Letters To The Editor: 9-26-18

A Proposal to Give Diversity Its Full Meaning at UVA Law

Jacob William Roth ‘19

"A Proposal to Give Diversity Its Full Meaning at UVA Law" 

By Jacob William Roth 

 

Diversity has two parts. The first is getting people of diverse backgrounds, beliefs, and values in through the door. The second is learning from the beliefs, values, and practices that result from backgrounds different from our own. This does not mean we must agree or refuse to acknowledge our differences. It means understanding differing views so that we disagree with them well. 

UVA Law has focused on the community’s ability to accept diverse people. But diverse people bring with them diverse ideas, and the community’s ability to understand and learn from those ideas is what gives diversity its meaning. The promise and premise of diversity is not only that opportunities are available to those who have not had them previously, it is also that opportunities are available to all people within the community to learn from disagreements and challenges they never would encounter otherwise.  

My experience provides an illustration of the difference between the two parts of diversity. I am an increasingly observant Jew who entered 1L year with a Jewish identity that was only ethnic. My views and values have changed from 1L year as I have studied the faith and become more observant. I was accepted by the entire community for the idea of being a Jew. I still am now, but when my views and values changed due to my study in Judaism, those views and values were mischaracterized, mocked, or dismissed.  The same people who welcomed me into the community and valued the diversity of my Judaism pushed back against that same Judaism in practice when the values I took from it diverged from their own. This was not caused by anti-Semitism or bigotry. Instead, it was because these people could not understand how a person could be both moral and disagree with them on the issues where we diverged. 

The issue is not that my values and beliefs have been contested. I do not want mere agreement or meek avoidance of differences. I already know what I think and how I think it. What I want—and what we all should want (and need)—is disagreement: disagreement that is strong and serious, while in good faith and convincing; disagreement that forces us to be better in how we hold our beliefs or else be forced to change our minds if we cannot meet the challenge.  

We all already have the skill set to have these disagreements. We came here to develop them and have been doing so each day in class. The skills we develop and use in the classroom we often refuse to use outside of it. The tools are in our hands, but we need the instinct and habit to use them. 

It is ironic that we consider the standards and methods that we employ for pursuing truth and persuading our peers—e.g., good faith debate, honest evaluation of evidence, understanding the full strength and accuracy of the other side even as we oppose it—important enough for a case of theft or fraud but not for what we declare to be really important, like abortion, war, racism, or inequality.  

We can only honor and benefit from diversity in its full meaning when we work through our disagreements by first understanding the other’s views as they do, on their terms and as they see them—not as they first appear to us. No lawyer could avoid getting laughed out of court if he did not understand the other side’s brief in its full strength prior to disputing it. So too do real diversity, acceptance, and respect for the humanity of others mean learning to see other’s values and beliefs as they see them. Disagreement will and must happen, but after understanding, for it is prejudice and bigotry if it happens before. 

We are UVA Law. We have a tradition of collegiality and excellence in the craft of principled, fruitful disagreement. We should honor our institution and give credit to our education by bringing our skills out of the classroom and into the halls; for if we brought what we too often practice in the halls into the classrooms instead, we would realize how farcical it is.  

Our natural instinct is to eschew reason, good faith, and understanding when what is right is embattled, but it is precisely for that battle that our craft was developed. The skills and standards we are taught are for finding the truth in things that emotional, moral, and determine the justness of society.  

Tuesday, a vote will be held on a proposal to add a Cultural and Intellectual Diversity subcommittee to SBA’s Diversity Committee. Its purpose will be to help us practice applying our skills outside the classroom, in the emotional, moral cases we dispute in our community. The Cultural and Intellectual Diversity subcommittee will look at the state of diversity at UVA Law. It will find ways to repair dialogue, continuing and expanding the work of programs like Common Law Grounds, so that when we disagree, we do so well and learn from it, just as a diverse community has the power and duty to do. 

Go to the SBA website and contact a representative for SBA to express your interest in “YES” for the Cultural and Intellectual Diversity Subcommittee and honor the promise and meaning of diversity.  

 

---- 

jwr3uz@virginia.edu 

Brandeis in Brief: The First Public Confirmation Hearing

Part Two of Confirmation Stories, a continuing Law Weekly series

William Fassuliotis ‘19
Guest Columnist

If you can remember back to the confirmation hearings for Judge Kavanaugh, before the accusations were made against him, you likely had one of two sets of thoughts. If you were sympathetic to those opposing Judge Kavanaugh, you may have seen Senate Democrats as engaging in principled opposition, seeking as much information as possible about his time with the Starr investigation, the Bush Administration, and as a judge in order to make the case to the American people, like Ted Kennedy and other Democrats did in 1987. If you were sympathetic to those in support of Judge Kavanaugh, you might have been appalled at the histrionics and tantrums by a bunch of Senators trying to enhance their presidential prospects. Both sides weep for the future of the republic. One can be forgiven for thinking that confirmation hearings have a principled history, dating back to the founding, and only recently become debased political spectacles. This thought, however, is mistaken.  

The expectations surrounding Supreme Court nominees would change forever on January 2, 1916, when Justice Joseph Rucker Lamar passed away.1 On January 28, President Woodrow Wilson, after much deliberation and lobbying (including by The New York Times and others to appoint former President and 1912 electoral opponent William Howard Taft), nominated a close advisor, Louis Dembitz Brandeis. 

By that time, Brandeis had acquired the epithet of “The People’s Lawyer.” The controversy surrounding his nomination can easily be understood by what others wrote about him. To his opponents he was, as Taft wrote to a friend, “a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous in method in reaching them….” His supporters would agree with Justice William Douglas (who would replace Justice Brandeis when he retired), that “the image of Brandeis … was one that frightened the Establishment. Brandeis was a militant crusader for social justice whoever his opponent might be. … He was dangerous because he was incorruptible.”2  

Brandeis invented what would become known as the “Brandeis Brief,” or as he would call it, “What every fool knows.” Instead of relying solely on arguments based on legal precedence and logic, a Brandeis Brief would be filled with facts, statistics, and data explaining why a particular regulation should be upheld as constitutional. This was, for its time, simply radical. He was also successful, even at the height of the Lochner era.3  

At a time when the legal profession in general, and the judiciary in particular, was small-c conservative—valuing tradition, ordered liberty, and the rights of property—the above would have been enough to create a firestorm of opposition. There was another “complicating” factor: Brandeis would be the first Jewish member of the Court. Though raised in a secular household, he would embrace his Jewish faith as he became older, and would be one of the pioneers of Zionism. Few, if any, publicly opposed him on openly anti-Semitic grounds, although in private a number definitely did. Some accused Wilson of nominating Brandeis to bolster Jewish support for the upcoming election and to appease political constituencies. Sometimes subtext, sometimes text, the controversy over his nomination cannot be understood without his religion.  

And so, this set the stage for the first public confirmation hearing. I should note the emphasis is on first public confirmation hearing—the Senate had at least one hearing on a nominee before 1916,4 and nominees were regularly referred to a committee since 1868.5 These were, however, private and closed to the public, short in duration, and, with one exception, without witness testimony. The modern confirmation hearing—public, extensive, and with testimony by proponent and opponents—was pioneered in response to Brandeis’ nomination.6 Both proponents and opponents were unsure whether the nomination would succeed, and both hoped to use the hearing to persuade undecided Senators. 

The first hearing was called to order on February 9, 1916, the first of 19 days of hearings, by far the most of any justice. A subcommittee consisting of five members of the Senate Judiciary Committee heard testimony from 43 witnesses. Opponents testified that his conduct was unprofessional and unethical, his character unfit, and an advocate who would not—nay, could not—be impartial as a Justice. His supporters rebutted those allegations as unfounded attacks by the “privileged interests.” The hearing discussed years of Brandeis’ cases, litigation, activities, and other matters important at the time but footnotes to contemporary historians. Conspicuously absent was Brandeis himself—a nominee would not testify at his own hearing until Harlan Stone in 1925.7 On April 1, the Subcommittee voted in favor 3–2. On May 24, the Judiciary Committee would report favorably on the nomination, 10–8, on a party line. Finally, on June 1, 1916, the Senate voted to confirm Brandeis 47–22.8 Those 125 days remain the longest amount of time between a nominee’s nomination and confirmation or rejection by the Senate. Justice Brandeis would stay on the court until 1939.  

As a judge, Brandeis would be exactly what his supporters hoped for and critics dreaded. He would continue to be an “advocate for the people,” forcefully writing for or joining opinions or dissents in favor of freedom of speech,9 a right of privacy,10 and other decisions that helped, in his view, put the “small man” on a level playing field. He was not, however, a doctrinaire liberal. He decried “the curse of bigness,” and the twin evils of both big business and big government. He was perhaps the biggest proponent of Jeffersonianism since Jefferson himself. He popularized the description of states as “laboratories of democracy,”11 and joined decisions striking down parts of the New Deal he thought centralized too much power in the hands of the federal government. He believed that business and government needed to be small enough that the common man and his neighbors could join together and have control over their own destinies.   

If you have any questions, comments, ideas for future articles, please do email me. I am always interested in them. Sources used, in addition to those in the footnotes, include Jeffrey Rosen’s Louis D. Brandeis: American Prophet, and A.L. Todd’s Justice on Trial: The Case of Louis Brandeis.  

Next time: Eisenhower, Nixon, and the Warren Court.  

---- 

wf5ex@virginia.edu 

1 Justice Lamar, a Taft appointee and a deservedly obscure Justice who served only five years, should only be remembered as one of three pairs of relatives to sit on the Court. He was the cousin of undoubtedly the best-named Justice to ever don the robe: Lucius Quintus Cincinnatus Lamar II, a Grover Cleveland appointee who also served only five years. 

2 https://www.nytimes.com/1964/07/05/archives/louis-brandeis-dangerous-because-incorruptible-justice-on-trial-the.html 

3 In Muller v. Oregon, the Court unanimously upheld an Oregon law limiting the work day for women in factories to 10 hours. 

4 http://www.scotusblog.com/2016/03/legal-scholarship-highlight-the-evolution-of-supreme-court-confirmation-hearings/ (“Legal scholarship highlight: The evolution of Supreme Court confirmation hearings”)

5 https://fas.org/sgp/crs/misc/RL33225.pdf (“Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President“)

6 To be clear, not every nominee had a hearing after Brandeis. The next six nominees did not. But when there were hearings, this was the first and the precedent. Sources disagree on when hearings became standard procedure. Felix Frankfurter in 1939 or John Harlan II in 1955 are commonly listed.

7 Harlan F. Stone would be the first to do so, primarily to answer questions about his actions as attorney general. The practice would not become regular until the mid-20th century. As well, there were six nominees between Brandeis and Stone who either did not have a hearing, or had one in private. 

8 One of those who voted against confirmation was Senator George Sutherland of Utah, who would in 1922 join Justice Brandeis on the bench.

9 Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

10 Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).

11 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).

Confirm Kavanaugh (if the Allegations are False)

When the news broke that President Trump nominated Judge Brett Kavanaugh to fill Justice Kennedy’s seat, I had some initial concerns. In particular, I was concerned about his role in the Ken Starr investigation and his role as a member of President Bush’s legal teams during the 2000 election and in the White House. It seemed to me that one does not seek out these sorts of opportunities unless one wants to serve as a political operative. Criticisms of Judge Kavanaugh along these lines resonated loudly with me as he seemed poised to be a senator in a judge’s robe.  

However, exploring Judge Kavanaugh’s written record put my concerns to rest. In particular, it was his record as a judge that alleviated my concerns about his being a politician disguised as a judge. He has consistently applied an originalist and textualist approach to his interpretation of law and has applied precedent in a consistent manner. A judge can hardly be denounced for being an originalist or a textualist, even if those interpretive tools are different from the ones an observer might otherwise prefer. These approaches are unquestionably within the mainstream of contemporary jurisprudence and their use should not be seen as a legitimate reason to withhold confirmation. From any objective criteria that one would look for in a Supreme Court nominee, Judge Kavanaugh would be declared well qualified. He graduated from Yale undergrad and law school. He clerked for a Supreme Court justice and served as a federal appellate judge for over a decade. His extensive judicial record shows us already what type of judge he will be. He was unanimously rated “Well Qualified”—the highest rating available—by the American Bar Association, not exactly a bastion of right-wing thought. At a minimum, he is a competent jurist who has the intellectual ability to carry out the role of a Supreme Court justice.  

Similarly, the particular conclusions a judge draws after deploying his or her mode of jurisprudential analysis should not concern us either. Much of the controversy surrounding Judge Kavanaugh’s nomination has centered around whether he would vote to reach certain policy outcomes. These sorts of ideological litmus tests should be eradicated from the nomination and confirmation process entirely. It is one thing if a judge’s analysis does not support his or her conclusion. It is an entirely different thing to make a decision on a judge based on what that conclusions that judge is expected to reach. One can disagree with the conclusions a judge will reach and still think that person is qualified to hold his or her office.  

It strikes me that the controversies surrounding Judge Kavanaugh’s nomination to the Supreme Court are a microcosm of the broader issues facing our politics and our culture more generally. In some ways, the Court has become the most powerful institution in our government, and as a result, choosing the individuals who have the privilege to serve in that institution has become a political game of progressively higher stakes. Activists have increasingly changed their tactics from lobbying legislatures to funding lawsuits to challenge or re-define laws they disagree with. And because courts render their decisions from behind a bench and in robes, beyond the rough and tumble of electoral politics, their decisions are gilded with a veneer of inexorable truth. In other words, when the Court speaks, many people look at it not as if it is merely deciding a case before it, but rather as if it is clarifying right and wrong itself. Unsurprisingly, polarizing issues with morally contentious perspectives (abortion, healthcare, gun laws, etc.) are front and center in the debate over whether to confirm a judge to the highest court in the nation.  

Broadly speaking, we need to turn the temperature down in these hearings so that we can better ensure that the Senate is able to provide sound advice and give informed consent to the nominees before it. This has proven to be especially true with Judge Kavanaugh. Hearings should be about whether a nominee has the intellectual capacity and character to serve as a public official. We should seek to determine whether a nominee has the temperament to be an impartial judge and whether the nominee’s record reflects consistency in his or her approach to the law. Judge Kavanaugh checks all of these boxes. However, the antics we witnessed during his hearings, including hysterical episodes of audience members disrupting the hearings to protest, Sen. Cory Booker’s posturing as “Spartacus,” or Sen. Kamala Harris’s blatant mischaracterization of Judge Kavanaugh’s views,[1] have only served to inhibit the Senate’s ability to credibly carry out this role.  

Unfortunately, the choice of some Senators to exchange credibility for political capital has become more significant given the recent allegations levied against Judge Kavanaugh. Senator Leahy has alleged that Judge Kavanaugh misled the Senate during his hearings for his current position on the D.C. Circuit and then doubled down on these statements during his more recent hearings.[2] Also, a serious claim of sexual misconduct began to trickle out last week, culminating in the accuser, Dr. Christine Blasey Ford, publishing her story in the Washington Post last Sunday.[3] Each of these allegations should be investigated, but the Senate must do so in a way that searches for truth rather than political points. Sadly, the theatrics of the earlier hearings may have vicariously tainted those stepping forward to accuse Judge Kavanaugh of real misconduct. Democrats have been crying wolf for a long time with precious little to support those accusations. Now that there may in fact be a wolf, it is uncertain whether there is anybody to hear the warning cry. Should an honest investigation determine either of these allegations to be credible, I will be the first to admit that Judge Kavanaugh does not possess the integrity to serve on the Supreme Court. However, as of this moment I do not think we are there yet. Monday’s hearing with Judge Kavanaugh and Dr. Ford should be clarifying. 

At the end of the day, an ideal world would have obviated the need for the absurdity surrounding Judge Kavanaugh’s nomination. There is little question he has the ability do the job well. His resume is littered with sterling credentials and his tenure as a judge has shown him to be thoughtful, consistent, and competent. His record assures me that he will not act like a politician while on the bench. Viewed in light of his judicial record, Judge Kavanaugh is exceptionally well qualified for the position to which he is nominated. While we can be free to dispute whether Judge Kavanaugh reaches the right conclusions should he eventually be confirmed, anticipating those disagreements isn’t a reason not confirm him. The only question Judge Kavanaugh’s hearings exposed is whether he has the character to be a judge. Unfortunately, the Senate may lack individuals with the unimpeachable character to credibly make that determination. Alas, that is our system, but I have hope that the honest truth will emerge soon. Should the accusations levied against Judge Kavanaugh turn out to be untrue, the only other arguments raised against confirmation come from a concern over ideology. Judge Kavanaugh has shown himself to not be an ideologue but instead a judge. His record demands he be confirmed as such.  

----

wat5pm@virginia.edu

[1] https://www.washingtonpost.com/politics/2018/09/11/did-brett-kavanaugh-offer-dog-whistle-abortion-foes/?utm_term=.ecc7c6b2ab75 

[2] https://www.washingtonpost.com/opinions/brett-kavanaugh-misled-the-senate-under-oath-i-cannot-support-his-nomination/2018/09/13/ea75c740-b77d-11e8-b79f-f6e31e555258_story.html?utm_term=.01f24b3fbd85 

[3] https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html 

[4]

Reject Kavanaugh

George E. Rudebusch ’20 

Editor’s Note: Mr. Rudebusch submitted his column prior to the allegations of sexual assault against Judge Kavanaugh that emerged at the end of last week. For that reason, his column deals only with Kavanaugh’s judicial temperament and ideology. 

The confirmation process of Brett Kavanaugh, Judge of the Court of Appeals for the D.C. Circuit, represents the latest Republican effort to prioritize party over nation. That is nothing new. But what is new—and what we have learned over the past few weeks—is just how eagerly Republicans are willing to accept a bargain that entrenches their own power at the cost of conservatism, democratic norms, and our national politics.  

Democratic legitimacy hinges on deliberation. It springs forth from fair and open processes. This explains why the Constitution requires the advice and consent of the Senate to confirm a justice for a life appointment to the Supreme Court. For decades, Senate Republicans have seemingly understood this, even defending the confirmation process from attempts to change it.  

And yet, since the election of President Donald J. Trump, the Republican Party has embraced with open arms fundamental changes to how the Senate confirms nominees to our highest court. During the confirmation of then-Judge Neil Gorsuch, Republicans invoked the so-called nuclear option, which lowered the threshold for closing Senate debate on a Supreme Court nominee from sixty votes to a simple majority. In doing so, Republicans opted to relax the decades-long cloture rule instead of using traditional democratic processes to confirm their candidate of choice.  

As the Senate proceeds with the confirmation process of Judge Kavanaugh, Republicans continue to flout democratic norms. They have withheld hundreds of thousands of Kavanaugh documents from their Democratic colleagues in the Senate. And they are hellbent on steamrolling the circuit judge through the confirmation process before the midterm elections this November. How is the Senate to advise and consent on Kavanaugh’s nomination with an incomplete documentary record and without sufficient time for due process? And what about waiting until after the midterms in order to “give the people a voice in the filling of this vacancy?” Mitch McConnell, Majority Leader of the Senate, made this very argument in 2016 during the doomed confirmation of Merrick Garland, Chief Judge of the D.C. Circuit Court of Appeals. Does it apply with any less force today?  

For a party that extols the virtues of responsibility, Republicans have been anything but since taking power in 2017. Over the past two years, Republicans have furthered the deep partisan divide in America. They have fortified their unpopular policy positions by degrading our democratic institutions.  

And if they should succeed in appointing Judge Kavanaugh to the Supreme Court, we could experience a profound reworking of our society. In his confirmation hearings, Judge Kavanaugh has expressed cagey, contradictory, and misleading testimony about his views on reproductive rights and whether Roe v. Wade is settled law.  

He also has revealed that he perjured himself in 2006 when he testified for nomination of Judge William H. Pryor, Jr. to the Eleventh Circuit. Evidence of perjury for any judicial nominee should raise serious issues during the confirmation process. But in these times when the line between truth and lie has been obscured, such evidence should automatically disqualify Judge Kavanaugh—and arguably provides grounds for his impeachment from the D.C. Circuit.  

Perhaps most concerning, however, is Judge Kavanaugh’s beliefs in expansive executive authority. His extensive writings on the subject raise the specter that Judge Kavanaugh will shield President Trump from criminal and civil lawsuits that could stem from Robert Mueller’s investigation. His views on Presidential immunity have even caused some to question whether President Trump nominated Judge Kavanaugh specifically to insulate himself from the special counsel’s eventual findings. Chuck Schumer, Senate Minority Leader, arguably said it best when he rhetorically asked, “Is it any wonder that President Trump chose Kavanaugh from the list of 25 [candidates] when we know he’s obsessed with this investigation?” 

For these reasons, and despite his qualifications, Judge Kavanaugh should not be confirmed to replace his former boss, Anthony Kennedy, as an Associate Justice on the United States Supreme Court. Judge Kavanaugh’s nomination has only further inflamed partisan tensions and adds to the mounting evidence that the Republican party is unfit to control all three branches of government.  

Better is possible. Rather than exploiting Kennedy’s vacancy for its own partisan ends, the Republican party should seize it as an opportunity to help heal our ailing body politic. Toward that end, Republican Senators should join their Democratic colleagues and block the confirmation of Judge Kavanaugh. And President Trump should heed Senator Schumer’s advice and nominate Judge Garland to replace Kennedy. Doing so would not only replace a moderate justice with a moderate circuit judge. It would also bridge the partisan gap between Democrats and Republicans.  

Indeed, nominating Judge Garland to the Supreme Court is precisely the olive branch that our nation needs. It would help President Trump to appear reasonable. It would help the Republican party make the case that it can effectively govern. And it would help put reorient our politics in a more bipartisan direction, where the national interest is put before the party.  

 

---- 

ger3aj@virginia.edu 

Exciting New Compost Initiative

Elizabeth Buttita ’20

Student organization lunch events at UVa Law are a well-known staple of life at the Law School. Each semester, organizations of various kinds put on events, such as hosting speakers and panels, which often include food. Yum! Despite the free-food table, these events can generate a significant amount of waste in the form of plates, cups, utensils, food scraps, and the like. Unfortunately, most of the waste ends up in the landfill. Until now! 

Introducing zero-waste events! Thanks to the Recycling and Waste Diversion Program here at UVa, we now have the ability to create "green" events by providing recycling and compost bins at events. Additionally, the program offers compostable wares, such as plates and utensils. The process is very simple and completely FREE. Event organizers simply contact UVa’s recycling supervisor, Victor Martin (vem8n@virginia.edu), to request bins (and compostable wares, if desired) for the event. Once event organizers let him know the date and location of the event, approximately how many people are expected, which bins are being requested (compost, recycling, and/or landfill), which compostable wares are wanted, and desired drop-off and pick-up time, Victor and his team will be on the case! They will drop off the bins and wares and come back to pick it up at the end of the event. It’s that easy!  

It is important to note that event organizers must be willing to help attendees discard items into the appropriate bin. This is essential to successfully making the event zero-waste. For instance, if a compost bin gets contaminated with non-compostable items, it unfortunately must go to the landfill. Additionally, if non-recyclables are placed in the recycling bin, the result will be a lot of unnecessary work for Victor and his team.  

For this reason, SBA's Building and Environmental Services Committee will be hosting an information session about what is compostable and recyclable. The session will also demonstrate what a zero-waste event looks like by serving food and having compost and recycling bins. Be on the lookout for more details! 

In the meantime, feel free to contact me (mkb4ja@virginia.edu) with any questions, comments, or comments. 

 

---- 

mkb4ja@virginia.edu

Tainted Love

Editor’s Note: This piece by Kyle O’Malley '19 ran in the March 14, 2018 edition of the Virginia Law Weekly, but was inadvertently omitted from the website. The newspaper regrets the error.

In 1983, in response to the AIDS crisis, the FDA implemented a lifetime ban on blood donations from homosexual men who had had sex since 1977. [1] Despite a 2015 revision to that policy, now generally allowing men who have sex with men (MSM) to donate after a year of celibacy, [2] it remains for all practical purposes a lifetime ban on blood donations for many gay and bisexual men—including and especially ironically those who pose zero risk, such as HIV-negative monogamous couples. Heterosexual men, by contrast, are permitted to donate whenever they please, no matter how widespread, anonymous, or risky their sexual activity. [3]This is not because heterosexual men (or their partners) cannot contract HIV. It is because they are not homosexuals. This discriminatory prohibition, even in altered form, exists despite calls from activist and medical groups for the FDA to develop systems for screening donors that do not equate gay sex, risky sex, and HIV. It exists despite the fact that the Red Cross and other blood banks test every unit of blood that they receive.[4]

Nor is it the case, as some argue, that the change to the FDA’s policy (from a lifetime ban for homosexual men to a 12-month ban for men who have sex with men) is a well-reasoned, science-based approach designed to exclude donations only from those engage in risky behavior and is therefore not “discriminatory” in the relevant sense. The logic is that since the ban applies only to men who have had sex with men within the last twelve months – instead of to “homosexual men” over their entire lifetimes – it doesn’t target gay and bisexual men. That is, only the of behavior (homosexual sex) among those possessing a particular nonspurious trait (the male gender) is targeted—their immutable characteristics are simply irrelevant. The FDA isn’t discriminating against you because you are gay; the FDA is discriminating against you because you have had gay sex.  

This argument is Panglossian:[5] it fails to fully appreciate that men who have sex with men are predominantly (if not almost exclusively) homosexual or bisexual. To target their behavior is to target their identities. It is to discriminate on the basis of the fundamental expressions that manifest the immutable characteristics that are homosexuality and bisexuality. It is an argument that works, perversely, to cleave our identities from our expressions of them in a way that is dangerous to our liberty—both sexual and civil. Gay and bisexual men, in order to donate, must render themselves sexless; they must effectively become either celibates or heterosexuals to participate in this life-saving act of giving. Gay sex is no longer constituent of homosexuality and the heterosexual majority feels, as a result—dare I say it?—less squeamish.  

Thus, a homosexual man whose intimacy is protected under Lawrence[6] and whose marriage is protected under Obergefell[7] is told by the FDA that, because he has been intimate with his lawful husband in the last year, he is no longer able to donate blood to save that husband. Nor of course to save his own children, his friends, his neighbors. His blood, by virtue of his exercise of his constitutional rights, is presumptively tainted—before any answer to the question of his HIV status is ever sought. By seeking and forming powerful public and private bonds in his community—through matrimony, marital intimacy, co-parenthood, etc.—he is unable to form others.  

This is the promise of assimilation and participation in civic life undermined by the alienation of stigmatization. And to be a gay man, or a queer or gender-nonconforming person of any kind, is to face these kinds of contradictions and ironies on a daily basis.  

It is pedestrian, though correct, for me to say that in America I can be engaged on Sunday and fired on Monday because I was engaged on Sunday. It is perhaps less pedestrian, but by no means less correct, for me to say that if I wake up on Tuesday and choose to go on with my wedding, I must be prepared for the possibility that by Wednesday the Supreme Court will say that, not only may a business owner constitutionally deny me services otherwise offered to the public simply because I am gay, but that the state may not intervene to protect me even if it wants to.[8] By Thursday, I may realize that I live in a society where a great many people beyond my pastry chef—maybe my doctor, or my lawyer, or my insurer?—refuse me service. By the end of the week, I may find that I have my marriage and little else.   

If that’s what Kennedy means by “dignity,” he needs a new dictionary.   

I look forward to a time when these kinds of uncertainties do not continue to undermine my confidence in the equal status of my citizenship. In the meantime, I try to cope with those uncertainties, as do millions of other LGBTQ Americans.  

And so it was with disappointment and surprise that several gay students, myself included, encountered the presence of blood donation services during this institution’s recent “Diversity Week.” A blood bank, at the behest of the SBA, had set up shop in an alcove in Withers Brown. Balloons and tables scattered with applications spilled out into the hall. People came and went, donating blood and saving lives. The world turned. Yet my world kind of stopped. For two days, I had to pass those tables—that life-saving operation—and think about how my love for my partner has precluded my participation. For two days, I had to bear witness to what appeared to be my community’s ignorance or indifference to this discrimination. Notwithstanding the fact that last year the SBA was made aware of the problem. Notwithstanding that this was our Law School’s “Diversity Week.”  

Even if the Court and several of the states haven’t committed to sexual orientation nondiscrimination, UVA has purported to. On these Grounds, the “University of Virginia does not discriminate on the basis of . . . gender identity, . . . [or] sexual orientation.”[9] The University’s Office for Equal Opportunity and Civil Rights clarifies that the University’s nondiscrimination policy is enforced except where discrimination is otherwise permitted by law. But whether the FDA’s regulations have the force of law is a separate question than whether the University should stand against discrimination notwithstanding the legal force or permissibility of the FDA’s regulation. That is, quite aside from whether the FDA’s regulation permits this kind of discrimination is the question of whether the University should tolerate the discrimination the FDA’s regulation engenders. 

And there are good reasons why the University and its Law School should not tolerate this discrimination, all of which have force independent of the apologetic’s call for tolerance in the name of securing an adequate blood supply. I invite a discussion on these Grounds about why sometimes discriminatory means are substantively wrong, no matter how important their ends, no matter how fair their procedures, and no matter their susceptibility to being mislabeled “not discrimination” at all. Most of all, I hope that no matter our reasonable disagreements about what constitutes sound policy at the FDA, we embrace Professor Buckler’s exhortation, first inscribed upon the edifice of this institution as it was rebuilt into Clark Hall in 1932, to “labor with learning, courage and devotion to preserve liberty and promote justice.”10 That includes liberty and justice for gay students, too. And that starts at home. 

---- 

Kyle O'Malley’19

kpo4ua@virginia.edu

[1] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm

[2] https://www.redcrossblood.org/donating-blood/lgbtq-donors

[3] https://www.fda.gov/biologicsbloodvaccines/bloodbloodproducts/questionsaboutblood/ ucm108186.htm

[4] https://www.redcrossblood.org/donating-blood/lgbtq-donors

[5] “Panglossian, adj. and n.”. OED Online. January 2018. Oxford University Press. http://www.oed.com/view/Entry/136838?redirectedFrom=panglossian (accessed March 01, 2018) (“of, relating to, or characteristic of a Pangloss; unwaveringly or unrealistically optimistic”).

[6] 539 U.S. 558

[7] 135 S.Ct. 2584

[8] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)

[9] https://eocr.virginia.edu/notice-non-discrimination-and-equal-opportunity

Confirmation Stories: From Washington to Trump

Will Fassuliotis ‘19
Guest Columnist

When a seat on the Supreme Court vacates, the president is tasked with a great responsibility. Alone among the national government, federal judges have lifetime tenure. Each justice a president appoints is a justice that will put his or her imprimatur well after that president leaves office. Since the start of the 20th century, a justice has on average served (roughly) 13 years after the president that appointed him or her left office.[1] Since the Eisenhower administration (beginning in the middle of the 20th century), that number increases to an average of seventeen years. In other words, a president’s choice reverberates for another three or four terms after he leaves the White House.

            President Trump is unique, perhaps, in that he has prominently outsourced his decision making. Also unique is how public the decision making has been. During the campaign, he released two lists of nominees he would consider, first of eleven,[2] then twenty-one judges.[3] As President, he has maintained an updated list of twenty-five.[4] While it is certainly nothing new for potential nominees to become public (President Clinton was pretty clear he wanted Governor Mario Cuomo of New York to fill the seat Justice Ginsburg eventually would),[5] most public knowledge comes from leaked private talks, or after the fact interviews and investigations.

            In any event, to replace Justice Kennedy, President Trump has selected Judge Kavanaugh, only just added on the third list. Judge Kavanaugh is young. At 53 years old, he could easily serve twice the average length calculated above. He is, to use the abused phrase, “impeccably credentialed,” a D.C. Circuit judge for over a decade, a former clerk to Justice Kennedy, and a graduate of Yale Law School. In the hearings, he has already faced voracious criticism, and if he is confirmed, it will likely be by only a narrow margin.

            Has it always been this way? Not exactly. Take Edwin Stanton. He was the Secretary of War during the Civil War for Presidents Lincoln, Johnson, and Grant. In 1869, Grant nominated him to the Supreme Court, and the Senate promptly confirmed. Shortly after, and before he could take his seat, he passed away.

            Or take Justice John McLean. McLean was postmaster general under Presidents Monroe and John Quincy Adams.[6] During the 1828 election, he supported Andrew Jackson, who would end up defeating McLean’s old boss, J.Q. Adams. Today we might think of the postmaster as, at best, a second-tier cabinet position. However, in the 19th century the position was a potential source of large amounts of federal patronage. But at first only a potential source, as McLean favored meritocracy, and resisted wholesale staff replacement merely to reward Jackson supporters. Upset that McLean would not distribute jobs to Jacksonians, but wary of upsetting other supporters by firing him, Jackson found a solution when a vacancy arose on the Supreme Court. Kicking him upstairs, McLean was nominated and confirmed to the Supreme Court.

Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

            Justice McLean is not well remembered, certainly not as well as Jackson’s last nominee, Chief Justice Roger Taney. The first Catholic (and the first non-Protestant) appointed to the Supreme Court, Taney is infamously remembered for authoring the Dred Scott decision. McLean was one of the two dissenters. Perhaps he should be better remembered.

            Finally, even the father of our nation, George Washington, was not immune to confirmation chicanery. In 1795, John Jay, the first Chief Justice, resigned from the bench to become Governor of New York. To replace him, Washington appointed John Rutledge while Congress was in recess. Rutledge was one of the original associate justices, but resigned after one year to be Chief Justice of the South Carolina courts. Rutledge served until the Senate reconvened, where it promptly rejected him, 14–10, on account of his opposition to the Jay Treaty. The more some things change, well, the more other things stay the same.

            Whoever replaces Justice Kennedy will be the 114th American to sit on the highest court in the land. I hope to share a few of the stories of how they got there. Next time, Justice Brandeis and the first public confirmation hearing.

wf5ex@virginia.edu

Student Org Spotlight: A Capellate Opinions

Roger T. Dean ‘19
Guest Columnist

Welcome 1Ls and everyone else back to Charlottesville. We are excited to have you here ready for a new year. My name is Roger T. Dean (3L) not to be confused with Roger Dean (2L). He is a great guy, but I’m just not him. I am writing to let you all know about an organization that the 3Ls know about, but the 2Ls and 1Ls may not know too much about. The A Cappellate Opinions is UVa’s only a capella group made up of exclusively law students. We aim to practice, enjoy, and perform contemporary a cappella music.

During the 2016—2017 school year we performed our music at two concerts, one in the fall and one in the spring. We performed holiday music at our fall concert with some fan favorites such as “Royals” by Lorde. We performed “Blank Space” by Taylor Swift in the spring. Last year, due to unforeseen and uncontrollable circumstances, we were unable to perform at all, but we do have members who are ready and eager to perform for you all. However, as with any organization, the future is in the youth. We are actively seeking new members to help fill out our voice and make our music sound fuller. We have auditions coming up this Wednesday and Thursday, September 5 and 6, from 6 to 8 p.m. in Caplin Pavilion. I would highly encourage you to audition if you like to sing or like to perform! If you can carry a tune with or without a bucket, we would look forward to hearing you sing for us. In case nerves are a concern, you would only be auditioning in front of a couple of people. We are nonjudgmental; we are here to have a good time and do well. If you are interested in signing up for an audition, please fill out your information in a slot on the spreadsheet found at https://goo.gl/eJvVJS.

If there are not enough slots, or if you are unable to make it to an audition during this time, please contact me at (rtd2vb@virginia.edu). Ideally, you should contact our Musical Director Mika Bray at (nmb4fb@virginia.edu). We will work something out at a different time. We all understand everyone’s schedules are busy this week with the school year getting underway.

We will rehearse one to two hours per week (probably closer to the one-hour side of things). Our first performance will be at the UVa v. Louisville volleyball game singing the national anthem, and we will perform toward the end of the semester as a study break. Other performance opportunities may arise throughout the semester.

During your audition, we will run through scales to test your range, vocal swells (soft to loud to soft again on the same note) to test your volume control, and pitch matching (repeating a series of notes I will play) to test your pitch memory. Lastly, you will get to sing a solo of your choice. It can be anything you like, from a pop song to a musical theater number to jazz. Please prepare about one minute of a song for us to hear.

The A Cappellate Opinions is one of the only ways you can channel your artistic side while in law school. I know we all have passions that are going on the back burner to make sure we accomplish our goals and succeed in the legal field. Nevertheless, I believe that this organization will allow you to grow as a performer. Additionally, it should get you ready for Libel auditions, which you definitely should also look out for.

I advise everyone to find something outside of just reading for class that makes you feel great or like yourself. We work hard here at UVa Law to make sure we reach our goals, but you also have to play hard sometimes in order to balance that out. I am extremely proud of you all for reaching this point and choosing this school to attend. We look forward to performing for you all to help ease the stress, and we would love for you to join us. Another way to think of our organization is to combine two movies. You ever see “Pitch Perfect”? You ever see “Legally Blonde”? Put those two movies to together. That’s us. You can be Reese Witherspoon or Anna Kendrick. Take your pick. Anyways, if singing music without instruments is a passion of yours, we would love to see you this Wednesday and Thursday, September 5 and 6, from 6 to 8 p.m. in Caplin Pavilion.

rtd2vb@virginia.edu

75 Ways to Guarantee It'll Be 1L of a Year

Taylor Elicegui, '20
Features Editor

Welcome Class of 2021! The Virginia Law Weekly staff is very excited to welcome you to UVa Law. We compiled a list of the must-do UVa things to do if you want to succeed this year.

1.     Get the #1 ticket at Bodo’s

2.     Introduce yourself to Mandy

3.     Go to the snack room three times in one day

4.     Learn what a tort is (hint: it’s not a pastry)

5.     Attend Dandelion, then question if you are, in fact, attending a professional school?

6.     Play in a softball game. Hit a home run! Or, just hit the ball for the first time in your life

7.     Invite your professor to your softball game

8.     Drink a beer at a softball game

9.     Take your professor out to lunch

10.  Survive your first cold call! (It’s really just answering a question in class, which we’ve all done a hundred times)

11.  Go to Bar Review

12.  Join a student organization

13.  Question why you signed up for so many activities at the Activity Fair and now get so many emails

14.  Sign up for an IM-rec class

15.  Feel like Beyoncé when the air conditioning blows your hair as you walk into Slaughter

16.  Get lost upstairs in Slaughter

17.  Ring in autumn at Carter Mountain with a cup of cider and some just-picked apples

18.  Keep a sweater in your locker to survive the summer air conditioning

19.  Hike Humpback Rock with your section

20.  Don’t forget to drag along the most anti-hiking/outdoors of your pals by telling them you’ll go to Blue Mountain Brewery and get some nachos after the hike.

21.  Google “UVa Law Libel 2018.” Watch “UVa Law Boyz” and “Please Read”

22.  Fall down the wonderful YouTube rabbit-hole that is law school Libel videos

23.  Get invited to a professor’s house for dinner

24.  Donate something for the PILA Auction

25.  Buy something at the PILA Auction

26.  Get a $6 steak from Sedona Taphouse

27.  Attend a Weekly Winddown

28.  Go to a Wednesday Social

29.  Consult the last page of the Law Weekly to see where you can get free lunch this week

30.  Attend a lunch event solely for the Chick-Fil-A

31.  Try out for the Libel Show

32.  Host a dinner party with a professor-themed cocktail menu

33.  Form a study group

34.  Start outlining when your PAs tell you to and not before then

35.  Buy a suit

36.  Get your suit tailored

37.  Ponder the questionable merits of pantyhose as you shop for OGI suits (and let us know if you do, in fact, discover such merits actually exist)

38.  Attend Virginia Law Women’s Faculty Wine and Cheese Night

39.  Get dumplings after a night out

40.  Get pizza from Christian’s Pizza after a night out (and yes, that does mean I am suggesting you go out more than one time this semester)

41.  Try out the massage chair in the library

42.  Attend Virginia Law Women’s Women in Public Service Event

43.  Go to Lampo for some of the best pizza you’ve ever had in your life. Learn there’s a forty minute wait and decide to wait it out at Champion’s Brewery or Potter’s Cider Garden. Realize the anticipation can (almost) be the best part.

44.  Go to a Gunners ’N’ Roses show

45.  Become friends with your Legal Writing Fellow and hope they forgive your lousy second memo

46.  Work on becoming a true oenophile (as opposed to someone who just drinks a lot of wine) and go wine-tasting at a local vineyard at least once.

47.  Learn how to write a legal memo

48.  Go to Brazos Tacos

49.  Check out Three Notch’d Brewery (the one with the kitchen—make sure you order the pretzel bites)

50.  Study in the library

51.  Study in Spies Garden

52.  Study in the ScoCo quiet room

53.  “Study” in ScoCo

54.  Exercise (just once)

55.  Try a class at Fly Dog Yoga

56.  Refrain from asking a question that starts with “What if…”

57.  Don’t be afraid to ask good questions, though

58.  Go to office hours/update your profile picture

59.  Print your resume for free in the Copy Center

60.  Create a LinkedIn

61.  Go back through your social media and delete everything you wouldn’t want to explain to your grandmother

62.  Go to trivia at Mellow Mushroom

63.  Go to a UVa Sporting Event

64.  Follow a professor on Twitter (or #AppellateTwitter for Professor Fore)

65.  Follow Virginia Law Women on Twitter

66.  Have a full out prom-style photoshoot for Barrister’s Ball

67.  Multitask and choose both your new favorite restaurant and your new favorite law firm based on the culinary offerings at firm receptions

68.  Take a bubble bath to de-stress

69.  Impulse-buy the entire line of Bath & Bodyworks’ Comfort products during journal tryouts. Question if this is a cry for help

70.  Survive journal tryouts! It’s only one weekend, and we’ve all been there

71.  If you still (gasp!) read for pleasure, take advantage of the Law School getting free intra-campus delivery of library books

72.  Develop reverence for Stephen T. Parr, UVa Law’s favorite weather email guy

73.  Enjoy a snow day!

74.  Be sad when it’s all over

And finally, the single most important thing to make the most of your 1L year and succeed:

75.  Join the Virginia Law Weekly by coming to Monday meetings at 5:30 pm in SL 279

tke3g3@virginia.edu

Dean Goluboff Greets 1Ls

Risa Goluboff
Dean, University of Virginia School of Law

At the Picnic in the Park last Sunday, I was talking with some of you about your new lockers and laden backpacks. We jokingly noted the similarities between Law School and middle school. Though the comparison has seemed apt since my own law school days, it is perhaps more on my mind right now because I have a seventh-grade son in the midst of those years and a ninth grader just coming out the other side. So I hope you will indulge me as I spin out the comparison.

Beyond the lockers, backpacks, full schedule of required courses, and packed hallways between classes, a far more fundamental similarity comes to mind: transformation. Middle school is a time of massive change, as children become young adults by running the gauntlet of adolescence. When they emerge, they have greater independence, knowledge, resources, and perhaps even a bit of wisdom, as well as new responsibilities to match.

Law school will similarly transform you—from the “regular people” I described at orientation to members of the learned profession of the law. It will do so by running you through the gauntlet of torts, contracts, LRW, and more. You will come out the other side of this year the same person that brought you to law school but also a different person. You will have new skills, new ways of thinking, and new intellectual resources at your disposal.

Of course, in many and profound ways, middle school and law school are so very different. You are adults now. Most of you have work experience of one kind or another. You have persevered through real hardship, traveled the world, succeeded wildly in college. You come to law school with maturity (we hope), perspective, ambition, and focus.

Not only are you different now from who you were ten years ago or more, but what you will encounter here is very different as well. I can’t speak for you, but my middle school certainly did not boast world-class faculty engaged in ground-breaking research; experiential learning that let me put my classroom knowledge to work immediately; or the kind of personal and professional support that the Law School provides.

More fundamentally, this adventure is different because you have chosen it. (Who chooses middle school?) You have chosen to challenge, transform, and empower yourselves. It might not always be easy, as I am sure you have heard. That is especially true this first year, this first semester. That is not because anyone has set out to make 1L challenging. Rather, it is because you are learning new approaches to information and to life that are just that: new. They take rigor and application to comprehend, and you will want to apply yourself with zeal as you learn them.

I recall my own realization of the engagement and endurance it would take to master this new vocabulary and set of skills. I learned that “thinking like a lawyer”—the analytical reasoning, the precision with words and concepts—was not something that was just going to happen to me. I had to make myself a real partner in the endeavor. I encourage you to take ownership of the education that lies before you, and collaborate with the professors and peers that surround you.

Let me emphasize the last part of that sentence: how much you will learn from your peers. What a gift to us all that our Law School is so diverse. We come from different backgrounds. We have had different experiences. We hold different beliefs, attitudes, and interests, and subscribe to a wide range of political views. We each have our own unique identities, hopes, and dreams. This semester you have been thrown together across these differences immediately and intensely. Spending hours each week in sections of thirty people who vary in all of these ways (and more) can be a novel experience and sometimes a challenging one.

Take advantage of what that offers. The honest and respectful exchange of ideas is invaluable—not only in the classroom, but also in Scott Commons, in the sections you have been assigned and the organizations you choose to join. It is not always easy to speak so that others can listen or listen even when the message is hard to hear, but our community of trust and belonging makes that possible. Moreover, those skills are essential to analyzing and solving problems, considering every argument, exploring every idea, arguing for your side and collaborating with the other. In other words, learning how to talk and listen with professionalism, respect, and empathy is essential to becoming the exceptional lawyers you are all here to become. If you were very precocious, you might have tried all this in middle school. But I’m guessing it might not have gone as well then.

As I mentioned at orientation, this combination of pluralism and community is fundamental to who we are as a law school. I still remember my interview with UVa when I was applying to teach here almost twenty years ago. Of the many schools I spoke with, I saw immediately how this one was unique. The faculty here did not always agree. They did not take the views of others for granted. They were open to those views and to the possibility that their own might be wrong, or incomplete, or improved upon. That was why I came here, and it is what has enriched my scholarship, my teaching, my professional development, and my personal life ever since. It is at the heart of this law school and a huge part of why I feel privileged to lead it.

At the end of this year, I have no doubt that you will have transformed yourselves and one another. Each year, I find it thrilling that so many 1Ls come up to me after their last exams to say, with appropriate pride, that they now see how far they had traveled, that they feel like different people from when they had arrived. I knew that would be the case, as that is what law school does. It transforms how we think and what we can do in the world.

I know I have overworked this comparison by now, but I want to close on one last and very stark difference between your gawky early teen years and this most recent phase of your lives. It is rare to find a middle schooler who is happy, and most adults would be quick to note that they would never want to repeat middle school again. I can’t speak to all law schools, but that is certainly not the case at this one. I cannot count how many alumni report that their time at UVa Law was the happiest of their lives, and that they would relive it in a heartbeat. I hope and trust you will feel the same in three years. My wish for you is that these years are happy ones, that you thrive as well as succeed, savor as well as learn.

Welcome, let’s get to work, and enjoy.

editor@lawweekly.org

A Few Pieces of Unsolicited but Necessary TV Advice

Alison Malkowski '19
Format Editor

Not all stories have structure. Not every set of cases has a common theme, lovingly curated by a professor to highlight a single nuanced feature of the law. On a related note, the approximately five hundred words below are one such set of dangerously uncultivated thought.[1] Solicited unceremoniously from this Law Weekly staff member—who was frankly already booked solid for the weekend on such existential questions as “you’ve been in this class the whole semester, right?” and “but which red head are you?”—they defy any attempts at an organized theme. It’s almost as though this whole piece was written in twenty minutes! What a thought! Anyway, please find below a brief comment on television, a topic on which I apparently have a regrettable breadth of opinion available at a moment’s notice, in two parts. There is no conclusion, apart from a reminder that we in this profession value “fair notice.”[2]

 Show you have not watched and should try: Happy Endings

This show is severely underappreciated, almost singlehandedly convinced me to move to Chicago, and streams on Hulu. If you enjoyed New Girl but thought “I wish there was more of this Winston whimsy vibe” or “I wish Zooey was here less,” then BOY is this show for you. Centered on six friends in Chicago who epitomize the hashtag ‘#nonewfriends’ by continuing to only hang out with each other, after one of them literally leaves the other one at the altar (on rollerskates) in the first episode, Happy Endings goes to a level of weird that is both (a) the reason I’ve seen every episode four times and (b) probably responsible for its cancellation in 2013.

Damon Wayans, Jr. (who you know as “Coach” from New Girl) plays one half of Brad and Jane, the grounding couple of the friend group and probably my favorite married couple on television. The other half is shamelessly intense control freak Jane, played by Eliza Coupe (who you probably don’t know as “Tiger” from Seth Rogen and Evan Goldberg’s new show Future Man, which is on an “Inside John Malkovich” level of bizarre and which frankly would require a separate paper to explain). The show also features cameos by Megan Mullally and Colin Hanks, a fake limousine tour business, and an entire episode that centers on Max (“Peter” from The Mindy Project) becoming a popular emcee on the Chicago bar mitzvah circuit (episode title: “Boyz II Menorah”).

Show you have watched and for which I have some questions: The Crown

Claire Foy stars as Queen Elizabeth II in a dimly lit but otherwise great TV show. Photo courtesy of Netflix.

Claire Foy stars as Queen Elizabeth II in a dimly lit but otherwise great TV show. Photo courtesy of Netflix.

Let me start by openly admitting that I am not enamored with this show. The casting is amazing, as is the structured exploration of historic events related to the British monarchy (like Philip’s titling to Prince Philip, Duke of Edinburgh, which the series portrays as a marital concession by Elizabeth, but which is IRL speculated to have been to immunize him from being subpoenaed to testify in his buddy’s divorce case). My problem with this show (other than Philip, who sucks, and the former pay discrepancy between the actors who play the main characters, which sucks even more), is that the series is very dark. I don’t mean dark tone-wise, which can be an awesome feature in television (see Black Mirror, The Dark, Twilight Zone, iZombie, The OA, Futurama). I mean that the characters inhabit a world that seems to have constantly just lost power after an electrical storm.

I understand that this series is set in 1950s London. You know what they had in 1950s London? Electricity. Why is everyone having full-on serious marital confrontations in the tea room in the pitch black? This is patently unreasonable. Either because of the literal darkness or because I am wholly without sympathy for Philip, who seems to have somehow missed the central premise of a monarchy despite presumably a lifetime of cultural familiarity with it, I fell asleep every single time my family watched this show over winter break, without fail. The dogs were cute and not featured nearly enough. I would likely have stayed awake for more of the dogs.

acm4ae@virginia.edu

----

[1] See also, feelings I have about television in a small garbage collection of words, for your ridiculing pleasure.

[2] JANSEN.

 

In Defense of "Garbage" Entertainment

Kim Hopkin '19
Development Editor

I have to admit that I often feel self-conscious about the forms of entertainment that I consume. I want to be the person who gets true fulfillment from only listening to NPR, only reading The Economist, and only binge-watching Ken Burns documentaries. In fact, I’ve forced myself to try new podcasts, documentaries, and subscriptions to make it as easy as possible for me to be that person. And occasionally, I do like to spend some of my time with This American Life or getting some niche knowledge via Ken Burns on Prohibition or the Roosevelts. But, while these sources do enrich my life, I don’t always want to stay away from “garbage” TV.

I had a college humanities professor who told me that classical music was objectively better than any other type of music. She lectured us by telling us that understanding classical music and preferring to listen to that over contemporary music made you a better and more intelligent person. Having listened to it, I can say it’s not bad music. The people who listen aren’t inherently boring people. But I’m also not stupid for preferring music with lyrics. That’s just how I engage the most with songs I hear. It’s also how I rank songs and musicians that I like. I find Walker Hayes, Sam Hunt, and Devin Dawson’s lyrics interesting and easy to sing along to. People seem to understand and buy into this reasoning.

However, when I tell people that I sometimes tune into Keeping up with the Kardashians or that I love Brooklyn Nine-Nine, I feel like I’m admitting to a dirty secret. “Not even Andy Samberg thinks Nine-Nine should be nominated for an Emmy,” someone once told me. But why do I have to limit myself to smart or award-winning entertainment? Does that make it actually better?  It’s entertainment.

I feel like there are times when I want to turn on the television and think about the issues that are brought up in the episode. Maybe I want to see things from another perspective or I want to learn about a new topic. But sometimes, I want to just laugh or spend some time actively not thinking that hard. Say what you want about the inherent evil in reality television: The Bachelor is sexist; the Kardashians are talentless. Trust me, I have those thoughts occasionally, too. However, after a long day already thinking about criminal justice policy, or researching for a ten-page paper, or re-reading the Federal Rules of Evidence, I just want to wind down for bed.

That’s why it doesn’t matter that I could be spending my limited amount of time watching Westworld or reading biographies of Supreme Court Justices. I understand that having a working knowledge about different subjects is important to being a well-rounded human, and I do try to learn things outside the classroom. But I’m tired of feeling like I can’t enjoy some mindless entertainment for an hour a day. And if you also feel guilty about not having an encyclopedic understanding of mid-century European politics, I implore you to join me.

Let’s stop criticizing people who don’t have the stamina to watch an Aaron Sorkin show from beginning to end. If someone doesn’t like The Crown, then they shouldn’t have to cling to gender pay inequality to have a worthwhile reason. Let’s watch a little Bravo.

knh3zd@virginia.edu

             

Back For Seconds: "The Santa Clarita Diet"

Kim Hopkin '19
Development Editor

Possible minor spoilers below.

 Those of you with Netflix may be aware of a show that debuted on the internet streaming service in 2017 called Santa Clarita Diet.  The advertisements for the show didn’t cause me any excitement, but I decided to check it out anyway. I’ve always been a fan of Timothy Olyphant’s wry humor, and a show that attracts Drew Barrymore couldn’t be that bad. I was absolutely blown away by how funny and ironic the first season was. Without giving major plot points away, Barrymore’s Sheila is a suburban realtor who becomes a self-aware zombie. Her family, including her husband Joel and daughter Abby (played by Liv Hewson), struggles with the repercussions of this recent change in “medical status.” The boy next door, Eric (played by the hilarious Skyler Gisondo), is eventually recruited into the conspiracy and uses his nerdy earnestness to endear himself to the audience as well as Abby.

If you haven’t seen the first season of SCD, then please stop reading here and tune into the show. The show has several twists and turns and includes a mystery surrounding how Sheila turned and whether or not others may soon follow.

 

Sheila (Drew Barrymore) chows down. Photo courtesy Netflix.

Sheila (Drew Barrymore) chows down. Photo courtesy Netflix.

MAJOR SEASON ONE spoilers below. As in LAST season so don’t send me hate mail.

The second season picks up directly after the cliffhangers in last season’s finale. This means Joel is being carted off to a mental hospital, and Sheila is literally chained up in the basement waiting for Eric and Abby to create a serum that may stop Sheila from further deteriorating. If this doesn’t immediately jog your memory, please go back and re-binge the first season. Many of the important storylines are directly continued, and if you haven’t reviewed, you may miss some of the best jokes trying to catch up.

My favorite part of this season was admittedly my least favorite part of last season. Joel’s role as an emotionally adolescent parent created a dynamic that grated me last year. Sheila had to do all the murders, raise Abby, and get dinner on the table for her family? Rude. But they really reached a dynamic in the relationship once Joel put down the pot and joined in the dysfunction. When they reached #couplegoals at the end of last season with Joel paying a coroner for “spare” body parts, I didn’t know if they were going to repeat Joel’s maturity process again this season. However, I was really happy to see that he really leaned in this season and the relationship as a whole grew. The situations they encounter push them to decide what they really want and how far they are willing to go to maintain normalcy in this outlandish situation—leading to wildly comic results. I have to say, their dynamic was my favorite part of this new season.

Following closely behind was Abby’s arc this season. She’s always been tough and witty, but this season she faltered and realized the boy next door can mean more than the tough guy . . . who works at Color Me Mine (I love these writers). While Eric doesn’t undergo too much change this year, I really don’t think he needs to. His sincere desire to help the Hammonds at any cost makes me believe in mankind again. Which is fairly important when watching a show that graphically shows Barrymore chewing a man’s face off while I cheer her on. 

Guest Opinion: Keep College Open to Discussion

Sarah Crandall '19
Guest Columnist

"It is impossible for a man to learn what he thinks he already knows." Epictetus

 

"It is in fact a part of the function of education to help us escape, not from our own time—for we are bound by that—but from the intellectual and emotional limitations of our time." T. S. Eliot

Hearing Professor Coughlin and Loyola Professor Alexander Tsesis discuss the propriety of limiting free speech on university campuses, I couldn’t help but reflect on the purpose of education. Both professors and I agree that the First Amendment does not protect all speech, and since the discussion did not focus on the current limits of the law as much as the policy questions involved, my response focuses on the normative implications of campus speech restrictions.

As I see it, education is about more than paying a ridiculous sum for a paper bearing my name. I’m here to learn—to hear ideas I never thought of before, to have my fundamental ideas challenged, to see if they will still stand. It’s not a comfortable process. And it isn’t supposed to be. If safe spaces become synonymous with echo chambers, and if classes are expected to be safe spaces, that undercuts the point of education. As Professor Tsesis rightly noted, students miss valuable parts of their education if their professors let them skip the parts that make them sad or uncomfortable. Sometimes the most painful experiences are the most formative. I remember reading and discussing The Hiding Place, describing a Dutch Resistance worker’s torturous experiences in Nazi concentration camps, as an eighth grader. It made me cry. It made me angry. But it forced me to think about how I would respond in a similar situation, and I learned from the narrator’s growth. It exposed me to different ways of thinking and enabled me to assess whether those ways of thinking were right and why.

The danger of campus speech regulations, born from the idea that school should be a safe space, is that they often prematurely shut down discussion that would otherwise lead to growth. I’ve heard from my fellow students how the mere prospect, or in some cases, the firsthand experience, of being labelled a "hater" has had a chilling effect on their speech. They refrain from saying what they think in group discussions not because their ideas lack a rational foundation but because they fear the only responses will be straw-man analysis, ad hominem attacks, ostracism, or even harassment claims because a given idea is politically “incorrect” and personally offensive to someone present. That sort of one-strike-you’re-out reaction does no one any favors in the long run. It doesn’t encourage wrong ideas to be refuted with rational argument rather than name-calling, and it doesn’t teach students how to engage with these ideas post-graduation, when they may not have the luxury of walking out of the uncomfortable conversations. It only serves to leave the disparaged students feeling disrespected and resentful, forcing them into their own growth-stunting echo chambers.

Regardless of what background we come from or what beliefs we hold, none of us has all the answers. I hope that UVa will be a place where people can freely and earnestly pursue truth together, treating each other with the dignity all human beings deserve. Rather than decreeing what can and cannot be said, let’s have the hard conversations. And let’s be better people for them.

----
sec4dr@virginia.edu

Letters to the Editor: 4-4-2018

Response to Justice Stevens

W. Augustus "Gus" Todd '19

 Last week, retired Supreme Court Associate Justice John Paul Stevens penned an op-ed in the New York Times encouraging the students and activists involved in the “March for Our Lives” events to seek “more effective and more lasting reform” by demanding a repeal of the Second Amendment.[1] Justice Stevens argued the Second Amendment as interpreted in Heller[2] has stymied lawmakers from enacting more stringent gun control legislation. In his view, repealing the Second Amendment would short-circuit these arguments and would allow progressive gun control reforms to move forward free from possible constitutional restraints.

While I disagree with Justice Stevens on many points, I am happy to finally see some transparency in the arguments for gun control. For years, many gun owners have viewed proposed “common-sense gun reforms” as concealing an underlying purpose to effectuate an implied repeal of the Second Amendment. This lack of transparency of purpose is one reason many gun owners have dug in their heels and refused to entertain arguments for proposed gun reforms. If society really wants to debate whether the Second Amendment has continued relevancy in modern society, let us have that debate in the open. To do otherwise would be counterproductive and could then endanger other constitutionally secured rights.

I also agree with Justice Stevens that the Supreme Court is responsible for much of our current confusion over the meaning of the Second Amendment. During the decade that has followed Heller, the Supreme Court steadfastly refused to hear cases that would clarify what protections the Second Amendment actually affords.[3] The constitutionality of mandatory waiting periods,[4] bans on certain types of firearms,[5] and whether there is a constitutional right to carry firearms in public at all[6] is still unclear despite opportunities for the Court to take cases and decide those issues. Unfortunately, rather than fulfilling its duty of clarifying the law in this area, the Court instead turned the right to keep and bear arms into a “constitutional orphan”[7] and left the country in limbo.

Before I discuss why I am skeptical that many of the popular gun control proposals will have any appreciable impact on overall gun violence, it might be instructive to note that firearm ownership is already heavily regulated at the federal level. For one thing, federal law has effectively banned private citizens from owning fully automatic firearms (i.e. machine guns, or any firearm capable of firing multiple rounds per single pull of the trigger) since the enactment of the 1934 National Firearms Act.[8] Moreover, it is already illegal under federal law to give a firearm to[9] or for certain categories of people (such as felons, drug users/addicts, persons adjudicated to be mentally defective, and persons subject to domestic restraining orders or with previous domestic violence convictions) to possess firearms or ammunition.[10] Age restrictions are also in place to purchase or own a handgun or any type of long gun (rifles and shotguns).[11] The above discussion doesn’t even begin to take into consideration the existing federal background check regime required for all purchases from licensed dealers or the additional restrictions many states impose. Serious punishment awaits those who violate any of the above federal laws, especially when that violation occurs in relation to another violent crime.[12]

The above scheme still allows for the average law-abiding adult citizen to own rifles, shotguns, and handguns, if 21+, of both the manually loaded and semi-automatic variety. For clarity’s sake, a semi-automatic firearm fires only one bullet per pull of the trigger. “Automatic” is included in the name because some of the energy of the fired bullet is used to eject the spent casing, load the next cartridge, and stage the hammer into a firing position. However, unlike fully automatic firearms, the gun will not fire until the operator pulls the trigger again. By contrast, manually loaded firearms require the operator to manually operate the bolt of the firearm using either a pump action, lever action, or using a handle attached to the bolt itself to eject the spent casing, and then load the next cartridge from the magazine into the firing chamber.[13]

One of the most popular proposals for gun control is to institute a ban on “assault weapons.” This raises the difficult question of what constitutes an “assault weapon.” Previous assault weapon bans did not ban all semi-automatic firearms but instead looked to cosmetic features like pistol grips, barrel shrouds, and telescoping buttstocks as the defining feature of the “assault weapon.”[14] A semi-automatic rifle with detachable magazines that did not include these cosmetic features would not be banned. However, these additional features don’t really affect the overall lethality of the firearm, so I’m not sure why they would be relevant other than that they make the firearm look “tacti-cool.”[15]

For example, both telescoping stocks and pistol grips are primarily ergonomic features that help a person obtain a better and more comfortable grip on their firearm. These are features that should be encouraged, not form the basis of making a weapon illegal. Moreover, features like barrel shrouds, threaded barrels, and flash suppressors are cosmetic in nature and generally have no real impact on the firearm other than making it look like a military grade weapon.

Even more drastic features like bayonet mounts are primarily cosmetic, or in the case of a grenade launcher, meaningless (since the actual grenades themselves are banned under the 1934 National Firearms Act).

Even banning semi-automatic design of firearms or the ability to accept detachable magazines would likely have less of an impact than many gun control proponents would assume. Admittedly, the semi-automatic feature and ability to accept detachable magazines makes it easier to fire multiple rounds in a shorter period of time than if those features did not exist. If that is the sole basis for the argument though, then the goal would seemingly be to ban all semi-automatic firearms that accept detachable magazines, regardless of other cosmetic features they may have. But even this would likely not greatly affect the overall lethality of firearms. Instead, it would encourage firearm manufacturers to change their designs to make pump or lever action firearms fed by “stripper clips”[16] more popular. A person with basic familiarity with their firearm can achieve effective rates of fire with a pump action comparable to that with a semi-automatic firearm. Similarly, there is not much difference in the time required to reload a detachable magazine or use a stripper clip instead.

It would be wrong to see this as evidence that an assault weapons ban wouldn’t affect lawful gun owners. While the average gun owner likely can achieve similar functionality with manually operated firearms, individuals with physical limitations may not be able to operate manually operated firearms. Not only would that would render those firearms practically useless as a means of self-defense, it would needlessly inhibit their enjoyment of shooting sports overall. Similarly, the ergonomic features that can result in a rifle being banned as an “assault weapon” are useful to all shooters in making their rifles more comfortable to shoot. That shouldn’t be a reason to ban them. But more importantly, the debate itself is misplaced because it focuses on a policy that at best would have only a marginal effect on the overall lethality of the firearms themselves. Rifles and shotguns make up a vanishingly small portion of all firearm-related deaths nationwide. In fact, handguns are by far the category most often used in homicides,[17] and even then, approximately two-thirds of all gun-related homicides nationwide are suicides.[18] To focus on “assault weapons” is to look in the wrong place to combat gun-violence.

My goal here is simply to refocus the debate to where it can have the greatest impact. I am eager to participate in a serious conversation about how to lower the social costs of gun ownership in this country, but we have to start in the right place. We should not make the mistake of sacrificing an opportunity to directly address the mental health and overall violent crime issues that are driving America’s gun violence problem by making an emotionally-satisfying yet ill-reasoned choice to focus on a particular class of firearms or by making wholesale changes to the constitutional protections afforded to firearm ownership. Instead, let us have a discussion where we aim to solve the root causes of gun violence. That is a discussion that I, and gun owners like me, have been waiting to have for a long time.

wat5pm@virginia.edu

[1] John Paul Stevens, Repeal the Second Amendment, The New York Times (March 27, 2018) https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html.

[2] District of Columbia v. Heller, 554 U.S. 570 (2008).

[3] See Silvester v. Becerra, 583 U.S. ____ (slip opinion at 12) (2018) (Thomas, J., dissenting from denial of certiorari). Arguably, the only meaningful Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, 561 U.S. 742 (2010), which incorporated the Second Amendment as a fundamental right applicable against the states.

[4] Silvester v. Becerra, 583 U.S. ____ (2018).

[5] Kolbe v. Hogan, 849 F.3d 114 (2017) cert. denied, 138 S. Ct. 469 (2017).

[6] Peruta v. County of San Diego, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting from denial of certiorari).

[7] Silvester v. Becerra, 583 U.S. ____ (slip opinion at 13) (2018) (Thomas, J., dissenting from denial of certiorari).

[8] There are narrow exceptions to this rule for certain antique firearms or for people who have a Class III license from ATF. For a thorough discussion of the laws concerning automatic firearms, see Sean Davis, Here are the Actual Federal Laws Regulating Machine Guns in the U.S., The Federalist (Oct. 2, 2017) http://thefederalist.com/2017/10/02/actual-federal-laws-regulating-machine-guns-u-s/.

[9] 18 U.S.C. § 922(d).

[10] 18 U.S.C. §§ 922(g) & (n).

[11] 18 U.S.C. § 922(b).

[12] See generally 18 U.S.C. § 924.

[13] Revolvers can share characteristics of both semi-automatic and manually operated firearms, depending on the design.

[14] See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 §§ 110101, et seq., 108 Stat. 1796, 1996 (1994).

[15] Because of the visual similarities, some also mistake semi-automatic rifles patterned after fully automatic assault rifles as being the same thing. For example, this has led to many people wrongly conflating the semi-automatic AR-15 with true “assault rifles” like the fully automatic M16 and M4 rifles used by the military. “Assault weapons” and assault rifles are not the same.  

[16] A stripper clip is a loading device that holds several cartridges together as a single unit for easier loading into a firearm’s magazine. They are called “stripper clips” because you strip the bullets out of them and into the magazine.

[17] Erica Smith and Alexia Cooper, Homicide in the U.S. Known to Law Enforcement, 2011, U.S. Dep’t. of Justice (Dec. 2013) https://www.bjs.gov/content/pub/pdf/hus11.pdf.

[18] See Ben Casselman, Matthew Conlen & Reuben Fischer-Baum, “Gun Deaths in America,” FiveThirtyEight https://fivethirtyeight.com/features/gun-deaths/.

Springtime for Softball in Charlottesville

Johnathan York '18
Softball Enthusiast

Henry Morris '18
NGSL Enthusiast

The UVa Law Softball Invitational is set for its 35th year on April 6-8. What started as a tournament of sixteen teams has grown into an event beloved by law students across the country.[1] Over 1,500 law students representing fifty law schools will make the pilgrimage to Charlottesville that weekend. The North Grounds Softball League, the group that organizes the tournament, is excited to continue the tradition of community, charity, and UVa softball dominance.

The Invitational’s greatest achievement is its impact on the community. Every year, a portion of the proceeds is donated to ReadyKids, a local non-profit that provides early learning education services and counseling to disadvantaged or at-risk children right here in Charlottesville. A portion of the proceeds will also go to UVa’s Public Interest Law Association, helping fund UVa Law students seeking to work in law and public service. We’re looking forward to continuing these relationships this year.

In addition to supporting some great causes, the Invitational is a convenient stage for UVa to assert its dominance over other law schools. The first Invitational was held on March 30, 1984, and had sixteen teams representing seven schools. Things quickly got heated as the coach of the William & Mary team arrived in Charlottesville and declared, “We are not only going to win your tournament, we are going to drink your beer...and burn your overrated law school to the ground.” The UVa teams took this to heart, and the 1L/2L squad made a run all the way to the championship. Thirty-five years later, the pride of protecting our grounds from visiting schools is still alive and well. With a combination of ten Championships and Runner-Up finishes over the past six years, the UVa teams have sent a message to any teams coming to Charlottesville: bring your A game.

            From everyone who has worked tirelessly to help put on this year’s invitational, we hope you all will come out and enjoy every part of the tournament. Whether it’s being a field monitor (and getting PILA hours), or cheering on the UVA teams, this truly is one of the best weekends of the year. Check out the information below to catch all the softball action.

Get involved. Here are a couple ways to join in the fun.

●      Purchase a tournament wristband: Wristbands cost $25 and get you access to the Saturday Barbecue and drink specials on Saturday night at the Corner, plus proceeds go toward a charitable donation. Wristbands can be purchased Friday night at the Biltmore from 4 to 8 p.m., or Saturday at the Park.

●      Cheer on your classmates: Look for an e-mail in the days leading up to the tournament detailing when and where the six UVa teams will be playing so everyone can come cheer them on.

The schedule. It’s a packed weekend—here’s when and where to catch the action.

●      Registration Party at the Biltmore (Friday, 4-8 p.m.): Visiting teams are welcomed to Charlottesville with another UVa Law tradition—drink specials at the Biltmore.

●      Pool play (Saturday, all day): at Copeley Field, the Park, and Darden Towe Park, teams face off in round-robin pool play to determine who will advance to Sunday.

●      Barbecue at the Park Pavilion (Saturday, 12-2 p.m.): sustenance for players, volunteers, and fans will be served up.

●      Saturday night at the Buddhist Biker Bar, featuring Gunners N’ Roses (Saturday, 8-11 p.m.): join us to wash away a day of defeat or numb the Championship jitters at Buddhist Biker Bar. The Law School’s own Gunners N’ Roses go on at 10:00 p.m.

●      Sunday single-elimination bracket (Sunday, all day): the winner of each group will compete in an NCAA-style elimination bracket, culminating in the regular and co-rec championship games at Darden Towe at 3:30 p.m. and 5:00 p.m.

Bold Tournament Predictions. Finally, some hard-hitting analysis of what could (but probably won’t) go down at this year’s Invitational.

●      Cornell, the North Korea of law school softball, will ignore its ban, hop on another party bus, and show up in Charlottesville anyway. Dascher Pasco will lead a small but passionate group in forming a human wall between the Cornell team and the Biltmore registration party.

●      After Men’s Gold realizes that among their “top prospects” they forgot to get someone who can actually pitch, the team will call up Professor White, a.k.a. Father Softball, who will begrudgingly lead them deep into Sunday bracket play.

●      Several inter-law school romances will blossom. Get your Tinder profile updated.

●      Co-Rec Wild Things or Co-Rec America will shock the world on Sunday. With a surprising number of former college athletes and plenty of liquid courage, either team is primed to make a run.

----
jpy9cw@virginia.edu

[1] See the Law Weekly Article for the first tournament, Vol. 36 No. 20.

Satire: White Men Protest Libel

Graham Pittman '19
Guest Satirist

The Affluent White Male Law Student Association (AWMLSA) released a statement today condemning the treatment of cis-gender, heterosexual, upper-middle class Caucasian men at this weekend’s Libel Show.

 “The jokes made at our expense were totally out of line, and you better believe my father will be hearing about this,” 3L AWMLSA President Bradley Hartford said while lounging in Scott Commons in his signature salmon shorts, pastel polo, and boat shoes. “I came to Libel expecting to laugh about Dean Davies falling off a horse or lazy 3Ls blaming Dean Dugas for their inability to read emails and set a reminder to sign up for classes, not be confronted with uncomfortable truths about the socioeconomic composition of the law school’s student body. If I wanted to feel bad about being a straight white man, I would just read the op-ed section of Law Weekly.”

 In particular, Hartford took offense to the group’s portrayal in the UVA Law Boyz music video, a parody of “California Girls” by celebrated singer-songwriter Katy Perry. “To describe us as a homogeneous and completely interchangeable group completely mischaracterizes the diversity of our membership. For instance, I’m from Greenwich, Griffon over there is from Northern Virginia, and Tucker here is from Charleston. Brett,” he added, gesturing to another student wearing khakis, an old fraternity t-shirt, and boat shoes, “plays lacrosse and tennis, while I’m more of a squash and golf guy. And to say that we only wear pastel polos and Top-Siders is totally inaccurate. It’s like the writers completely forgot that all of us spent the entire winter and fall wearing plaid button-downs, olive Barbour jackets, and L.L. Bean boots.”

“Further, I resent that they called us ‘privileged.’ We worked just as hard to get into this school as anyone,” continued Hartford, the son of a major law firm partner who serves on the Law School Foundation’s Board of Trustees. “And it’s not like we’ve never faced adversity before. Sure, I have an offer to work at my dad’s firm after graduation, but do you have any idea how difficult it is to maintain close to a B+ average while going out three nights a week with your NGSL bros?” Hartford, whose parents are paying the full cost of his attendance in addition to his rent at the Pavilion, also cited the lack of diversity scholarships for straight, upper-middle class white men.

 “Until the Libel Show, I was absolutely convinced that we didn’t have a discrimination problem at the University of Virginia. You think this sort of thing could never happen around here, but next thing you know, you’re being systemically persecuted in the form of a four-minute music video set to the tune of a Katy Perry song,” Hartford exclaimed. “I’m just not sure that this is a safe place for people like us anymore” he concluded, referencing the law school whose most recently admitted class is both 55 percent male and 75 percent white.

 Hartford says that his group will continue to fight to bring awareness to the plight of straight, upper-middle class white men at the University of Virginia School of Law. On Thursday at 4 p.m., AWMLSA will be holding a rally outside of the Vineyard Vines store at the Stonefield Shopping Center followed by a march to the keg in Spies Garden. Students are asked to pop their collars in solidarity, and members are required to attend unless they have a preexisting commitment with FedSoc.

----
gep3ee@virginia.edu

10 Ways Snow White is Like Law School

Taylor Elicegui '20
Staff Editor

What do law students and Snow White have in common? Both start off blissfully ignorant, living easy lives, until tragedy strikes (becoming an orphan/selling your soul to go to law school) and end up working to death before running for their life from murderous forces like the Queen/the student loans you took to pay tuition only to be saved by a handsome prince/that firm salary awaiting you at the end of your three years. What follows is a guide[1] to the people you will meet as you try and avoid being murdered on this “magical” journey.

1.     The Wicked Stepmother: Finals. Finals feel jealous of everything in your life that brings you joy and happiness. Finals plot to murder you and your joy. Good luck trying to enjoy the Pav pool and beautiful spring weather with your Property/poisonous apples hanging over you. You can run, but you can’t hide. Even if you try and hide, the Wicked Stepmother will track you down and use your weakness (inherent kindness/love of going out) to ruin your life and/or GPA.

2.     The Magic Mirror: Mirror, mirror on the wall, who’s the edgiest T14 of all? The University of Virginia School of Law, of course. Everyone knows UVa Law is the cool kid of all the law schools. In a few weeks, when all the other schools descend on us for the softball tournament, our popularity will be apparent. They hate us cuz they ain’t u,s @AboveTheLaw.

3.     Doc: You spend the first two months thinking she is your section’s gunner. That is, until she bombs your ungraded Civ Pro midterm. For some reason, she thinks that you need to do a minimum contacts analysis for the plaintiff, even though everyone knows the court always has good personal jurisdiction over the plaintiff. You were super intimidated until you realized that, while she seems to have it all together from the outside, she’s actually the conductor of the Hot Mess Express. For some reason, though, she still reads all the assigned notes.

4.     Sleepy: Your friend that, for some reason, has all of the same responsibilities as you but seems much more hassled, stressed, and sleep-deprived. Unclear if he has an addiction to internet poker or The Great British Bake-Off, but you have a sneaking suspicion he doesn’t sleep at night, since he struggles so hard in class.

5.     Grumpy: He has a coffee addiction but never manages to grab a cup before your 8:30, so every time you speak to him, you fear for your life. He complains about the reading when it’s forty pages and complains about the reading when it’s four pages. You feared for Student Affairs that one time he went to get snacks and they didn’t have any of his favorite chips. Amazingly, he tends to avoid getting cold-called. You’re pretty sure it’s because the professors are scared off by his perma-scowl.

6.     Happy: Every section needs a Happy to help them bond and keep them sane. Happy is super extraverted and seemingly knows everyone around school. She’s most likely the captain of your softball team, the 1L Rep of Virginia Law Women, involved with the Libel Show, and one of those people that runs marathons *for fun*. You know Happy must have some flaw somewhere, right? Otherwise it’s just not fair.

7.     Sneezy: The sick kid who never stays home and gets everyone else sick. You can’t blame Sneezy for being a product of our law school culture, but that doesn’t mean you have to appreciate the germs. Why do we insist on doing this to ourselves? Unclear, but this is definitely something we should work on.

8.     Bashful: Your friend who, despite grading and writing onto Virginia Law Review, remains the humblest, kindest friend you have. She’s always willing to give you her class notes. She writes her own outline and your outline. With Bashful by your side, you’re guaranteed to meet the median in Federal Courts, at the minimum.

9.     Dopey: He’s perpetually late for class. Seemingly never does the reading. Pulls all of his outlines from the SBA bank. Has never missed a bar review. You’re honestly worried about him failing LRW. But, you keep him around because he makes you feel like you’re thriving. Plus, you can always count on him to throw the pre-game.

10.   Prince Charming: Just like Prince Charming, the Virginia Law Weekly. Law Weekly is here to rescue you when you need it the most—the day when you forgot your lunch and don’t want to pay for food. Law Weekly comes to the rescue with the school’s most comprehensive guide to find the fairest free meal in all of the land. Law Weekly is also your go-to source for breaking news, cartoons, and professor quotes—here to rescue you from the drudgery of studying when you need it the most. You’re welcome.

----

tke3ge@virginia.edu

 

[1] With thanks to Will L. Hupp '20 and Darcy Whelan '19 for their assistance

Don't Raise Your Voice, Improve Your Argument

Anna Murphy '19
Guest Columnist

 Slamming the door on her way out, an attendee caught my attention as she prematurely exited the abortion debate between Nadine Strossen and Stephanie Gray this past week at UVa Law.

This momentary disruption contrasted with the polite silence of Caplin Pavilion where two powerful, expert women intelligently debated the highly contentious issue of abortion. Sitting in the audience, I thought of the principle spoken of by Desmond Tutu: “Don’t raise your voice, improve your argument.”[1]

This article is to provoke thought regarding how you, I, and our colleagues debate generally as well as in the specific context of abortion. I will give you objective facts about abortion, applaud and critique the recent debate between Ms. Strossen (former ACLU president) and Ms. Gray (co-founder of the Canadian Centre for Bioethical Reform),[2] challenge how you think about abortion, and then suggest a common ground that both pro-life and pro-choice advocates can support in their quest to protect women’s rights. I welcome comments and critiques, and would love to have a personal discussion with you regarding this article (please see my contact information below).

To begin, I want to recognize abortion is a highly-charged, emotional issue. It triggers conversations regarding gender inequality, racial inequality, poverty and economic prospects, bodily autonomy, human rights, ethics, religion, and morality. I honestly cannot conceive of a more controversial topic that attaches itself to such an array of concerns. Ironically, both sides recognize that gender inequality and other topics are valid and crucial interests, yet we rudely disengage from conversations and throw ad hominems at a person who is often trying to maximize those same interests from a different lens. We therefore miss opportunities to sharpen arguments, know what the opposition thinks and understands, and find common ground on which we can start solving societal problems.

Additionally, I want to express my support for the approximately eighty women here (statistically) at UVa Law who have had an abortion.[3] Research shows that each of those eighty women likely had an abortion due to poverty, educational concerns, or relationship problems with her partner.[4] I implore you to further research the demographics, the reasons, and the procedures of abortion in order to be an informed debater.

Now to last week’s debate on the question of “Should abortion be legal?” I want to first acknowledge and applaud Ms. Strossen and Ms. Gray’s civility, expertise, and accomplishments. They shook hands, spoke in a friendly manner, avoided ad hominems, and presented compelling arguments and counter-arguments. Although Ms. Gray also did so implicitly, I appreciated Ms. Strossen’s explicit attempts at finding common ground.

Ms. Gray began the debate, following the coin toss to determine speaking order, with the provocative question of, “What do civil societies expect of parents?” She claimed (and I hope we all agree on at least this) that we expect parents not to beat or otherwise harm their children. Her three organized points were as follows: (1) parenthood begins at fertilization, (2) human rights begin when humans do, and (3) abortion violates human rights and parenthood.

Ms. Gray stated that humans undeniably produce human offspring, and “personhood/humanity” cannot logically be based on size, level of development, environment, or dependency. For example, is a 6’4” person more human than a 5’1” person? Is a person with a mental handicap less human than someone with an IQ of 160? Does being in a hospital make a person less human than if she were in a classroom? Is a two-year-old, who needs his parents to feed him, less human than a six-year-old who can prepare his own PB&J? Squarely addressing why we tend to draw the line at pre-born versus birth or at viability for “personhood,” Ms. Gray also asked a challenging question: if “personhood” is based on vitality outside of the womb, why do we allow technology to define our humanity? Given that (a) technology in the US can allow a 21-week-old fetus to survive outside the womb,[5] while (b) technology in less developed countries does not have that capability, are American 21-week-old fetuses more human than those in Afghanistan?[6] Ms. Gray's conclusion is that being conceived from human parents defines our humanity rather than size, level of development, environment, or dependency.

In response, Ms. Strossen focused her arguments on Supreme Court precedents and how Ms. Gray’s arguments overlooked the dire realities of unwanted pregnancies on women in sensitive situations. For example: poor, racial minority women who are pregnant, in college, and have neither a supportive partner nor family have bleak options. Roe v. Wade gave women the right to have an abortion in defined circumstances, [7] and neither the State nor individuals should impose their “independent principles of morality” on women.[8]  Furthermore, forcing a woman to carry a fetus to term violates her bodily autonomy, exacerbates gender inequality, and harms her career potential.[9]

Both sides of the debate supported their positions well, but each had a unique flaw. Ms. Gray did not satisfactorily give solutions for how to alleviate difficult cases of women who are impoverished, in school, or have less-than-ideal partners. Granted, the debate was on the question of “Should abortion be legal?” rather than “How do we help women who are pregnant?” In turn, Ms. Strossen repeatedly refused to argue at what point a fetus becomes human. Instead, she hinged her arguments on Supreme Court reasoning and dicta in addition to heart-wrenching realities faced by women. Such appeals were compelling, but nonetheless emotional appeals.

Before I suggest a common ground for both pro-choice and pro-life advocates (and I promise that we do have common ground), I will challenge you with this question: when do you begin defending human rights? How large does your client have to be? How mentally or physically developed? In which environment does she have to be? Does it matter whether she can care for herself or may she be dependent on her guardian?

Are you purposefully overlooking the question of “when does human life begin?” Do you have good evidence and arguments beyond emotional appeals?

Here is where I believe we all can agree: we must practically empower women who are in school, who are poor, who are in unsupportive relationships so that they can have a choice. Let us advocate for more pregnant-friendly school policies, let us find creative economic solutions for poor women, and let us be better human beings willing to come to the aid of our pregnant partners regardless of whether they will have an abortion or not. Although I am a pro-life advocate, I believe we must first address the three social issues of (1) lack of educational resources, (2) economic inability, and (3) unsupportive partners before women can truly have a choice. Let us empower women so they are not weighed down by an extrinsic factor when evaluating their decision regarding abortion.

Auspiciously, this debate between Ms. Strossen and Ms. Gray occurred the day of oral argument in Nat’l Inst. of Family and Life Advocates v. Becerra,[10] concerning free speech and abortion advocacy. On the issue of abortion, and in discussion of all topics, I ask you to join me in improving arguments to persuade rather than raising our volume to drown out—or walk out on—an opposing viewpoint. Let’s all work together to ensure women do have a choice, and again, please do not hesitate to contact me at alm4zx@virginia.edu to discuss this topic.

----

alm4zx@virginia.edu

[1] “10 Pieces of Wisdom from Desmond Tutu on his Birthday,” Desmond Tutu Peace Foundation (October 7, 2015), http://www.tutufoundationusa.org/2015/10/07/10-pieces-of-wisdom-from-desmond-tutu-on-his-birthday/.
[2] As a disclaimer, I will only discuss what I believe were their strongest points.
[3] See “Induced Abortion in the United States,” Guttmacher Institute, (January 2018), https://www.guttmacher.org/fact-sheet/induced-abortion-united-states (stating approximately 19% of women in the U.S. have an abortion by age 30). See also “Facts and Statistics,” University of Virginia School of Law, https://content.law.virginia.edu/facts-and-stats/overview (stating that as of October 5, 2017, there were 913 enrolled students, 46% of whom were women).
[4] Guttmacher Institute, supra note 3.
[5] Bonnie Rochman, “A 21-Week-Old Baby Survives and Doctors Ask, How Young is Too Young to Save?” Time (May 27, 2011), http://healthland.time.com/2011/05/27/baby-born-at-21-weeks-survives-how-young-is-too-young-to-save/.
[6] “Infant Mortality Rate,” Central Intelligence Agency, (Accessed March 24, 2017), https://www.cia.gov/library/publications/the-world-factbook/rankorder/2091rank.html.
[7] 410 U.S. 113 (1973).
[8] Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992).
[9] See id. at 851.
[10] Nat’l Inst. of Family and Life Advocates, 839 F.3d 823 (9th Cir. 2016), cert. granted, 86 U.S.L.W. 3238 (U.S. Nov. 13, 2017) (No. 16-1140).  

Four Machiavellian Reasons to Rescue a Dog

Hutton Marshall '19

Guest Columnist

There are a lot of dogs out there in need of a decent human to look out for them. The American Society for the Prevention of Cruelty to Animals estimates that approximately 3.3 million dogs enter U.S. animal shelters each year. [1]  Nearly a quarter of them are euthanized annually.[2]
That reality wasn’t on our minds when my partner Kelly and I decided to adopt our first pooch, Jocoté, in 2015 when we were living down in Costa Rica (where the reality for homeless dogs is even grimmer). We just wanted a good boy to hang out with, and a friend pointed us in Joco’s direction.

Jocoté. Photo courtesy Hutton Marshall.

Jocoté. Photo courtesy Hutton Marshall.

Joco passed away last December, but during the last few years, Kelly and I came to appreciate the dire predicament many dogs spend their entire life enduring. While losing Joco after just two years with him was a shock, rescuing is a no-brainer for us now. Earlier this week, we signed the official paperwork to adopt our foster Artemis (Arty).
I’m clearly in the camp that there are plenty of good reasons to rescue, but in case the traditional benefits haven’t swayed you, here are a few of the more Machiavellian advantages to rescuing:


1.    Rescues can get away with behaving terribly all the time

This is probably my favorite reason, if I’m being honest. Rescues are stereotyped as these crazily damaged creatures—to be sure, many of them have scars from past trauma—but this results in them getting so much leeway in public.
Rescue urinates indoors somewhere? “Sorry, she’s spent her whole life outside, so we’re still working on house training.”
Rescue jumps up on strangers? “Sorry, he was neglected pretty badly, so now he’s a little starved for affection.”
Rescue growls at the helpless poodle at the dog park? “Sorry, she was in a rough situation before coming to us.”


2.    Avoid social obligations with little consequence


This is more universal to dog ownership, but having a rescue is a full-proof get-out-of-[thing you don’t want to go to]-free card playable at any time. [3] This is probably most effective when you get a spur-of-the-moment invite somewhere (“Sorry, I’d love to, but I actually have to run home and let Arty out.”), or when you want to wrap up an evening early (“Welp, Arty’s been cooped up at home for a while now, so I should go make sure she’s doing okay.”). But it can even be used to get out of pre-planned events (“Guys, Arty just ralphed on my living room rug. I better stay home and keep an eye on her.”). Feel free to be creative here. Most people don’t know jack about your dog, so it’s usually a pretty safe excuse.

Artemis. Photo courtesy Hutton Marshall.

Artemis. Photo courtesy Hutton Marshall.


3.    Excellent effort-to-love ratio


When you adopt a rescue dog, chances are that they weren’t in a great situation before their rescuing (hence the term “rescuing”). I know, I know, it’s terrible that Arty spent the first three years of her life living outside, receiving little affection—or even acknowledgement of her existence—but, on the flipside, Casa Hutton is basically her definition of paradise because of that. Rescuing sets the bar low on my end. I’m basically the second coming of Christ to my dog because I let her inside my apartment and give her water on the regular.
The point isn’t that you can skate by as a mediocre dog owner with rescues. Although even if you’re going to be a pretty mediocre dog parent, that’ll probably be an upgrade from your would-be rescue’s current predicament, maybe? I don’t know, I don’t want to get into all that. The point is, from an effort-to-love standpoint, if you’re going to put in X amount of effort as a dog parent regardless of where they come from, you’re going to get exponentially more love and affection back from a rescue. With a puppy who’s never known hardship, you’re going to be setting that baseline pretty high for them.[4]


4.    Moral superiority


This one really doesn’t need much explanation, but once you adopt a rescue, you’re really on a different moral playing field than other dog owners. Like I mentioned above, it didn’t even occur to Kelly and me that we were doing anything altruistic when we got Joco for free. Soon, however, we learned to embrace the fact that by doing so, we had become better people than many of you all.
It was at first unclear how to convey our moral superiority to all those we encountered, especially at the dog park where our selfless nature really had the chance to shine. We wanted to make sure people knew we were better than them, but didn’t want to be too obvious about it, you know? Much to our relief, we quickly realized that there were myriad opportunities for communicating the fact that we had a rescue dog, and that the implication that we were good people would naturally follow. For those hesitant about following this step: whenever you get asked “Oh, how old is your dog?” or “What breed is she?” it’s important to never know the answer to these questions. Not only will this make clear to the fellow dog owner that you are an altruistic dog-rescuer, but that by knowing this information about their own dog, they have in fact unwittingly outed themselves as a morally depraved dog-purchaser.

----

jhm5mw@virginia.edu

[1] https://www.aspca.org/animal-homelessness/shelter-intake-and-surrender/pet-statistics

[2] Id.

[3] In fact, you don’t really even need to actually own a dog to do this. See, Veep, Season 1, Ep. 3 (Communications Director has an imaginary dog, a “Bullshitzu,” to evade social and professional obligations).

[4] General disclaimer that this article is grounded in baseless speculation.