Champions Born From C Section

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

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

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

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

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

Photo courtesy of Kim Hopkin.

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

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

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knh3zd@virginia.edu

Contributions courtesy of Eleanor Schmalzl

mes5hf@virginia.edu

1 Seemingly nameless.

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

3 Proud Law Weekly staff member.

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

5 Mostly Section C PAs.

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

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

Panel Confronts Enforcement of Civil Rights

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

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

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

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

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

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

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kmh3zd@virginia.edu

The New Wolf of Wall Street

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

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

Photo courtesy of Rihanna Investments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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jmg3db@virginia.edu

Is DACA Constitutional?

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

Is DACA Constitutional?

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

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

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

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

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

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

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jmv5af@virginia.edu

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

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

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

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

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

6 Id.

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

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

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

DACA Repeal: What Comes Now?

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

Photo courtesy of Andrew Shurtleff/The Daily Progress

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

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

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

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

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

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

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

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jpd5pd@virginia.edu

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

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

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

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

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

6 Id.

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

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

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

10 Id.

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

12 Id.

Virginia Law Weekly Wins ABA Newspaper Award

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

- ABA Law Student Division award notes

Rain or Shine, We Dandelion

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

Photo courtesy of Greg Ranzini

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

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

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

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

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

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

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

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

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

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

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

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

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

Official winners: 

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

Second place: Section I.

The Law Weekly’s verdict: 

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

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gpr7qx@virginia.edu

Letter from the Editor

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

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

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

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

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

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

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

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

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

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

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

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

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

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jmg3db@virginia.edu

Dean Welcomes Class of 2020

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

Photo courtesy of content.law.virginia.edu.

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

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

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

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

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

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

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

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

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

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goluboff@law.virginia.edu

Rosenbloom Award Goes to Former Teacher

Jansen VanderMeulen '19
Executive Editor

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

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

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

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

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

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jmv5af@virginia.edu

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

Lynch Awarded Jefferson Medal

Anand Jani '19
Production Editor

Ali Zablocki '19
Arts Editor

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

Photo courtesy of content.law.virginia.edu

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

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

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

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

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

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ahj3ez@virginia.edu

amz2ea@virginia.edu

Gorsuch Survives Nuclear Fallout

Jansen VanderMeulen '19
Executive Editor

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

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

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

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

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

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

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jmv5af@virginia.edu

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

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

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

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

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

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

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

8 Id. 

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

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

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

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

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

The Solar Option

Julie Dostal '19
Features Editor

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

Photo courtesy of Andrew Shurtleff

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

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

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

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

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

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jpd5pd@virginia.edu

The Opioid Crisis: A Modern Epidemic

Julie Dostal '19
Features Editor

In the 1980s into the early 1990s, the crack-cocaine epidemic and the crime arising from drug use and drug-related violence became the cornerstone of a political era’s national dialogue. The War on Drugs – the title. Tough on crime – the agenda. In his book, Cocaine Blue, Cocaine True, Eugene Richards followed the lives of Americans living within communities permeated, if not controlled entirely, by drug use, abuse, and the economy arising out of a demand for illicit drugs. In response to his experiences in cities such as Detroit, New York, and Philadelphia, Richard referred to drugs as the issue of our time. Yet, during his visits to the Midwest, the author brushed aside the danger of prescription drug use. He wrote, “when I go out to photograph in the Midwest, lots of people are addicted to pills — serious amounts of painkillers, Klonopin and drugs for all kinds of psychological conditions. They don’t have to rob anyone. They just go to their doctor, then get stoned to the f---ing bone on prescription drugs. You can carry on your life as a middle class addict.” Perhaps Richards did not believe prescription painkillers could produce the type of horrific dependency that seemingly inevitably leads to crime, violence, or overdose. Moreover, perhaps Richards and others crafting the rhetoric on drug use in America failed to consider that the dangers of addiction do not dissipate in more affluent areas where drugs are prescribed by doctors, not dealers. 

Photo courtesy www.vox.com

The modern drug epidemic ravaging the United States often begins on a prescription pad and ends in a lethal overdose from an inexpensive and readily available baggy of heroin. Today, ninety-one people will die as the result of an opioid overdose. Last year alone, 33,000 Americans died due to opioid use and abuse. The majority of drug overdose deaths now involve opioid use (more than six out of ten). This staggering loss of human life does not include fatalities arising from opioid related deaths, such as those stemming from opioid-related crimes. The mass loss of life occurring as a result of the opioid epidemic of course invites the question of how to mitigate the crisis. This question is made all the more difficult when one considers that the opioid crisis has defied many of the modern assumptions surrounding a drug epidemic.

The market and marketing of prescription opioids has helped create the broad environmental availability of such medications. Since 1999, the number of prescription opioids prescribed and sold in the United States has quadrupled, yet there has not been an overall change in the amount of pain that Americans report to their attending health-care providers. Last year alone, over 237 million prescriptions for opioids were written and filled in the United States. 650,000 opioid prescriptions are dispensed a day. The health-care providers in the highest prescribing state, Alabama, wrote three times as many opioid prescriptions as doctors in the lowest prescribing state, Hawaii. The climate surrounding prescription opioids is different and difficult. Health-care providers are not viewed as drug dealers or enablers, nor am I arguing they should be viewed in this way. However, the implicit trust and reliance on a medical professional drastically decreases the stigma surrounding the use of prescription opioids. The method of procurement through the legitimate healthcare market also adds to the greater social acceptability for using the medications for different purposes. This social acceptability leads to another harsh reality of the opioid epidemic. 

Whereas the drastic increase in filled opioid prescriptions points to the need for reform in prescribing practices, social acceptance of opioid medications leads to the free or charged for exchange of pills between friends and family members. Twenty-seven percent of opioid users fill their own prescriptions. Twenty-six percent receive the medication free of charge from relatives or friends with a prescription. Another twenty-three percent purchase them from friends or family members. The use of drug dealers within the illegal trade of opioids is smaller than in any other illicit drug market in the United States, composing only thirteen percent of the trade. Due to the nature of the prescription opioid market, the Center for Disease Control (CDC) and the U.S. Department of Health and Human Services (HHS) were forced to develop a new approach to combatting the opioid epidemic that begins in doctors’ offices. The CDC set new guidelines for prescribing practices and awarded 30 million dollars to twenty-nine states in order to improve safe prescribing methods. HHS now emphasizes the importance of Medication-Assisted Treatment (MAT) with an emphasis on the life-saving reversal drug, Naloxone. The attempted reforms to prescription practices and rehabilitative measures are relatively new, so the success of the reforms is not yet quantifiable.  

While the CDC and HHS attempt to combat the opioid epidemic by altering distribution and response mechanisms to prescription pill abuse, the explosion of heroin use in the United States adds another layer of complexity to the crisis, as the use of prescription pills and trying heroin are intimately linked. Today, 580 Americans will initiate heroin use. Among new heroin users, approximately three out of four report abusing prescription opioids prior to using heroin. The increased availability, lower price, and increased purity of heroin in the United States also likely contributes to the rising rates of heroin use. According to data from the DEA, the amount of heroin seized each year at the southwest border of the United States was approximately 500 kg during 2000–2008. This amount quadrupled to 2,196 kg in 2013. 

After it crosses the southwest border, heroin disperses all across the country. However, opioid, and especially heroin, distribution largely defies traditional drug trafficking patterns. One may find heroin as readily available at a high school party in suburban New Hampshire as a family home in West Virginia. When taking into account disparities in population size, opioid overdoses occur no more frequently in urban areas than rural areas. The states reporting the highest number of opioid overdoses are located in Appalachia, the Midwest, and New England. Opioid overdoses occur most frequently involve individuals over forty. According to the CDC, the rate of heroin use among white adults increased by 114% between 2004 and 2013. The rate among non-white adults remained relatively unchanged during the same period. A new type of drug market and a new type of drug user fuel the opioid epidemic. As Eugene Richards contended in 1988, drugs may be the issue of our time; however, the difficulties of combatting the opioid crisis may challenge pre-existing conceptions regarding drug users and force Americans to consider that drug use and abuse are not symptoms of a region, demographic, or class.

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jpd5pd@virginia.edu

1 http://america.aljazeera.com/multimedia/2014/3/documenting-the-ravagesofthe1980scrackepidemic.html

2 https://www.hhs.gov/sites/default/files/Factsheet-opioids-061516.pdf

3 https://www.hhs.gov/sites/default/files/Factsheet-opioids-061516.pdf

4 https://www.cdc.gov/drugoverdose/data/prescribing.html

5 https://www.cdc.gov/drugoverdose/data/prescribing.html

6 https://www.hhs.gov/sites/default/files/Factsheet-opioids-061516.pdf

7 https://www.cdc.gov/drugoverdose/data/prescribing.html

8 https://www.drugabuse.gov/about-nida/legislative-activities/testimony-to-congress/2016/americas-addiction-to-opioids-heroin-prescription-drug-abuse

This Week in SBA

Toccara Nelson '18
SBA Secretary

Hello! Thank you for reading the SBA Secretary Article for the Law Weekly.

UVa Law is heading into the home stretch of the 2016-17 school year. We have officially transitioned the new SBA members into their positions and are planning for the incoming year.

Currently, we are finalizing the selection of SBA committee chairs to lead the organization of programming, finance, academic and faculty relations, diversity, health and wellness, and other SBA initiatives for the 2017-18 year. We have a good number of qualified applicants for our committee chairs, and we are looking forward to our committee leadership for next year. In particular, we are excited about expanding the scope of our Health and Wellness Committee, focusing on mental health as well as physical health.

It will soon be time for organizational renewal with the SBA. We have a tentative deadline of mid-April for organizations to complete their renewal with the SBA. Also, organizations can apply for office space reallocation to maintain the same space or possibly secure new office or mailing space within the Law School every two years. This year is a space reallocation year, and we are launching that initiative in conjunction with the organization renewal process. The SBA approved the creation of a Space Reallocation Committee to manage this procedure. This committee is led by former SBA President A.J. Collins, and composed of Ashley Finger (2L), Aparna Datta (1L), Muskan Mumtaz (1L), Robbie Pomeroy (1L), Eric Hall (2L), and current SBA President Steven Glendon (2L, ex officio).

There is going to be a renovation of the law library during the summer, which will include the addition of new (and even more comfortable) library chairs and nicer flooring. The construction has the potential to be loud, so 3Ls using the library to study for the Bar should be forewarned.

The SBA has also approved the creation of a “coffee and donuts” kickback during one of the SBA President’s office hours sessions for April. We want to encourage students to utilize office hours as a way to discuss issues around the school or just a way to get to know our new SBA President, Steven Glendon.

The University Judiciary Committee (UJC) is in the process of forming their new executive committees for the next year. The UJC selected their new chair to lead the entity into the 2017-18 academic year, our own Peter Bautz! Congratulations to Peter, and we are excited that he’s leading such an important backbone of the University of Virginia.

If you have any questions or concerns about the SBA, feel free to email me, or check out Steven’s office hours on Thursdays between 9:30 AM and 11:00 AM in the SBA Office. Thank you, and have an excellent week!

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tmn2aa@virginia.edu

2017 Lile Champions

Tanner Russo '18
VP 3L Lile Competition

On Saturday, March 25 in Caplin Pavilion, the two remaining 3L teams faced off in the final round of the William Minor Lile Moot Court Competition. Arguing for the Appellee, Kyle Cole and Tuba Ahmed defeated Adam Stempel and Danielle Desaulniers, who argued for the Appellant. Tuba Ahmed was awarded the Stephen Pierre Traynor Award for best oralist. All four finalists received the James M. Shoemaker Jr. Moot Court Award. Reedy Swanson (Class of 2016), one of last year’s winning finalists, presented Cole and Ahmed with the Kingdon Moot Court Prize. 

Photo courtesy of content.law.virginia.edu

The finalists faced a hot bench, with tough questioning from three distinguished judges: Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit, Judge Pamela Reeves of the U.S. District Court for the Eastern District of Tennessee, and Justice David Stras of the Supreme Court of Minnesota. Both teams had thirty minutes of oral argument time each. After hearing argument, the judges deliberated, selecting the overall winner on the basis of both the teams’ briefs and argument performance. 

Written by 3L Kevin Palmer, this year’s final problem involved amendments to the Voting Rights of 1965.  These amendments prohibited voter discrimination on the basis of “belief” in addition to race, color, and language minority status. In the State of Hamilton, the legislature had enacted a gerrymandered redistricting plan that aimed to give one party permanent control over a majority of districts. The Governor of Hamilton challenged this plan on the grounds that it violated both the United States Constitution and the amended Voting Rights Act. But her suit had two legal hurdles to overcome: First, it was unclear whether the Governor, as a resident of a non-gerrymandered seat, has standing to sue, or whether the Constitution provides a cause of action for political gerrymandering. Second, it was unclear whether the word “belief” in the Voting Rights Act refers only to religious belief, as the Congressional Record suggests, or to political belief as well. 

Before announcing the results, the judges each gave remarks about the finalists’ impressive capacity for oral advocacy and the role of oral argument generally. 

Justice Stras encouraged the advocates to “be conversational” during argument: “Being conversational with the judges, viewing them as almost law school professors or law-school classmates that you’re trying to convince of a particular argument can be helpful. I find that the best oral advocates are the ones where, yes, there is formality to the proceedings but at the same time I almost feel like I’m discussing an interesting legal issue with them over a beer. . . . We’re just being conversational and exchanging ideas.” 

Judge Reeves called the arguments “very excellent,” and recognized Kevin Palmer for writing, noting how difficult it can be to “write a problem like this and have the sides be balanced.” Reeves also encouraged visiting parents to stand for a round of applause. Cole had family members from California present to hear the argument, and Ahmed had family visiting from Alexandria, Virginia. 

Judge Millett noted that the students delivered a “tour de force” of oral advocacy, and commended them all for their “exceptionally written” briefs. In particular, she noted the students’ “good eye contact” and ability to “show the passion for [their] positions.” Millett said that she generally encourages oral advocates to “argue for an opinion [the court] could write,” and to consider writing a “shadow opinion as you’re preparing for oral argument, and then write a shadow opinion for the other side, and figure out why theirs doesn’t work and yours does as a rule of law.” Millett said exceptional oral advocates leave a court “with something to remember your position by, a visual—paint a picture.” 

Saturday’s argument marked the conclusion of the 88th Lile Moot Court competition, which started in the competitors’ 2L year with around eighty competitors. 

In the evening following oral argument, faculty, Lile Moot Court Board members, and the finalists joined the judges for a banquet at the Boar’s Head Inn.

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 tmr8yd@virginia.edu

Analyzing the Obama Doctrine

Julie Dostal '19
Features Editor

Last Thursday, the J.B. Moore Society of International Law and the Virginia Journal of International Law co-sponsored a daylong symposium entitled The Obama Doctrine: International Law and Foreign Policy Under the 44th President. Co-Directors Lauren Sandground from the J.B. Moore Society and Gannam Rifkah from VJIL planned the symposium to feature three panels and one keynote address cohesively aimed at assessing four separate hallmarks of the Obama administration’s legal and policy decisions. The symposium also attempted to look forward to whether and how such initiatives will continue under President Trump. The ultimate question the symposium contemplated is what place in history will the Obama Doctrine will hold following the presidency of Donald Trump.

The symposium appropriately began with introductory remarks by UVa Law Professor Saikrishna Prakash on the executive’s power, or lack thereof, to issue executive orders and the possible questions and confusion arising from their implementation. Controversy surrounded a notable number of executive orders issued by President Obama during his eight-year presidency. From 2009 to 2017, President Obama issued 277 executive orders. While the former President issued one fewer executive order per year than former President George W. Bush and averaged fewer than any U.S. President in the last 120 years, the scope and weight of President Obama’s executive orders were a continued talking point in President Trump’s campaign platform.

President Obama’s executive orders were generally comparable in content to those of his two most recent predecessors. Under Presidents Clinton, Bush, and Obama, executive orders most frequently made changes related to government commissions, boards, and committees. However, former President Obama’s sweeping reforms in U.S. immigration policy, including the Deferred Action for Childhood Arrivals (DACA) program and his call for a one-third cut to carbon emissions, currently occupy a unique place in American political rhetoric. Professor Prakash briefly discussed the ability of President Trump to alter the policies implemented under the Obama administration with the use of his own executive orders. He then tackled the possible confusion surrounding President Trump’s presently issued executive orders. The future of key pieces shaping the current conception of the Obama Doctrine is unknown in the complicated and somewhat constitutionally vague realm of dueling Presidential executive orders.

Following the introductory remars, the symposium featured a three-person panel moderated by UVa Law professor John Norton Moore, discussing the Obama administration’s pivot to Asia. “Pivot” quickly became a buzzword for the Obama administration’s foreign policy shift from the Middle East to Asia-Pacific. An overarching topic driving panel discussion was the increase – or perceived increase – in the threat posed by North Korea and how the Trump administration’s response will define national security relationships in the region. On the topic of relationships, the panelists also unanimously agreed that the success of Japanese Prime Minister Shinzo Abe in creating a positive relationship with President Trump is envied by other Asia-Pacific leaders. In February, President Trump reaffirmed the United States’ dedication to the security of Japan. 

Further, each member of the panel highlighted a different aspect of the pivot. Georgetown Law Professor Jon T. Oliver discussed the intention of the Obama administration to expand trade relations by implementing the now-dead Trans-Pacific Partnership. Bloomberg News White House correspondent Toluse Olorunnipa went into detail about perceived differences in how the Obama and Trump administrations approach the region. Mr. Olorunnipa emphasized the importance the Obama administration placed on acting within relevant socio-cultural norms and additionally mentioned that this attention to cultural practices and preferences appeared to be lacking at the beginning of President Trump’s foreign policy interactions. The panel concluded that the pivot to the Asia-Pacific as an element of the Obama Doctrine is noticeably absent from the foreign policy prerogatives of the Trump administration. 

Following the “Pivot to Asia” discussion, UVa Law Professor Paul B. Stephan moderated a discussion between Georgetown Law Professor David P. Stewart and international law attorney Richard D. Klinger on the impact of the Justice Against Sponsors of Terrorism Act of 2016 (JASTA) on the Doctrine of Sovereign Immunity. In September 2016, Congress overrode President Obama’s veto of JASTA, allowing families of 9/11 victims to bring suit against instrumentalities of foreign nations that provide material support to terrorists. While the bill’s sponsors asserted that JASTA is narrowly drawn, the Obama administration contended that such legislation imperils Americans abroad. While the panelists engaged in a heavily technical discussion, a few takeaways were clear. The panelists first discussed the possible positives arising from the passage of JASTA. The Act is intended to compensate the family members of victims of terrorist attacks, who have no likely source to recover tortious or other forms of damages available to family members experiencing similar losses from differing causes. The Act may also provide a deterrent effect against state-sponsored terrorism. However, after a quick discussion of compensation and deterrence in a positive light, the panelists and moderator agreed that neither compensation nor deterrence were likely to result from bringing a suit under JASTA. Furthermore, both panelists warned about the dangers of expanding exceptions to Sovereign Immunity. Yet all three participants in the panel concurred that JASTA is not likely to be overturned due to the problematic reputational issues resulting from members of Congress attempting to disable a legal remedy for families who undoubtedly suffered a great personal tragedy on 9/11.

The symposium continued with a moderated discussion concerning the corporate challenges posed after the Joint Comprehensive Plan of Action (JCPOA) with Iran. UVa Law alum Eric J. Kadel who now serves as the principal partner in Sullivan & Cromwell’s international trade and investment practice, discussed the history of the JCPOA. NYU School of Law Professor Zachary K. Goldman, an expert on national security and international sanctions law, discussed the regulatory implications of the JCPOA. Finally, Lindsey Meyer, the head of the international trade practice for Venable LLP, enlightened the audience on the content of the plan, including a helpful analysis of the JCPOA’s primary and secondary sanctions. The two members of the panel actively involved in private litigation both expressed the difficulties facing their clients in entering into business dealings with Iran due to JCPOA sanctions. Banks and private interest entities continue to hesitate to enter the Iranian market. This panel more than any other questioned the survival of an Obama Doctrine element under the Trump administration. As relations with Iran become increasingly strained under the Trump administration, the weakening of sanctions against Iran and the continuation of the JCPOA is far from certain.

The symposium concluded with a keynote address titled, “Weathering the Perfect Storm: Can the United States Accommodate the Mass Migration of Refugees While Guarding Against Nefarious Actors and Combating Terrorism at Home and Abroad?” The keynote address was co-sponsored by the Immigration Law Program. UVa Distinguished Professor of Law David Martin introduced keynote speaker and fellow UVa Law alumnus Peter S. Vincent. As the current Assistant Director General of International Policy for Borderpol and the General Counsel for Thomson Reuters Special Services, LLC, Mr. Vincent is a leading expert on international intelligence information and cybersecurity. Mr. Vincent focused heavily on a forward-looking evaluation of immigration policy. Mr. Vincent concentrated on the rhetoric currently defining immigration. He attempted to explain the exclusionary and sometimes fearful presentation ofimmigrants and refugees in the United States as a manifestation of domestic issues. Mr. Vincent went so far as to call the opioid crisis and the loss of employment among the specific demographic of white men living in rural America a national security crisis based on the mass loss of life and an increase in hate crimes. In response to an audience question, Vincent was also quick to highlight the importance of the United States’ relationship with Mexico, specifically the assistance the Mexican government provides in our country’s attempts to halt the import of illicit substances across the border. The takeaway of the keynote panel echoed the conclusions of the previous three panels: the future of the Obama Doctrine is precarious at best, dependent on the decisions of both President Trump and a Republican Congress.

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jpd5pd@virginia.edu

1 http://www.pewresearch.org/fact-tank/2017/01/23/obama-executive-orders/

2 http://www.pewresearch.org/fact-tank/2017/01/23/obama-executive-orders/

3 http://www.usatoday.com/story/news/politics/2017/02/10/donald-trump-shinzo-abe-japan/97736828/

Revealing Returns

Jenna Goldman '18
Editor-in-Chief

Photo courtesy of Thomson Reuters

President Trump’s tax returns, or rather his unwillingness to disclose them, have been a point of contention since he entered the political scene as a GOP candidate in 2015. The interest revived earlier this month when two pages of Trump’s personal tax returns from 2005 were leaked.   

The Law Weekly sat down with Professor George Yin to discuss the meaning of the most recent release and the importance of presidential tax documents.

Professor Yin came to UVa in 1994 from the University of Florida College of Law. Before entering academia, he served as tax counsel to the U.S. Senate Finance Committee. In 2003, Yin was tapped by Rep. Bill Thomas (R-Calif.) to be Chief of Staff of Congress’ Joint Committee on Taxation, where he served from 2003–2005. The Committee is analogous to the Congressional Budget Office; it investigates the operation and administration of taxes, reports on and makes policy recommendations to Congress, estimates the revenue effect of all tax proposals, and reviews all proposed tax refunds over $2 million. 

Yin has most recently written an op-ed for the Washington Post regarding the Congressional authority, dating back to 1924, to obtain and disclose the tax returns of any taxpayer, including the President, without his or her consent.  The committees with this authority are the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation. 

Throughout the campaign, the Trump camp refused to release any tax documents, but last week, two pages of now President Trump’s 2005 return were leaked to investigative reporter David Cay Johnston, who claimed that they were mysteriously left in his home mailbox. Due to the innocuous nature of the information revealed, Yin believes the two pages may have been leaked by the Trump administration or by a financial institution Trump has used. He explained that the leaked information is the same kind that people must submit to qualify for a financial benefit from a bank, such as a mortgage.

“Trump calls himself ‘the king of debt,’ so if he has been borrowing money it would be normal practice for lending institutions to receive this information” Yin says.

When asked whether he believed a member of the IRS leaked the returns, he responded that it would be “pretty unlikely.” Yin explained that if an employee were to risk jail time in order to do the President harm, “this is not the document that would have been leaked because of how little information it contained.”

Although this particular document does not reveal useful information about Trump’s business practices and connections, Yin believes a complete examination of his returns might be extremely telling. And there is a body that can legally expose the complete picture: Congress. 

Despite Republican control, Yin believes Congress should and will investigate the President’s tax history, including his business returns, as early as the end of the calendar year. Yin cites the investigation of Russian meddling in U.S. elections as potentially opening the floodgates to an investigation of Trump’s ties with Russia. “Trump’s business tax returns may certainly provide vital clues to potential involvement with Russia or other foreign nations,” Yin says. 

Second, Yin believes the Republican members of Congress are not so loyal to the President that they would disregard the opinions of their own constituents. He forecasts that the President’s leadership may wane (noting the failure of the first major piece of legislation of Trump’s administration, the American Health Care Act) and as Trump becomes less popular among the people, Yin suggests, “individuals may begin to defect.”

Third and perhaps most optimistically, Yin believes that transparency, as a central ideal of American good governance, is one that will transcend partisanship. Over the last forty years, Yin says, presidents have consistently disclosed their tax information to the public to show that they are free from conflicts of interest and pay their proper share of taxes. Candidates from both sides of the aisle, most notably Secretary Clinton, have been criticized and investigated on grounds of lack of transparency. Yin foresees the same fate for President Trump. 

If Yin’s prediction that Congress will investigate the President’s tax returns comes to fruition, given Trump’s demeanor, it does not seem likely he will give up this coveted information without a fight. But Yin says there is nothing a President can do (short of breaking the law) to prevent a congressional committee from obtaining the returns. “The law clearly states that the tax committees may request the information from the Treasury Secretary, and the Treasury Secretary shall provide it. There is no discretion involved. The President isn’t in the picture.” Yin says Congress intentionally excluded any presidential involvement in the aftermath of Watergate. 

“Because of allegations that Nixon misused tax information against his enemies, Congress explicitly ‘built a wall’ to keep future presidents from obtaining returns,” Yin explains. A President now may only obtain very limited information relating to possible presidential appointees. If a President seeks any other tax information, he must report it to the Joint Committee on Taxation, which may disclose the presidential access if it is in the national interest. 

Another reason Yin believes Congress may invoke its power to access the President’s returns is to examine the impact his administration’s tax reform proposals may have on him. “The question Congress and the American people will want to know is ‘how will these proposed changes personally affect the President and his businesses?’”

The two pages of President Trump’s 2005 return showed that over eighty-five percent of his taxes in that year were due to the Alternative Minimum Tax (AMT) system. The AMT is a supplemental income tax structure targeted towards wealthy individuals who may take advantage of so many deductions under the traditional tax structure that they effectively pay little to no income tax. If the tax reform proposal of the administration repeals the AMT as the President has previously advocated, the American people will want to know whether Trump would receive an eighty-five percent (or greater) cut in taxes as a result. 

Finally, Yin explains that an investigation into the President’s tax returns will help determine whether the IRS is treating the President like any other taxpayer. The IRS is supposed to treat everyone the same, “but obviously, it is easy to imagine this weakened agency ‘going easy’ on the President. An analogous situation happened in the 1920s when Andrew Mellon, who was Secretary of the Treasury at the time, was rumored to be getting special treatment from the Agency. That concern was another reason Congress passed the 1924 law.”

Yin emphasizes that an investigation does not necessarily have to end in public disclosure “That’s a separate question, it’s too early to decide whether disclosure should occur.” 

Trump’s interest in Russia doesn’t yet add up for Yin. “The President has been speaking sympathetically of Russia for a while, but why? Why does he seem to be so protective of Putin and Russia?” It would be one thing if there were a philosophical tie, but Yin is skeptical of any such connection. “I don’t see the President as being very philosophically driven, so the question is ‘what is important to him?’ And the only answer seems to be money.” If money is Trump’s connection with Russia, then his business tax returns may explain a great deal of his rhetoric.

Along with teaching Partnership and Federal Income Tax, Professor Yin currently serves as a member of the IRS Advisory Council that provides recommendations on improving the IRS’s estimates of the “tax gap.” 

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jmg3db@virgnia.edu

1 George K. Yin, Congress Has the Power to Obtain and Release Trump’s Tax Returns, Washington Post (Feb. 7, 2017), http://www.washingtonpost.com/opinions/congress-has-the-power-to-obtain-and-release-trumps-tax-returns/2017/02/07/aa53254c-ea63-11e6-80c2-30e57e57e05d_story.html?utm_term=.02d0c583e7d5.

2 Christine Wang, Here’s One Curious Thing About the Donald Trump Tax Leak, CNBC (Mar. 15, 2017), http://www.cnbc.com/2017/03/14/trump-may-have-leaked-his-own-tax-return-award-winning-journalist-says.html.

The Future of Affirmative Action

Jenna Goldman '18
Editor-in-Chief

The American Constitution Society, the Black Law Students Association, and the Center for the Study of Race and Law hosted, “Fisher v. University of Texas and the Future of Affirmative Action” last Wednesday in Caplin Pavilion. The panel consisted of affirmative action law experts: Professors Douglas Laycock, George Rutherglen, Kim Forde-Mazrui, and Scott Ballenger, a partner at Latham & Watkins LLP who played a key role in Latham’s representation of both the University of Texas in the Fisher[1] case and the University of Michigan Law School in Grutter v. Bollinger.[2]

Photo courtesy www.youtube.com

Speaking to a standing-room only crowd, professors and Mr. Ballenger addressed the implications of the Fisher decision and the future of affirmative action policies in the United States.

Professor Laycock began the discussion by outlining the progression of affirmative action cases starting with Regents of the University of California v. Bakke.[3] Deciding the case in 1978, Justice Powell wrote the opinion of a plurality that struck down race based quota systems in admissions but upheld the use of race as a factor in admissions.

Laycock went on to describe Justice O’Connor’s opinion in Grutter v. Bollinger,[4] which upheld the affirmative action policy at the University of Michigan Law School and affirmed that a race-conscious admissions process did not amount to a quota system. In the opinion, Justice O’Connor opined, “Twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”[5]

 At issue in the Fisher case was the University of Texas’ “Top-Ten Percent Plan” which guarantees admission to the University of Texas system to the top ten percent of students graduating from each in-state high school. The remainder of students outside the top percentage of their class may be admitted through a process that considers a number of factors, including grades, extra curricular involvement, and race. The appellant, Abigail Fisher, a white student, alleged she was denied admission to the University of Texas at Austin based on her race in violation of the Equal Protection Clause of the Fourteenth Amendment.[6] During oral arguments in early 2016, the late Justice Scalia made the comment that “most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re –that they’re being pushed ahead in–in classes that are too fast for them.”[7]

The comment by Justice Scalia and the allegations by Ms. Fisher sparked the twitter hashtag “#StayMadAbby.” The hashtag was used by black students at UT and around the country to highlight their achievements in response to Justice Scalia’s comment and to bring attention to the fact that only four percent of students in UT’s 2015 freshman class were black.[8]

Professor Laycock went on to describe why race-neutral admissions policies do not fulfill the objective of diverse student bodies. He explained that institutions of higher education must rely on proxies for race and often have trouble including the most academically strong minority high school students because they slip through the framework. For example, admissions officials use geography as a proxy for race in Texas, looking closely to admit students from schools located in predominantly Hispanic neighborhoods. However, as Laycock points out, without the opportunity to take race into account, admissions are not able to identify minority students who go to competitive high schools in predominantly white areas.

Scott Ballenger, a 1996 graduate of UVa Law, said he kept an optimistic view of the outcome throughout the litigation. The case was heard “with the backdrop of Ferguson and the terrorist attack on the Emanuel AME Church by Dylann Roof,” Ballenger said, “and it was more than clear that the United States was far from the ‘race neutral’ utopia Justice O’Connor described in Grutter.”

The recusal of Justice Kagan and the death of Justice Scalia shook up the case, said Ballenger, and the team knew they would be relying on Justice Kennedy for a favorable decision, if they got one at all. Ballenger expected a 4-4 divide, so when they heard the decision was 4-3, with Justices Kennedy, Ginsburg, Breyer, and Sotomayor in the majority, Ballenger was elated. Kennedy’s opinion affirmed that the Top Ten Percent Plan was narrowly tailored to serve the compelling state interest of diversity in higher education.

For Ballenger, the case was “more about the dormitories than the classrooms,” and “the societal benefits of having diverse leadership.” He emphasized that a diverse campus served the educational goals of the students, the state, and the nation.

Ballenger says he remains optimistic, even into the Trump administration: “If the law changed today,” he said, “it seems unlikely that law schools and law firms will go back to ‘the way it was’ with no or very few women or people of color in their ranks. Clients insist on diverse teams, and increasing diversity in law firms to meet client demand is a continuous goal.”

Ballenger’s optimism was challenged by Professor Rutherglen, author of the recent article “Fisher II: Whose Burden, What Proof?”[9] Rutherglen saw the case in light of the implications it will have on civil procedure. He says that the Fisher case substantially shifts the burden of proof to the attacker of an affirmative action plan. “As a matter of constitutional doctrine, the law is very stable at the moment; how long the moment will last is the question.” Rutherglen lamented that a return of affirmative action to a Presidential agenda may reverse the recent progress.

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jmg3db@virginia.edu

[1] Fisher v. Univ. of Tex., 579 U.S. ___ (2016).

[2] Grutter v. Bollinger, 539 U.S. 306 (2003).

[3] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[4] Grutter, 539 U.S. 306.

[5] Id. at 343.

[6] Fisher v. Univ. of Tex., 570 U.S. ___, 2415 (2013).

[7] Transcript of Oral Argument at 67, Fisher, 579 U.S. (No. 14-981).

[8] Brian Feldman, ‘Stay Mad Abby’: Black College Graduates Ridicule SCOTUS Affirmative-Action Case, New York Magazine (Dec. 10, 2015), http://nymag.com/selectall/2015/12/black-graduates-ridicule-affirmative-action-case.html.

[9] George Rutherglen, Fisher II: Whose Burden, What Proof?, 20 Green Bag 2d 19 (2016).

Law Student to Head University Judiciary Committee

Peter Bautz '18
UJC Chair

On March 19, 2017, the newly elected University Judiciary Committee (UJC) Representatives from the various schools at UVa met in the Rotunda to elect their new leadership. For the first time in recent history, a law student, Peter Bautz ’18, was elected Chair of the UJC. Given the recent discussion of graduate representation on UJC, Peter’s win represents a huge step forward for graduate students, and for law students specifically, in the organization. We had a chance to sit down with Peter and hear about his time on UJC and his plans as UJC’s leader.

1. How did you become involved with the UJC?

In my first year, I applied to be a counselor on the UJC. I hoped to further hone my advocacy skills for use after law school. UJC and Honor both offered opportunities to do this in the first semester of my first year. My selection of the UJC had a lot to do with the fact that the UJC hears many more cases a year than Honor, which offered me better prospects for getting more cases and thus more chances to work on my advocacy skills. The UJC would allow me to help real people as opposed to the imaginary clients I had been helping through eight years of mock trial.

Last year, both of the Law School's UJC Representatives were not seeking re-election. Over my first year, I had found that the UJC was my favorite extra-curricular activity, so I decided to run for one of the open UJC Rep positions. By the start of the election, only two people – Brandon Newman and I­– were seeking the seats. We were both elected to those positions, and I transitioned to being a judge on April 1, 2016.

2. What was your old position and what did you accomplish in that role?

The Vice Chair for Trials oversees most of the administrative operations of the UJC. From scheduling cases to ensuring cases were properly staffed, I oversaw all of the cases that came through the system, from filing through assignment to a trial chair. I also oversaw the representative pool, which is made up of the twenty-five representatives ­–two from each of UVa's different schools (except the College, which has three representatives).

On the operational side of my work, I used my knowledge of public legal records to match accused students with their public court records to keep on top of when their criminal trials were occurring (if there was a criminal trial). This additional resource allowed me to schedule cases once criminal trials had been resolved. I stayed on top of cases and scheduled a large number of them throughout the past year. In fact, over the past three months in which the UJC heard cases, we have had a case scheduled almost every single weekday night (including Fridays). Scheduling all the cases and ensuring they got staffed with judges was a challenge, but I was able to successfully get it done.

On the representative side, I tried to help bring more qualitative feedback into our system by bringing in sample Investigator's Reports and mock opening and closing statements by counselors for representatives to learn how to effectively give feedback to support officers after a trial. I also brought more awareness to graduate issues by having our representatives workshop what sorts of questions panels might need to ask different accused students from different schools. A question that makes sense for a twenty-year-old undergraduate may not make as much sense for a twenty-nine-year-old law student. 

3. Why did you run for chair?

There are a few reasons I ran for chair. The first is that I have seen a lot of issues with the UJC’s outreach to graduate students. Every year that I have run to be a UJC Rep for the law school, the question I get more often than “What's your platform?” is “What does the UJC do?” This question suggests to me that even at the law school, where the UJC has its strongest bastion of graduate student support, there is a failure to communicate effectively what the UJC does and what our mission is. The situation is even worse in other schools. We regularly have issues filling all of the graduate student UJC Rep seats from the different grad schools.

Second, I wanted to ensure a level of institutional memory within the UJC. I am the only returning Voting Member of the UJC Executive Committee, as the other three members are all graduating. Most of my new Vice Chairs have some Executive Committee experience but not as voting members. I have met with Susan Davis, our legal adviser, many times throughout the year, and I have worked with Mitch Wellman (fourth year, CLAS), our outgoing Chair, on a number of issues over this year. I thus know a lot about many of the longer-term issues that the UJC has faced this year. I ran for Chair because I would bring that institutional knowledge with me, ensuring some continuity on the UJC.

Finally, I ran to continue graduate representation in the Voting Members of the Executive Committee. This reason is not unique to the Chair position, as I could have kept my old position with the same result. However, I felt that it would be beneficial to have a graduate student at the top of the UJC. Having a graduate student in the Chair position sends a message to the University community that we are all one community regardless of whether we are graduate or undergraduate students.

4. What will your new role require you to do?

The UJC Chair is a multifaceted role. I find it helpful to break it into two general spheres of responsibilities: internal and external. In terms of internal responsibilities, the Chair oversees all UJC activities. He or she helps to select the non-voting Executive Committee members and plays a role in the selection process for new support officers. The Chair ensures everything is running smoothly and that cases are going off without any issues. Outside of trials, the Chair runs Executive Committee and General Body meetings.

In terms of external responsibilities, the Chair is the public face of the UJC. The Chair is the only member of the UJC authorized to speak for the UJC. The Chair helps organize outreach strategies with the Senior Educator and ensures that the UJC's message is getting out to the University community. Additionally, the Chair represents the UJC on multi-organization committees like the Presidential Senate. Through all these activities, the Chair represents the UJC to the University at-large.

5. What do you hope to accomplish through UJC in the coming year?

I think the key word for all of the new voting members is “outreach.” We want to increase outreach to the University across the board. Some undergraduates view the UJC as a punitive body–an image we would like to change because it is not accurate. Personally, I would like to expand our outreach among the graduate schools. Two UJC Reps can't do all the outreach necessary at a school alone. I want to increase the number of Educators we have working on graduate outreach. One of the challenges here is adapting to the different circumstances of each school.

I would like to put together more social activities for our members. One theme that has emerged from Voting Member elections this year is that our Representatives often feel that they are isolated from the support officers. I would like to work with the new Vice Chair for Trials to put together more fun activities that bring our members from all of our pools together. This past year we had a banquet that brought together all of our members with student life personnel. It was a successful evening, and I would like to see more events like it as well as some less formal events.

6. Can you talk about graduate representation on the UJC?

Graduate representation is hard to universalize because there are so many different graduate schools. The law school is one of the best-represented graduate schools on the UJC due in large part to the number of law students who become Counselors. Although the past two elections for UJC Rep from the law school have been noncompetitive, the law school generally does not have too much of an issue filling its two Representative spots. Other graduate schools regularly have issues filling their Rep slots, and most of the time there are no support officers from any graduate school besides the law school. I view this as a serious problem. Graduate students make up about a third of the University, but their representation on the UJC does not match that breakdown.

One side effect of this representation issue is that sometimes there are no graduate students on the Executive Committee. The most recent time this happened was two years ago. This past year, Alex Haden, Amy Ackerman, and I represented three graduate students on the eleven-member Executive Committee. This coming year's Executive Committee has not fully formed yet, but I, at least, will represent one graduate student on the Executive Committee. I would also like to find a way to ensure that the Executive Committee always has at least one graduate student member, as I think we provide a different perspective from the undergraduates.

7. Anything else you want to add?

I look forward to representing not only the law school but every student at this University as the Chair of the UJC. It is an office with many responsibilities. I hope to bring the perseverance and dedication that we as law students embody to this position as I lead the UJC for the next year.

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pb2bc@virginia.edu