Loving at Fifty

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

Dean Erwin Chemerinksy gives keynote address as Dean Goluboff looks on regally.

Photo courtesy of The Law Weekly

In honor of the 50th Anniversary of Loving v. Virginia, the Virginia Journal of Social Policy & the Law convened the symposium “Loving: Yesterday, Today and Tomorrow” to celebrate the landmark decision that toppled anti-miscegenation laws in the United States and breathed new meaning into the Fourteenth Amendment. 

The two-day series of speakers and panels began with an introduction from Dean Risa Goluboff followed by the keynote address by Dean Erwin Chemerinsky of Berkeley School of Law. Arguably the foremost expert on constitutional and civil rights law today, Dean Chemerinsky has authored ten books—two of which were released in 2017—and 200 law review articles.

“Though there is a long way to go; focusing on Loving v. Virginia gives us a glimpse of how much the world has changed.” Dean Chemerinsky cited a continuing study that asked individuals if they would oppose a family member marrying someone of a different race. Beginning in 1957, 80% of people said they would oppose, then in 1990 that number dropped to 63%. When the same question was posed in 2017, it fell to only 11% in opposition. This shows a remarkable shift in attitude, noted Chemerinsky, especially considering 40% of Americans would disapprove of a family member marrying someone of a different political party. 

Photo courtesy of The Law Weekly

Loving was the ideal vessel for illustrating the white supremacy behind anti-miscegenation laws and further elevating marriage to a fundamental right. “Not even a law professor on an exam could come up with a better name,” joked Dean Chemerinsky.

The couple’s apt surname stands in contrast to the heartbreaking facts of the case. When the police raided the Lovings’ home, the couple pointed to the marriage certificate they received in Washington, D.C. as they were arrested. Mr. Loving, a white man, walked out of jail the next morning while his wife, a black woman (though she stated to the police that she was of Native American decent) and pregnant with the couple’s first child, was left in custody for several more days. The Lovings would eventually plead guilty to the misdemeanor offense of violating Virginia’s 1924 Racial Integrity Act.

In terms of the case’s impact on constitutional law, Loving seemingly ended the “formal equality” approach of interpreting the Fourteenth Amendment. Virginia’s primary argument was that the law treated whites and blacks the same, and therefore, was allowed to stand. Remember, Plessy v. Ferguson was based on this view of “formal equality,” better known as “separate but equal.” 

Chemerinsky noted that Brown v. Board of Education did not denounce the reliance on formal equality as a model; the decision was narrowly tailored to education, not on the inherent inequality of segregation.

Loving is crucial in a more subtle way: Virginia was eventually forced to defend the law on the grounds that tradition justifies the continuation of the discriminatory law. That argument did not go over well with the Warren Court. 

“We should celebrate Loving v. Virginia as a triumph, but we should also regard it as a failure,” referring largely to the year it was decided. 

“I am very critical of the Supreme Court for waiting so long to decide that laws prohibiting interracial marriage were unconstitutional under the Fourteenth Amendment.” Laws that prohibit interracial marriage were common throughout the United States, not just in the South. Nearly every state had, at some point, the restriction on the books, however, the California Supreme Court overturned the anti-miscegenation law in that state in 1948. “What took the Supreme Court so long to follow in the footsteps of a state supreme court?”

Photo courtesy of The Law Weekly.

The Supreme Court had the opportunity to overturn anti-miscegenation laws in 1955 with Naim v. Naim. The Supreme Court seemingly refused to hear the case because it was “too soon” after Brown v. Board of Education. Chemerinsky said the Supreme Court abdicated its role; the Court should have decided the case because it was its duty to decide cases pursuant to the Constitution, not to pick and choose what to hear based on what is politically palatable.  

Chemerinsky argued that taking another important civil rights case soon after Brown would have affirmed the decision’s force that the Equal Protection clause was not about formal equality, but about anti-subordination. It took the Court thirteen years to state this specifically. “We should have expected more from the Supreme Court in 1967,” he said. 

Famously, Richard Loving, who did not attend the oral arguments before the Supreme Court told his lawyer to “tell the Court that I love my wife, and it’s just not fair that I can’t live with her in the State of Virginia.” 

After Dean Chemerinsky’s address, “Loving” was screened on Main Grounds along with a panel discussion comprising Liza Ayers ’19, Professor Sylvia Chong, Professor Susan Fraiman, and Professor Lisa Woolfork from the University of Virginia English Department. 

The symposium continued the following day with a panel on “Loving’s Meaning” moderated by UVa Law’s Professor Danya Bowen Matthew with Professor Katherine Franke of Columbia Law School, Professor Randall L. Kennedy of Harvard Law School, and Robin A. Lenhardt of Fordham Law School. The panel discussed the nuanced history of the case, and built on Dean Chemerinsky’s critique. 

“This case was the first time the Supreme Court acknowledged that white supremacy played a role in the continuation of anti-miscegenation laws,” noted Professor Franke.  

Professor Lenhardt expanded, “To fully understand what Justice Warren was doing with the anti-white supremacist language, you need to read Loving in direct connection to Brown. Loving is here to focus us on other areas outside of school.” 

She looked to the transcript of the oral arguments and discussed where Chief Justice Warren asked the lawyer for Virginia why the same sixteen states that have anti-miscegenation laws were the same sixteen states that had segregated schools. “You can see that Warren is attempting to make a connection to Brown, but the point was anemic.” Professor Lenhardt urged courts and academics to learn from the decision and do a better job at making connections between race and other arenas such as housing, poverty, and gender.

When asked about the importance of the unanimous decision, Professor Kennedy responded, “Unanimity is overplayed: the Court has given up too much in the pursuit of unanimity. There only needs to be five votes to write with the authority of ‘The Court.’” 

The next panel was moderated by Professor Deborah Hellman of UVa Law and joined by Professor Kim Forde-Mazrui of UVa Law and Professors Melissa Murray and Angela Onwuachi-Willig of Berkeley Law, focusing on “Loving as a means of social and legal transformation.” 

Professor Murray’s remarks reminded attendees that “legalization does not mean complete acceptance nor the de-regulation by the state.” Loving is not a magic bullet, there is always more work to be done and rights are always subject to erosion if we do not diligently protect them.

Professor Onwuachi-Willig discussed that erosion of the Equal Protection Intent Analysis outlined in Loving. In 1976’s Washington v. Davis, the Court upheld a test (called Test 21) administered by the D.C. police department. The Court decided that proof of discriminatory intent was not needed to prevail on their Equal Protection and that the invidious quality of a law must be traced to a racially discriminatory purpose. 

Professor Onwuachi-Willig presented the comically difficult and irrelevant questions from Test 21, including a question about the “history of the date fruit.” The 80% white department policed a city with a 70% black populace, yet the test did not rise to the bar of “discriminatory intent.” 

Professor Forde-Mazuri discussed the crux of one of his latest papers, “Should Obergefell have been more like Loving and less like Brown?” There was no blame in the judgment in Brown (just as there was no blame placed on homophobia in Obergefell), whereas in Loving, blame was placed squarely on states for propagating the white supremacist view of “preserving the white race.” 

The symposium ended with a panel on “Loving’s Promise for LGBTQ Communities,” moderated by Professor Micah Schwartzman of UVa Law. Loving was cited in the Obergefell v. Hodges decision that ended restrictions on same-sex marriage in the United States. Professor Holning S. Lau of UNC School of Law, Professor Dough Nejaime of Yale Law School, and Professor Catherine Smith of University of Denver Strum College of Law explored the various ways the logic in the Loving decision could be applied to contemporary cases, especially in the forthcoming case Masterpiece Cakeshop.

Editor-in-Chief of the Journal of Social Policy & the Law Alli Herzog ‘18 said the idea of the symposium was the brainchild of Professor Onwuachi-Willig and Professor Kerry Abrams of UVa Law. The journal enthusiastically sponsored the event and will publish several short pieces by professors about Loving in their spring issue. 

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jmg3db@virginia.edu

So You Think You Can Dance, Sing, or Act?

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

Hear ye, hear ye, one and all, the 110th Libel Show is holding auditions this week! We welcome all students interested in joining the oldest and, we think, funniest tradition at University of Virginia School of Law. The Libel Show is an annual tradition where students come together to lampoon student life, legal culture, and current events through a series of comedy skits and musical acts. The show is performed for three nights in Caplin Auditorium for the Law School students and faculty to enjoy. (Even the professors join the fun by performing a rebuttal during one of the shows.) As a 100-percent student-run show, we would love for YOU to come be part of the show. 

Photo courtesy of the 110th Libel Show

This year, the show will run on March 22, 23, and 24, and EVERYONE is welcome to be a part of the show, regardless of level of talent, experience, or humor (READ: NO STAGE EXPERIENCE REQUIRED.) We are seeking interested and enthusiastic people for acting, singing, dancing, band, and back-stage assistance. We have roles for all levels of talent and time commitment. If you are worried about the amount of time you would spend on the show, let us know, and we will take your availability into consideration when casting. Remember, cast rehearsals are only thirty minutes per week leading up to the week before the show. During the rehearsal week, Law School students are free to complete homework and reading whenever they are not on stage performing. 

Below are the details for each of the audition sessions. If you are interested in multiple ways to perform, you may try out for any or all of these:

Acting and/or Singing

Dates: Wednesday, Jan. 31, 6-9p.m. and Thursday, Feb. 1, 6-9 p.m.

Location: WB 154

Details: Stop by the Libel table near WB 154 to try out! For acting, you can read from a past Libel Show scene—no preparation necessary! For singing, please prepare a thirty-second sample of any song. In total, the audition process lasts about five minutes. 

Questions: Email libelshow110@gmail.com

Dance

Dates: Thursday, Feb. 1, 3:30-5:30 p.m. and Friday, Feb. 2, 3:30-5:30 p.m.

Location: North Grounds Rec Center

Details: If you like to move it move it, then come audition to dance in the Libel Show! No special preparation. Please arrive ready to move. The audition process takes all of one session, so expect to stay the full two hours of one of the sessions. 

Questions: Email Alana Harris (ah7db@virginia.edu)

Band

Dates: Wednesday, Jan. 31, 6-9 p.m. and Thursday, Feb., 1, 6-9 p.m.

Location: WB 152

Details: Calling all musicians! If you can play an instrument, you should try out for the Libel Show band! The band audition room will have a guitar provided. Band tryouts will be welcoming and flexible: If there are any special instrument accommodations necessary, please reach out to Ben Lucy to discuss.

Questions: Email Ben Lucy (bml4xd@virginia.ed)

Want to be a part of the show but are not interested in or thrilled to appear on stage? Email us at  libelshow110@gmail.com to let us know, and you can join the run crew to help with production backstage. 

The Libel Show gives all students the ability to contribute to an ongoing UVa Law School tradition. Don’t leave Law School with any regrets: COME AUDITION this week!

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knh3zd@virginia.edu

New Club on the Block: An Introduction to LIST

Virginia Law, Innovation, Security and Technology

From Right to Left: Irina Danescu, Chinny Sharma, and Philip Doerr, the founders of Law, Innovation, Security and Technology

Autonomous vehicles facing moral dilemmas. Artificial intelligence demonstrating systematic biases. Physical attacks conducted through cyberspace. More than plot devices in a Black Mirror-esque show, these are among the challenges that sparked an idea between us, - Chinmayi (“Chinny”) Sharma, ‘19, Philip Doerr, ‘20, and Irina Danescu, ‘20 -  to create a nexus for students, professors, and employers interested in grappling with the legal issues presented by pivotal technologies. The result was LIST, or Law, Innovation, Security, and Technology, which launched in Fall 2017 and is kicking off events this week with the goal of providing law students the tools and opportunities to engage with the legal issues raised by new and existing technologies.

We came to law school with differing professional experiences and perspectives — which is appropriate given the range of issues included under the expansive “innovation, security, and technology” umbrella. As a former programmer, Chinny knew she wanted to pursue cybersecurity law, but found that while there was clear interest in the subject among students and faculty, there was no centralized means for these individuals to work together to organize events, facilitate contacts with relevant employers, or equip students with the technical acumen demanded by jobs in this area. Irina, having previously worked on military cybersecurity and cyber operations at the RAND Corporation, found a robust national security infrastructure but a less clear roadmap for a student interested in its intersection with cyber and technology law. Finally, Phil, a former consultant who came to law school with a passion for entrepreneurship focused on emerging technologies, realized that while UVa’s Darden School has a strong focus on tech entrepreneurs, the law school must also play a critical role in developing students’ understanding of the nuanced legal issues implicated in technological innovation. 

We found that we were not alone in seeing these gaps as opportunities for student initiative. Ashley Deeks, a professor of international and national security law and one of the group’s faculty advisors, says: “Lawyers are going to play an incredibly important role in navigating this new world in which technology—including cyber operations, artificial intelligence, and machine learning—will play a central role. The use of each of these technologies raises really difficult legal issues, and companies and governments developing and employing these technologies increasingly need lawyers to analyze and advise on those issues.” 

Accordingly, LIST has two primary goals: (1) to educate students about both the legal issues and underlying technologies that will impact their work, whether litigation or transactional, public or private; and (2) to help launch students into tech-related legal fields, including tech entrepreneurship, national security, data protection, and more. In order to achieve these goals, LIST is pursuing several parallel lines of effort: capitalizing on a rich network of faculty contacts and interested professionals from law firms, government agencies, and public service organizations to organize educational events; launching a Professional Development Program, which includes exclusive tech law research projects with premier organizations in the field and a mentorship program with partner law firms; and coordinating opportunities for students to learn about jobs available in tech and cyber law. 

Professor Deeks recognizes that this space in the legal profession is constantly changing, and she agrees that “by working to establish connections with practitioners in the cyber and technology arena, LIST will help students be able to more concretely understand what a legal practice in this area looks like.”

So far, LIST has sourced over ten unique research opportunities with organizations such as Future of Privacy Forum, Open The Government, Restore the Fourth, and Global Cyber Alliance. Several students have already been matched to projects and several more still have applications pending review. At the end of the semester, students who participate in the LIST Professional Development Program will have the opportunity to make a 5 minute presentation about their semester’s work to a crowd of peers, professors, and professionals from the tech field. This panel will occur right before LIST’s inaugural networking event, during which it will be inviting attorneys from tech companies, tech-related practices at firms, tech-focused nonprofits, and tech-involved government offices. Following the event, LIST members will be invited to small dinners with these professionals, divided up by subject matter area (AI, autonomous vehicles, drones, etc.). 

The spring semester also promises to be an exciting first semester, with LIST hosting several speakers and events, including:

Chuck Rosenberg, the former acting administrator of the Drug Enforcement Administration, on January 31

Ari Schwartz, the former senior director for cybersecurity on the United States National Security Council Staff at the White House, on February 2

A panel at the Shaping Justice Conference regarding “Artificial Intelligence, Big Data, and the Future of Criminal Justice,” also on February 2

Craig Silliman, Verizon’s general counsel, for a discussion of Net Neutrality on February 6

Tim Tobin of Hogan Lovells and Colin Tooze of Uber for a discussion of the legal implications surrounding the rise of autonomous vehicles on March 21

A Capture the Flag event, a tech- and policy-focused cybersecurity simulation, with UVa’s undergraduate Computer Network Security group

LIST also has several events in the planning stages, including the large April networking event and student research presentation panel. 

If you would like to get involved with LIST, please feel free to reach out to any of us—we Chinny, Phil, or Irina- with any questions, and we hope to see you at one (or all!) of our upcoming events this year!

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cjs8xa@virginia.edu

pd9pt@virginia.edu

ied7rf@virginia.edu

A Puzzlemaster’s Parlance

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

Will Shorts '77 from his visit to the school in 2008. Photo courtesy of UVAToday.

Ucalegon: [noun] A neighbor whose house is on fire or has burned down. 

“It’s a ridiculously specific word and that’s why I love it,” said New York Times Crossword Puzzle Editor, Will Shortz ‘77. The Virginia Law Weekly had the opportunity to interview Mr. Shortz about how he contemplates words and language, and how we as budding lawyers can learn a thing or two from UVa’s most famous wordsmith. 

In his capacity as puzzle editor, Mr. Shortz receives between 75 and 100 puzzle submissions per week. “The biggest part of the job is actually looking at the submissions and deciding which ones are the best.”

What are the hallmarks of a great puzzle? “I’m looking for fresh, colorful vocabulary that is generally familiar to New York Times readers.” He doesn’t mean the language should be simplistic, “I like an interesting, difficult word sometimes but I want, generally speaking, familiar vocabulary.” 

After receiving a submission, he marks it up on paper (the medium by which he requires all puzzles to be submitted), then he makes notes on what he likes and doesn’t like. “Everyone gets a response: yes or no.” 

He likes words like “errata page” and “trashmouth” and “clam juice.” Words he doesn’t like: “‘Heme’ as in a deep red pigment, the color of blood.” That type of word is what he calls a “crosswordy-word” or “crosswordese” if you will: “It’s vocabulary that people know mainly from crosswords, not from real life.” 

A career writing puzzles was always the goal for Mr. Shortz. The summer before he began at UVa Law, he interned for Penny Press Puzzle Magazine in Connecticut, where he saw how he could have a career in puzzles “without living in abject poverty.” 

When he began law school, Shortz planned to practice for a few years then transition to a career writing and editing puzzles. But in the spring semester of his first year he wrote a letter home stating otherwise. “I told my parents I would be dropping out of UVa at the end of the year and go right into puzzles. And you could imagine how that news went over.” 

His mother, a writer herself and an influence on Mr. Shortz’s love of words, responded thoughtfully about why he should remain in school. “I thought she made good points, so I went ahead and got my J.D. and then went into puzzles.” 

Though Shortz never practiced law, he is grateful for his UVa education and uses it to this day. 

“I think a legal education is just a great education for the world. It teaches you to handle complex problems, divide them into their constituent parts, and deal with each part individually.” The author of over 500 puzzle books has never used an agent or a lawyer. “I look at and analyze my own contracts.”   

Even after forty years as a professional puzzle editor, Mr. Shortz still makes the rare, albeit comical, error that underscores the importance of precise language. A clue last year:1996 horror movie with four sequels the answer was ‘Scream.’ “The problem was that there were four Scream films in total, but only three sequels. Of course the first one wasn’t a sequel.” 

Another clue: “Head of state who resigned in 1974” the answer, “Meir, as in Prime Minister Golda Meir.” So what’s the problem? “In Israel she is the head of government but she’s not the head of state, that’s the President. We tend to overlook that distinction in the United States because our President is both head of government and head of state.” Mr. Shortz explained that there are 30,000 clues in the New York Times crossword each year, and occasionally mistakes happen. 

Some are beyond the puzzle master’s control. The clue: The only NFL team to go 0 and 16 for a season. “The intended answer was the ‘Lions’ and the puzzle was put to bed on December 30 for publication on January 7. Over that weekend, literally two days later, the Cleveland Browns completed their season 0 and 16. So the clue was correct when the puzzle was put to bed, but by the time the puzzle appeared in print it was wrong. Of course a lot of people follow NFL so I heard a lot about that.”

As our faithful readers know, the Law Weekly has toyed with creating crossword puzzles in lieu of the usual Sudoku puzzles, always with vitriolic backlash. We asked Mr. Shortz for advice in coping with such responses, and he responded with a laugh, “The sorts of people who are drawn to crosswords tend to be persnickety and care a lot about language.” One anecdote he shared: “The answer was ‘toad’ and the clue was ‘little hopper’ and someone wrote in saying ‘toads, sir, waddle, they do not hop.’” We assured Mr. Shortz we would not be discouraged by the haters and would continue our attempts.  

Mr. Shortz has lots of fans on the Law Weekly, and we are in awe of how Mr. Shortz, as one staff member put it, “turned a boring old degree into a career that is fun and interesting.” The staff was eager to ask him a variety of questions about his body of work, all of which he graciously entertained.

One staff member asked what first inspired his use of the word ‘ecru,’ Mr. Shortz replied with a laugh “Well that’s an example of crossword-ese.” He has used it 159 times since he became editor in 1993, usually with the clue “‘brown, stocking shade’ or ‘like a decorator shade’ or ‘neutral hue.’” 

In another pressing question, we asked Mr. Shortz about potentially reprising his role as the Riddler in an inevitable Batman reboot, “If they were to ask me, yeah.” The question was in reference to lending his expertise to provide riddles for Jim Carrey’s character in the 1995 film Batman Forever.  

“Each riddle had to contain a number—that was the one constraint.” Though the Batman franchise has not yet asked Mr. Shortz, he recently filmed an episode of Brooklyn 99, which will air March 20. 

Mr. Shortz has been interviewed by Oprah, David Letterman, Jon Stewart, and has been featured on Nightline, and 60 Minutes. His favorite spotlight was in the 2006 documentary film largely about Mr. Shortz’s work, “Wordplay.” “At the time it came out it was one of the top twenty-five highest grossing documentaries of all time.” 

What is his advice for law students and lawyers wanting to improve their vocabulary and word choice precision? “Solve The New York Times crossword!” This is not merely a plug to sell papers. The weekly crossword has on average seventy-six answers covering seventy-six different topics. Mr. Shortz believes this exposure to a variety of language that individuals in one profession might not come into contact with is a valuable teaching tool. 

But, he cautions, “You shouldn’t do the puzzle because you think it’s good for you. That’s a bore.” Instead, “You should do it and you should enjoy it. Here’s the thing, you should do crosswords for their entertainment value and the nice thing about it is that there are lots of things in life that are entertaining: crosswords are good for you.”

You can read the transcript for this interview and listen to the audio at www.lawweekly.org

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jmg3db@virginia.edu

Transcript of Will Shortz Interview

Shortz: Hello

Goldman: Hi, Mr. Shortz?

Shortz: Hi

Goldman: Hi, this is Jenna

Shortz: Hey there, how are you doing?

Goldman: Good, how are you?

Shortz: Excellent

Goldman: Good, well thank you so much for granting us this interview for the Virginia Law Weekly! We are so excited!

Shortz: That’s nice, thank you. Is it still in print or is it only online now?

Goldman: It is, we are still in print every week! In fact, I’d say print is what we focus on. Our website, we need a little work. Do you mind if I record our interview?

Shortz: Feel free.

Goldman: Thank you so much for the time and um, and yeah, we are so excited to talk to you. Um, so kind of what precipitated this was just thinking about being journalists and editors and how obsessed we are with words and kind of how that’s the crux of the law is too, it’s the arrangement and collection of words and how so many cases turn on words, and we thought wow, it would be great to interview Will Shortz about words! So that’s where I thought the starting point of this interview could be.

Shortz: Nice, it’s a subject I think a lot about. And I think well there are lots, even though I never practiced law, I am very happy to have gone through law school at UVa because its good training for the mind and was good training for using words precisely.

Goldman: Oh absolutely, so where did your interest in words and word puzzles specifically come from?

Shortz: Well my mother was a writer, so I think I got my love of words from her. No one in my family did puzzles; I picked that up myself. I’m interested in all kinds of puzzles, not just word ones, but ones with numbers, logic, mystery puzzles, virtually any kind. But crosswords are obviously a major form of puzzles and I love word puzzles of all sorts.

Goldman: Great. So what would you say is the hallmark of a good word? Or when you come across a word and think oh, that’s something I have to use in my next puzzle?

Shortz: Well it doesn’t work that way; let’s talk about the New York Times. I don’t make the puzzles, they are made by, they are submitted by contributors, and I get 75 to 100 puzzles a week submitted to me, so the biggest part of the job is actually looking at the submissions and deciding which ones are the best, which ones I like the most, and everyone gets a response: yes or no.

            When I look at the vocabulary and the grids I’m looking for fresh, colorful vocabulary that is generally familiar to New York Times readers. That doesn’t mean everything has to be simplistic, I like an interesting, difficult word sometimes but I want, generally speaking, I want familiar vocabulary. And when I look at a submission, I mark up, I ask for submissions on paper; then I mark them up with things that I like and don’t like. Once I’m done marking them up I look at the grid as a whole and I decide if I think its good enough, if I think it’s interesting enough.

            Let’s see, we have a puzzle coming up, I’m looking at one for January 27 and this is some of the great vocabulary it has: It has ‘mid-march’ and my clue for that is ‘when St. Patrick’s day is celebrated.’ It has Marie Curie, and the clue for that is ‘the first two-time Nobelist.” It has ‘orange soda,’ ‘Zynga’: the game company. That’s great, its modern, its lively, its colorful, its something that wouldn’t have appeared in a puzzle ten years ago, so that’s nice. We have ‘trashmouth’ that will be a debut in the New York Times crossword. Its “one spewing obscenities.”

            We have clam juice, which is an ingredient in a Caesar cocktail. Think young, ‘beer gut,’ so some other things ‘errata page’ and ‘team events.’ That’s a lot of great colorful, fresh vocabulary.

            Then I look at the minuses in this puzzle, there’s not many—there’s the word ‘heme’ it is a deep red pigment, as in the color of blood. It is an ok word, I consider it a minus in the puzzle, it tracks, but it’s ok because there’s so much great stuff. You just try to end up with a great balance of vocabulary, so that’s an example.

Goldman: So you would say the minus for that word is just that its just not quite as familiar?

Shortz: Its not just that it’s not familiar, that’s part of it, it’s just not very interesting. It’s a short word with two Es in it, its kind of a crosswordy-word. It’s an example of crossword-ese. Crossword-ese is vocabulary that people know mainly from crosswords, not from real life. I suppose if you’re a doctor you might know ‘heme’ but most people aren’t going to know that and unfortunately that word is not real common in crosswords because its so obscure. I’m looking it up in the database now to see how many times that word has appeared. It has appeared six times in my years at the Times, always clued at blood pigment, pigment in red blood cells, and myoglobin component. I don’t know. It’s not a very interesting word, whereas ‘trashmouth’ that’s an interesting word.

Goldman: Oh absolutely! So you have been writing and editing puzzles for about 40 years--

Shortz: My whole life, when I graduated from law school I went right into puzzles. I was an editor for Penny Press Puzzle Magazines for 7 months, then I went to Games Magazine for 15 years, and now I’ve been at the New York Times since 1993.

Goldman: Wow, I was reading your commencement address for the class of 2016 that you planned on going into law for a few years then pursue your passion in puzzles. At what point in your first year did you decide to go straight for this dream career?

Shortz: Right, well the summer before I started at UVa, after I graduated from Indiana University and before starting law school I spent a summer at Penny Press Puzzle Magazine in Connecticut as an intern. That let me see how I could have a career in puzzles without living in abject poverty. Creating puzzles, generally speaking, cross word puzzles don’t pay very well, with rare exceptions. So I originally didn’t think I could have a career in puzzles and think I could live, but once I saw that I could be a crossword editor as a job and so that made it doable. I don’t know if you have read the story, I wrote my parents a long, handwritten note every week and in the Spring of my first year at UVa, near the end of the letter I told my parents I would be dropping out of UVa at the end of the year and go right into puzzles. And you could imagine how that news went over. My mom wrote a very nice, thoughtful response on what a terrible idea but said it was your decision, basically. And I thought she made good points, so I went through, I went ahead and got my J.D. and then went into puzzles.

Goldman: Was there any kind of surprising ways you’ve used that legal education since? Either in puzzle making or in your table tennis center ownership?

Shortz: Lots of ways. I would say in generally I think a legal education is just a great education for the world. It teaches you to handle complex problems, divide them into their constituent parts, and deal with each part individually. The law school teaches you how to use your mind and it also teaches you precise use of language, which is talked about. And besides that, I’m the author and editor of over 500 puzzle books and I’ve never had an agent or used a lawyer. I look at and analyze my own contracts so I feel that my law school background qualifies or enables me to do that. Once I decided at UVa I wasn’t going to go into law I was free to study anything I wanted. So I took one course, I took a couple of courses on intellectual property and wrote a paper on copyright protection for puzzle games. So that’s, I think as far as puzzle purposes go, I know copyright law better than anybody.

Goldman: That’s definitely one for the books. Do you have any advice for students or even lawyers who want to pursue that ‘dream job’ like you did, either right out of law school or after a law career?

Shortz: Right, well I think most people who go to UVa’s law school are going to become lawyers, and that’s great. It would be great to pick a field of law you enjoy. If I had gone into law I probably would have done intellectual property. Pick a part of law you enjoy, but it’s a great all around education, it teaches you how the world operates, so I think it’s a good background who want to go into business.

Goldman: I know I’ve thought about it, especially working with the Law Weekly, I’m really interested in journalism and that was something that was pretty surprising.

Shortz: Interesting, there are all sorts of jobs that combine law and legal expertise and something else. So you could be the legal expert for NBC or any media company.

Goldman: Well I’m a big fan of Nina Totenberg, so maybe if she retires one day. So do you have any advice for law students who just want to be better wordsmiths? Who want to practice law but want to improve their vocabulary and improve their choice of words?

Shortz: Well, I mean solving the New York Times crossword is going to be valuable because crosswords puzzles touch every aspect of life and they connect you with things you wouldn’t necessarily explore on your own. The weekly crossword has on average 76 answers covering 76 different topics. If you come up to a word you don’t know you can figure it out from the crossing letters. It’s a way of acquainting yourself with all things in the world you wouldn’t necessarily come into contact with. So I think the Times crossword especially is good training for the mind and a good teaching tool. But you shouldn’t do the puzzle because you think its good for you because that’s a bore. No one is going to keep doing that. You should do it and you should enjoy it. Here’s the thing, you should do crosswords for their entertainment value and the nice thing about it is that there are lots of things in life that are entertaining: crosswords are good for you.

Goldman: Right! So you have lots of fans at the Law Weekly and we are totally in awe, and this is a quote from one of the people on my staff, “turning a boring old law degree into a career that is fun and interesting.” So, there are a bunch of questions that my board wanted me to ask you and first was: When were you first inspired by the word ‘ecru.’

Shortz: (laughs) Well that’s an example of crosswordese, though I don’t think that’s as bad as heme because ecru is a word that comes up in real life. It’s a shade of hose or linen or other things. So I’ve seen ‘ecru’ outside the puzzle word. Let’s see, I’ve used the word 159 times in the Times crossword since I started in ’93 and the clue is something like “brown, stocking shade, like a decorator shade, neutral hue” or something like that.

Goldman: Well I had to look it up. Was there ever a time that you made a mistake and the puzzle went totally ary? Or have you being doing this for so long that you never make mistakes?

Shortz: Well mistakes do occur occasionally. There are more than 30,000 clues in the New York Times crossword each year, and occasion an error will creep in. That’s usually slight. I  can’t even feel bad about this one: It was ‘the only NFL team to go 0 and 16 for a season.’ And the answer was ‘Lions’ and the puzzle was put to bed on December 30 for publication on January 7 and over that weekend, literally two days later, the Cleveland Browns completed their season 0 and 16. So the clue was correct when the puzzle was put to bed, but by the time the puzzle appeared in print it was wrong. Of course a lot of people follow NFL so I heard a lot about that.

            Besides that, we are talking about precision of language, I can give you some examples of maybe language I used that was not as good, well here’s an example: A clue last year ‘1996 horror movie with four sequels’ the answer was ‘Scream.’ The problem was that there were 4 Scream films in total, but only three sequels. Of course the first one wasn’t a sequel. So that’s an example of precision of language, or where language wasn’t used precisely.

Let me find another example of language used, there’s factual things once and a while. My clue was: Head of state who resigned in 1974 and the answer was ‘Meir,’ as in Golda, as in Prime Minister Gold Meir. In Israel she is the head of government but she’s not the head of state, that’s the President. We tend to overlook that distinction in the United States because our President is both head of government and head of state, but in any country that has a Prime Minister those two things are separate. So that’s an example of a word I used wrongly.

Goldman: Well that’s fascinating; I guess that reminds us to do as diligent research as we can as lawyers. But that’s a pretty obscure one. So the Law Weekly publishes Sudoku puzzles, and we have toyed, every so often we create our own crossword puzzle but every time we create them we receive such fiery backlash and we are getting pretty upset about it. Do you have any favorite angry letters you’ve received about your puzzles?

Shortz: Yeah, lets see there was, let me think about that. Usually I get a lot of letters, but now there are crossword blogs and people can post their comments online so I don’t get quite as many letters. So let me look up the clue, there are crossword blogs so people who are into this can post their comments online so I don’t get many letters. Here’s an example: The answer was ‘toad’ and the clue was ‘little hopper’ and a guy wrote in saying ‘toads, sir, waddle, they do not hop.’

Goldman: (laughs)—that’s a good one.

Shortz: The sorts of people who are drawn to crosswords tend to be persnickety and care a lot about language. So if they think I have used words wrongly they let me know.

Goldman: That leads into my next question someone on the board had: Why do you sometimes allow ‘eerie’ to be spelled with a y as in ‘eery’ in a crossword, and further, why do you allow the extra E at all, because we are a bunch of law students fresh off learning about the Erie Doctrine in Civil Procedure which is spelled ‘Erie.’

Shortz: Well ‘Erie’ appears in crosswords all the time. You’re asking about ‘eery’ and I accept any word that is in the dictionary that is a variant. Eery is a variant of Eerie in Webster’s third new International or Webster’s Second new International dictionary. I’ve allowed the word 18 times in the Times crossword. That one hasn’t appeared since 2012, in years before it would be a minus, now that would be a big minus. I don’t like ‘eery’ spelled that way, it’s something you hardly ever see. I hate variant spellings. But if you have a fantastic puzzle, a wonderful interlock, and the whole thing hinges on ‘eery,’ as an editor you are liable to say ‘Ok, I’ll allow it.’

Goldman: So this one is totally off of left filed: “In the inevitable Batman reboot, do you have any plans to reprise your role as the Riddler?”

Shortz: (laughs) If they were to ask me, yeah, but they haven’t asked. It’s funny how they came about, they were already filming Batman Forever, they wanted two riddles, and they realized none of their screenwriters could write riddles. One of the screenwriters hears me on NPR on Sunday Morning doing puzzles so they called me to ask me to write four riddles. Each riddle had to contain a number, that was the one constraint, each riddle had to contain a number. So I will tell you, last month I filmed an episode of Brooklyn 99. They mention me and the crossword occasionally on the show so they invited me to film last month and it will air on March 20.

Goldman: Do you have any favorite spotlight or interviews or times you’ve been featured?

Shortz: Well there is a movie largely about me, I don’t know if you’ve seen it called ‘Wordplay.’ It’s a documentary from 2006, and at the time it came out it was among one of the top 25 highest grossing documentaries of all time. It has since slipped because there have been more films since then. I’ve also been on 60 minutes, Oprah, Nightline, the Daily Show with Jon Stewart, which was really wonderful I was very impressed by him. I was on Letterman when he was on.

Goldman: Wow, well that’s great. You really have had such a prolific career. So I guess my last couple questions were, if you were graduating from UVa Law in 2018, how would your plans be different? Would they be different?

Shortz: No, my plans would not be different. I’m a very lucky person to have landed in the job I have. It’s not just luck, I worked to get here, I did the right things but it was sort of unplanned. I never thought I would be the New York Times Crossword Editor; it sort of came about naturally. I wouldn’t change any part of my life actually.

Goldman: That’s great to hear, I guess really my last question is how have you, have you seen any significant changes in crossword puzzles or in language in general from the time you started to now? That’s a big question.

Shortz: Crosswords have changed as our culture and language have changed. I’d say, first of all there are modern words that come up all the time and many go in crosswords. I’d say there’s, I will say two things. First of all, before me, before I started in 1993 at the Times, commercial names were not allowed in the crossword. I thought that was ridiculous, commercial names and brand names are part of life and the crossword should reflect life. That was a decision I made right at the start. Another thing I will tell you is that there has been a loosening of language. When I started in 1993 I thought about using the word ‘anal’ in the puzzle and I think the clue was ‘retentive’ or something. I was cautioned not to use that, that it was an unpleasant word, maybe somewhat vulgar. So I didn’t do it, I took it out. But since then I think language and things have loosened, so I don’t like ‘anal’ in the puzzle but it’s ok.

            In the last couple of years I started allowing ‘arse.’ In the New York Times Style book they say “do not use the word ‘ass’ for the part of the body.” Of course ‘arse’ is the real end, but a little more prettified, it’s the British word for the rear end. So, I’ve allowed that. I figured as language and the culture have loosened, the crossword should change as well.

Goldman: Do you have a favorite new word that you have come about recently?

Shortz: I will tell you my all time favorite word, it’s ‘ucalegon,’ it’s not a new one. It means a ‘neighbor whose house is on fire.’

Goldman: Oh my gosh, that is very specific!

Shortz: It is very specific; it doesn’t come up much in real life. It comes from a Greek myth where there was a man named Ucalegon, either his neighbor’s house was on fire or his house was on fire, I don’t know. It comes from mythology. Anyway, it’s just a ridiculously specific word and that’s why I love it.

Goldman: Well that’s great, I’m going to try to use that word in something soon.

Shortz: Well I hope it doesn’t come up naturally!

Goldman: Right, well maybe writing some hypothetical, that might be a good one for law professors, I will have to propose that. Well thank you so much, I guess, my final question is, I would be remiss if I didn’t ask you to write the Virginia Law Weekly a special puzzle.

Shortz: That is tough, that’s tough, it’s a matter of time and this is my fulltime job, I am directing the American Crossword Puzzle Tournament in two weeks. If there is a puzzle you would want to reprint from a tournament I could give you that, but you should really have something law related. I don’t think I can think of anything off the top of my head.

Goldman: We will spend the rest of the semester working on something really good and then we can submit it, how about that?

Shortz: Sounds good.

Goldman: Well thank you so much, this has really been a pleasure. I’m a big fan and I’ve listened to you every Sunday for as long as I can remember on Morning Edition to your puzzles.

Shortz: Thank you

Goldman: Thank you so much and have a great rest of your day.

Shortz: You too, thanks for calling.

Goldman: Bye.

Virginia Law Review Online Symposium Examines Law Behind Events of August 11-12

Clayton Bailey '18
(he/him/his)
Guest Columnist

Michael Dooley '18
(he/him/his)
Guest Columnist

Over the past few months, UVa Law students have responded to the events of August 11 and 12, 2017 with grace and conviction. Their accounts of the events, and reactions to them, have been published in numerous outlets, including The New York Times and the Virginia Law Weekly. I am so proud to call many of these people, who spoke out passionately for their beliefs, my friends. Their collective reaction shows the true character of our community. Much like our classmates, members of the Virginia Law Review were horribly disturbed by the scenes of violence and hate that made “Charlottesville” national shorthand for the dangers of white supremacy. In the aftermath, fighting the feeling of helplessness that comes when confronting true tragedy, we turned to the law. These events did not happen in a vacuum. They were influenced—and, to an extent, even dictated—by background legal principles that govern our state and our country. Perhaps by examining these questions of law, we can advance our understanding of the incomprehensible actions of men. 

This week, it is our pleasure to publish in our Online companion a number of scholarly essays, written by UVa students and faculty, that seek to do just that. The full essays can be read at virginialawreview.org, and a panel discussion with the authors will be held Thursday, February 1 at 1 p.m. in Purcell Reading Room. Lunch will be provided. 

The essays alternate between U.S. constitutional law and the relationship between states and municipalities. A brief summary of each piece follows, in order of its appearance in our symposium.

Professor Farah Peterson, who joins our faculty this semester, provides the introduction to our symposium. She explores how the events of August 11 and 12 may have come about, drawing connections to the sordid elements of our country’s recent history. Despite the horror and chaos, Professor Peterson recognizes the abundant potential for change and our role in bringing it forth.

Timothy Horley’s essay, Rethinking the Heckler’s Veto After Charlottesville, asks one of the most difficult questions in First Amendment law: when can a speaker’s expression that is likely to provoke a violent response from listeners justify government intervention against the speaker? Examining the morass surrounding the issue, he proposes drawing on the test created by the Supreme Court in Brandenburg v. Ohio. This solution, he argues, would better protect speakers’ rights while expanding the ability of authorities to intervene before violence occurs.

In her essay, Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests, Kendall Burchard addresses an issue that was on plain display on August 11 and 12—whether the states are (or should be) able to restrict the presence of firearms at protests. Exploring the current state of the law, she concludes that protests should be recognized as “sensitive places” where states are permitted to bar such weapons.

Amanda Lineberry’s essay, Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal, addresses Virginia’s ability to remove the Lee Statue that ostensibly served as a reason for numerous protests in Charlottesville, including the “Unite the Right” rally on August 11 and 12. Discussing decades of statutory grants that permitted localities to erect monuments, she determines that the statutory grant under which the statue was purportedly erected, as well as subsequent statutes, cannot serve as a legal bar to its removal.

Finally, Professor Richard Schragger’s essay, When White Supremacists Invade a City, argues that Charlottesville’s response to the events of August 11 and 12 was a result of its weakness and liminal status under Virginia (and United States) law. Since cities like Charlottesville are not afforded the rights granted to private corporations and lack the full power of the state—instead relying upon specific grants of authority—they have limited abilities to respond to crises. Professor Schragger asks whether this should be the case, particularly given all that we demand from our cities and municipalities.

In her thoughtful foreword, Professor Peterson invokes Justice Thurgood Marshall’s optimism for the capacity of law. While anger and protest are often necessary in the face of injustice, we learn in law school that change can also be found “through the rule of law and the elaboration of legal principles.” It is the “mutually enforcing efforts of law and protest, of anger and optimism, that have dragged this country out of the darkness of the early twentieth century, and that are responsible for all of the civil rights gains we have made.” Today, we continue this tradition of optimism. While we would love to believe that “Charlottesville” was a turning point, the final thrust of a dying sentiment of hate, more dark days may yet litter our path forward. But we are confident that these challenges, legal and otherwise, will be overcome by the men and women of compassion and capacity who inevitably rise to meet them. 

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clb5jc@virginia.edu

mpd8af@virginia.edu

Sec. Clinton Goes to Charlottesville

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

Former Secretary of State Hillary Rodham Clinton speaks to a crowd of students at Old Cabell Hall. Photo courtesy of UVA Today.

The University of Virginia welcomed Secretary Hillary Rodham Clinton to Main Grounds on Tuesday, November 14, as the keynote speaker for the Women’s Global Leadership Forum. The Forum was held in conjunction with the UVa Bicentennial, which brought speakers from around the world to examine “The Role of Women in 21st Century Democracy.” Panels focused on Education and Health, Economic Access and Innovation, and Equity and Political Empowerment.

President Teresa Sullivan opened by welcoming Governor Terry McAuliffe and his wife, Dorothy McAuliffe. Governor McAuliffe introduced Secretary Clinton by highlighting her work as an advocate for women and children, as a First Lady of both Arkansas and the United States, as the first woman senator from New York, and as the first woman Presidential nominee of a major political party. 

Secretary Clinton began her remarks by congratulating the cheering crowd in electing Governor-elect Ralph Northam and for setting records in the number of women elected to state office in the Commonwealth. 

“When I was serving as First Lady and serving as Secretary of State I was ‘serving’ men, and in those positions, I was viewed more favorably. When I left the State Department I had a whooping sixty-nine percent approval rating,” Clinton said. “Those societal characteristics translate into politics.” 

She drew her advice to women with political aspirations from a quote by Eleanor Roosevelt: “Develop skin as thick as a rhinoceros!” Clinton recounted the double standards as excruciating, giving the classic example of speech. “I was walking a tightrope without a safety net.” She recalled practicing for debates and being told to be careful of varying her tone to avoid the perception of “yelling” or “nagging,” and to under no circumstances lay a fist to the podium, “even though male orators often raise their voices and pound on the podium for emphasis—to men those are perceived as successful techniques.” 

More than just the manner of speaking, Clinton pointed to the recent examples of the silencing of Senator Elizabeth Warren on the floor of the Senate, and of Senator Kamala Harris as she questioned Jeff Sessions during a Senate Intelligence Committee Hearing. Clinton encouraged the audience to take these attacks personally. “We need to understand and accept the fact that the diminishment of any woman is a diminishment of you and me,” she said. 

Though Clinton addressed the difficult realities of running for office as a woman, she left the crowd with words of encouragement. “We have made progress, and we cannot let anyone turn us back,” she said. She urged the women in the room to cultivate their determination and to take on the risks that come along with leadership. “It takes courage, but the more women who run and win, the easier this process will become.”  

After her speech, Clinton sat down on stage with moderator, and First Lady of Virginia Dorothy McAuliffe. McAuliffe asked Clinton a host of questions from cyber security to tax policy.

“I am encouraged by young Americans who are much more inclusive, valuing of diversity, and better at connecting with each other than previous generations.” 

McAuliffe referenced the criticism Clinton received from those on the right and left for writing her book and for continuing to speak about the election. At first Clinton joked that if the pundits had left her alone, she still might be hiking in the woods. But she turned to the very serious reason why she continues to speak out. “When these guys, and they are all guys, when they tell me to go away I just say, ‘I’m not going to listen.’ I’m not going to walk away from the debates I’ve had my entire career.” Clinton noted that critics did not ask previous candidates like Mitt Romney, John McCain, or Al Gore to “go away” after losing an election, especially on issues like children’s access to healthcare.  

After graduating from Yale Law School in 1973, Clinton continued postgraduate studies on children and medicine at the Yale Child Study Center and began her forty-year career in public service as a staff attorney for the Children’s Defense Fund in Cambridge, Mass.  

“I helped found CHIP [Children’s Health Insurance Program] as First Lady in the ‘90s, and I will not remain silent as millions of children lose their healthcare.” Congress allowed the program, which provided insurance to 9 million children and pregnant women, to lapse in September.

What else worries Secretary Clinton? From the vantage point of international affairs she said bluntly, “Russia.” She made reference to Russian President Vladimir Putin’s past as a KGB leader and cautioned that Putin is cunning and no novice at meddling in foreign elections. “I’ve sat across the table from Putin. We have known for a long time what he is capable of.” [In reference to the Russian strikes on social media she recounted the adage ‘fool us once, shame on you, fool us twice, shame on us.’] 

The event took place in Old Cabell Hall, and seating was limited to those who secured a ticket through a lottery, which ran weeks before. Shivani Patel ’19 was one of the few law students to secure a ticket through the lottery. Anna Bobrow ’20 initially did not get a ticket, but was given one by a friend who couldn’t make it.    

Bobrow enjoyed the breadth of the subject matter and how genuine the conversation was. Though Clinton is on a book tour, “She kept on topic for the discussion,” instead of only referencing her book and focused her remarks on global women’s leadership and the Commonwealth of Virginia. “I heard she was more personable and funny than she has come across in the media, but I was surprised by how true that was.” Bobrow loved how she was self-deprecating and made lots of jokes, seemingly untethered from the binds of the campaign. 

First Lady Dorothy McAuliffe moderates a discussion with Secretary Clinton. Photo courtesy of UVA Today.

Patel also liked the tone Clinton struck, and one of the most memorable moments from Clinton’s remarks was her retelling a story about a linguist approaching her to improve her speech and tone of voice on camera. “Secretary Clinton said, ‘Sure, let’s try it. But can you send me a picture of a woman doing the same technique?’ The video was never sent, probably because when men do whatever it was that Hillary was doing, it’s just fine.” 

Clinton did not shy away from discussing the results of the election. “She acknowledged a real feeling I’ve heard among women my age, which is that the election was devastating because it reminded us of the obstacles that we face as women leaders,” Bobrow said. “But she also has been encouraged (as I have been) by the ways that women have stepped into leadership and politics for the first time in response to feelings of frustration and sadness following the election.”

The common thread throughout the forum was the importance of women running for office, especially in the wake of the 2016 election. The crux of her message, Patel said, was to “expect pushback from men and other women, but use it as a catalyst instead of a deterrent.” 

The biggest takeaway from the Secretary’s talk for Bobrow was that leadership comes in many different forms. “While it is certainly hard to put yourself out there as a woman leader, it’s critical that we do,” Bobrow remembered Clinton urging, “Until we have more critical mass, the status quo will never change.” 

Patel echoed, “The only way to truly change the fact that we expect something different from women in politics than from men in politics is for more women to be involved in politics—at all levels.”

Bobrow found encouragement in hearing Clinton speak, especially going into her first finals in law school. “In the midst of outlining season and exams, it was important to me that I think about the bigger picture of why my peers and I are here— even if you do not want to enter public service after graduation and even if you are not a woman, we all have a duty to be positive leaders in our communities and to take on the responsibilities that come with being a lawyer and a professional.” She said, “It was great to hear Secretary Clinton speak about some of the challenges she sees and think about how my schoolwork can prepare me to be a more thoughtful, engaged citizen going forward.”

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jmg3db@virginia.edu

A Monumental Fight for City Speech

Katherine Mann '19
(she/her/hers)
Columns Editor

From left to right, Professors Blank, Brady, and Schragger discuss municipal free speech. Photo courtesy of The Law Weekly. 

Against the backdrop of the recent violence in Charlottesville and statues shrouded in black, a distinguished panel of law professors held a discussion on Monday night entitled “Do Cities Have Free Speech Rights? Confederate Monuments, Sanctuary Cities, and State-Local Conflicts.” At issue was whether cities have or should have free speech rights that override state laws restricting their expression. 

Professors Richard Schragger and Molly Brady, both of whom study local governments, cities, and property, participated, as well as Professor Yishai Blank, a visiting professor at Harvard Law School and professor at Tel-Aviv University who studies land use and local government. The three professors discussed the relationship between states and cities, with a focus on Virginia and Charlottesville. One of the main issues discussed was whether a city such as Charlottesville might have a free-speech argument against the state’s ban on removal of Confederate statues. In other words, as Schragger put it, is the city being “forced to speak” by the state’s ban?

 Brady gave a brief history of Virginia’s ban on monument removal, which went into statewide effect in 1904. The state’s ordinance, § 15.2-1812, prohibits localities from disturbing or interfering with war monuments, although it’s gone through several iterations since its original focus on Confederate monuments. In its current form, it covers all additional wars since the Civil War. She said the issue now is “what happens when the city no longer wants to be associated with the message of the monuments, but the state is forcing them?” While cities have largely been beholden to state regulations, they have gained some rights against the state, such as in the realm of takings doctrine. 

Blank suggested it might be possible to conceive of a regime where cities were granted free speech rights and compared cities to corporations, which under decisions such as Citizens United, have been treated more like individuals when it comes to free speech. He noted that there are pros and cons to this approach, and that for “city speech,” the line between expression and action is a very difficult one. He said city speech could encompass maintaining statues, raising flags, Black Lives Matter signs on town halls, or be as broad as covering lobbying activities, which are currently covered for corporations. “But if all this is protected under the First Amendment,” he said, “there could be huge ramifications.”

One potentially positive ramification might be that cities could counter corporate influence in politics. Blank also noted that the state’s politics is more recently reflecting partisanship on the national level, and giving cities First Amendment rights might prevent federal and state encroachment on local politics. But he was careful to emphasize that cities wouldn’t be totally unregulated in their speech, since they would still have to show a compelling interest. And some cities might use opt-out mechanisms for citizens so that their money would not be used for speech with which they disagree. 

 Schragger explained that our concept of cities is not that of an individual entity with rights, but rather as an entity of the state that exercises power. At the same time, they’re also subordinate to the state, creating tension. He discussed SB 4 introduced in Texas, which would not only ban cities from becoming sanctuary cities, but would keep cities from endorsing such policies. He also noted that there was nothing Charlottesville could have done to prevent Unite the Right or Ku Klux Klan members from openly carrying weapons during their rallies, because state law preempts them from doing so. And of course, if the city wants to remove confederate monuments, the state forbids it. In effect, he said, the city “can only speak in the form of monuments at the state’s sufferance.”

“We might say as a policy matter, it doesn’t make sense for the state to decide what monuments to put up in any locality,” he continued. “Why would they care?” States might decide to regulate cities when desiring uniformity or when there is oppression of minorities, but those arguments aren’t especially compelling in the case of monuments. Schragger posed the question of whether a first amendment doctrine could remedy the vulnerability of cities, as well as whether we want it to. 

Brady noted that in the context of takings law, special doctrines were created to address the rights of municipalities. She suggested that a similar doctrine for the speech of cities might be a baby step toward addressing some of these issues. Blank brought up the ways cities are treated like corporations, such as in the bankruptcy context. He noted that in the federalism context, we have safeguards for states, such as representation in Congress, but an equivalent representation of cities’ at the state level might be seen as unconstitutional due to the one-person, one-vote doctrine. 

One audience member brought up the possibility of using referenda for citizens of a city to decide to remove a statue, and asked if such a mechanism might be permitted. The panelists agreed that this strategy would get closer to representing the speech of the citizens, but that generally, in Dillon’s Rule in states like Virginia, the state would win in the end. Blank mentioned a referendum from the 1980s in Washington, D.C. on medical marijuana, the votes of which Congress kept from being counted. That move provoked widespread disapproval and Blank agreed that a referendum gets closer to the nexus of the city and the citizens of the city. 

On the question of current politics in Virginia, Schragger said that both Governor McAuliffe and Attorney General Mark Herring have come down on the side of localities in deciding whether to take down monuments, although exit polls from the recent Virginia elections showed people favoring keeping monuments by a margin of about sixty to thirty. “What puzzles me as a conceptual matter is why the state would care, and yet the state cares deeply—the citizens—the culture, they care deeply even if they’ve never seen the monuments.” 

While the debate over speech rights of cities has yet to be resolved, it’s certain that contentious issues like Confederate monuments and sanctuary cities will keep it alive.

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kmm2vb@virginia.edu

Virginia Elections 2017: With Wins Like This, Who Needs Losses?

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

By all indications, Democrats are pretty excited about their performance in last week’s Virginia elections.  Lieutenant Governor Ralph Northam will trade up to Governor.  Polls leading up to the election suggesting that his Republican opponent Ed Gillespie might be able to pull out a win by appealing to neo-Confederates turned out to be incorrect.  In the Thirteenth District, journalist and metal guitarist Danica Roem won election as America’s first openly transgender state legislator, defeating Bob Marshall, the self-proclaimed “chief homophobe” of Virginia who authored our state’s version of the “bathroom bill.”  Democrats made up a great deal of lost ground in the House of Delegates, as a whole turning fifteen red seats blue.  Good news, certainly, but far from adequate.  Current projections have the GOP clinging to a 51-49 seat majority.  This, in a year more-or-less defined by Republican political scandals, and coming on the heels of a presidential election in which the Democratic candidate won Virginia by better than five percent, is nothing short of an embarrassment.

Failed Republican gubernatorial candidate Ed Gillespie next to a screen capture from his campaign television ad. Photo illustration: Yahoo News; photos: Steve Helber/AP; screen capture from ad, Getty Images.

Granted, much of this discrepancy can of course be attributed to voter suppression brought about by Virginia’s new voter ID law, and much of the rest is owed to gerrymandering.  As chairman of the Republican National Committee, Ed Gillespie (yes, that Ed Gillespie) implemented a program called REDMAP, which sought to make the GOP’s 2010 election victories permanent by shamelessly drawing unrepresentative districts.  It was a runaway success and a big part of why Republicans can expect a House of Delegates majority despite garnering barely 4/5 as as many total votes as Democrats in last Tuesday’s election.  Indeed, they’re downright gleeful about it.  The project’s website—yes, it has a website—describes the effort thusly:

The rationale was straightforward:  Controlling the redistricting process in these states would have the greatest impact on determining how both state legislative and congressional district boundaries would be drawn.  Drawing new district lines in states with the most redistricting activity presented the opportunity to solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.

…

REDMAP’s effect on the 2012 election is plain when analyzing the results: Pennsylvanians cast 83,000 more votes for Democratic U.S. House candidates than their Republican opponents, but elected a 13-5 Republican majority to represent them in Washington; Michiganders cast over 240,000 more votes for Democratic congressional candidates than Republicans, but still elected a 9-5 Republican delegation to Congress.  Nationwide, Republicans won 54 percent of the U.S. House seats, along with 58 of 99 state legislative chambers, while winning only 8 of 33 U.S. Senate races and carrying only 47.8 percent of the national presidential vote.

With the 2020 Census fast approaching, the Republicans have already gone to work shoring up their firewall against fair elections.  One of their lower-profile recent efforts has been hobbling the Census Bureau, which the GAO recently placed on its “High Risk List,” citing pernicious underfunding, inadequate IT systems, and untested procedural changes.  Republicans have moved to cut back on human enumerators in favor of online responses, with the apparent overall objective of suppressing the count in low-income and minority neighborhoods and skewing representation.  Democrats, for their part, seem to just be counting on the voters rescuing them in time to avoid another lost decade, which makes it that much more galling that the Democratic Party of Virginia made such a pathetic showing last week.

At press time, four Delegate races had a margin of less than one half of one percent: the 94th District (by 13 votes), the 28th District (by 84 votes), the 40th District (by 115 votes), and the 27th District (by 125 votes).  Republicans led or had been declared the winners in all of them.  In all, eleven races had been decided by a margin of less than five percent—the widest, the 100th District, by a mere 1004 votes.  In a further ten races, the Democratic Party failed to field a candidate at all.  These are not wave election numbers: these are missed opportunities.  Voter suppression and gerrymandering played their roles, but it is hard to deny that even the slightest improvement in voter enthusiasm—fewer than a hundred additional votes spread across the right districts—could have given the Dems the statehouse.  

So, what did the Democratic Party of Virginia try this time to avoid a repeat of 2016’s drubbing?  Same-old, same-old: not content to let the populist (and popular) former Representative Tom Perriello go uncontested in the primary, Governor McAuliffe, Virginia Attorney General Mark Herring, Dominion Energy, and the entire Virginia Democratic House and Senate Caucuses threw their weight behind Lieutenant Governor Ralph Northam.  Sure, Perriello had already received the endorsements of Bernie Sanders, Elizabeth Warren, and Khizr Khan, but what did they know?  Everyone knows that Bernie Sanders isn’t a real Democrat, after all—not like Ralph Northam, whose votes for George W. Bush in 2000 and 2004 we’re apparently supposed to forgive because he “didn’t pay much attention to politics” at the time.

And so on.  Point being, less than a year after an election cycle in which the Democratic establishment’s compulsive habit of putting its thumb on the scale nearly tore the party apart, their solution for rebuilding trust in the leadership was to do it all over again, but this time with a milquetoast ex-Republican as nominee.  That it (mostly) worked is a testament less to Northam’s nonexistent political instincts than it is to Virginia voters being well and truly fed up.  Not that Northam still didn’t do his utmost to throw the election.

Faced with a blitz of racist Gillespie TV and radio ads, Northam couldn’t muster the guts to stand up for minority Virginians.  Instead, he rushed to co-opt the Right’s policies, pledging to ban so-called “sanctuary cities” and report undocumented immigrants to ICE.  Rather than pledge to raise Virginia’s minimum wage from the federal floor, the best Northam could offer Virginian workers were limp, vacuous buzzwords like “job training,” “apprenticeships,” and “STEAM.”  Again and again, Northam opted to play within the constraints imposed upon him by his opponent, as if daring to dream just a little bit bigger would somehow make him a less sober and realistic candidate than a professional lobbyist pretending to be a good old boy.  Had Northam been even an iota more sincere, he should have had no difficulty rolling over Gillespie, a carpetbagger from New Jersey whose strategy consisted of wrapping himself in the Stars and Bars and dog-whistling about “Southern Heritage.”  Northam could with minimal effort have brought another half-dozen seats along on his coat-tails.  Instead, we’re going into the all-important 2019 House of Delegates elections with a Republican majority, and the Democratic Party is too busy patting each other on the back to realize how close they came to losing everything.

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gpr7qx@virginia.edu

An Auction for Altruism: PILA 2017

Gregory Ranzini ‘18
(he/him/his)
News Editor

The Board of PILA enjoys the fruits of their labors. Photo courtesy of Jason Boyle 

This year marks my third (and final) opportunity to review the PILA Auction, and, to be completely honest, I’m tired of it—tired of writing about it, of course, but also tired of the auction itself.  All indications were that those in attendance this Saturday shared my ennui.  It was the usual crowd.  Gangly 1Ls wobbled about on the dancefloor and made small-talk with their sections.  Jaded 2Ls hovered near the bid sheets, optimizing their strategy.  At the appointed time, flush 3Ls took a break from cycling repeatedly through the bar line (“Do you know where the ATM is? I need more cash for the bar—go to the one on that end; she makes them strong as fuck…”) to tender outrageous sums for the usual live-auction junkets.  The usual polo-shirted rent-a-cops wandered listlessly through the crowd, and the usual modicum of two professors served as auctioneers.

This year’s faculty representatives, Professors Jaffe and Geis, decked out in top hats and glowing bow-ties, did their level best to drum up enthusiasm for last year’s auction items, with mixed success: dessert with outgoing President Sullivan and Professor Laycock seems to have lost much of its shine, but Pokémon Go with Professors Schwartzman and Kendrick has held its value far better than the fad cellphone game itself.  For all that the evening went according to plan, however, there was an edge of desperation in Professor Geis’s voice as he hawked a weeklong beach-house rental with “An! Out! Door! Shower!” and came to realize just how few people were listening, even among those who could hear over the din.

There were a few differences from last year, of course.  The Omni replaced its square flatbread pizzas with triangular flatbread pizzas.  (The recipe, unfortunately, was unchanged, as was the management’s puzzling belief that garage-door floodlights adequately substitute for heat lamps.  Also: who puts out chicken satay without satay sauce?  Barbarians, that’s who.) Notwithstanding worries in the weeks leading up to this year’s auction that there would not be sufficient items to hold a full silent auction, the tables were packed. But it was absolutely the case that there were more duplicate items in the silent auction this year, and less variety generally— although there was a tremendous variety of Robert F. Kennedy-themed tchotchkes, for whatever reason.  Faced with a bank of one-topping pizza vouchers and a heavily-marked down Derriere de Soie fitting party, priced to move because it didn’t sell last year, a (male) 3L commented to me, “I don’t need another incentive to eat pizza, but I’d buy that lingerie shit, fuck.”  Two very tiny garden gnomes seemed almost to accuse the indifferent masses who passed by their bid sheets without a second look. 

To be clear—there was nothing particularly wrong with this year’s event.  But there wasn’t anything particularly memorable about it, either.  I was probably not the only who entertained a vague fantasy throughout that perhaps it was still November 12, 2016—that I had forgotten something in the coat-check and returned to the venue to find the bid-sheets erased, the chafing dishes refilled, and the dried-up ballpoint pens replaced with other, equally dried-up ballpoint pens.  I expect that next year will probably see a return to the same venue with a few incremental changes—a new, equally imperceptible theme, at the very least, and perhaps the return of drinking tickets.  It will probably not see the return of 2015’s sullen, Kraftwerk-cosplaying DJ, beer-slicked and perilously canted floor, or mildly inebriated Uber drivers—and that’s probably an improvement. See Gregory Ranzini, Sold: PILA Auction a Success, Raises Money for a Good Cause, Virginia Law Weekly, Nov. 4, 2015, at 2 (“Conscientious to a T, she had us confirm that our chosen drop-off point, the bus stop at the foot of the law school law, was ‘a safe spot to walk from,’ because ‘you don’t look like fighters.’”).  But there’s still probably some room to innovate, at least so long as we don’t return to the Jefferson Theater.  Wherever the auction is, however, the Law Weekly will be there with the story next year.

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gpr7qx@virginia.edu

It’s Better When She’s Here: An Interview with Dean Davies

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

Lia-Michelle Keane ‘18
(she/her/hers)
Features Editor

Assistant Dean for Student Affairs Sarah Davies
Photo courtesy of University of Virginia School of Law

August 26, 2017 was a picturesque summer day. Dean Sarah Davies was out for a ride with friends, trotting with her horse, Claudia. A barn and rolling hills served as the backdrop for a routine, leisurely ride before the bustle of the fall semester began. 

Davies, who started riding at the age of nine, is an accomplished equestrian. Beginning when she her horse a year and a half ago, she rode four to five times per week. Earlier this summer, Davies and Claudia took home two blue ribbons in shows, and two days before the accident she signed up for another competition in cross-country jumping. 

“She is part draft horse so she looks big and stocky, but she is so light on her feet,” said Davies. 

The horses were grazing in a field adjacent to the dressage and jumping arenas when Davies signaled for her horse to lift her head up from the grass. Then, out of nowhere, her normally docile horse took off at a bucking gallop. Claudia took the bit in her teeth so Davies had no control to stop her from tearing across the field and leaping the barrier around the dressage ring as she galloped towards the nearby barn. 

    Luckily, Davies’s years of training took over. She stood up in the stirrups and leaned over her horse like a jockey, desperate to remain on the animal.

“I remember thinking, if I let go, I will fall and I will die.”

As the horse ran full speed toward the barn, Claudia suddenly made a sharp left, and the saddle slipped to the right, causing Davies to fall to the ground. 

“I don’t remember falling,” Davies said. “My friends followed behind me, one of them called 911 while chasing me at a full gallop.” Davies was unconscious for two to three minutes before coming to.

She spent the next week in intensive care with a broken clavicle, scapula, seven broken ribs on her right side and a broken tibia plateau (her knee) on her left side. In all, she broke ten bones and sustained a concussion and temporary nerve damage to her right hand. 

 “It could have been so much worse,” said Davies, “Because of the strength I built up from riding intensively for the last year and a half, I was able to hold on [to the horse] for much longer than I would have if I didn’t have the strength.” 

Davies quickly went into surgery to place a titanium plate in her clavicle. “I’m a million dollar woman!” she joked as she discussed the procedure. 

After recovering in a rehabilitation hospital for two weeks and at home for four weeks, Davies returned to the Law School. The day before this interview, nine and a half weeks after the accident, Dean Davies was finally cleared to walk without crutches.

When asked whether she will ever get back on the horse, she replied, “Right now, I don’t know.” Davies still has about a year’s worth of recovery left on her knee alone before she will be able to withstand the physical demands of riding.

 “Then there is the mental aspect.” Throughout her life as an equestrian, Davies dreaded losing control of a galloping horse. “My biggest fear was realized, and that will be a big mental hurdle for me to overcome.”  

There is also the anger and frustration that came with such a devastating injury. “I’m mad at my horse. It is totally irrational, but I feel like she took away something I love,” Davies said emotionally. “Riding was a place I could go to decompress—I am always a ‘future thinker’—and riding helped me stay present.” 

Davies applauded the help and support she received from her colleagues. “Lisa and Kate have been tremendous in handling my workload while I was recovering.” Lisa Napier and Kate Duvall kept Davies informed of school happenings, but relieved her of the stress of the day-to-day administration of the office.

“I am so thankful the Law School let us hire Kate. It was so important to have an office that can be fully functional even if one of us is absent,” Davies continued, praising Duvall for seamlessly taking over many aspects of Student Affairs during Davies’s recovery. 

Initially, Davies underestimated the amount of time she would need to recover. She said with a laugh, “I called Lisa and said ‘I will be back in the office in two weeks.’”  

While describing her experience in the hospital and later in rehab, Davies said, “It was hard to disconnect. I wanted to be there to welcome the incoming first years and be there for my 2L and 3L students.”

“I’m impatient to be better—it’s hard to let other people take care of you when you are usually the one taking care of others.” This is a lesson she hopes to impart to her students: “Many lawyers are not comfortable asking for help, but it is the healthiest thing to do. There is no shame in asking for help.” 

That, and to be careful out there: “Three weeks before my accident, my husband totaled his motorcycle. In both of our accidents, we were wearing helmets, and they saved our lives. You can’t plan for such traumatic events.” 

 “It’s great to be back,” Davies said with a smile. “The doctor cleared me to start going back part-time on a Friday and I was at the Law School the following Monday.” 

As positive as Davies remains about being back, recovering from the concussion made going back to work difficult. Even the half days were exhausting: “As soon as I got home I would sleep for the rest of the day. I now feel so much experiential empathy for students with concussions.” 

As shocking as the accident was, Davies saw the silver lining in the experience: “When awful things happen, it’s okay to say they are awful—but you need to find what is joyous and good. I forced myself to find things to be grateful for and it helped me through the toughest points in my recovery.” 

Davies was appreciative of the outpouring of love and support she received from the UVa Law community. She read each card, email, and banner she received while in the hospital and at home. “At UVa Law we really do look out for one another.”  

Dean Davies is slowly but surely marching back to her active self, and encourages all students to stop by her office to introduce themselves or to just say hello! 

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jmg3db@virginia.edu

lk3da@virginia.edu

Virginia Votes: An Election Preview

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

Gubernatorial candidate Ed Gillespie. Photo courtesy of the Richmond Times Dispatch.

Gubernatorial candidate Ralph Northam. Photo courtesy of the Richmond Times Dispatch.

Diligent students of American politics will know that most American states hold statewide elections in even-numbered years to coincide with federal elections. There are five exceptions: Kentucky, Mississippi, and Louisiana, which hold statewide elections during the year prior to presidential elections; and New Jersey and Virginia, which elect their statewide officials in the year following the election of the president. These elections are often viewed, fairly or not, as signs of political things to come; the 2009 election of Republicans Chris Christie and Bob McDonnell as governors of, respectively, New Jersey and Virginia—held just a year after Barack Obama’s election as President—was widely interpreted as a harbinger of the 2010 Republican wave in Congress.

Virginia is unique among the fifty states in another way: It is the only state to forbid its governors from serving consecutive terms. As such, Governor Terry McAuliffe, a Democrat elected in 2013, is ineligible to seek re-election, and Virginia will have a new governor in January of 2018. Virginia Republicans nominated Ed Gillespie, a former chairman of the Republican National Committee under George W. Bush and unsuccessful nominee for the U.S. Senate in 2014. The Virginia Democratic Party nominated Lieutenant Governor Ralph Northam, a physician and former state senator. Northam defeated former Congressman Tom Periello (D-Charlottesville) in a fiercely contested primary election that many in the national media portrayed as “a Hillary Clinton-Bernie Sanders redux,”1 with Northam representing the more moderate Clinton wing.

Accompanied on election night only by a sleepy New Jersey gubernatorial election—Chris Christie’s lieutenant governor, Republican Kim Guadagno, is expected to lose handily to Democratic financier Phil Murphy in the shadow of Christie’s woeful approval ratings—Virginia’s election for governor has attracted an outsized spotlight of polling and commentary. Gillespie ran a surprisingly close race for Senate in 2014, nearly pulling off a massive upset to defeat popular Democratic Sen. Mark Warner even as Virginia continues to lean more Democratic.2 Northam, meanwhile, cruised to victory in 2013, pummeling Republican minister E.W. Jackson 55–45 even as McAuliffe only narrowly defeated conservative Attorney General Ken Cuccinelli. Focus on the race grew with the competitive Northam-Periello primary, and expanded further when Gillespie had more difficulty than expected in defeating Prince William County Board of Supervisors Chair Corey Stewart in the Republican primary. Stewart, a native Minnesotan and staunch supporter of President Donald Trump, centered his campaign around “protecting Virginia’s heritage,”3 including its Confederate statues, and derisively labeled Gillespie “Establishment Ed.” On election night, Gillespie defeated Stewart by fewer than 5,000 votes out of more than 365,000 cast.

Virginia Governor Terry McAuliffe. Photo courtesy of CNN.

The resulting general election campaign has been sharp-elbowed and well funded. Virginians with television sets are by now well versed in each side’s attacks: Gillespie, says Northam, is a Trump-loving, neoconfederate apologist who would inflict a Handmaid’s Tale-like future on Virginia’s women. Northam, according to Gillespie, is soft on MS-13—the notorious Central American gang—and out to erase Virginia’s glorious Confederate history. Northam raised more than $7 million in September alone, while Gillespie pulled in nearly $4.5 million in the same time period. Polling of the race is wildly divergent. A Hampton University poll from October 25 had Gillespie up eight points,4 while an October 30 poll from Quinnipiac University gave Northam a seventeen-point lead.5 The Real Clear Politics average has Northam leading by 3.3 percent.6 History says Northam is favored: In nine of its last ten gubernatorial elections, Virginia has elected the candidate of the party out of the White House. The one exception? McAuliffe’s narrow 2013 victory, which was seen as a symptom of Virginia’s continued drift to the Democratic column. Once reliably Republican—the commonwealth voted Republican in every presidential election between 1964 and 2008—Virginia has moved leftward with the explosive growth of the affluent Northern Virginia suburbs, voting twice for Barack Obama and most recently for Hillary Clinton in 2016. With conflicting polling and mudslinging on both sides, Northam’s advantage with polling and cash-on-hand make him the smart bet. But wise Law School community members will remember the unreliable polls of 2016 and proceed with caution in making predictions.

Alongside the gubernatorial election, Virginians will cast ballots for lieutenant governor and attorney general. In the lieutenant governor race, ex-federal prosecutor and Venable attorney Justin Fairfax (D) faces off against attorney and state Sen. Jill Vogel (R). Fairfax would be Virginia’s first black statewide official since Democratic Gov. Doug Wilder left office in 1994. While Northam has advocated for the removal of Confederate statutes in the wake of the August 11 and 12 Charlottesville rallies, Fairfax has trod more carefully, calling for the issue to be handled locally. Vogel has tried to toe a difficult line between old and new Virginia: Her campaign has reached out to socially liberal Northern Virginians by handing out rainbow stickers at LGBT parades, but she was known in the legislature as a sponsor of Virginia’s transvaginal ultrasound bill. While less prominent than the gubernatorial race, the lieutenant governor’s race is also expected to be close.

Finally, Virginians will select an attorney general. Incumbent Democrat Mark Herring is seeking re-election, challenged by a Republican with a famous name: Richmond attorney John Adams. Herring won Virginia’s narrowest race in 2013, defeating fellow state Sen. Mark Obenshain (R) by just over 800 votes, but is favored over Adams going into Tuesday’s election. Adams, a McGuireWoods attorney and former clerk to Justice Clarence Thomas, criticized the incumbent over his “political” refusal to defend the commonwealth’s constitutional amendment that limited marriage to one man and one woman prior to the Obergefell decision.7 Herring defended his tenure, noting his work to eradicate human trafficking.8

Virginia’s elections will be held Tuesday, November 7. For those anxious to know what 2018 holds in the Age of Trump, Tuesday’s elections could be a good indicator of what is to come.

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jmv5af@virginia.edu

1 https://www.theatlantic.com/politics/archive/2017/06/virginia-primary-2017-governors-race-perriello-northam/530082/

2 https://www.politico.com/story/2014/11/virginia-senate-ed-gillespie-mark-warner-112631

3 http://www.npr.org/2017/06/13/532704812/trump-looms-over-both-democratic-and-gop-primaries-for-virginia-governor

4 http://wtkr.com/2017/10/25/hampton-university-poll-shows-gillespie-leading-by-8-points-in-virginia-a-race/

5 http://thehill.com/homenews/campaign/357824-poll-northam-leads-gillespie-by-17-in-virginia-gov-race

6https://www.realclearpolitics.com/epolls/2017/governor/va/virginia_governor_gillespie_vs_northam-6197.html

7 http://freebeacon.com/issues/gop-opponent-says-gun-control-money-proof-mark-herring-political-animal/

8 https://www.washingtonpost.com/local/virginia-politics/virginia-attorney-general-candidates-release-dueling-ads/2017/10/04/5ef2f186-a917-11e7-850e-2bdd1236be5d_story.html?utm_term=.480521cdb24d

SBA Endorses Open Letter to Student Records Office

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

Last Tuesday, October 24th, the Student Bar Association voted unanimously to endorse an open letter to Dean Dugas and the Student Records Office. The letter, printed in its entirety below, strikes a cooperative tone in asking the SRO to make changes that would make class registration easier and more organized. Although the suggestions are modest, many of the letter’s signers expressed general frustration with the SRO, and are hopeful that it will open the door to more accommodating academic and class registration policies. 

The letter’s primary sponsor, 3L Pheobe Willis, has offered the letter in her mailbox for students to sign until Thursday evening. So far 170 students, and the SBA have endorsed it. The letter reads as follows:

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ech8vm@virginia.edu

Dear Student Records Office,

In the spirit of cooperation, and with sincere acknowledgement of the hard work and effort of the UVA Law Student Records Officer (SRO), we write with the goal of collaborating on the ideas below designed to improve the course registration process. This letter is the result of a productive conversation among a group of 3Ls reflecting on shared experiences with the current course registration process. We have gathered signatures from a broad and diverse group of students to show support, not only for these ideas, but also for the hope that the SRO’s proven commitment to UVA Law students will encourage its support for and the implementation of these ideas. 

We thank you in advance for your consideration of our suggestions and welcome your feedback. You can count on us to follow-up on these ideas and work towards their implementation.

We ask that course registration be left open over one weekend in the summer in addition to a few days during the week. Many students work during the week and do not feel comfortable conducting, or are unable to conduct, personal business on work computers. 

We ask that 3L class sign-up not be scheduled over fall break. This is a time when many 3L students travel to see family and it seems counterintuitive to make students sign up for classes when they are supposed to be on a break. The tentative academic calendar on the law school website has the 2018 fall break dates as October 8-10th and we ask that 3L registration not take place on these dates.

We ask that the SRO send out calendar invites to students for registration deadlines that students can accept and place on their personal calendars. This would alleviate the influx of emails the SRO receives from students trying to find the dates, serve as a built-in reminder for students and make this information easier for all to access. Currently, Darden utilizes such a process, which provides a helpful roadmap to implementing a calendar invite-based system.

The UVA Law Students below have thoughtfully considered the suggestions above and sign their name in full support of each idea’s implementation.

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paw2vg@virginia.edu

Young Children Terrorize North Grounds

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

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

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

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

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

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

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

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ech8vm@virginia.edu

In Search of Common Ground

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

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

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

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

She introduced Dean Risa Goluboff, who gave introductory remarks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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jmg3db@virginia.edu

Clashes at City Council

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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jmg3db@virginia.edu

Domestic Violence Awareness Month

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

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

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

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

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

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

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

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

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

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

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

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

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

Key Facts from the National Coalition Against Domestic Violence:

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

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

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

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

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lns5ah@virginia.edu

As Dust Settles, Law School Rises

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

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

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

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

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

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

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

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

August 11, 2017

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

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

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

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

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

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

August 12, 2017

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

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

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

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

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

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

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

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

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

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

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

One Administration Cowers; Another Springs into Action

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

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

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

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

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

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

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

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

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

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

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

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

The Deans Working Group

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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ech8vm@virginia.edu

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

Foxfield: Off to the Races

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

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

Photo courtesy of David Ranzini.

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

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

Photo courtesy of David Ranzini.

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

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

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

Photo courtesy of David Ranzini.

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

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

Yeah ponies! someone yells. Go ponies! 

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

Hey dude! 

—What?

Dude! 

—I can’t hear you! 

 Watch out, dude! 

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

They’re coming back! 

—No they aren’t! That’s it! 

That’s it? 

—Yeah?

… Who won? 

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

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

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dwr7ed@virginia.edu

Manufacturing an Epidemic

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

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

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

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

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

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

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

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

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jpe5pd@virginia.edu

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

2 Id.

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

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

5 Id.

6 Id.

7 Id.

8 Id.

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

10 Id. 

11 Id. 

12 Id.

13 Id.