. But, when someone comes to this school with the sole intention of inciting hate, fear, and anger, they must be stopped,” said Hannah Fraher ’19. Agreeing with Professor Coughlin’s speech, Fraher said, “He has no place here, and I wholeheartedly support putting him on a no-trespass list to prevent him and his kind from coming here and splintering the unity we are working so hard to build.”

Every student who spoke with the Law Weekly had different and nuanced reactions to the events. Some drew comfort and solidarity from those who engaged with the intruder, and said, “To remain silent would tell other white supremacists that they too are welcome here, and to remain silent would be to do the work of white supremacy of dividing ourselves into those who belong, and those we leave behind."

Others felt deeply unsafe, and worried that engaging with him would incite his cronies. “His Twitter followers are neo-Nazis and white supremacists; he came here to give them a show. I am Jewish and was personally afraid that engaging him would fuel the fire to recreate August 11 at the Law School,” said one student who spoke to the Law Weekly on condition of anonymity. “When I saw that someone had replied ‘You are not welcome at the UVa Law Library’ on one of his early tweets about going to a library to study, all I thought was ‘oh great, now his Nazi friends know exactly where to show up.’ Holding up a sign that says ‘Blood on Your Hands,’ may to some feel like a gesture of solidarity, but I would rather get genuine solidarity from my classmates 364 days out of the year than just once a spectacle is already occurring. Only one person texted me to check in after the event.”

K.D., the student who requested that the crowd disperse, spoke to the Law Weekly about their request. "I told everyone to go back into the Law School to study when [the intruder] finally went outside. To some, this was the wrong thing to do because we have the right to show him how unwelcomed he was. To others, this was the best way to not only de-escalate the situation but to also disincentivize him from coming back to our Law School to troll.” K.D. cautioned that differing approaches should be demonstrative of the many ways to handle the situation, not to contradict each other.

The student concluded, “Silence is certainly inexcusable; however, ignoring [the intruder] last Wednesday led to action: unified action. For that, I am proud of my part in our response to his bigotry. I implore the entire Law School community to find a way to organize against white supremacy because if his presence on our campus didn't affect you, you are a part of the problem."

As the dust settles and we return to preparing for finals and graduation, the events of April 18 may fade into a blip or may be inextricably woven into the fabric of a student’s three years at UVa Law. If anything is clear from the last year, it is that racism and anti-Semitism can manifest themselves anywhere, including in our quiet college town. It is imperative that we wake up each day with the charge to make our community a more inclusive place. Students have different ideas about how to confront the ideologies that seek to divide us, but we are united in our desire for a Law School where every student can feel at home.

We are grateful for the students and faculty who spoke with us and for the patience of the Law School community while we conducted interviews this week.

Jenna Goldman

Editor Emeritus

Lile Semifinals: Collins and Macomber Will Face Burchard and Harman for Litle Title in September

Virginia Law Weekly April 20, 2018

Jansen VanderMeulen '19
Editor-in-Chief

From left to right: Katharine Collins '19 and Christopher Macomber '19. Photo courtesy of University of Virginia School of Law.

From left to right: Scott Harman '19 and Kendall Burchard '19. Photo courtesy of University of Virginia School of Law.

In the semifinal of the 2018 Lile Moot Court competition, two teams of 2Ls advanced to the final round, to be held in the fall. Kendall Burchard and Scott Harmon, arguing for the appellant Matthew Christman, prevailed over Brian Miller and Sarah Crandall, who argued for the fictional appellee, the County of Mennaker. In the other bracket, Katharine Collins and Chris Macomber, arguing for the appellee, defeated David Goldman and Amanda Lineberry, who argued on behalf of Mr. Christman.

All four teams of competitors argued in front of a panel composed of three federal judges: Judge Carol Bagley Amon ’71 of the U.S. District Court for the Eastern District of New York; Chief Judge Michael F. Urbanski ’81 of the U.S. District Court for the Western District of Virginia; and Judge Paula Xinis of the U.S. District Court for the District of Maryland, a 1991 graduate of the University of Virginia. By all accounts, the judges maintained a "hot bench,"[1] peppering the litigants with heated questions throughout the argument.

This year’s semifinal problem centered around a fictional man, Matthew Christman, fired from his job with Mennaker County. Christman alleges he was fired because he identifies as a gay man, which he claims falls under Title VII’s prohibition on discrimination on the basis of sex. He further claims that the overtly Christian prayers with which the Mennaker County Board of Commissioners typically begins its meetings violate the Establishment Clause of the First Amendment to the Constitution.

2L Jenny Lamberth witnessed the arguments between both sets of teams. "I was really impressed with all the arguments," Lamberth said. "The judges were tough, but the litigants were well prepared and did a really good job holding their own,"

Burchard and Harmon will face off against Collins and Macomber this fall in front of another panel of distinguished jurists. The finalists will argue a new problem, to be written by members of the Lile Moot Court Board. Rumor has it the Law School is seeking a Justice of the United States Supreme Court to preside over the final round, which would help to explain this year's competition's accelerated timeframe. The Virginia Law Weekly wishes the remaining participants the best of luck in earning a place of fame on the Slaughter plaque wall.[2]

jmv5af@virginia.edu

[1] And not the fun sort, like the one located Page 5 of this paper.

[2] As my great aunt always used to say, "It's not vanity if your name's gonna be next to Ted Kennedy's."

Men's Gold Wins 35th Softball Tourney; Co-Rec Gold Makes Finals

Virginia Law Weekly April 11, 2018

M. Eleanor Schmalzl '20
Executive Editor

Regular Division Champions Men's Gold. Photo courtesy Mary Wood Schmalzl '84.

Some of UVa Law students’ best moments come from a bar tab and a break from the library. This was certainly the case thirty-five years ago, when Tom McNeill '84 and a few of his buddies got together for their winter holiday break from classes in 1983. Bob Battle, a 3L at William & Mary at the time, came up with the idea of an inter-law-school tournament. McNeill got approval from the North Ground Softball League commissioners to host the tournament at UVa. The two guys called around to their buddies at other law schools, and the next thing they knew there were sixteen teams from fourteen schools in Charlottesville. The teams competed in one division and played double elimination, with NGSL commissioners doing all the umping and William & Mary taking the championship over UVa. From humble beginnings, the tournament has grown beyond all imagination.

This year, the tournament saw eighty-one teams in the co-rec division and sixteen in the regular division, attracting schools all along the east coast and Midwest. Tournament Directors Dascher Pasco ’18 and Laura Gregory ’18 worked year-round putting this tournament together, spending countless hours to keep things going off without a hitch. The two organized the non-elimination pool play for all the teams, running from Friday through Sunday morning, before the single elimination play began later that day. Ali Goldman ’19 and Janie O’Connor ’19, the two in charge of organizing UVa Law volunteers and handling any emergencies during the tournament, spent their entire weekend at the Park[1]. They helped coordinate with the professional umpires hired to ump the games this weekend and managed any general issues that needed quick resolution. Jonathan York '18, NGSL's Head Commissioner, managed to play, bar hop, and put together the playoff schedule for elimination play after pool play. NGSL raised $20,000 for ReadyKids—and threw the wildest law school party of the year—through intense planning, strong organization, and extreme dedication. What these four and several others put together was nothing short of incredible, creating one of the best weekends many law school students will ever experience in their academic careers.

Runners-up, the Co-Rec Gold tournament team. Photo courtesy of Mary Wood Schmalzl '84.

For me, the annual softball tournament hits close to home. My mom, Mary Wood Schmalzl ’84, played in and helped organize the first tournament in the Spring of 1984. She was a star pitcher during her time at UVa Law[2] and met my dad on Copeley Field during her 1L year. I grew up listening to their stories of UVa law, focusing on their days on the softball field. Despite a family wedding and an eight-hour drive from Kentucky to Virginia, she arrived at about 3 a.m. Sunday morning to watch the elimination play. At the end of Sunday play, Schmalzl, Pasco, and Gregory talked about the tournament and how much it’s grown.

“I never dreamed the tournament would become this big of a deal,” Schmalzl told this year’s Directors. “It’s incredible what you’ve done with it.” Pasco and Gregory shared how much planning comes along with the tournament but how rewarding it is to see it all come together. For them, it was all worth it to see how much fun everyone had, despite the rain and snow that Saturday brought. The group discussed all the positive changes that have come to the tournament and brainstormed ideas to see it continue to improve.

Tournament organizers Dascher Pasco '18 with Laura Gregory '18 and original softball tournament organizer Mary Wood Schmalzl '84. Photo courtesy Mary Wood Schmalzl.

Despite the weekend’s bad weather, the tournament directors made every effort to ensure that all the games were played. While some teams lost their nerve at the sight of the snow falling Saturday, most games did indeed go forward. By the time elimination play rolled around Sunday, the weather had shaped up and the remaining teams readied themselves for serious play. UVa’s Co-Rec Gold and Men’s Gold both advanced to the championship, while Co-Rec Blue and Men’s Blue fell in the Sweet 16 and Elite 8, respectively. The finals took place Sunday afternoon at Darden Towe fields in Pantops. UVa Co-Rec Gold faced off at 3:00 p.m. against “Florida–if You Ain’t a Gator, You’re Gator Bait,” a game which the mostly-okay-but-a-little-whiny Gators managed to win to claim the co-rec division championship behind some colossal hits and sterling defense.[3] UVa Men’s Gold, meanwhile, faced off against UVa Iron, a UVa Law alumni softball team. Dean Risa Goluboff got the festivities started, throwing out the ceremonial first pitch in the regular division’s final game at 2:00 p.m., an extra special occasion given the fact that both teams represented UVa. “Playing against alums was awesome,” Peter Dragna ’20, the only 1L on UVa Men’s Gold this season, told me. “It shows you how close of a community UVa is. Those old guys[4] could still ball, too.” The Men’s Gold team jumped out to an early lead thanks to hot bats, scoring eight runs in the top of the first while batting through the entire lineup. After that, the game settled into a steady rhythm. The alums seemed to be mounting a comeback, but they faltered in the top of the seventh. After holding Men’s Gold scoreless for the first time the frame before, and on their last chance to score the seven runs needed to tie, UVa Iron was shut down by the Men’s Gold defense, going down in order to end the game, with Men’s Gold prevailing over their senior comrades 15–8. On winning the tournament as a 1L, Dragna commented, “It was a great feeling to win it all, but I was more excited to be able to see Vince [Flynn], York, [Nick] Hagen, and Henry [Morris] go out as champs. Also, we were pretty sure York would kill someone on the team if we didn’t win, so that played a factor in my excitement as well.” The team was proud to bring a trophy to the UVa halls and redeem themselves after last year's tough loss to Men's Blue.[5]

As corny as it may sound, I’ve dreamed of attending UVa Law since sixth grade and hoped to play in this tournament for just as long. Knowing that this dream would become reality this year, I went into the weekend with high hopes. Despite a tough loss in the co-rec regular division championship,[6] I made some memories to last a lifetime during this 35th annual tournament. And, to help paint a picture of the weekend, what follows is a compilation of quotes, stories, and happenings from the weekend:

Friday at 5 p.m., UVa’s Co-Rec America and Co-Rec Wild Thangs started off the tournament. Co-Rec America’s first baseman puffed a cigar while Co-Rec Wild Thang hitters rocked leopard-print leggings,[7] setting the mood right for the party that is pool play. Co-Rec Wild Thangs got the W, but Co-Rec America won crowd favorite because, well, ’Merica.
Buffalo Law brought the party at 8 p.m. Friday night, bringing a full-out boom box and hoisting women on men’s shoulders in the dugout, getting three alcohol warnings from the ump before the game ended. Things got heated when Buffalo broke the co-rec line in the outfield, and even more intense when a Suffolk player threw a bat after an out. My advice: if you’re competitive, beer-league softball may not be for you.
Anonymous Notre Dame player at their Friday night game against UVa’s Co-Rec Blue: “We’re not here to play; we’re here to drink.”
Random fan at the same game, commenting on Notre Dame trying to argue that women don’t have to stay behind the co-rec line in the outfield: “Gender is so 2016!”
Yale, trying to live up to their law school rank, was #1 to show up to the fields for their 7 a.m. game Saturday morning. Being #1 has its consequences though, like when your opponent doesn’t show up and you don’t get to play. Makes you realize sometimes being a hard-working, dependable law-student just doesn’t pay off.
Not only did Yale get burned by their 7 a.m. game time, but Villanova also suffered from a no-show opponent early Saturday morning. NYU must’ve been intimidated after the NCAA basketball tournament and opted to stay at the bars later Friday instead of suffer a crushing defeat from the champions.
Contemplating his scheduled 7 a.m. Sunday game, one Columbia Law player intent on seeing Gunners N' Roses Saturday night commented, “There’s no f**king way I’m making that game. We might as well forfeit now.”
Umpire’s response to, “Looks like the rain hasn’t picked up”: “That’s what she said right before the bed broke.” We still don't know what that means, but we have given up trying to figure it out.
The pitcher for the Harvard-Nationals was confused during his Saturday game against UVa’s Co-Rec Gold—his burgundy pants and nice gray sweater had everyone wondering if he knew he was coming to UVa to play softball or if he thought he was traveling to C’ville for a hot Tinder date.
Fordham University, after being ejected for profanity and disrespect to their opponents and the umpire: “WE’RE NOT THAT DRUNK!”
And the anonymous player from the opposing team after Fordham tried to say they should get to continue playing because they "were way more drunk the game before”: “Just because you get caught stealing a candy bar today doesn’t mean you can get away with it by saying you stole a car the day before!” Law school logic taught you well, my friend.
Two games ground to a sudden halt when a series of loud, excited screams were heard at the Park around 9:30 p.m. Saturday night. Play resumed when it became clear that not only was no one in trouble, but that the screams were merely the celebration of Courtney Koelbel ’19, who had just won the popular phone trivia game “HQ.”
Seton Hall players, after losing to UVa’s Co-Rec Gold 29-0 on Saturday evening: “Are you sure you’re law students and not actually headed to the minors?”
Players for the Ohio State co-rec team embarrassed themselves with endless sanctimonious chirping and complaining. When the UVa field monitor asked the thick-skinned ump—whose day job is as a probation officer—if the players were drunk, she replied, “I sure hope so. If not, they’re just assholes.”
Rebecca Rubin ’19 suffered ridicule and jeers after she clumsily broke the co-rec trophy as it waited for presentment on the Darden Towe bleachers. Not about to have something go wrong after a near-flawless weekend, tournament director Pasco leapt into action, procuring a saving supply of gorilla glue, and leaving Florida none the wiser that their trophy was mangled.
Mary Seraj '19 and Greg Bischoping, a Penn Law student, got engaged this past weekend after meeting at the 2017 softball tournament last year. Despite the Co-Rec Gold team's loss, I am glad these two had a happy ending!

For all who missed this year's tournament,[8] I hope you'll find the time to watch a few games this time next year. The tournament is a hallmark of UVa Law and is part of what brings us together as a community. You won't remember—or enjoy—your April weekends in the library, but you will remember—or maybe not?—your fun times at UVa Law softball games.

mes5hf@virginia.edu

[1] Seriously, I’m convinced they slept in the concession stand.
[2] If you don’t believe me, go read any Law Weekly from 1982-84.
[3] A UVa loss is a loss; let’s not talk about the score.
[4] Editor’s note: “guys” includes one woman as well #Represent.
[5] #NeverForget.
[6] Wahoos > Gators
[7] Kira Schwartz, I love you!
[8] Stop being a gunner.

Alito Holds for UVa Moot Court Team

Virginia Law Weekly April 11, 2018

Eric Hall '18
Editor Emeritus

Trina Rizzo '19 and Phil Doerr '20 argued before Associate Supreme Court Justice Samuel Alito to claim first place at the extramural moot court team's final tournament of 2018.

UVa Men’s Gold wasn’t the only team to claim victory for Virginia last Sunday. Rounding out the winningest weekend of 2018, Trina Rizzo '19 and Phil Doerr '20 trounced twenty-seven other teams to seize the championship at Fordham University’s Kaufman Securities Law Moot Court Competition Sunday. The pair argued before a panel of Circuit Court judges, and Supreme Court Justice Samuel Alito, Jr. to claim the title. When they landed in New York early Saturday morning, neither competitor imagined they might be arguing before an Associate Justice of the High Court. “They announced he would be judging on the first day,” said Doerr, “and I thought, wow, that would be amazing, but I don’t plan on ending up there.” Asked what it was like to argue before the court’s rudest justice, Rizzo, known for her roles in UVa Law Boyz and the Advisory Committee for the 6th Restatement of Torts (is that a thing??), said, “He was very friendly on the bench and off.” Doerr, who was competing for the first time, hit his stride by the final round: “Once we actually got up there, and started talking, it felt like the other rounds did. You don’t really think about the fact that it’s Justice Alito asking questions.”

Both champions credited their coaches and fellow teammates for their success. “It was really great having Sam and Josh there,” said Doerr, referring to Josh Spiegel '20 and Sam Connor '20, the two 1Ls who also competed. “At times, it really did feel like a four-person team; after the first day of arguments was over, we could go back to our Airbnb and discuss strategy and arguments,” said Rizzo, who also had time to catch a Broadway musical.

Although the Fordham tournament was the last of the season—and the only one to feature a sitting U.S. Supreme Court Justice—it was hardly the organization’s only trophy this year. In January, Luke Zaro '19 and Katherine Whisenhunt '20 conquered the International Baseball Arbitration Competition at Tulane. And in March, Ron Pantalena '20 and Laura Toulme '20, captured first place in the Southeastern Region of the American Intellectual Property Law Association moot court competition. Also, Chelsea Kaluzny '20, Abbey Thornhill '20, Chinny Sharma '19, and Jana Minich '20 each took home awards for Best Oralist at their respective competitions. Placing first at Fordham caps a triumphant year for the Extramural Moot Court Team.

----
ech8vm@virginia.edu

GOATS: Greatest of All Tax Students

Virginia Law Weekly April 4, 2018

Jenna Goldman '18
Editor-in-Chief-in-Exile

Julia Wynn, Brandon Dubov, Phil Ogea, David Rubin, and Christina McLeod in court in Leuven. Photo courtesy Philip Ogea.

It was a season of firsts for the international tax community.

The University of Virginia Law International and European Tax Moot Court competition team clinched first place last Friday in Leuven, Belgium—the first American win in the competition’s history. The team comprised Christina McLeod ‘18, Julia Wynn ’18, Phil Ogea ’18, David Rubin ’19, and their coach Brandon Dubov ’18.

The win coincided with Professor Ruth Mason’s appointment as professor in residence for the International Bureau of Fiscal Documentation based in Amsterdam. Professor Mason is the youngest professor and first woman to hold the distinction. Her scholarship focuses on European Union taxation issues and tax discrimination, two areas that proved vital to the team’s win. Professor Mason served as mentor to the team, and the four members met with her weekly to discuss international tax issues, and receive research guidance and feedback on their arguments. All participants were required to take Professor Mason’s Topics in International Tax class to be on the team. “She taught us everything we knew before the competition,” said Ogea.

The team began preparations for the competition immediately after the problem was released in October of 2017.

Phil Ogea rises to argue a point. Photo courtesy Phil Ogea.

Based on the Organization for Economic Cooperation and Development (OECD) Model Treaty (the international model standard for tax treaties between countries), the music-themed problem this year took place in the state of Jazzterra. When the taxpayer, a limited liability company called Musicalia, incorporated a subsidiary—Milestone—in the state, all cacophony broke loose.

The issues surrounded the corporation’s residence, the beneficial ownership of the corporation’s dividends, what constitutes a permanent establishment under the treaty, and subsequently where the business profits can be taxed. The ultimate question was whether the taxpayer, Musicalia, has a taxable presence in Jazzterra.

The team worked tirelessly researching the OECD Model Treaty and its commentary, read scholarship and international case law surrounding the complex issues imbedded in the problem. The biggest obstacle they encountered during their research was that not all the sources and cases were in English, so they relied on Google Translate (which didn’t translate the specialized tax language) to parse through the sources in Dutch and French. Luckily one team member, Julia Wynn, spoke French and was able to help with translation.

Then began the arduous task of writing two briefs and preparing for oral arguments. Wynn and Rubin represented a foreign taxpayer hoping the treaty would protect them from tax, and McLeod and Ogea represented the taxing state, and discussed why the treaty did not protect the taxpayer. All four worked on both sides of the brief, but each argued their respective sides during the first two rounds of oral arguments in Leuven.

The weeklong competition began on Monday, when McLeod and Ogea for the tax authority argued against O.P. Jindal Global University of India. The next day Wynn and Rubin argued for the taxpayer against University of Luxembourg. They found out that night that their team made the semifinals and would reargue their cases the next day. The sub-team for the tax authority bested University of Heidelberg and the sub-team for the taxpayer trounced the hosting school, KU Leuven.

When the four found out they made the final four, they briefly celebrated with a Belgian Ale then immediately returned to the library. “It was totally unexpected when we made the top two,” said McLeod. When they received word that the team would go head to head with the dominant Ukrainian team, from the National University of Kyiv-Mohyla Academy of Ukraine, the team hoped for the best. “We had twenty-four hours to research a new problem, write an entire new brief, then argue before the panel of some of the most prominent tax lawyers in the world," McLeod said.

After turning in the brief, the team had 12 hours to sleep and prepare for oral arguments. UVa represented the Tax Authority of Jazzterra in the final, which was argued by Rubin and Ogea.

Some more scenes of two-fisted tax law. Photo courtesy Philip Ogea.

“We were underdogs with a red-white-and-blue target on our backs,” said Rubin, the team’s sole 2L. “Thanks to teamwork, ingenuity, and strong Belgian coffee, we came through when it mattered most. It was like a movie that, admittedly, no one would ever watch.”

In true Cinderella fashion, the UVa team pulled through with a slam-dunk brief and argument that impressed the panel of prominent international judges. “We raised some unique arguments, which the judges liked,” explained McLeod.

Their coach never doubted the team’s promise of success. “Nothing less than first place was acceptable,“ Dubov explained. “Here are the rules: No sugar. During the competition, your diet should focus on almonds and fish, but no white fish.”

A highlight of the competition for Ogea was listening to international tax professors speak about the importance of Professor Mason’s scholarship. “It was cool seeing other professors complimenting the people who teach us everyday. To understand how Professor Mason plays a larger role in international tax scholarship really put our class into perspective.”

Congratulations to Professor Mason and the entire Tax Moot Court team! At least there was one UVa team that outperformed its seed this March to become international champions.

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jmg3db@virginia.edu
she/her/hers

Panel: Women in Public Service

Virginia Law Weekly April 4, 2018

Taylor Elicegui '20
Historical Editor

On Wednesday, March 28, Virginia Law Women brought nine women from various public service careers to discuss networking, relationship building, private pathways to public service, and getting started in public service. After three panels, everyone gathered in Caplin Pavilion to hear from Conniel Malek '06, Director of True Costs Initiative. The event simultaneously inspired and educated students interested in public service at some point in their career.

The Networking and Relationship Building roundtable focused on the importance of being the type of person you want to hire and always putting your best foot forward. Gail Johnson of the DOJ Federal Torts Claim Act Section told a story about one of the best networking efforts she had ever witnessed. It involved no awkward, forced conversations; instead, the applicant demonstrated her work ethic and diligence when she didn’t think anyone was even watching. During the networking, another division of the DOJ was considering multiple candidates for an incredibly competitive position. The hiring attorneys had cut one prospective candidates until there were few enough that they could attend the same conference. The candidate introduced herself at the beginning and throughout the conference, the hiring attorneys witnessed the candidate attending panels while others went shopping, taking notes while others texted, and following up with panelists while others simply moved onto the next event. By the end of the conference, although the attorneys hadn’t spoken to her since the first day, they were so impressed with her that she got the job.

The same combination of politeness and diligence can impress others and advance your career. Tiffany Webb, a public defender, told us that she often gets compliments from prosecutors because she treats her clients with respect. These compliments translate into easier relationships with prosecutors, allowing her to more effectively represent her clients. Likewise, Jennifer Ricketts '88 of the DOJ Civil Division advised the room to always strive to maintain a friendly relationship with opposing counsel. When the opposing counsel denied her request for a delay early in litigation, Ricketts likewise denied their request for a delay at a much more pivotal point in the case. By being uncooperative at an earlier point, the attorneys discouraged the other side from being flexible when they needed it. Ricketts also advised us about the importance of writing thank-you notes. Throughout her tenure at the DOJ, Ricketts saw younger political appointees come into the Department and use thank-you notes as a way to bond with career attorneys and recognize their achievements.

The other panels brought together attorneys of various backgrounds and focused on the importance of interpersonal relationships. Nellie Black ’20 explained, “The Getting Started in Public Service panel included a range of perspectives from all walks of public service careers, including the DOJ, public defense, prosecution, and non-profit work. All of the panelists were able to give valuable advice about getting involved in public service directly or moving to public service after some time at a firm, and each talked about some of the challenges of their public service career as well as how rewarding and fulfilling they find their work to be.” After attending the Private Pathways to Public Service Panel, Ellie Riegel ’20 noted, “All of the women present for the panel had incredible experiences in both private practice and the public sector. They encouraged us to be flexible, maintain professional relationships, and get out of our comfort zone in law school.”

After the panels, Malek inspired and informed the audience with stories and advice from her career. After graduating UVa Law in 2006, Malek spent ten years at Alcoa, Inc. (yes, the same Alcoa from Learned Hand’s United States v. Alcoa, Inc. 148 F.2d 416 (2d Cir. 1945) decision), working on commercial contracts and compliance and representing the company in Africa and South America. Then Malek moved into her current role, Director of the True Costs Initiative, a nonprofit organization striving to improve corporate accountability and strengthen legal systems in the Global South. Malek described the process of moving from the private to public sector as a potentially frustrating process that requires a great deal of patience and resilience. Others questioned her commitment to public service, given her private sector background. By refusing to be deterred by failure or criticism, though, Malek eventually found her dream job.

To deal with disappointment, Malek urged the audience to, “always remember your why.” Malek told us her why—what drives her to fight for the environment, sustainable development, and corporate accountability. During her childhood in Jamaica, Malek recalls driving to the beach with her parents and noticing large patches of red dirt on the hills, a stark contrast to the foliage everywhere else. Malek asked her parents, who gave her a comprehensive yet accessible answer (for a twelve-year-old) and explained that the patches were a result of mining, prompting a conversation about the competing interests of economic development and environmentalism. That conversation sparked Malek’s passion and inspired her career.

VLW’s Julianne Toia ’19 organized a wonderful event that allowed UVa students to explore public sector careers. The path to the public sector takes many forms and lacks the defined systems for the private sector career search. Programs like WiPS allow UVa students to explore public sector careers and develop the relationships necessary to succeed.

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tke3ge@virginia.edu

Snow blankets the Law School in a rare late-season storm that cancelled classes and lightened hearts around UVa. Photo Eric Hall / Virginia Law Weekly. — Snow blankets the Law School in a rare late-season storm that cancelled classes and lightened hearts around UVa. Photo Eric Hall / *Virginia Law Weekly.*

PARR DELIVERS THE GOODS

Virginia Law Weekly March 28, 2018

Elliot Mann, son of Katherine Mann '19 enjoys the snow with a friend. Photo Katherine Mann / Virginia Law Weekly. — Elliot Mann, son of Katherine Mann '19 enjoys the snow with a friend. Photo Katherine Mann / *Virginia Law Weekly.*

"T" is for Thapar, Thomas, and Textualism

Virginia Law Weekly March 22, 2018

By Lia-Michelle Keane '18

Features Editor Emeritus

In the past month, students at UVa Law have had the opportunity to hear remarks from several esteemed members of the judiciary. At the end of February, Judge Amul Thapar, a Judge on the United States Court of Appeals for the Sixth Circuit, visited the Law School to share his thoughts on textualism and to critique former Seventh Circuit Judge Richard Posner’s recent book, The Federal Judiciary: Strengths and Weaknesses. Additionally, nearly thirty students, including myself, made a trip to Washington, D.C., over spring break to listen to United States Supreme Court Justice Clarence Thomas speak at the Federalist Society’s 2018 National Student Symposium.

Judge Amul Thapar

Judge Thapar’s event began with his admitting that, despite their different judicial philosophies, he agreed with several of the propositions in Judge Posner’s book. For instance, Judge Thapar stated that Judge Posner was correct to criticize the untimeliness of opinions issued by courts because, in his view “justice delayed is justice denied.” Further, Judge Thapar and Judge Posner agree that brevity in opinions is an essential component in efficiency, particularly at the circuit court level. Judge Thapar suggested that overly dense opinions increase the likelihood of lower courts misinterpreting the meaning of the law and that judges should focus on emphasizing a clear holding.

Turning to where he and Judge Posner disagree, Judge Thapar stated that Judge Posner’s viewpoint advances pragmatism over formalism, which he fears may lead judges to decide cases based on what he termed the imaginary “Emotions Clause” of the Constitution rather than the text itself. Judge Posner’s book also argues that judges should look to the future rather than precedent in order to reach the best outcome in pending cases. Judge Thapar criticized this because doing so would likely have a negative impact on lower court judges. In Judge Thapar’s opinion, backward-looking interpretations increase overall efficiency because members of society can rely on precedent to predict the legality of their actions. This reliance, in turn, decreases the need of parties to litigate disputes because they can better guess the outcome in advance. Moreover, Judge Thapar expressed concern that a pragmatic approach in the judiciary branch would elevate judges to the position of “co-legislator.” The problem with this, according to Judge Thapar, is that, “at no point in time have judges been infallible,” and taking policy decisions away from politically accountable members of the legislative branch could result in unpopular and unwanted decisions becoming law.

In his concluding comments, Judge Thapar stated that he agrees with former Supreme Court Justice Scalia’s view that liberties are best protected by following the separation of powers, and that the different branches should “stay in their lanes.” He acknowledged that “textualism is hard,” but argued that it is not the responsibility of the judiciary to amend poor legislative drafting, even if judges would personally prefer a different outcome than what is required by a statute’s text. According to Judge Thapar, when courts apply a consistent interpretation of the law, it pressures Congress to pay more attention to how they write.

For those interested in learning more about Judge Thapar’s judicial philosophy, he regularly co-teaches a popular J-Term with UVa’s David and Mary Harrison Distinguished Professor of Law Emeritus Lillian BeVier, which he hopes students—whether they are formalists or not—will take before graduating.

Justice Clarence Thomas

Justice Clarence Thomas’ event spanned a vast spectrum of topics, including his approach to judging and issues related to race. Much like Judge Thapar, Justice Thomas’ remarks at the Federalist Society’s Student Symposium included praise of Justice Scalia, though his comments emphasized the close personal relationship he developed with his former colleague over the years. Although he joked that Justice Scalia had once been unhappy about the popular criticism that he was viewed as Justice Thomas’ “boss” on the Court, according to Justice Thomas, from the moment he took his place on the bench, there was a trust between the two men. “Unlike much of society,” Justice Thomas said, “[Justice Scalia] never had an image of me [that] I was to live up to. He never had a stereotype, like much of what you see in the media, or the country now—they have an image of what I’m supposed to be, and if I deviate from that, something’s wrong with me [. . .] He never did.” Justice Thomas went on to say that even when he disagreed with Justice Scalia in an opinion, their friendship never wavered and he misses Justice Scalia’s presence on the Court “a lot.”

Despite typically aligning with Justice Scalia’s judicial philosophy, Justice Thomas stated that there is no reason why collegiality cannot exist between justices with different viewpoints. He said that, ultimately, what matters is that justices decide cases based on their commitment to what they believe is the correct method of judicial interpretation. He said that, even when his interpretation of the law results in his ending up in the minority of a decision, he prefers that outcome to deviating from his principles. In his words, “Why do the job if you can’t do it in an honorable way?”

When the moderator noted the uniqueness of Justice Thomas’ clerks often coming from law schools outside the T14, Justice Thomas replied that he is interested in working with people from a wide variety of backgrounds and that there are many bright students outside the Ivy League. Notably, he currently has no clerks from an Ivy League law school, and he said that he particularly enjoys hiring students who come from “modest backgrounds,” as well as from different regions, because they tend to have different perspectives on the issues that come before the Court. He also encouraged students to look beyond “faux diversity,” which he described as an overemphasis on immutable characteristics, and to instead engage with people who hold differing intellectual ideas and interests.

Finally, Justice Thomas offered insight into his personal life. He spoke about his wife with great esteem and described the fun they have on the cross-country trips that they take in their motorhome. He also noted the importance of his faith and his reliance upon it during tough times. Throughout the event, it became apparent that Justice Thomas’ reputation for having a great sense of humor is wholly justified, and it was a tremendous privilege to hear him share his thoughts.

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lk3da@virginia.edu

Davidson and Swanson are Lile Winners

Virginia Law Weekly March 15, 2018

By Taylor Elicegui '20

Staff Editor

On February 27, Jennifer Davidson '18, Jay Swanson '18, Allie Herzog '18, and Tess Sewell '18 squared off in Caplin Pavilion for the 89th Lile Moot Court Finals. U.S. Court of Appeals Judges Paul Niemeyer (4th Cir.), Gregg Costa (5th Cir.), and Thomas Griffith ’85 (D.C. Cir.) judged the arguments. Arguing for the appellant, Davidson and Swanson won the competition. Herzog won Best Oralist.

The problem centered around Susan Schroeder, fired from her job at Natural Foods, Inc. after Schroeder failed to maintain proper safety controls at the plant she oversaw. As a result, several consumers reported that their children became sick after eating almond butter manufactured at the plant. After Natural Foods conducted an investigation, Schroeder’s boss, Eric Michaelson, placed her on probation for the rest of the year. Approximately one month later, Schroeder attended the company Christmas party with her wife, Jane Roberts. Immediately following the Christmas party, Michaelson, who serves as president for a group that advocated against Lile’s same-sex marriage referendum in 2008, fired Schroeder.

Schroeder filed suit under Title VII of the Civil Rights Act, alleging that Natural Foods terminated her because of her sexual orientation. Schroeder identified two comparators—straight employees who were not fired after similar quality control issues. The district court ruled that Title VII does protect sexual orientation, but Schroeder did not identify suitable comparators to establish a prima facie claim and granted Natural Food’s motion to dismiss. Schroeder appealed to the Fourteenth Circuit. The appeal raised two questions: 1) Is sexual orientation a protected class under Title VII? 2) Did Schroeder identify suitable comparators to establish a prima facie Title VII claim?

After giving their introductions, the competitors fielded questions from the bench. Swanson and Herzog argued the first issue, while Davidson and Sewell focused on the second. Swanson argued that Title VII protects sexual orientation, because sexual orientation discrimination involves discriminating based on sex stereotypes—the idea that men marry women, and women marry men. Under that theory, Michaelson fired Schroeder for failing to conform with his conception of acceptable behavior for women. The judges focused on congressional intent behind Title VII, asking Swanson why Congress hadn’t included sexual orientation in the statute and pointed out many instances where Congress failed to amend Title VII to include sexual orientation. Swanson explained that statutes sometimes have unintended consequences, and Title VII properly covers sexual orientation even if Congress didn’t originally intend for the act to do so.

Herzog argued that the Fourteenth Circuit should overturn the district court and defer to Congress’ intent, since Congress did not intend to include sexual orientation as a protected class. She focused on the common use of “sex,” which does not include “sexual orientation.” The panel asked Herzog about recent decisions out of the Second and Seventh Circuits, which held that Title VII prohibits discrimination on the basis of sexual orientation. Herzog focused on the plain meaning of the statute and explained that the other circuits erred when they departed from the plain meaning.

Davidson argued that Schroeder should survive the motion to dismiss because she created a plausible inference of discrimination and focused on the standard that governs comparators. Davidson walked through the two main standards—"substantially similar" or "nearly identical"—and explained that Schroeder had comparators under either standard, since each employee’s quality-control mistakes resulted in the same loss in revenue, even though Schroeder’s mistake drew more public attention. Judge Niemeyer asked about the Fourth Circuit’s standard, which takes a more case-by-case, fact-specific approach. He declared, “Maybe the Fourth Circuit’s onto something!” earning chuckles from the audience.

During Sewell’s argument, she focused on distinguishing the other employees from Schroeder. Natural Foods never found one of the employees responsible for the quality-control problems and treated the other employees' mistake less seriously from the very beginning. Given the differences, Sewell argued, the employees couldn’t be considered comparators. The judges focused their questions on the legal standard for a motion to dismiss.

After deliberation, the judges came back, announced the winners, and gave feedback. The judges gave the advocates a lot of well-deserved praise and told them they would rank among the best advocates that appeared in their respective courtrooms. Judges Costa and Niemeyer complimented the oralists for answering questions, which they believe separates the best advocates from decent advocates. Judge Griffith praised the competitors for not dodging any of the questions, even when they were difficult and outside the scope of the problem. Judge Costa also explained that the best advocates treat arguments as a dialogue with the court, maintaining a friendly and helpful demeanor even when the judges ask hard questions. Finally, Judges Costa and Griffith talked about how the best advocates acknowledge the weaknesses in their arguments and then pivot to the strengths. For example, Chief Justice Roberts, arguably the best oralist of our generation, specifically points out the weakest part of his argument at the beginning of his time. In total, the competitors gave great arguments and gave a wonderful example of effective oral advocacy.

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Taylor Elicegui

tke3ge@virginia.edu

Courtesy of Michael McGuire '19 — Courtesy of **Michael McGuire '19**

Justice Breyer Speaks

Virginia Law Weekly March 15, 2018

By Virginia Law Weekly Staff

Stephen G. Breyer, Associate Justice of the Supreme Court of the United States, paid a visit to the University of Virginia School of Law on Thursday, March 1. The visit marked the first audience granted by a justice of the Supreme Court during the academic tenure of any current UVa Law student. In two wide-ranging talks to students, Justice Breyer promoted his new book on the growing need to incorporate international law into American court decisions, “The Court and the World,” and expounded on various other areas of interest.

Justice Breyer began his visit with a talk to a small group of student leaders explaining the mechanics of the Supreme Court, and the importance of non-Supreme Court case law. “Ninety-five percent of cases happen in state court,” he said. “They are very important!”

Dean Risa Goluboff, who clerked for Justice Breyer during the 2001–2002 term, accompanied the justice throughout his visit and introduced him to the crowd gathered in Caplin Auditorium. "We are absolutely thrilled to be able to welcome Justice Breyer," she said. “Justice Breyer has led an extraordinary career spanning more than a half century in government—all three branches—and the academy.” She went on to say that, in her opinion, Breyer’s greatest qualities are his “brilliance, joy, and curiosity.”

After Dean Goluboff’s introduction, Justice Breyer began talking about his judicial philosophy, the history of the Supreme Court, and the nature of international law. Affectionately peppering in examples of what he assigns his clerks to do, Justice Breyer revealed a lighter side to the drab, black robes, laughing and reminiscing with “Risa” about difficult or funny cases and the unexpected tasks to which she was assigned as his law clerk. Describing the opinion-drafting process, Breyer described how he writes a draft, sends it to his law clerks for comments, and goes back and forth from there. “Once it took eight rounds of back-and-forth of different versions of an opinion and each time Justice Breyer would throw it out and write a completely new one,” Dean Goluboff laughed.

“What you see is what you get,” Breyer shrugged. “We write down our reasoning, unlike a member of the legislature, who votes on statutes and never gives us the reason behind it.” Famed as a judicial pragmatist, Breyer nonetheless expressed some trepidation at reading too far beyond a statute’s clear meaning. “I’m not going to take a statute that says ‘vegetable’ and say a fish is a vegetable. A fish is not a vegetable,” Justice Breyer chuckled.

After Justice Breyer explained that the justices gather in a secluded room to discuss and debate the cases after oral arguments, one student asked how the very different legal philosophers maintain order and friendship to boot. “You need to feel strongly, but not too much. The justice who you vehemently disagreed with on one case may be your greatest ally on another.” Breyer noted that “only 20 percent of our cases end in 5–4” highlighting the fact that even justices with deep ideological differences can agree on most of the cases they hear. The key? “Stay calm and try not to take it personally.” Another favorite tradition of the discussions is that “nobody speaks twice until everyone speaks once.”

Despite the sacred decorum, justices do have strong feelings about some of the cases they hear and the decisions that come down, such as the one heard by the Court only a few weeks prior to the talk. One student leader in the smaller gathering asked Justice Breyer why he read his dissent in the recent case Jennings v. Rodriguez from the bench. The justice replied, “Because it is important and I wanted everyone to pay attention. These are people in the United States who haven’t committed a crime and are not afforded so much as a bail hearing.” In a rare move at the Supreme Court, Breyer read from his thirty-three-page dissent from the bench, calling the Court’s 5–3 decision “legal fiction.” He went on to say, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”1

A Virginia Law Weekly reporter asked how justices and their clerks go about breaking down and understanding complex scientific cases to render decisions. Justice Breyer joked that some of the most strident backlash he has received from his decisions is from patent lawyers, especially on their vitriolic patent-lawyer blogs. The fact of the matter, Justice Breyer explained, is that the members of the Court rely on amicus briefs and the lawyers themselves to clearly explain the issues. “A good lawyer can explain anything: Just break it down into its requisite parts.”

Growing more serious, Justice Breyer alluded to Camus’ The Plague as he wrapped up, instructing the students of the Law School that it was their duty to prevent the spread of evil and hate innate in humans. “The plague germ never dies,” he cautioned, telling audience members that the rule of law is “one of—not the only, but one of—the weapons against the plague.” On that happy note, Breyer concluded his talk and took questions from the student body.

editor@lawweekly.org