Clinic to Argue Straight Client's "Reverse Discrimination" Claim Before Supreme Court

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Andrew Allard '25 
Editor-in-Chief 

Students and faculty at the Supreme Court Litigation Clinic are representing a straight client in a Title VII “reverse discrimination” claim. The Law School announced in early October that the Supreme Court had agreed to hear the case, Ames v. Ohio Department of Youth Services.[1] But the clinic’s filings in Ames date back to February, suggesting that clinic members have been working on the case for almost nine months. According to UVA Today, the case involves “a state employee’s sexual orientation discrimination claim.”[2]

Source: Phil Roeder 

The Supreme Court accepted Ames for argument this term alongside another clinic case, Cunningham v. Cornell University, which involves the Employee Retirement Income Security Act. Securing two cert grants is a milestone for the clinic under its new director, Professor Xiao Wang, who joined the Law School last year. The clinic is also collaborating on a third Supreme Court case, Perrtu v. Richards, which is being defended by the Law School’s Appellate Litigation Clinic.

The Supreme Court Litigation Clinic had only brought three cases before the high court in the five years before Wang became director, most recently arguing Jones v. Hendrix in 2022. Speaking to the Law Weekly’s Hot Bench in September 2023, Professor Wang said that he hoped to change the clinic’s appellate strategy.[3] “I will be trying some creative ways to find more cases for students to work on,” said Wang, citing a downturn in the federal government’s appeals and law firm partners who are part of the Supreme Court bar as possible inroads.

But not all students are celebrating the clinic’s newfound success. Members of the Lambda Law Alliance at UVA (Lambda) have questioned the clinic’s decision to take on Ms. Ames’s reverse discrimination claim. In a statement published to Instagram on October 31, Lambda criticized the clinic’s decision to pursue a case that could use UVA resources to “undermine LGBT+ individuals’ interests and opportunities.” Lambda also criticized the clinic’s perceived lack of transparency in its case selection and assignment process, calling for the disclosure of the rubric and “ethos” guiding the clinic’s decisions.

Responding to an email inquiry on Ames and the clinic’s case selection policies, Professor Sarah Shalf ’01, the Law School’s Director of Clinical Programs, said that how the clinic selects cases is a “question of academic freedom” and that “case selection is a matter for the faculty member to decide.” Professor Shalf noted that the Supreme Court Litigation Clinic is guided by “several factors” in selecting cases, including the strength of legal arguments and pedagogical benefits.

Shalf also highlighted the educational benefits of clinics. “UVA Law’s Supreme Court Litigation Clinic is designed to give students the incredible experience of working as appellate lawyers at the highest level of practice,” said Shalf, noting that the clinic “represents a variety of clients on a wide swath of issues, covering the breadth of the political spectrum, as well as those with no political valence at all.”

Shalf emphasized that representing a variety of clients is both an educational benefit and an ethical duty of attorneys. “[T]he Supreme Court Clinic can and should teach students to engage with and advocate for a position or client that may be personally challenging because this is what lawyers do in practice,” she said. Professor Shalf encouraged students with specific questions about case assignment practices to speak to individual clinic directors for more information.

Last week, Lambda’s President, Marissa Varnado ’26 met with Professor Shalf to discuss Lambda’s concerns about Ames and the clinic’s case selection policies. Citing her conversation with Shalf, Varnado told the Law Weekly that clinics do not generally consider the impact on students when selecting cases. While Shalf reportedly reassured Varnado that clinics would consider student impact in “extreme” cases, she did not explain what would count as an extreme case.

Reflecting on the meeting, Varnado reiterated the need for transparency. “Our concern is that this will continue to be an issue: the Clinic in the dark takes a case that may constrain minority rights, the community finds out about it in a press release, and people continue to question whether they have a place in this community, at this University, or in this field.”

For her part, Professor Shalf expressed openness to continued dialogue about clinic practices. “I appreciate [Lambda’s] willingness to share their views about how to improve the clinical experience at the Law School. I look forward to ongoing conversations with Lambda, and I welcome conversations about clinical programs from any student or group.” Still, Shalf was careful not to suggest that clinics would be able to respond to all student criticisms, noting that “professional ethics rules prohibit us from having a community-wide discussion of the specific reasoning behind taking [Ames] or any other individual case.”

Professor Wang declined to comment, citing ethical and professional obligations. Clinic students assigned to the case likewise declined to comment, citing a general direction from clinic instructors to refrain from speaking publicly about ongoing cases. A disclaimer on the clinic’s webpage states: “The positions that the clinic takes on behalf of its clients are independent of the views of the University of Virginia or the School of Law.” Speaking to UVA Today in October, Professor Wang said of the case “We think that whatever the test is for discrimination, it should apply equally across groups and across individuals.”[4]

The Supreme Court Litigation Clinic is no stranger to controversial cases. Its recent appeal in Jones v. Hendrix also prompted criticism. Jones addressed the availability of post-conviction relief for criminal defendants whose conduct was later determined to fall outside the scope of the criminal law under which they were convicted. Critics noted that recent Supreme Court opinions had narrowed post-conviction relief, making it likely that the clinic’s appeal would resolve a defendant-friendly 8-4 circuit split unfavorably. The Court ultimately ruled against Jones, the prisoner.

Despite the fervor around Ames, Professor Joy Milligan, who teaches Civil Rights and Anti-Discrimination Law at the Law School, said that a win for Ms. Ames in the Supreme Court may not change the outcome of her case. “I don’t think the structure of the prima facie case is driving outcomes in these cases, whether they involve reverse discrimination claims or traditional discrimination ones,” said Professor Milligan, referring to the legal issue before the Supreme Court. “Much more important is simply whether the court thinks the plaintiff has made enough of a showing on their ultimate burden of persuasion to reach a jury.”

In this case, Milligan said Ms. Ames likely didn’t meet that burden. “[M]y read of the [lower court’s] opinion suggests that both the appellate and trial courts would equally have found that she failed to provide enough evidence to allow a jury to find in her favor, even without the finding on the prima facie case or the extra hurdle that their doctrine theoretically imposes at that stage.”

The deadline for briefing in Ames is set for February 2025, with oral argument likely to occur shortly thereafter. Cunningham, the clinic’s other pending case, is scheduled for argument on January 22. Wang is counsel of record in the filings for Ames and Cunningham, making him the most likely candidate for oral argument. They would be his first-ever oral arguments before the Supreme Court.

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tya2us@virginia.edu 

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[1] news.virginia.edu/content/us-supreme-court-agrees-hear-three-uva-clinic-cases.

[2] www.law.virginia.edu/news/202410/supreme-court-takes-3-clinic-cases.

[3] www.lawweekly.org/features/2023/9/29/hot-bench-professor-xiao-wang.

[4] www.law.virginia.edu/news/202410/supreme-court-takes-3-clinic-cases.

Flansburg and Takei Win 96th Annual Lile Moot Court Competition

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Noah Coco '26 
Managing Editor 

On Thursday, November 14, in Caplin Pavilion, Jake Flansburg ’25 and Malia Takei ’25 won the 96th William Minor Lile Moot Court Tournament. They bested Benjamin Baldwin ’25 and Nathaniel Glass ’25, who was awarded the Stephen Pierre Traynor Award for best oralist. The two teams competed before a panel of three judges: Michael Y. Scudder, judge for the U.S. Court of Appeals for the Seventh Circuit; Kevin A. Ohlson ’85, Chief Judge of the U.S. Court of Appeals for the Armed Forces; and Trevor S. Cox, former Acting Solicitor General of Virginia and current litigation partner at Hunton Andrews Kurth in Richmond.

The problem argued by the teams concerned the retaliatory treatment of a federal inmate for the exercise of his First Amendment rights. While still in prison, the litigant filed a Section 1983 claim against the prison warden. When he was subsequently released from prison, he filed a supplemental complaint to reflect his new custodial status. The specific issues addressed in the finals were (1) whether the litigant’s suit was subject to the Prison Litigation Reform Act (PLRA) even though he was no longer incarcerated, and (2) assuming the PLRA governed the suit, whether the statute’s physical injury requirement applied in a case alleging deprivation of a constitutional right.

Each competitor had fifteen minutes to present their oral arguments before the judges. Takei was the first to present her argument for the appellant on the first issue, followed by Baldwin for the appellee. Flansburg then presented his argument on the second issue for the appellant, followed by Glass for the appellee. The competitors all displayed adept mastery of the issues and exemplary appellate advocacy. “Any of [them] would be welcome in the Seventh Circuit,” remarked Judge Scudder. Takei and Flansburg will be honored with a plaque to be hung in Slaughter Hall, joining the esteemed list of past winners.

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cmz4bx@virginia.edu 

Professor Konnoth Predicts Loss for Gender-Affirming Care in Skrmetti

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Andrew Allard '25 
Editor-in-Chief 

In just two weeks, the Supreme Court will hear arguments in United States v. Skrmetti, a case that could reshape the legal landscape for trans youth across the country. At issue is the constitutionality of Tennessee’s ban on gender-affirming care for minors. UVA Law Professor Craig Konnoth, who wrote an amicus brief for a group of experts on gender-affirming care,  says Tennessee is likely to win.

Speaking at a panel hosted by the Lambda Law Alliance at UVA last Thursday, Konnoth predicted that the Supreme Court would uphold Tennessee’s gender-affirming care ban. Konnoth said the Court would likely hold six-to-three that strict scrutiny doesn’t apply, allowing them to uphold the law under rational basis review. “I think we’re gonna lose,” Konnoth said, echoing the sentiment of LGBT lawyers in D.C. whom he informally surveyed. “There were a few people who were optimistic, but a majority of people are pessimistic.”

Still, Konnoth did not expect a sweeping ruling that would settle the constitutionality of discrimination based on gender identity. “I do think that biological differences will be invoked to help narrow the scope of the ruling,” said Konnoth. That would prevent the Court from reaching the more controversial issue of the Fourteenth Amendment’s prohibition on sex discrimination. In 2020, the Court held in Bostock v. Clayton County that Title VII’s protections against sex discrimination extended to gender identity. Since Bostock, whether the same logic extends to the Fourteenth Amendment has been a hotly contested question.

Wyatt Rolla ’13, the ACLU of Virginia's senior transgender rights attorney and a lecturer at the Law School, emphasized that any loss in Skrmetti would be “catastrophic.” Rolla added that gender-affirming care providers are already under pressure. “Providers in Virginia are completely overwhelmed. . . . People are traveling from Florida, they’re traveling from Arkansas. We’re the only state in the South to provide this care.”

Despite Professor Konnoth’s grim outlook, both he and Rolla highlighted weaknesses in Tennessee’s legal arguments. “There’s some pretty damning evidence of what the legislature intended in passing that law,” said Rolla, arguing that the law could even fail under the highly deferential rational basis review because it appeared to be motivated by animus. And Professor Konnoth highlighted the United States’ argument that the Tennessee law is overt sex discrimination. “You say sex right there in the statute. There’s no two ways about it. You’ve discriminated based on sex.”

As UVA Hospital pediatrician Dr. Julia Taylor noted, Tennessee’s law does not prohibit gender-affirming care for patients whose gender identity comports with their sex assigned at birth. Gender-affirming care for cisgender individuals is widely practiced, Dr. Taylor explained. “Gynecomastia in young men, the reduction of breast tissue, is a surgical operation that is offered to cisgender individuals almost without question. Hormonal therapy is used often, usually in cisgender females . . . with a menstrual-related problem that doesn’t match with their peers,” said Dr. Taylor. Professor Konnoth added that gender-affirming care for cisgender individuals numerically outnumbers similar treatment for transgender individuals.

Regardless of the Court’s decision in Skrmetti, Trump’s recent electoral victory may have already handed Tennessee a win. Rolla noted that the Supreme Court granted certiorari at the request of the United States, not the transgender plaintiff. “There’s no uncertainty about what the position of the Department of Justice will be after Trump takes office,” said Rolla. With Trump’s inauguration scheduled in late January, the Department of Justice may be positioned to seek a withdrawal from the case before the Court has issued its opinion. That could lead to a “wonky procedural legal question,” Rolla explained.

The incoming Trump administration may also adopt new regulations or sign laws that restrict the availability of gender-affirming care nationally. Rolla said that President Trump could enact a national restriction modeled on the Hyde Amendment that would restrict the use of federal funds for gender-affirming care. An even more draconian option, pulling federal funding for private healthcare providers that offer gender-affirming care, has also been proposed.

“We already saw the budget riders in 2024 that tried to do that. So this is not a hypothetical fringe strategy. It is a real policy proposal,” said Rolla. Dr. Taylor added that restrictions on federal funding could cause a national collapse in gender-affirming care for trans youth and adults. “If you pull Medicare funding, large hospitals may fold,” said Dr. Taylor.

While the effect on trans youth will be most immediately felt, a win for Tennessee in Skrmetti could reach beyond gender-affirming care. “It’s not just trans people,” said Rolla. “It is the ability to make medical decisions about your body, about your family structure. The kinds of scaffolding they are building will impact people far beyond trans youth.”

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tya2us@virginia.edu 

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Revisiting Iqbal: Racial Discrimination, Plausibility Standards, and the Lost Humanity

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Kelly Wu '27 
Staff Editor 

On November 15, the National Lawyers Guild hosted a discussion on the landmark case Ashcroft v. Iqbal. The discussion focused on its implications in the legal field and the distanced way it is spoken about in 1L Civil Procedure. The event explored the complexities of the case, its aftermath, and the broader consequences for legal practice.
Participants reflected on how Iqbal is taught in law school, with many recalling frustration over the lack of focus on the case’s factual details. Instead, the case is often presented through a procedural lens, leaving out the real-world injustice of racial profiling and abuse following the 9/11 attacks. Some professors do cover the facts more thoroughly, but the case’s emphasis on legal theory creates a disconnect for many students.
Speakers referenced The Lost Story of Iqbal by Shirin Sinnar to highlight how the case overlooked critical facts of racial discrimination. Despite some factual concessions, the Court denied discovery, raising concerns about the racial and ethnic dimensions of the case. While some participants were not shocked by the racial profiling involved, they were surprised by the Court’s failure to address these issues. The Iqbal decision’s impact is felt throughout any form of litigation, particularly the “plausibility” standard it announced that makes it harder for plaintiffs to even reach the discovery phase in litigation. This new threshold disproportionately harms marginalized communities by setting a high bar for proving claims, particularly in racial and ethnic discrimination cases. Attendees spoke of the disconnect the case had and the confusion caused by the “plausibility” standard.
The group also compared Iqbal to other cases, such as Walmart v. Dukes and Deshaney v. Winnebago, noting a trend in the courts that limits access to justice for those challenging systemic discrimination. The event concluded with a call for rethinking how the legal system addresses Iqbal and the significant barriers to justice it created. The event particularly noted the need for a more human, factual lens for procedural cases in law school.

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guj9fn@virginia.edu 

Panel Speaks on Reproductive Justice in wake of Trump Win

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Alicia Kaufmann '27 
Staff Editor 

On Thursday, November 7, two days after the election, If/When/How and the American Constitution Society (“ACS”) hosted a panel on “Reproductive Justice and the 2024 Election.” The panel featured Professor Anne Coughlin, Professor Naomi Cahn, and Federal Policy Counsel Sanchi Khare from the Center for Reproductive Rights.

From left: Professor Naomi Cahn, Sanchi Khare, Professor Anne Coughlin 
Source: UVA, LinkedIn 

Khare kicked off the panel with a quick introduction to her work. The Center for Reproductive Rights is a 501(c)(3) nonprofit that “uses the power of law to advance reproductive rights as fundamental human rights around the world.”[1] As Federal Policy Counsel, Khare describes her work as “heavy legal thinking” dedicated to ensuring reproductive rights “legislation [will] withstand judicial review.” Before working for the Center, Khare clerked for the Senate Judiciary Committee and now-Supreme Court Justice Ketanji Brown Jackson when she was at the U.S. District Court for the District of Columbia.

Professor Coughlin then gave an overview of her experience working on reproductive justice issues. Along with teaching the Feminist Jurisprudence course (available in Spring 2025), she is also the co-director of UVA’s Sound Justice Lab, which highlights “the lives of people that law tends to exclude or marginalize.” She and Professor Cahn are also jointly teaching Reproductive Rights and Justice during the J-term from January 13 to 16. Professor Cahn also expounded on her background in reproductive justice, which began straight out of college when she got a job at the National Abortion Rights Action League checking for bombs in the mailroom. Both professors have devoted their academic careers to researching the intersection of reproductive and feminist issues and the law.

After introductions, the conversation shifted to how these reproductive issues will be “addressed” in the new administration. During the election, seven out of the ten states that had abortion initiatives on the ballot passed them, enshrining abortion rights in their state constitutions. However, it is still unclear which party will win a majority in the House of Representatives. With gains in the Senate and Trump’s presidential victory, Republicans could potentially control all three branches of government. Even if the GOP does not gain control of the House, however, the panelists explained the myriad ways the federal government would be able to restrict access to abortion and reproductive health care.

Addressing a national abortion ban, Khare said that she is not as worried about this as other measures. “The filibuster would prevent a national ban,” Khare reassured. The filibuster is a Senate procedure that allows members to prolong debate on a bill. Sixty members have to vote in favor of “cloture” to end a filibuster. Senate Republicans have not been outspoken about getting rid of the filibuster, and there are two pro-choice Republicans, Susan Collins (R-ME) and Lisa Murkowski (R-AK), so Senate Democrats should be able to impede a national ban. Khare, however, is concerned about Republicans using the budget reconciliation process to circumvent the filibuster. Reconciliation bills aim to align spending, revenue, and debt with budget targets and get expedited consideration in the Senate—there is no ability to delay using the filibuster. Senate Republicans may use this strategy to redirect funds away from facilities or jurisdictions that provide abortion care.

The panelists argued that an executive administrative ban is more likely than larger legislative measures. For example, agencies may revive a restrictive interpretation of the Comstock Act to criminalize mailing abortion medication across state lines. States can get around this by manufacturing the pills entirely within the state, but this would require extensive funding. Another tactic may be limiting Title X, or government-funded family planning through the Department of Health & Human Services. Khare says it is extremely likely for Trump to institute a “global gag rule” as soon as he assumes office, or conditioning receipt of Title X funds for foreign NGOs on not counseling or advising on abortion access. Professor Cahn added that a “domestic gag rule” is also possible. Similarly, executive agencies can divert funds to Crisis Pregnancy Centers (CPCs) or limit Medicaid funding so providers cannot advise on abortion.

A question from the audience then prompted a discussion on how to have conversations on this topic with people who have opposing viewpoints. Khare expressed that sharing personal stories is important for showing people the negative effects of limiting abortion access. The Center recently released a documentary film, Zurawski v. Texas, which follows litigation between women denied abortions during life-threatening emergencies and the state of Texas. Professor Coughlin noted that the stories highlighted in the film are informative for those who may not recognize the consequences of current abortion bans.

It is important to continue creating spaces like this panel that allow for conversation about reproductive justice and how to combat restrictions over the next four years. While it may seem hopeless, Khare’s, Professor Coughlin’s, and Professor Cahn’s careers underscore how many people are working tirelessly to address these issues.

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hcr9bm@virginia.edu 

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[1] https://reproductiverights.org/about-us/.

Forget Trump. Read Your State's Election Code.

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Emily Becker '27 
Staff Editor 

The election is over. Now what? The race of a century may have reached a resounding conclusion, but as we saw post-2016 and 2020, the presidential election will undoubtedly spur a burst of local political involvement in the many off-year elections that remain. In 2023, twenty-nine major cities held mayoral elections.[1] We have town council, state judiciary, sheriff, and state attorney general battles to focus on. In my hometown, for example, the school board elections are more hotly contested and socially divisive than the mayoral race.

Headline cases tend to revolve around the presidential election: President-elect Trump’s sixty-two lawsuits in the wake of his 2020 loss, RFK Jr.’s battle to remove himself from Michigan ballots, the DOJ voter purge case in Virginia. But election procedures impact all elections, and all elections have the potential to generate litigation. In fact, local elections stand to generate a particularly interesting set of cases, seeing as they may not always be subject to federal election rules. The Virginia DOJ voter purge case, for instance, arose out of National Voter Registration Act (NVRA) claims. The NVRA only applies to federal elections, though.[2] States have a great deal of discretion in defining election rules and enforcement. With a Supreme Court that places a great premium on states’ rights, upcoming local election litigation may face some serious obstacles in proving any unconstitutionality, thus potentially constraining such litigation to sub-constitutional questions governed by local statutes.

A recent case out of Texas can teach us a little about what we may expect in the upcoming election “off” years. In November 2022, Loving County, Texas held its election for County and District Clerk, Justice of the Peace, and County Commissioner. The Justice of the Peace candidates tied with thirty-nine votes each, and the Clerk and Commissioner victors received forty-six and twelve votes, respectively. For all intents and purposes, this was a strong turnout: 72.48 percent of registered voters.[3] So, yes, Loving County is incredibly small (the smallest county in Texas),[4] and it is perhaps a dramatic example. But because the margins in question were so thin, the lawsuit[5] that arose out of the election led to a strikingly thorough consideration of granular evidence by the court, since a ruling on a dozen voters’ eligibility could (and in fact did) cause the court to order a new election.

In August 2024, the losing candidates from the 2022 election filed a lawsuit against the victors alleging both voting by ineligible voters and disenfranchisement of eligible voters. The trial court ruled that ten votes had been cast illegally and subtracted them from the totals. Only one of the candidates, the District and County Clerk, had won by more than ten votes, resulting in the court’s ordering a new election for Justice of the Peace and County Commissioner. Both the unsuccessful candidates and the victors appealed, with the plaintiffs reiterating claims of illegal voting and disenfranchisement, and the defendants alleging unconstitutionality of the Texas Election Code’s residency requirements.

The appellate court affirmed the trial court’s finding of ten illegal votes, predicated upon the Texas Election Code’s residency requirements. The court declined to consider the defendant’s constitutional challenges, choosing instead to resolve the dispute under other unchallenged provisions of the election code—a decision vehemently protested by the dissent. The court did, however, deviate from the trial court in finding merit in the plaintiffs’ disenfranchisement claim. Two voters had moved to Loving County in the months preceding the election. They had each registered according to standard Texas procedure, though they ultimately realized they were left off the local voter roll when they tried to vote. One of the individuals attempted to vote early. Instead of being given a normal ballot, he was given what Texas refers to as a limited ballot, which allowed him to vote only in those elections for which he would have been eligible had he retained his residence in the county where he lived prior. As a result, he was not allowed to vote in the three contested Loving County elections. The second individual attempted to vote on election day and was given a provisional ballot with the three local elections struck through, amounting to a makeshift limited ballot. The appellate court ruled that these properly registered voters had been improperly barred from voting. Since the County Clerk candidate had only won by twelve votes, the court ordered a new election.

Limited ballots appear to be a Texas idiosyncrasy, according to my research. They are designed to allow people to vote in the statewide elections in their prior county of residence if they will not be registered in their new county in time.[6] What happened in this case, however, was that limited ballots were improperly used for registered voters whose names simply had not been added to voter rolls. Limited ballots are not even supposed to be used on election day. It took almost two years for this error to come to light, and for a blatant violation of the Election Code to be adjudicated.

There is certainly a debate to be had over the merits of the limited ballot rule. On the one hand, it could incentivize those people who might not want to vote because they moved near in time to the election, to vote. On the other hand, it could discourage people from getting involved in local politics, since they would neither vote in the local elections in their prior county nor in their new county. What is clear from this case, though, is that idiosyncratic rules like this one have the potential to do substantial or even irreparable harm to election results. Of course, this case was extreme because of the incredibly low population. But is it so hard to imagine a couple of larger precincts using a similar methodology? Is it so difficult to think that other states may have equally esoteric election codes that lead to comparable errors? Virginia’s smallest county has a population of 2,339.[7] Is it so far-fetched to think that something akin to the Loving County case could play out there? I think not.

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ejb6zt@virginia.edu 

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[1] https://ballotpedia.org/Partisanship_in_United_States_municipal_elections_(2023).

[2] https://www.justice.gov/crt/national-voter-registration-act-1993-nvra.

[3] https://www.sos.texas.gov/elections/historical/loving.shtml.

[4] https://www.texasstandard.org/stories/loving-county-tx-elections-overturned-illegal-votes/.

[5] Medlin v. King, 2024 WL 3845970.

[6] https://www.sos.state.tx.us/elections/laws/limited-ballot-voters-and-district-chart.shtml.

[7] https://www.virginia-demographics.com/counties_by_population.

Intruder Koi Relocated

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Bradley Berlich '27 
Staff Editor 

A big koi fish found swimming around the fountain in Spies Garden has been relocated. “Learned Fin,” as some students have called him, was moved to Dell Pond at main grounds in October, according to Gregory Streit, the Law School’s Assistant Dean for Building Services. “[It was] the most humane action for the animal” and “standard protocol” for foreign fish, Streit told this reporter over email. “The Law School's fountains are exactly that... fountains. They are not aquariums.”

Streit says he hopes this will be the last time that someone deposits an alien fish into the fountain, but “[he] doubt[s] it will be, unfortunately.” North Grounds maintenance officials suspect that the fish was placed there sometime after April when the fountain received a cleaning. According to law librarian Benjamin Doherty’s 2020 post on the law library blog, fish have previously been kept in the pond, but this ceased as it became too difficult to relocate them for the winter.[1]

Regardless, Learned Fin’s presence was short and sweet. He will be remembered in the hearts of all he touched.

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jqr9gh@virginia.edu 

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[1] Benjamin Doherty, A Diary of a Lonely Librarian Part 5: Chronicles of Sadness and Strangeness in the Time of COVID-19, Blog of the Arthur J. Morris Law Libr. (May 11, 2020), https://lib.law.virginia.edu/blog/2020/05/11/a-diary-of-a-lonely-librarian-part-5/.

Christmas Comes Early for Youngkin with Surprise SCOTUS Win

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Emily Becker '27 
Staff Editor 

Source: Kjetil Ree 2007 

In the sleepy days of early August, Virginia Governor Glenn Youngkin set in motion what would become a seminal pair of lawsuits, ultimately leading to a striking, if opaque, Supreme Court decision. Governor Youngkin issued Executive Order No. 35 on August 7, 2024, exactly 90 days before the November election. The five-page order laid out the state’s election integrity initiatives—including ballot machine testing, 24/7 drop box monitoring, and retention periods for paper ballots—and boasted of Virginia’s recent data-sharing agreements with seven other states.

Skimming the order, it could read as fairly innocuous until page four, which instructs the state to remove ineligible voters on a daily basis, including those who no longer qualify for state residence, deceased voters, individuals with felony records, those who have been deemed mentally incapacitated, and most notably, those individuals whose citizenship is unverified in DMV records. Individuals who fell into this last category were to be notified of their removal and given fourteen days to prove their citizenship in order to be reinstated. The governor further instructed registrars to share the names of these individuals with state prosecutors. According to the order, 6,303 individuals had already been removed from voter rolls between January 2022 and July 2024 under this procedure. Virginia Attorney General Jason Miyares publicly lauded the removals the same day the order was issued, posting on X that he was “proud of my office’s work to help ensure election integrity.”[1]

States have significant autonomy in determining their election procedures but still must comply with federal law. Section 8(c)(2) of the National Voter Registration Act (“NVRA”) designates the 90 days preceding an election as a quiet period during which states are prohibited from executing any programs whose purpose is to systematically remove ineligible voters from registration lists.[2] Executive Order No. 35, which was issued on the first day of the quiet period, potentially violated the NVRA in its instruction that the state continue to remove registered voters whose citizenship was in question. Court records confirm that the removal program did in fact continue well into the quiet period, as stated by Virginia Department of Elections Commissioner Susan Beals in a September 19, 2024 letter to Governor Youngkin.[3]

On October 7, two months after the executive order was issued, the Virginia Coalition for Immigrant Rights, which is a coalition of over forty community organizations, joined with two other nonprofits to sue Commissioner Beals, Attorney General Miyares, and other election officials, alleging that the removal of possible noncitizens from voter rolls violated multiple provisions of the NVRA.[4] In addition to alleging violation of Section 8(c)(2) of the NVRA, plaintiffs claimed that the state had violated the NVRA’s uniformity and nondiscrimination in registration requirements, contending that the removal program disproportionately targeted naturalized citizens and thus by proxy targeted voters based on their national origin. Plaintiffs further alleged that Commissioner Beals’ refusal to provide plaintiffs with a list of voters who had been identified as noncitizens within a reasonable amount of time violated the NVRA’s public disclosure requirements.[5] 

The Department of Justice rapidly followed suit, filing a complaint against the Commonwealth of Virginia, the Virginia State Board of Elections, and Commissioner Beals on October 11, though it was more narrowly tailored, alleging only violations of Section 8(c)(2) of the NVRA. The two cases were consolidated, with the nonprofits’ case becoming the lead and all plaintiffs filing for preliminary injunctions stopping what had been dubbed the Purge Program. The Eastern District of Virginia held a hearing, during which the defendant stated on the record that 1,600 registrants had been removed under the Purge Program within the quiet period as of October 2.[6] Thus, the defendants did not dispute the removal of registrants under the Purge Program, nor did they strongly dispute the program’s systematic nature. Instead, they argued that the NVRA’s quiet period provision did not apply to registrants who were ineligible to vote at the time of their registration. The court soundly rejected this argument. To this writer, even if the court had accepted the defense’s argument, it would still not account for those registrants whose latest DMV paperwork indicated that they were not citizens but had since naturalized and subsequently registered to vote, meaning that they would have still been protected from removal under the defendant’s interpretation. The defendants conceded on the record that the removal process involved no individualized inquiry beyond database searches, meaning that should there be a discrepancy between a registrant’s DMV records and their actual citizenship status, the state would not know this, and thus be unable to know whether it was removing someone who, under its own argument, was protected by the NVRA. 

The court issued a preliminary injunction, to be in effect through the general election, ordering the state to reinstate all registrants who had been removed under the Purge Program within the quiet period,[7] submit a report of every removed voter to the court under seal, and undertake outreach and education measures related to the reinstatement. The Fourth Circuit affirmed the order on appeal, except for one of the lower court’s education and outreach requirements.

Here is where the great twist arose: the Supreme Court, without explanation, agreed to hear the state’s emergency appeal, reversed the Fourth Circuit’s decision, and struck the preliminary injunction. All those voters who were purged would either have to (1) remain purged, (2) prove their citizenship to become reinstated, if they were within the 14-day grace period, or (3) register and submit a provisional ballot[8] on election day.[9] It remains unknown as to whether those purged voters successfully re-registered and voted. This writer would not think it unreasonable to be concerned about the possible precarity of provisional ballots, in light of the current climate of litigiousness when it comes to election procedures. Mail-in ballots and early voting are already the source of significant litigation across the country. It does not seem to be a stretch to expect provisional ballots to be vulnerable to erosion by litigation, in particular after the Supreme Court’s surprising ruling.

To conclude with a brief word on the broader implications of this case, it is worth noting that eight amicus briefs were submitted to the Supreme Court within two days. Only one of these briefs advocated for a denial of the stay: that of the Former Members of Congress. The brief was signed by seventeen former Republican members of Congress, two of whom were from Virginia and a number of whom had voted for the NVRA. What of the other seven amici? They all vociferously urged the court to grant the stay, which begs the question, where were the rest of the plaintiffs’ supporters? Perhaps the bedrock liberal institutions expected this to be an easy win. Even so, where were the scrappy nonprofits, the law students looking to make a name for themselves, the academics? The State of Kansas marshaled the signatures of twenty-five other attorneys general in support of its brief advocating a stay of the injunction. Among the signatories was the Alabama attorney general, whose state’s voter purge policy was blocked by a preliminary injunction and was not appealed to the Supreme Court.[10] The attorney general of Florida was another signatory—a similar case arose in Florida in 2014[11] and was cited in the Fourth Circuit’s opinion.[12] In the wake of this decision, there will likely be a spotlight on NVRA cases like this one. Activists, attorneys, scholars, and students will jump in and get involved—as they should. But what about the next curveball? Who is reading the circuit dockets, looking for the next case like this one, the proverbial “upset” in the all-too-serious game of election litigation? Next time, who will the amici be?

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ejb6zt@virginia.edu

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[1] https://perma.cc/6JGJ-KLJD.

[2] The NVRA makes the following exceptions to this provision: (1) removal at the request of the registrant, (2) removal pursuant to state laws barring registration due to criminal conviction or mental capacity, (3) deceased voters, (4) changes in residency that would disqualify registrants.

[3] E.D. Va. Docket No. 1:24CV01807, Complaint Exhibit 3.

[4] E.D. Va. Docket No. 1:24CV01778, Complaint.

[5] Virginia Coalition for Immigrant Rights v. Beals, 2024 WL 4601052 (4th Cir. 2024)

[6] SCOTUS Docket No. 24A407, Lower Court Orders/Opinions, Page 246.

[7] With certain caveats: if voters themselves request to be removed or are barred because of criminal conviction, mental capacity, or death, then they fall outside the scope of the order. The court also explicitly noted on the record that its decision on the preliminary injunction would only address those registrants who had been removed during the quiet period, although the private plaintiffs’ complaint requested reinstatement of all registrants removed pursuant to the program.

[8] https://www.elections.virginia.gov/registration/same-day-voter-registration/.

[9]https://apnews.com/article/supreme-court-virginia-voter-registration-purge-ba3d785d9d2d169d9c02207a42893757.

[10]https://campaignlegal.org/cases-actions/protecting-alabamians-voter-purges-alabama-coalition-immigrant-justice-v-allen.

[11] Arcia v. Florida Secretary of State, C.A.11 (Fla.) 2014, 772 F.3d 1335

[12] Virginia Coalition for Immigrant Rights v. Beals, 2024 WL 4601052 (4th Cir. 2024)

Fact Checking the PILA Auction

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Andrew Allard '25 & Noah Coco '26 
Editor-in-Chief Managing Editor 

Last week, the Public Interest Law Association held its annual live and silent auctions. A favorite event in the Law School community, the PILA Auction gives students who are on the brink of a mental breakdown a brief respite from finals season doom. Students are invited to support their fellow public interest classmates, dress up, drink up, bid on auction items, and dance. Sadly, many questionable rumors have been spreading about this year’s auction, so the Law Weekly has put its finest reporters to the work of separating PILA fact from PILA fiction.

CLAIM: Proceeds from the PILA Auction go directly to supporting public interest law students so they can afford summer expenses and pursue fulfilling careers.
FALSE. Proceeds from the PILA Auction ensure that public interest law students can eat something besides their casebooks. In prior years, the PILA Auction has raised as much as $20,000, which is a little more than what a summer associate makes for one month of lunching and day drinking.

CLAIM: The Law Weekly’s donation—a highly-coveted viewing of the infamous Retracted Edition—was the highest-selling item at the silent auction on Friday night.
PARTIALLY TRUE. The viewing of the Retracted Edition sold for a modest $10 million, making it the highest-selling item at both the silent auction and the live auction.

CLAIM: Competitive law students enjoy the thrill of out-bidding their classmates.
PARTIALLY TRUE. The day after the auction, winners generally experience buyer’s remorse when they wake up with a headache and an email saying that they owe $100 for a Kroger coupon booklet.

CLAIM: PILA is grateful to all Law School organizations for their generous contributions which make the auction a success.
FALSE. PILA is deeply disappointed, but not surprised, that the best contribution your organization could muster was a $20 gift card to Chipotle.

CLAIM: Last year, after UVA Law exceeded its $400 million fundraising goal, the Law School Foundation promptly reduced summer grants for public interest law students.
FALSE. No wait, shit. This one is true.

CLAIM: The Federalist Society at UVA was asked to donate to this year’s PILA Auction but declined.
FALSE. FedSoc donated an auction item for the first time in over ten years. FedSoc had been banned from participating in the PILA Auction ever since its 2012 donation, a clerkship for Justice Clarence Thomas, caused a stampede at the silent auction, resulting in severe injuries and multiple lawsuits.

CLAIM: Big-ticket items at the live auction included a hunting trip with Meg Bryce, a copy of Professor Frampton’s new folk LP, a cooking class with Professors Frost & Clarens, and a “get-out-of-the-bar-exam” pass.
FALSE. Only the last one is real.

CLAIM: The PILA Auction is made possible with the generous support of the Darden School of Business, which allows PILA to rent out the Forum Hotel’s event space for the evening at cost.
FALSE. The Forum Hotel charged PILA at 200% of the market rate.

CLAIM: The American Constitution Society, the Law School’s champion for progressive legal advocacy, generously donated a big-ticket item.
FALSE. ACS did not donate to the auction because its membership Venn diagram with PILA is nearly a circle.

CLAIM: The Forum Hotel generously raised drink prices to provide an additional source of revenue for PILA.
FALSE. The Forum Hotel raised drink prices and pocketed the extra sales revenue.

CLAIM: PILA asked Lambda to host Halloqueen on Thursday, breaking with prior years’ practice, to avoid forcing students to choose between two of the fall semester’s most memorable evenings.
FALSE. PILA merely wishes to establish its dominance over the Christmas holiday and welcome in the season with the first of many Mariah Carey sing-alongs.

CLAIM: The law firms that sponsored the PILA Auction will think less of you if you worked a public interest job for your 1L summer.
PARTIALLY TRUE. The sponsoring law firms will think much less of you if you worked a public interest job for your 1L summer.

CLAIM: Executive Editor Garrett Coleman ’25 spilled white wine all over the bathroom floor at The Forum.
PARTIALLY TRUE. It was red, actually.

CLAIM: More students would have attended the silent auction if there had been an open bar.
FALSE. More students would have attended the silent auction if they were not all hungover from Halloqueen.

CLAIM: Professor Xiao Wang generously donated a chance to beat him in a tennis match.
FALSE. The winner of this auction item does not have a chance in hell.

CLAIM: This is one of the worst articles written about the PILA Auction since 1948.
[Redacted]

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tya2us@virginia.edu, cmz4bx@virginia.edu

Weekly Slaughter Tribute Poems

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Last week, we announced the winning poems submitted to the Slaughter Stairs Tribute Contest. But many honorable mentions remain! We publish them here in honor of the Slaughter Stairs—slaughtered, but not forgotten.

From a 1L who never knew Slaughter Stairs

Thomas Murphy ’27

How to know a stair n'er stepped?

You dream it in your hours slept

You feel its hole when squeezing through

Its stand-in's doors and stairs askew

I once was told 'bout hallways wide

With light to bring the sky inside

But now I step into the dark

Where long lost Wahoos once did lark.

Perhaps one day again we'll find

A staircase open as law's mind

Til then I climb to Slaughter numb

And cry - Sunt Lacrimae Rerum!

Untitled

Brad Lewinski ’26
 

Consider the Spies Garden bee.

As it flits and buzzes through falling leaves and blooming flowers,

it does not consider for a moment

its place as an integral cog in a machine it did not design.

It knows nothing of the pain of an Alex Johnson cold call,

it fails to understand why the creatures inhabiting oaken furniture

instinctually dart away whenever it flies just a little too close.

Still, the bee at least understands its purpose.

It builds hives because it cannot pollinate every flower alone

and serves a queen that will one day meets its end just like

the flowers the bee fertilizes and the grass-bound ants it flies above.

And still, it will wake and do the same again.

One could say it belongs.

Consider the human.

We wake to a sunrise we cannot control and lay our heads down to sleep

in a cruel acceptance that we've failed, once more, to slow the march of time.

In our acrimony we set our sights on stairs assisting students just trying to find

the very thing that comes so naturally to the bee; our purpose, and

decide that if we cannot control the sun, the moon, the tides, or the leaves,

at least we can do something about the damn stairs.

Would the bee,

so engrossed in its tasks, ever decide to destroy the hive?

Were it to know currency and markets and resource scarcity would it really

spend to destroy a thing it won't know it'll miss until it's gone?

But we've got something on the bee. Indeed,

what the bee will never do is cherish what time has left in its wake.

It will never reminisce over a rough exam or

offer Smarties to those who just might need them.

So perhaps, while we accidentally bump shoulders with those on the

same (now cramped) staircase as us, we should take these serendipitous collisions as signs

to remember the rivers we cannot step into again, the radiant flowers in bloom,

and the people we treasure who will soon walk different halls in different offices in different cities.

Perhaps, if we do this well,

we can stand among the bees and know that we too, belong. 

Vybz Kartel (from the perspective of the Slaughter Stairs)

Amelia Isaacs ’26

xo xo

my love is very special

if you want it you can have it

but don't take me for granted

so much, so much

so much things

I did not say

Untitled

Anonymous

WE CRY OUT IN MOURNING

FOR OUR BELOVED STAIRS

TAKEN WITHOUT WARNING

BY STUDENT AFFAIRS

Untitled

Zoe Kiely ’25

Where are the stairs now? 

This is a fire escape. 

R-I-P Slaughter. 

A Ghazal for the Slaughter Stairs

Miles Cooper ’26

On Slaughter Stairs we stand no more,
Our footsteps fade upon the floor.

We yearn for steps that are no more,
But time has changed what we adore.

The halls we knew we now explore,
Without the path we walked before.

They took away what we implore,
To bring back what we had before.

In memories, we will restore,
The Slaughter Stairs we tread no more.

A Lewd Limerick

Miles Cooper ’26

At Virginia Law stood the Slaughter Stairs,

Where 1Ls would sneak their secret affairs

But renovations came through,

Now there is nowhere to screw,

{creativity ran out here}

Untitled

Paige Harris ’27

As a 1L, I am in hell

Not because of readings or section drama

But because of the stairs that fell

Although I never walked them

I can only imagine the hush

Of my friends and I gossiping on the stairwell

As we see my law school crush

Maybe it’s good they are no more

Because if steps could talk

Of reputation, 2 and 3Ls would be poor

Without the stairs, I feel I’ve been robbed

A key part of campus…

US News won’t even give us a nod

You can slaughter the stairs and slaughter my grades

But one thing you will never take

Are the memories of better walkways 

Thank you to all who submitted and a special thanks to Malia Takei '25, Elizabeth Patten '25, and Micah Stewart '25 for organizing this contest. May the Slaughter Stairs rest in peace.

Professor Barzun Holds Info Session on J.D.-M.A. in Legal History

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Jason Vanger '27 
Staff Editor 

Professor Charles Barzun ’05 held an information session on Wednesday, October 30, to discuss the joint J.D.-M.A. Program in Legal History. In the program, students earn a J.D. at the Law School together with an M.A. from the history department in the Graduate School of Arts and Sciences. Professor Barzun is the Director of the Program as well as a graduate.

The program is unique among joint degree programs at Virginia Law and elsewhere in that it imposes no additional time or financial burden on law students. Students earn both degrees in the same three years that it would take to earn a J.D., and students pay the same amount in tuition that they would pay for law school alone. The program accomplishes this by counting a number of classes toward both degrees, including required 1L courses like Torts or Constitutional Law, which have substantial historical content in the form of case law. On top of the regular course load for law students, participants will generally take one additional course in the history department for each semester of their 2L and 3L years.

Outside of coursework, students are assigned two faculty mentors, one at the Law School and one in the history department. They are also required to take part in a research course with history graduate students and write a thesis. Professor Barzun noted that students in the program have been disproportionately recognized for legal writing among all law students. In the past, the program also required an oral examination, but this is no longer the case. One wrinkle about the program is that because Arts and Sciences courses are not graded on the same curve as law school courses, they do not count towards a student’s GPA for purposes of the J.D.

The J.D.-M.A. Program was founded decades ago as a reflection of the Law School’s focus on legal history. Over time, some of the School’s legal historians have moved elsewhere, but the history department has developed a strength in the field and an interest in maintaining the program. For students today, the joint degree involves a lot of travel between the Law School and main grounds.

Professor Barzun said that, nowadays, the program has two main purposes. First, it provides support for students who are interested in legal academia. The M.A. degree itself—unlike a Ph.D.—does not necessarily add a significant credential for hiring committees, he said. However, the program supports students in exploring their scholarly interests and preparing a substantial written work, which is beneficial for students applying to academic jobs. Second, and more commonly, the program provides an opportunity for students who are interested in history to explore this interest before they leave school for good. The joint degree can allow a broader academic study of law than a typical pre-professional J.D., even for students who go on to work in firms or public service.

Professor Barzun responded to some questions and concerns during the session. Some students asked about the extent to which the program conflicts with other responsibilities. Professor Barzun suggested that the program could be seen as comparable to other activities like a clinic or journal—a significant commitment, but not necessarily prohibitive. Because of its added coursework, the program can be seen as a kind of “curricular extracurricular,” he said. However, it could prevent students from studying additional interests outside of core law classes and legal history, simply because there are only so many credits that can fit into three years.

One student also asked how the program might be seen by employers outside of academia. While it probably wouldn’t be a significant benefit for most employers, Professor Barzun said that he didn’t think it would be a problem, either, and it might be an interesting way for students to set themselves apart. At most, students might want to clarify that it wouldn’t affect their timeline for beginning a job.

First-year students who plan to enter the program will need to apply in the spring semester. The application is fairly easy, requiring a short statement of interest and recommendation letters, which can be from the same individuals who wrote letters for law school. It no longer requires standardized tests. In the meantime, students might think about their potential interests and look at relevant faculty listed on the UVA website. Students can unenroll from the program once admitted. However, resource constraints mean that in recent years, more students have applied for the program than have been accepted. Students should be sure that they intend to complete the joint degree when they enroll, since beginning the program could mean taking a spot from someone else.

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nnk2gn@virginia.edu 

ANNOUNCING: The Slaughter Stairs Poetry Contest Winners

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Pictured: Drum roll.

First Place:

A Farewell to Stairwell
Christopher de Grandpre ’27

Although I know we’ve had our ups and downs,
You always stepped up where it mattered.
Without your incline I’m inclined to frowns,
Without your railing’s support I’m in tatters.
Always a step above (out of ten, an eleven),
Your banisters guided aspiring barristers along.
But now you’re ascending up to heaven,
Because Led Zeppelin’s playing your song.
As you go on to your second storey,
Your story shall be our duty to share,
Lest 1Ls walk the halls unschooled in your glory,
And the blank wall suffer only blank stares.
You staired well, dear stairwell.
In fact, you staired the best.
So now (much too soon) we bid you farewell,
and lay your fair stairs to rest.

Second Place:

Stairway to Kevin
Delaney Sniffen ’26

Summer came and summer went
And now we’re back in class
But my rhythm feels off somehow
My stride has reached an impasse

It’s hard to tell why I feel stuck
It could be anything at all
Is it the lack of open Slaughter air?
Or because when I have a question about what “nice student attire” means, I don’t know who to call?

The Stairway to Kevin is gone
And Kevin is gone, too
What will guide me, who will guide me
Through my private practice blues?

 To 1Ls, this may seem like gibberish
But it’s legalese to me
There’s a staircase-shaped hole in my heart
And a 5-part “URGENT! ACTION REQUIRED IMMEDIATELY!” email I feel like I need

Rest assured, you’re in good hands
Class of 2027
Kevin’s fine (he just retired)
And the Slaughter stairs have gone to heaven

Third Place:

Ode on a Virginian Staircase
Elizabeth Patten ’25

May 14th, I saw you last
Took you for granted
As I brushed right past
Now you’re gone, and I’m in Hell
Trapped inside
A tiny stairwell

Honorable Mentions:

Untitled
Anonymous (to avoid Admin retaliation)

Appreciate the moments
Remember the good times
Hold onto yesterday’s dreams
Amidst today’s horrendous crimes 

Chief among them the destruction 
Of a hallowed staircase so grand
So ordinary and yet legendary
Extravagant as it was bland

The Slaughter steps brought us
to joys and sorrows abound
They took us back to pastures
To walk Spies round and round

But now our leaders failed us
They took our pride without notice
A power grab this will be recalled as
To expand an office with what purpose?

Our tempers have been tested
Our livelihoods have been tossed
If this be our last stand 
Let us ring out what has been lost

Lo! Lo! The stairs that they have taken
We know not what to do
Our lives must be forsaken
The only steps we knew to go through

Where to go
How to get there
I know not what to say

Where to walk
Where to chalk (we can’t)
My aims lead to dismay 

The path that was less traveled
Now must be the way
Stolen with the gavelWe mourn each night and day 

But want not, lay still, and think of times before
Nary a thought for how we loved, the stairs we steeped in lore

The lives we lived, the steps we took, they’ll be there in the by
We must live on, and climb forth, nevermore the steps for which we cry

An Ode to ‘S Laughter Staircase
Randy Thomas ’25

Oh Slaughter Staircase,
As a 1L you represented our plights
Heavy backpacks taken up a dreaded flight
An ascent worthy of academic overload 

As a 2L you were our beacon
A funnel that would lead us to seminars
Smaller spaces to meet our classmates
We finally thought you decent

Perhaps as a 3L
you would have represented our 
triumphant landing
A place to spot long-unseen friends 

It is only now that I realize
That you embodied so much more 
not a merciless act
nor our trials and tribulations,

No, not Slaughter Staircase
But rather, the now stifled
Law School’s laughter

Lost Possibilities (and 1Ls)
Keeley Ausburn ’27

Mourning something you never knew is a fool’s errand
But as we bump shoulders in the narrow way, my thoughts run errant: 

In another life, I do not pull myself into a 61 degree stairway
A tucked away door that looks neither majestic nor elegant, but that of a broom closet castaway
From the reaches of heat, windows, or time
My alternate self shan’t have to feel the chips of decades-old paint and grime
There I must not lean aside when a fellow traveler seeks to descend that which I ascend. 
With no other pathways, it is on these gritty stairs I do depend.  

So, to that other me–the one taking those next steps–
Be in awe of those that let you reach these heights,
And remember the impermanence of the legacy on which your foot rests.

We received so many great submissions that we can't fit them all here. Stay tuned for the remainder next week!

Halloweekly Investigation Presents: Haunted House Law

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Emily Becker '27, Alicia Kaufmann '27 
Staff Editors 

During my senior year of college, I hopped on a train from Philly to New York for what would be the second most disappointing haunted house experience I have ever endured. A dear friend of mine has long been obsessed with haunted houses, and after a copious amount of research, settled on one located on the Lower East Side. I will keep my summary brief, but what ensued was roughly thirty minutes of riding a rickety cart at a glacial pace, being lightly sprayed with water, and shuffling through what felt like a closet with strobe lights.

Still, optimistic pair that we were, we returned the next year in hopes that a couple of negative Google reviews (not written by us) would have inspired an improved experience. All I can say is that somehow the program was shorter and even less compelling than before. In an attempt to justify his continued support of what I would call more of an assembly of awkward skits than a haunted house, my friend made the point that some of the best places were too far away or have been closed down.

This same friend recently ribbed me for not flying up to Connecticut to attend another, supposedly better, haunted house this year, as apparently our old Lower East Side standby had closed down. The shuttering of our old haunt got me thinking about my friend's earlier comment about haunted housing being forcibly shut down, and I felt that as a first-year law student, it was my prerogative to investigate the legal history of haunted house regulation. As one might expect, there has been a spate of tort cases predicated upon alleged duties to protect haunted house patrons from harm. I will refrain from launching into an LRW-style memo on these, and simply note that courts do not appear to be too friendly toward patrons who have voluntarily assumed the risks incumbent in a haunted house visit. I will, however, share a few details of what was certainly the spookiest case I came across, that of McKamey Manor.

McKamey Manor garnered national attention as the subject of a Hulu documentary released in 2023. Its website boasts that it is “the one and only ORIGINAL ‘Extreme Haunted Attraction,’ and ‘Survival Horror Challenge’” in which “you will live your own horror movie.” Prospective participants must submit a doctor's note and proof of health insurance, sign a forty-page waiver, undergo a video screening, and pass a drug test.[1] McKamey is said to advertise a $20,000 prize for anyone who has successfully completed the haunted house program. An online petition to shut down McKamey on the grounds that the program targets easily manipulable individuals and tortures them has garnered nearly 200,000 signatures.[2]

In the wake of the Hulu documentary, the Tennessee Attorney General opened an investigation into McKamey Manor. This involved the issuance of a formal Request for Information pursuant to the Tennessee Code, which required Ross McKamey, the ostensible owner and operator of McKamey Manor, to comply with nineteen document requests and answer twenty-eight interrogatories under oath. The interrogatories began with the basics—when Mr. McKamey began operating the haunted house, how it is funded and/or makes money, whether anyone has won the rumored $20,000 prize. The questions then increased in specificity, requesting bank account information, a list of participants who have striven for the prize, and all films of McKamey Manor tours.

Mr. McKamey retaliated with a lawsuit against Tennessee Attorney General Jonathan Skrmetti and Commissioner of the Tennessee Department of Commerce and Insurance (and State Fire Marshal) Carter Lawrence requesting injunctions exempting Mr. McKamey from compliance with the Request for Information and barring state fire marshals from entering Mr. McKamey's property, as well as a declaratory judgment and attorney's fees. After a volley of motion amendments and responses, the court dismissed Mr. McKamey's claims, but not without creating what could be a fascinating glimpse into the investigation that we, as the public, may not learn much more about unless it results in civil or criminal charges.

The pleadings in this case may be lacunose with respect to the entire paper trail of this case, but for the investigatively minded reader, they hint at a number of intriguing questions—why does Mr. McKamey run this program? What is the history of law enforcement interaction with McKamey Manor and its participants? In his complaint, Mr. McKamey states that McKamey Manor is located in unincorporated territory—was this a strategic choice on his part and if so, why? Mr. McKamey also claims not to do business as a Tennessee entity—does the haunted house make money? If so, what is the money trail? Does Mr. McKamey control any corporate entities? The story of McKamey Manor has the potential to take on a spookiness beyond what it advertises—and depending on the outcome of the Attorney General's investigation, we may or may not learn the full story.[3]

If the McKamey case has not dissuaded you from pursuing a little extra adrenaline this Halloween, look no further than our very own Charlottesville. Our quiet town offers quite a few special Halloween scare events.

For non-jump scare enthusiasts, there is a an hour-long walking tour that guides you through Charlottesville’s most ghastly sites, flawlessly named “Charlottesville Ghost Tour.” According to the website, the tour covers how “Revolutionary and Civil War perils, haunted plantations, and dark deeds of Virginia’s founding fathers birthed the most spine-chilling hauntings of the Blue Ridge Mountains.”[4] So check it out… if you’re into that sort of thing.

For the horror movie and haunted house-loving folk, Madame Redrum’s Nine Gates of Doom may be for you. Just a thirty-seven minute drive from downtown Charlottesville, “[t]his attraction is unlike any other in the country. Madame Redrum WILL make you scream.”[5] The experience is set up as a winding path with 9 rooms, each scarier than the last, and features live performers in gory costumes, special effects, and strobe lights. But don’t worry if you get there and find your pants getting wet, they have designated “chicken” doors for those who just can’t handle the fear. Looking to impress someone special? This looks like the place.

But the “chicken doors” are the only relief Madam Redrum offers. Similar to the haunted house in the news above, Madam Redrum makes sure to advertise their lack of liability by citing Virginia Code § 3.1-796.139 on their website. Section 3.1-796.139 requires every “agritourism professional” to post a warning outside their site that reads:

WARNING: Under Virginia law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if such injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.

I’m having a little trouble reconciling “agritourism professional” with “Madame Redrum’s Nine Gates of Hell,” but I’m going to optimistically assume they have been counseled that their business falls under this statute. Nonetheless, a clear, short statement of liability in large lettering posted outside of the actual haunted house is probably more effective than McKamey Manor’s forty-page waiver no one is going to glance at.

Moral of the story is: Be careful out there and have a happy Halloween!

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ejb6zt@virginia.edu, hcr9bm@virginia.edu

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[1] https://www.mckameymanor.com/requirements.

[2] https://www.change.org/p/tennessee-state-senate-shut-down-mckamey-manor.

[3] Middle District of Tennessee Docket 3:24-CV-00363

[4] https://usghostadventures.com/charlottesville-ghost-tour/.

[5] https://madameredrums.com/.

Invitational Teams Hold Tryouts

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Garrett Coleman '25 
Executive Editor 

On Sunday, October 27, North Grounds Softball League (“NGSL”) held the first round of open tryouts for the Invitational teams. This is a first in recent memory and a step towards transparency in the draft process, according to its organizers.

The four students running the operation were Luke Mottola ’25, Jack Parker ’25, Matan Siskind ’25, and Regina Argenzio ’26. While players were warming up on the Park 6 field, Mottola explained the structure. Because of overwhelming interest, especially from women, there will be three co-rec teams, one more than last year. And there will continue to be two open teams. The tournament committee chose Siskind and Argenzio as co-captains for the first co-rec team. This means that they will get to select a full roster from all tryout participants, after which the committee will vote on a second team captain who will repeat the process. Later captains will rely on the diligent notes taken by Siskind and Argenzio during both rounds of tryouts.

After warm-ups but before drills began, Parker and Mottola gave brief introductions to the crowd. Parker was pleased to say that this tryout improved transparency and opportunity within the Invitational, and Mottola echoed the same. No longer is team selection going to be a “black box.”

The full day consisted of a warm-up, infield practice with grounders and line drives, long throws from the outfield, batting practice, fly balls, and a scrimmage. All participants, even those who have played in years past, were evaluated. The same setup is expected for the alternative tryout this coming Sunday, November 3.

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jxu6ad@virginia.edu

Section H Wins 1L Softball Tournament

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Alicia Kaufmann '27 
Staff Editor 

Students put their Torts textbooks aside and took to Park 6 and Copeley Field for a day full of sponsored jerseys and cleats. I, a 1L myself, am significantly biased in writing this article, but I will try my best to report impartially and make it impossible for you to tell which section I am in.

 Source: Ashley Ramsay '26 

The day started bright and early with two 9 a.m. play-in games: Cases Loaded (C) v. Omnishock (LLMs) and Clearly Erroneous (E) v. Jurist Dingers (J). Cases Loaded and Clearly Erroneous (not so) slightly edged out their opponents and won themselves a spot in the quarterfinals. The 10 a.m. play-in game, Foul Play (F) v. Bad News Barristers (B) was a close match, but the Section F-ers were victorious and took home their first win of the season (yay!). 

The quarter-finals came and went, the temperature upped 20 degrees, and suddenly it was the semi-finals. Acing and Abetting (A) squared off against the Injunctive Relievers (I), and Hit and Run (H) faced the formidable Foul Play (making it to the semis without winning a game the whole season, that’s got to count for something, right? Again, impartial, but come on.) During the game, Hit and Run did a lot of hitting and running. Foul Play did a little less of that but still managed to put up 3 runs despite their early start that morning. Alas, Section H came out on top, and Acing and Abetting squeaked out a win as well to advance to the finals.

3 p.m.. Copeley Field. The Championship. After a long day of game play, Hit and Run took home the trophy with a 14-3 win and were awarded some snazzy T-shirts (thanks Bracewell!). All in all, it was a great day out on the field. There were cute dogs, free pizza, sunshine, and two wins for Section F! Oh, and also congrats section H, you did great. Watch out for softball playoffs coming up at the end of the semester. I’m sure it will also bring great fun and glory.

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hcr9bm@virginia.edu

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Hurricane Helene's Ongoing Effects Felt through Virginia

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Kelly Wu '27 
Staff Editor 

In the last week of September, from the 24th through the 27th, Hurricane Helene raged through the Southeastern regions of the United States, causing devastating destruction throughout the country. Being the deadliest hurricane in the mainlands of the United States since 2005’s Hurricane Katrina, the Category 4 hurricane ran through several states and spawned multiple tornadoes. The resulting major rainfall and high winds ripped their way through cities, farmlands, and more, causing property destruction and losses that government entities and nonprofits are still fielding aid for.

Although Helene weakened to a post-tropical cyclone by the time it approached the East Coast, it still had significant effects on Virginia through the aforementioned tornadoes, copious rainfall, and heavy winds. Rainfall totals varied across the state, with some areas receiving between three to five inches. Regions such as Tidewater, which includes cities like Norfolk and Virginia Beach, experienced significant downpours, leading to flash flooding. Wind gusts reached forty to fifty mph in several locations, particularly in coastal areas, causing large swaths of property damage throughout the state. Coastal flooding was also a major concern, especially during high tide. Areas along the Chesapeake Bay and the Atlantic Ocean experienced inundation, exacerbated by storm surges. Low-lying neighborhoods faced severe flooding, with many residents forced to evacuate.

As a result of the storm, many communities experienced power outages, transportation disruptions, and severe water damage with the Virginia Department of Emergency Management and the Virginia Department of Transportation closely monitoring conditions and coordinating response efforts. With the state’s large number of hills and trails, meteorologists warned of increased chances of mudslides in the upcoming weeks, and the effects of the storm are expected to be felt for months, if not years. According to the Virginia Cooperative Extension, agricultural and farm operational damages are estimated to be well over $125 million currently. With so much devastation reigned across the states, it is pertinent to look into various relief efforts that have been employed and organizations that are currently available to those affected.

In the wake of the storm, state and local agencies have launched campaigns aimed at educating residents about emergency preparedness. These initiatives include information on creating emergency kits, developing evacuation plans, and understanding flood risks. The Federal Emergency Management Agency (FEMA) has noted that 2,048 applications for individual assistance aid have been approved as of October 1. These applications amount to more than $6 million worth of aid.[1] The Disaster Aid Program is still ongoing and those affected are encouraged to apply using the FEMA website for household and individual aid. Furthermore, the Virginia Voluntary Organizations Active in Disaster provides a long list of local resources, organizations, and volunteer opportunities both for those seeking aid and those wishing to provide aid to victims of the hurricane.[2] Although the news cycle has largely moved past this story, many are still awaiting recovery for their loved ones, homes, businesses, and more.

In the aftermath of both Hurricane Helene and Milton, which made landfall in Florida earlier this month, climate scientists warn this is nowhere near the end of rising rates of natural disasters and climate change within the country. The burning of fossil fuels has caused the globe to warm significantly within the past decade compared to rates before the turn of the millennium. With globally rising temperatures causing warmer ocean waters and increased rainfall, storms are likely to become more violent, and recent hurricanes are merely small examples of what is expected to come. Scientists at the World Weather Attribution argue that Hurricane Helene in particular experienced 10 percent heavier rainfall due to warming global temperatures.[3] Furthermore, the study also found that the rainfall totals over the two-day and three-day maxima were made about 40 percent and 70 percent more likely by climate change, respectively. Thus, while it is important to provide immediate relief to those affected by the current hurricane retrospectively, it is just as important to consider preventative measures before the break of yet another natural disaster.

Hurricane Helene had a notable impact on the regions it affected, specifically affecting us in Virginia. The combination of heavy rainfall, strong winds, and flooding highlighted vulnerabilities in infrastructure and public health systems. The storm served as a reminder of the importance of preparedness and community response in mitigating the effects of such natural disasters. As climate change continues to influence storm patterns and intensities, understanding the impacts of hurricanes like Helene will be critical for future resilience planning.

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gcu2vn@virginia.edu

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[1] Federal Emergency Management Agency. (n.d.). Hurricane Helene (DR-4831). Retrieved October 20, 2024.

[2] Virginia Voluntary Organizations Active in Disaster. (n.d.). Hurricane Helene resources. Retrieved October 20, 2024.

[3] World Weather Attribution. (2018). Climate change key driver of catastrophic impacts of Hurricane Helene that devastated both coastal and inland communities. Retrieved October 20, 2024.

Game of Survivor Gives 3Ls Something to Do

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Garrett Coleman '25 
Executive Editor 

This story first came to the Law Weekly newsroom from the solicitations of Seth Coven ’25. Upon further investigation, we learned that a massive game of survivor, organized by Kevin Hoang ’25, has been taking place on and around Grounds since the beginning of the semester. Friendships have been tested, professional relationships have imploded, and dozens of 3Ls have been incapacitated for weeks. Coven came out on top and thought that his Machiavellian successes merited some free publicity in this paper. We agreed.

The format of the game, which Hoang has organized before, is closely modeled after the Survivor television show. To start out, twenty-one players were divided into three tribes of seven. There were four “playing days” a week over the course of four weeks. Whichever tribe lost a particular challenge had to vote someone out the next day. As the competition went on, the number of tribes fell to two, then one, and then a set of three finalists. The remaining members of the final tribe formed a jury to determine who should be named Sole Survivor and bring home the $630 prize. Hoang, Claudia Daboin, and Ethan Nicklow hosted.

Hoang’s favorite challenge was for the final nine contestants, called “Planning the Coven Gala.” It took place on the lawn in front of the Law School as rain poured down on everyone. Players had to solve a logic games style puzzle while running back and forth to get clues on the other side of the lawn. Hoang loved the chance to have an in-person challenge, but also the high stakes for that night. It came hot off the heels of a major vote, in which Coven did away with Sam Quinan ’25. And the pressure was on for Nick Hoffman ’25, who was likely the next target in the tribal council. Hoffman was able to come out on top, securing his much-needed immunity. When asked about his defeat, Quinan had this to say: “Emma [Howard ’25] and I were running the game. And then we trusted Seth, which was the mistake. But in the end, the Emma and the boys alliance won.” He added, “Tiger was uneventful. He and Hoffman were pawns.”

Some expressed concern with Hoang’s leadership. One contestant to make the final tribe, John “Tiger” Oliva ’25, had this to say: “Kevin is a sycophant who feeds on the torture of law students. I could not recommend playing it [survivor] less. The social and reputational damage done to some law students may never be recovered and may bleed into their careers.” Mackenzie Kubik ’25 voiced similar concerns about “this hellish psychosocial experiment.” But even Oliva could not avoid reminiscing fondly over some challenges, such as the time they had to design rave costumes for a fictional Midwestern girl who loved her prize rooster, Civil War reenactments, and the House of Ravenclaw.

The final three came down to Coven, Kubik, and Cameron Beach ’25. While hosts were not able to vote, Hoang thought that Kubik narrowly deserved the win, but that all of them were worthy finalists. Of his win, Coven said: “Law school is tough. It’s full of challenges, but I can say without a doubt that this was the biggest accomplishment in my three years at law school. It’s always been a dream of mine to be on real-life Survivor (I have an audition tape saved in my iMovie right now), but this was truly as close as it gets to the real thing. The blood, sweat, and tears that went into this were all worth it. It was tough because, in order for me to win the game, I ultimately had to backstab some of my best friends in law school. But that’s Survivor, baby.”

Hoffman was the deciding vote to name Coven the Sole Survivor. In explaining his choice to the Law Weekly, he said: “I chose Seth because he flew under the radar very well and controlled the game much better than I realized . . . and he played the middle very nicely, neutralizing my entire alliance. I was impressed.” But the game also offered him some happy memories. In one challenge, participants had to compete in “Survivor’s Got Talent” by submitting two-minute videos showcasing their special abilities. Hoffman used his video to break the world record in nostril flares in a single minute, hitting 205. Yes, he flared his nostrils almost three and a half times per second. Stunning. Unfortunately, this only put him in second place, behind a competitor who recorded him/herself drinking a great many shots and shouting expletives at Hoang in different languages. The polyglots that walk our halls are inspiring.        

Hoang is organizing the competition again for next semester, and casting is still out for that one. So, any Survivor fans should reach out to him before the start of next semester.

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jxu6ad@virgina.edu 

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Softball Stats

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Jordan Allen '25 
Editing Editor 

The semester is reaching the halfway point, and we all know what that means: 1Ls begin to spend even more time in the library. It also means that the softball season has been in full swing (pun intended), including the 1L tournament this past weekend. As such, the time is ripe for an accounting of the performances of the illustrious teams competing amongst the Law School’s newly minted class—displaying that some of us have brawns as well as (or at least in place of) brains, while others were well-advised to pick a career that largely revolves around a desk. Please use this data responsibly, for bragging rights and good-natured ribbing. It is, after all, what Thomas Jefferson would have wanted.[1] 

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guj9fn@virginia.edu

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[1] If the guy could swing a bat, at least. He looks like he would’ve had his powdered wig blown off by a line drive instead. Luckily he avoided embarrassment by dying before the sport was invented.

How A Novel Issue of International Law Could Change the Tides of Russia's War in Ukraine

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Andrew Allard '25 
Editor-in-Chief 

For more than two years, Russia’s Central Bank has been blocked from accessing billions of dollars worth of overseas assets. The United States has been pushing for Ukrainian allies to seize these Russian assets. The recently passed REPO for Ukrainians Act authorizes the President to transfer the frozen Russian assets to Ukraine. But allies in the European Union remain leery about the proposal.

Lee Buchheit speaks to a packed crowd in Brown Hall. 
Photo credit: Jennifer Song '27 

A debate has emerged among the G7 over what to do with Russia’s frozen assets and whether international law permits them to transfer some of the assets to Ukraine. Proponents of the seizure say that the frozen Russian assets can be used as a down payment for war reparations that Russia will likely owe to Ukraine. Proponents note that the U.N. General Assembly has already ordered Russia to pay reparations.

Lee Buchheit, an international expert in sovereign debt and honorary professor at the University of Edinburgh Law School, spoke about the frozen Russian assets issue before a packed room of students and faculty. Buchheit explained that seizing the Russian assets could force Russia to negotiate a withdrawal.

“For so long as Putin believes that the Western democracies will grow fatigued with financing Ukraine . . . he believes that Father Time is a Russian ally. He need only wait us out. . . . But if we seize these assets, put them into a safe pair of hands, like the World Bank, such that they would fund Ukraine for years to come, all of a sudden, it punctures that belief of Putin. . . . And with that reality, he might just come to the settlement table earlier than he otherwise would.”

Some EU countries remain concerned about the legal and political implications of seizing the frozen assets. But by Buchheit’s telling, the American proposal should be an easy yes. “To my mind, this is not a particularly close call, legally, politically, or morally,” said Buchheit.

Buchheit explained that EU countries have expressed four concerns about seizing Russia’s overseas assets. Chief among them is concern for the reputation of the Euro, a concern Buchheit referred to as the “mythical Saudi Arabian finance minister problem.”

“The euro as a currency is only twenty-five years old. And the Europeans in those twenty-five years have always been walking on eggshells about doing anything that might frighten foreigners from holding euros,” Buchheit explained. If European countries seized Russia’s assets, it may send alarming signals to other countries holding Euros.

Buchheit dismissed this concern, noting that the United States, Japan, and the EU have agreed to work in lockstep, only seizing Russia’s assets if all of them agree to take that measure. “Well, if they all seize at the same time, the Saudi finance minister has got a problem. Where the heck are you going to put your money if you can't put it into US dollars, euros, sterling, [or] Japanese yen?”

The second concern expressed by the EU is that Putin may retaliate against Western investors if Russia’s assets are seized. But Buchheit explained that Russia has already locked up foreign investments by imposing restrictions on selling Russian investments. “If you haven't had your investment seized in Russia, it means you haven't asked for it back yet,” Buchheit said.

International law experts have noted a third concern: seizing the Russian assets may violate international law, and the action would open a “Pandora’s box.” If the United States and its allies seize Russia’s assets, it would create a precedent that any country can seize another country’s assets, even over simple policy disagreements.

Buchheit acknowledged that the action would set a new precedent, but he expressed concern that the alternative is much worse. “What comes out of this will be one or the other of two precedents. Precedent 1: You may invade your neighbor in violation of every norm of international law and the U.N. Charter. You may cause enormous destruction, but you will do so in the sure and certain knowledge that your external assets will be treated as sacrosanct and no adverse action will be taken against them. . . . The second option is, if you brutally invade your neighbor in violation of every norm of international law, you do so at the hazard of perhaps seeing your external assets frozen and used to recompense the victims of your aggression. It's got to be one or the other.”

Buchheit finished by noting that the outcome of the U.S. presidential election may make the Russian asset issue all the more urgent. Buchheit expressed doubt that Trump could resolve the war in a single day, as he has claimed, and speculated that if elected, Trump may pressure Ukrainian President Volodymyr Zelenskyy to negotiate an unfavorable settlement. Buchheit suggested that using Russia’s assets to finance the Ukrainian war effort would alleviate the burden on American taxpayers, possibly de-politicizing support for Ukraine.

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tya2us@virginia.edu

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Amazon's (not so) Quiet Overhaul of the Trademark System

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Alicia Kaufmann '27 
Staff Editor 

On Thursday October 3, the Law School’s LawTech Center welcomed Mark McKenna ’00, UCLA Law Professor and Faculty Co-Director of the UCLA Institute for Technology, Law & Policy. After a warm introduction from Professor Danielle Citron, McKenna presented an upcoming paper that he co-wrote with Jeanne Fromer of NYU School of Law, titled Amazon's Quiet Overhaul of the Trademark System, that will be published in the California Law Review in 2025. The paper addresses Amazon’s unilateral impacts on trademark law, or the platform’s “ancillary spillover effects on how the legal system works,” according to McKenna.

McKenna began with the main assertion of the paper: the traditional system of trademark law is being turned on its head by Amazon’s new rules surrounding its Brand Registry. If you’re wondering what Amazon’s Brand Registry is, don’t worry, I also had no clue this existed. But apparently, as Amazon’s success grew, third party sellers on the platform became increasingly worried about a lack of accountability for counterfeiting established brands. Amazon’s solution to this concern was to create a Brand Registry, where brands could apply to be recognized by the platform, sort of like celebrities getting verified on Instagram. The registry provided a private dispute resolution system with automated enforcement, so registered brands could submit complaints about counterfeiting and have perpetrators taken down. Rather than building an entire recognition system from the ground up, Amazon decided that the “ticket to entry” to the Brand Registry would be the federal trademark registration system. If a brand was able to get federal trademark registration from the U.S. Patent and Trademark Office (PTO), they could be admitted into the Brand Registry.

In 2019, Amazon amended this rule. No longer did brands need to receive registration to be admitted to the Brand Registry, simple proof of submission of an application to the PTO was enough. The thrust of McKenna’s presentation surrounded the meaningful impacts of this change. McKenna outlined that in order to understand these impacts, an understanding of traditional American trademark law is necessary. In the United States, trademark rights exist at  common law. In a majority of countries, registration with the federal government is what establishes your right to trademark, but in the U.S., registration is simply official recognition of an already conferred right that arises out of use of the mark. Traditionally, in this system, localized small- and medium-sized companies have little incentive to pursue registration because unregistered trademarks hold up just as well in court as registered ones. Accordingly, McKenna articulated, Amazon’s amendment of their rule has caused a huge uptick in applications to the PTO from small- and medium-sized businesses that previously had little incentive to be registered. This has caused a back-log in the PTO, as they are not used to this high volume of applications.

McKenna also pointed out that there is a “distance between application and registration” in the PTO system, meaning a lot of people who apply for registration get denied in whole or in part. So, accepting brands that have applied but wouldn't necessarily qualify for registration has significant effects, one of which is trademark extortion. Exemplified in Home It, Inc. v. Wen,[1] Amazon's new rule has facilitated extortionists that look for unregistered brands on Amazon and submit an application to the PTO in that name for the purpose of threatening to invoke the Brand Registry against the original company in return for money or other payment.

Even more concerning, McKenna warns, is the increase in applications for generic, descriptive, and nonsense marks. A generic trademark is the common name for a product or service; a descriptive trademark merely describes a product or service; and a nonsense mark is a string of letters that does not mean anything on its own.[2] For example, for a trademark for a furniture store, “Furniture” would be generic, “Fabulous Furniture” would be descriptive, and “fff” would be nonsense. These types of marks are generally not registerable with the PTO. Nonetheless, brands applying to the PTO with these non-registerable names are allowed to be admitted to Amazon’s Brand Registry.

McKenna explained that the acceptance and use of these marks by Amazon essentially does away with the purpose of trademark law. The goal of trademarking a brand is to establish name recognition and build a reputation under that name. With super generic and descriptive brand names, like “Furniture” or “Mustaches,” companies are not building up the same type of recognition. Also, some brands have strategically entered the Brand Registry under a few different marks in order to try out different techniques for each one, and once they are successful under one they transfer all of their effort there. Again, this does away with the purpose of branding. Brands are supposed to have to deal with both the positive and negative reputations they create, while these tactics allow companies to only get the positive effects.

Thus, when a consumer is looking to purchase on Amazon, they rely on the site’s algorithm and customer reviews when choosing products. No longer are consumers relying on the reputations that brands have developed in order to narrow down options. McKenna refers to this phenomena as the “decentering” of brands on the platform. “Third party sellers aren’t reaching customers by branding anymore.”

Amazon’s house brands, however,  “AmazonBasics” and “Amazon Essentials,” are front and center for every product search. So, while other brands are being decentered and washed out, Amazon is upping its own brand recognition. A student from the audience asked, “is this not just how Walmart or Target strategically places its house brands in the eyeline on the shelf in a better view than other brands?” McKenna responded that, yes, the problem is not that Amazon is putting its house brands first, it's that it's putting its brands first, and homogenizing all the other ones. “That would be like Walmart putting Great Value in the best position, and covering up the names of all the other brands.”

McKenna explained that these effects challenge us to consider whether we are more confident in branding or Amazon’s algorithm and customer reviews to give consumers useful and accurate information about products. He argues Amazon’s algorithm is a “blackbox” and customer reviews can easily be faked, so the information we receive can be mystified and unreliable. So is Amazon replacing one mechanism for an equally bad, if not worse, one? Is brand recognition any better? Should the PTO and Amazon work together to solve this issue? I’ll let you sit on that while I order some more paper towels.

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hcr9bm@virginia.edu 

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[1] Home It, Inc. v. Wen, 2020 WL 353098 (E.D.N.Y. Jan. 21, 2020).

[2] Strong Trademarks, https://www.uspto.gov/trademarks/basics/strong-trademarks.