Davidson and Swanson are Lile Winners

By Taylor Elicegui '20

Staff Editor

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

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

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

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

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

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

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

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

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Taylor Elicegui 

tke3ge@virginia.edu 

Justice Breyer Speaks

By Virginia Law Weekly Staff

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

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

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

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

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

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

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

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

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

editor@lawweekly.org

Lights, Cameras, Libel!

110th Libel Show

Photo courtesy of 110th LIbel Show.

It’s Libel season! That’s right, March 22, 23, and 24 is the annual Law School musical sketch comedy show where we parody, satirize, and cry about the state of UVa Law and the legal profession. This year’s theme features Libel’s Angels (a play on Charlie’s Angels—is it the TV show or the movies? You’ll have to come to find out).

What began as a fraternity hazing ritual over one hundred years ago has evolved into a full-length (sometimes even longer) production of acting, singing, dancing, and videos. 1Ls take a break from outlining, 2Ls take a break from clinics, 3Ls take a break being depressed about leaving UVa; come drink at Libel! Come see your friends, colleagues, and section-mates you haven’t talked to since the Con Law final make jokes about NGSL and Career Services, while dancing to law-related parodies of pop songs and hit musicals. This year features all levels of talent. From “Wow, I can’t believe they can do that!” all the way to “Wow! They’re confident without reason!” Enjoy a night of poking fun at all your favorite and least favorite institutions.

“Personally, I am blown away each year from the talent, skills, and energy that the law students bring to their performances,” says this year’s producer, Jason Boyle ‘18. “Having participated in the show since I was a 1L, as a cast member, stage manager, and now producer, I am continuously humbled by the sheer passion I see in my peers” he added. Watch as your fellow law students perform the role of a lifetime, or at least the line of lifetime. “This year’s talent is really impressive. We have a lot of experienced people, and some incredibly talented newcomers,” said director Jordan Naftalis ‘18. “Everyone brings a lot of enthusiasm and that’s what really makes the show great,” she offered. Come see why “not getting involved with Libel earlier” is among the most common regrets of 3Ls.

Libel’s true theme that stretches throughout the ages is its length. This year we heard brevity was the soul of wit (who wrote that bullshit? Billy Shakes?) and aimed for Monty Python and the Holy Grail instead of Lord of the Rings! “Holy Grail is only 90 minutes? It feels so much longer,” Director Katerina Siefkas ‘18, said, foreshadowing most of the students’ thoughts about this year’s Libel, adding, “But actually, I am really impressed with the creativity of the sketches this year. We’re all very excited to share what we’ve been working on.” Most important of all, beer and snacks are provided!

“But wait, there’s more!”1 I almost forgot about the Professor Rebuttal! We spend some of our stage time lampooning the professors, so we have to give them the chance to make fun of us right back! The professors get a chance after intermission, before Act 2 begins, to share some musical parodies of their own. Previous years have featured heavy hitters like Professor George Cohen, with direction by Professor Molly Shadel. This year, there’s even rumored to be a secret video from Professor Kim Ferzan.

For those of you still reading this article, you may be wondering, how long is this article? Or perhaps you’re thinking, “How can I, a mere outsider, get involved in the law school’s oldest tradition?” Well BOY are you in LUCK. Although the jokes have already been written, the roles cast, and the dances choreographed, we do need volunteers to help with the behind-the-scenes magic, including moving set pieces between sketches and monitoring the keg. If you are interested in getting involved or have any questions, please reach out to Jason Boyle at jmb3ck@virginia.edu. But also, we love an enthusiastic audience and hope you’ll take a break from pretending to do your cite check or studying for the MPRE to come laugh at jokes (or stare blankly while silently judging all of your friends; as long as you pay for a ticket, WE DON’T CARE).

Tickets go on sale March 12 in Hunton & Williams Hall. They will be $15 for drinking tickets and $10 for non-drinking. If you factor in the lines at Barristers’, it’s basically an open bar! Buy your tickets while they last, hopefully this year we won’t mistakenly oversell seats, but you never know! Libel 110: Libel’s Angels runs March 22, 23, and 24. Doors open at 7:00, the show starts at 7:30 in Caplin Auditorium.
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libelshow110@gmail.com

1 Billy from OxyClean.

A Welcome from the Editor-in-Chief

Jansen VanderMeulen '19
Editor-in-Chief

If you had told me when I came to the Law School in August of 2016 that I would be anywhere near a leadership role in the student newspaper, I would have laughed at you—nervously, of course, because 1L is scary, and everything I did was accompanied by nervous laughter. I was involved with student government in undergrad and came to have a rather low opinion of most student journalism. Well, here we are. Just over a year and half later, I’ve taken the reins of the Virginia Law Weekly as its editor-in-chief. In that time, I have come to appreciate the power of a student newspaper to document and shape the community around it.

For seventy years, the Law Weekly has done just that. A search through our archives—conveniently available on Hein Online, thanks to the diligent efforts of our librarians—reveals the story of the Law School itself. Conflict and turmoil, debate and deliberation, revelry and merriment—and, of course, softball. Since 1948, the Law Weekly has made it our mission to serve as a neutral, open forum for the denizens of the Law School community. We publish the thoughts and opinions of students and faculty without regard to content or viewpoint. We edit only for grammar, style, and clarity.

This policy rose to the forefront this past week, my first as editor-in-chief. Many of you know that the Law Weekly published a law student’s letter to the editor that made controversial claims about the immigration debate. The letter offended, disheartened, and outraged some students. In particular, students from underrepresented backgrounds told me they felt targeted and even threatened by the letter’s tone and assertions. The Law Weekly—and I in particular—regret that students were hurt by something we published. At its best, a student newspaper should bring people together, should create and display the elements of our community that bind us.

Prior to publishing the letter at issue, members of the Law Weekly editorial board and I consulted with Assistant Dean for Student Affairs Sarah Davies. We understood that the letter would cause members of our community to feel alienated and upset. Dean Davies encouraged us to follow our existing policy: to publish without regard for content or viewpoint. I want to make clear that Dean Davies did not force the Law Weekly to publish the letter. The administration neither has nor desires to have any editorial control over the Law Weekly or its staff. What Dean Davies offered us was good advice: to follow our longstanding and justifiable position toward controversial content, even when doing so makes us uncomfortable.

Despite the understandable offense caused by letters like last week’s, the Law Weekly remains committed to publishing the viewpoints of the Law School’s residents, contentious as they may be, so long as they do not amount to individual personal disparagement, defamation, threats, or harassment. The reasons for this are several. First, the Law Weekly is publicly funded; we receive substantial student dollars from Main Grounds that help alleviate our publishing costs. We’re no First Amendment experts, but we think that, having held ourselves out as a neutral forum that does not discriminate on the basis of content or viewpoint, we may place ourselves in legal jeopardy if we decide not to publish a letter on the basis of one of those categories.

But even if the law does not compel us to maintain neutrality, we think our principles as a student-funded newspaper do. This paper’s editors firmly believe that the answer to ill-informed, outrageous, and even offensive speech is not silence or censorship— it’s more speech. We hold to what Justice Kennedy wrote in United States v. Alvarez,1 that “[t]he remedy for speech that is false is speech that is true . . . . The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” This week’s edition contains a multitude of responses to last week’s letter. Most of them denounce the piece: “[w]rong,” “racist,” “nativist xenophobia,” and “supremely deficient” are among the labels applied to it. Rather than letting a noxious viewpoint fester in the unspoken underbelly of our community, our policy of neutrality allows such viewpoints to be aired—and then thoroughly repudiated by the thoughtful students who make up our student body.

Unfortunately, some members of our community responded to last week’s controversial letter by removing the remaining copies of the Law Weekly from its most visible newsstand, outside the library. Some of the copies were tagged with writing and posted throughout the Law School, including on the Law Weekly’s office bulletin board. We understand that the letter upset some of our readers. But our writers and editors work hard every week to produce a newspaper for students to read. Students and faculty from across our community contribute their thoughts, and a few volunteer editors work to ensure publication. Removing the papers devalues their work and attacks the very purpose of the newspaper: to propagate ideas and allow them to be debated and attacked, if necessary. We hope that in the future, our readers will leave the papers in the stands and allow their colleagues to make their own decisions about any pieces the paper contains.

We recognize that the burdens of free speech fall most heavily on those who have already faced the greatest societal burdens. As Dean Leslie Kendrick wrote for CNN last summer after the KKK rally in Charlottesville, “[The costs of free speech] fall disproportionately on African-American, Jewish, Muslim, and other minority members of the community. They are the ones who absorb these very public, very ugly assertions that they are worth less than other Americans.”2 By requiring authors of letters to include their names, photos, and contact information, we hope to alleviate that burden as best we can. In the Law Weekly, authors must stand behind their writing and the rightful criticism that follows; they cannot hide behind shields of anonymity. We remain committed to maintaining our status as a neutral forum in which members of the Law School community may stand up to ideas and opinions they disagree with.

As the Virginia Law Weekly approaches its 70th anniversary, we strive to provide the Law School with important stories about its community members; with interesting and funny insights into the lives of law students, faculty members, and staff; and with a place for opinions to be aired and debated. We hope our readers will continue to challenge us when they think we mess up, and tell us so in writing. Response letters to any article or letter may be sent to editor@lawweekly.org, or to my own email address: jmv5af@virginia.edu.

1      567 U.S. 709 (2012)

2     https://www.cnn.com/2017/07/12/opinions/free-speech-isnt-free-kendrick-opinion/index.html

Perspectives: Barrister’s in Review

Eleanor Schmalzl '20
Executive Editor

From left to right, Madison McMurray '19, Trina Rizzo '19, Darcy Whalen '19, Kendall Burchard '19, and Hannah Blazek '19. Eric Hall / Virginia Law Weekly

1L of a Ball

Since August, upperclassmen have raved about the “law school prom” that is Barrister’s Ball. As all 1Ls do, I got ready for the event with my section1 and took all our nice group photos before the chaos of the event2 began. Despite arriving fashionably late,3 the dance floor was empty and the bar lines were short, leaving my friends and me with no other choice than to make fast use of our drinking tickets and take the spotlight in front of the bumping speakers. Time passed quickly as my group and I danced and talked with our fellow classmates, making it hard to believe when the clock struck 12:30 a.m. and it was time to leave. I wasn’t sure what to expect coming into the night: whether my non-floor length dress would fit the occasion, if I should have awkwardly brought a date in the true spirit of “prom,” or if the event would live up to the $65 I had spent to get through the doors. But what I took from the night was this: the dress doesn’t really matter (and whatever dress you wear will fit the bill for the night), law school prom doesn’t require awkward dates if you have great friends,4 and the event was a steal at the price. This year’s Barrister’s Ball surpassed my expectations and has me counting down for February 2019.

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mes5hf@virginia.edu

she/her/hers

Kim Hopkin '19
Development Editor

The Life of a 2L

As an effeminate woman who enjoys getting glammed up for fancy events, I look forward to Barrister’s Ball with glee each year. For me, Barrister’s started at about 5:00 p.m. when I arrived at my friend’s apartment to do hair, makeup, and dress adjustments before we hit up a pre-game.5  My 1L section has stayed relatively close into 2L year, so the pre-game included section-mates who were not going to the actual event later. Getting to see people that I can only catch up with briefly in the hallways quickly became my favorite part of the night. 

Heading to the actual event brought up the only complaint I have about Barrister’s: transportation. Uber and Lyft surge prices are not my favorite; however, as my rhinestoned four-inch heels will attest, I probably wouldn’t have walked to a free bus anyway. Plus, buses come with their own issues which became fully apparent in the drive from the event to the after-party. 

The event itself was absolutely beautiful.6  I literally couldn’t get inside the door before running into people who I wanted to spend all night talking to. The space was huge, and the music was great in my opinion. The whole event seemed to be over too quickly when my friends pointed out the time as we rushed to see Gunners ‘N’ Roses play at Rampage.7  The bus situation was interesting. Instead of just not letting any more people on the full bus, the drivers welcomed them on the bus pulled over a couple of feet later to kick them off. This was understandably frustrating for everyone involved.8  

Gunners ‘N’ Roses was, as always, a fun time to sing and dance with friends. I definitely noticed that they branched out with new songs, and I really appreciated hearing “Body Like a Backroad”. After another Uber home, I headed to an after-after-party which was the perfect chill way to relax after a fun evening with my friends. 

In an effort to relive this glory next year, I’m officially asking Alison M. and Lauren S. to be my dates again for 3L Barrister’s: you ladies rock.

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knh3zd@virginia.edu

she/her/hers

Jenna Goldman '18
ditor Emeritus

One Last Barrister’s

Deposed Virginia Law Weekly despot Jenna Goldman '18 and her boyfriend Matt. Eric Hall / Virginia Law Weekly

The gilded ballroom of Boar’s Head Inn was a far cry from the damp Barrister’s of old. The only thing that was flooded this year was Instagram, with nostalgic posts by 3Ls lamenting their last Barrister’s Ball.  

After three years of attending the event, and waiting in lines at the bar to break even with the drinking ticket price, it finally occurred to me to get to Barrister’s at 9:30 p.m., when the event actually started. The food was still fresh and I got three drinks before the lines became amorphous and unruly—that’s what I call fashionably on time. 

Speaking of fashion, if 2012 was the year of Red,9  so was 2018. One can often anticipate the year’s popular choice by searching through RentTheRunway.com a few days before the ball to see which dresses are out of stock. The 1Ls chose darker, mid-length dresses, thinking Barrister’s was PILA round two.10  The 2Ls opted for fuller ball gowns, learning from their mistakes11 of 1L year. Not to be outdone, the 3Ls went bold for their final dance, hence the emphasis on red and glitter. Even men partook in the color trend.12  

At about 11:50 p.m. I ventured to say that the event went off without a hitch.13  However, 11:50 p.m. was also about the time I set out looking for a bus to Rapture along with roughly half of those in attendance. There was no bus provided from the law school to Boar’s Head, so I’d be damned if I did not get on a bus at some point during the night.14 

Finally, at about 12:30 a.m., a bus arrived, and I rushed to pile on. In my desperation to GET. ON. A. BUS. I completely missed the announcement that this bus would only be going to the law school. I was sorry to miss Gunners ‘N’ Roses, but I’m sure I will see them in a few weeks when the weather improves and the Bilt patio becomes somewhat tolerable again. 

Overall, Barrister’s 2018 was leaps and bounds better than the two previous in the quality of food, venue, and DJ music selection. Despite the great bus caper, I had a wonderful time and will miss this event and my law school classmates next year!

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jmg3db@virginia.edu

she/her/hers

1 S/O to Section Ayeee

2 Read: unlimited alcohol at the open bar

3 9:32 p.m.

4 Again, S/O to Section A & my Abaybay ladies

5 Luckily, I have very patient friends awho tolerate my ability to make getting ready for an event last hours.

6 Michelle Chang, you are a Queen. A QUEEN.

7 Apparently, after my first sip of beer, I cannot for the life of me remember “Rapture” and call it “Rampage” instead. Feel free to use it in your personal life as well.

8 Re-read FN 2.

9 Taylor Swift, Red, on Red (Big Machine 2012).

10 PILA: A less formal, even sloppier event than Barrister’s.

11 Being out-glammed by the upperclass women. 

12 Were those red, plaid slacks a fashion statement or pajama pants? @Beau Daeu

13 Many might disagree, citing the massive lines at each of the seven bars. To them I say, “you snooze, you lose.”

14 $65 - I repeat - $65.

Law School Celebrates Diversity

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

From left to right: SBA Diversity Committee chairs Jeri Brown '19, Aparna Datta '19, and Muskan Mumtaz '19. Eric Hall/Virginia Law Weekly

Caplin Pavilion buzzed with students and faculty who gathered around tables manned by representatives from each affinity group at the law school. UVa Law’s annual Diversity Week culminated in a celebration of culture last Thursday in Caplin Pavilion. 

“It is so important to highlight diverse students in the law,” said Latin American Law Organization (LALO) President Robbie Pomeroy ‘19 as he danced along to the Bollywood music blaring from the South Asian Law Student Association (SALSA) table. 

Elyse Moy ‘18, President of Women of Color, marveled at the event and how her affinity group has grown since her 1L year. “I got involved in WOC as a 1L rep, back when Dana Wallace [‘16] revived the club,” said Moy. “Kate [Duvall] is always reaching out to us and the school at large has shown us so much support throughout the last few years.” Of the event, Moy said “its another great visual representation of how the school and the students support and value diversity.” 

The Black Law Student Association (BLSA) gave out raffle tickets to participants who could answer questions correctly about black culture and black excellence, Jeopardy style. At the end of the event, a name was drawn at random from the tickets and the lucky student received a diploma frame from the bookstore. 

From left to right: Gina Sato '19 and Calla Zhou '19 serve fire ramen. Eric Hall/Virginia Law Weekly

The first question came from the category “Famous black lawyers.” “(Blank) LaVaughn Robinson, from the Southside of Chicago, we miss you!” Answer: “Who is Michelle Obama?”

A 1L was stumped on the next question: “The 1948 case that outlawed racial covenants.” Luckily she was able to ‘phone a friend.’ “She was only a few weeks into Constitutional Law, I had to help her!” said Dean Goluboff who answered, “What is Shelley v. Kraemer?” 

Devyne Byrd ’19, who ran the jeopardy style game for BLSA, looked forward to the week of events that places a spotlight on minority students. “It’s nice being in the loop for once,” Byrd said. Pol Minfuet, an LL.M. from Belgium, agreed with Byrd; “I have never seen this type of event before! We just don’t have this sort of celebration of ethnic and racial differences at my school in Belgium.”

The Jewish Law Student Association table had Mezza wraps, dates, fruit, and seeds in celebration of Tu BiShvat, a holiday known as “the birthday of the trees” celebrated this time of year. President Dascher Pasco ‘18 loved participating in the event. “I think there are lots of values in Judaism that are relevant in law, and it’s cool to have an opportunity to share that with the school.” 

SBA President and class prankster Steven Glendon '18 mischievously pours a beer. Eric Hall/ Virginia Law Weekly

LAMBDA gave away Pride shirts to those who could answer three LGBT history related questions. Chandler Walpole ‘20 and Rachel Leary ‘20 fired off questions to the line of students hoping to win the swag. 

“I moved from New York City, so I was initially concerned I wouldn’t find a community here,” said Leary. “But I was pleasantly surprised by the number of LGBT students at the law school,” she said. 

Next to LAMBDA, the Asian Pacific American Law Student Association (APALSA) held a “fire ramen-eating contest.” “You have to finish your plate of spicy noodles without showing any outward signs of pain,” explained Maggie Yiin ‘19. This reporter can confirm the challenge was a lot harder than it looked.   

Good thing the SALSA table provided mango juice to quell the heat. “This is the Capri-Sun of South Asia; it’s my childhood,” said Muskan Mumtaz ’19, who along with Aparna Datta ‘19 and Jeri Brown ‘19 chaired Diversity Week. Mumtaz is also in the process of founding the Muslim Law Student Association (MLSA). 

Diversity Week began on Monday, with the panel “He Said, She Said to Me, Too: Successes and Shortcomings in the Law of Sexual Harassment.” Professors Coughlin, Ferzan, and Rutherglen discussed changes in criminal law surrounding sexual harassment and #MeToo in context of other historical feminist movements. 

Professor Coughlin explained that in Classical Greek and Roman literature, the practice of “cutting off women’s tongues after they have been raped” was a tactic to silence from speaking out against their attacker. Coughlin sees the #MeToo Movement as a response to contemporary “tongue cuttings,” such as non-disclosure agreements, procedural hurdles to seeking justice, and internet trolling that aims to intimidate women into silence.  

Professor Ferzan discussed how the American Law Institute is struggling to keep up with the movement. “So many areas, many would argue, are over-criminalized. In the area of sexual harassment and assault we have the problem of radical under-criminalization.” Ferzan notes that the individuals who have always borne the brunt force of the criminal justice system have been the poor and people of color. “We need to think about who our potential defendants and who our potential victims will be under a new system.”

While Ferzan and Coughlin differed on changes to the criminal approach, they did agree on one thing: loosening the mandatory disclosure rules within the University Title IX structure. Coughlin said that throughout her tenure, students have come to her about sexual harassment situations. “They tell me, ‘I don’t need a therapist, I need legal advice before I decide to report,’ and that’s not something I can give anymore because of the mandatory reporting requirements.”

On Tuesday, practitioners from prominent New York and DC law firms gathered to discuss how firms are meeting the demands of clients to provide diverse attorney teams. 

“Our clients identify that a diverse product is a better product,” said Kim Walker of Willkie Farr & Gallagher. 

While law firms have made recruiting women, LGBT, and attorneys of color a clear priority, retention is also an issue of concern. “If you do not feel comfortable in your workplace, you will leave,” noted Dana Weekes ‘09 of Arnold & Porter Kaye Scholer. The next step for law firms is how to create a more inclusive environment so the talented attorneys will stay. “A lot of law firms are grappling with this from a cultural standpoint” said Weekes. 

Some firms have tackled this problem by setting up affinity groups within the firm. Lisa Morales ‘16 of Sullivan and Cromwell is a member of her firm’s black and Latino group and the firm’s women’s group where she said she meets regularly to socialize and find mentorship. 

 “Unpacking Privilege” concluded the week’s formal speakers events on Wednesday. The experience-based dialogue on diversity has been a staple in the program for the last three years, where students share their personal stories of adversity, triumph, and how they grapple with privilege. 

After the four students concluded their speeches, the audience broke into small discussion tables to reflect on what was said and how we can identify our own privilege to create a welcoming and inclusive environment in the law school. Datta received encouraging feedback about the capstone event, “I know one person who told me they felt as if a weight had been lifted from their shoulders after attending the event. A lot of times we don’t realize everything that is weighing us down—especially since we’re so busy in this law school environment.” 

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jmg3db@virginia.edu

VJIL, J.B. Moore Present Int’l Law Symposium

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

On February 20, 2018 the Virginia Journal of International Law, the J.B. Moore International Society, and the Immigration Law Program are putting on a day-long symposium entitled, “Immigration and Ideology: International Responses to Migration.” The Symposium begins at 12:00 P.M. with introductory remarks from Professor Emeritus David Martin, who previously spearheaded the immigration law program at the Law School. Lunch from Mezeh Mediterranean Grill will be served at 12:20 P.M. The first panel, “Catalysts: Global Causes and Motivations for Migration” aims to provide a broad overview of regional conditions that cause immigrants to leave their homes and aims to produce a robust conversation on the common and differing catalysts of immigration in the Middle East, Africa, and South America. Professor Mila Versteeg will moderate the panel featuring fellow professor Kevin Cope, Charanya Krishnaswami from the United Nations High Commission for Refugees, and Nikila Dasarathy from the ABA Rule of Law Initiative, Africa and Middle East Division. 

The second panel, “International Responses and Solutions to the Global Refugee Crisis,” intends to explore topics of integration, education, and child migrants to evaluate how the existing legal and policy framework of resettlement is failing migrants. The panel will be moderated by Professor David Leblang from the University of Virginia’s Batten School for Leadership and Public Policy. Participants on the panel include Professor Bernhard Streitwieser from George Washington University’s Graduate School of Education and Human Development, Professor Jessica Anderson from Georgetown’s Institute for the Study of International Migration, and Professor Marisa Ensor, who also works for the Institute. The panel will conclude with a discussion of how resettlement procedures could improve to better handle the greatest refugee crisis of our lifetime. 

Following a coffee and pastry break, the third panel of the symposium will examine the uncertain future of immigration law and policy in the United States. The panel exclusively features practitioners who will speak to how changes in immigration policy affect their clients. Ms. Deena Sharuk from Legal Aid Justice Center Charlottesville (LAJC) will moderate the panel featuring Tanishka Cruz from LAJC Charlottesville, Ms. Harriet Kuhr from the International Rescue Committee, Lieselot Whitbeck from the Erickson Immigration Group, and Edward Summers from his own private immigration practice. This panel aims to introduce and explore the inadequacies of the current American immigration landscape. The panel intends to address questions concerning asylum procedures and due process, how the current backlog affects immigrants and the greater system, and finally how policies should be adjusted for children. This panel will conclude with a forward-looking discussion of how the politics and procedures of the U.S. immigration system may be best adjusted to handle the issues addressed during the discussion. 

The symposium will conclude with a keynote address delivered by Ms. Colleen Roh Sinzdak, a senior litigation associate at Hogan Lovells. Ms. Sinzdak has briefed, argued, and won cases before multiple courts of appeals, and she was recently named an American Lawyer Litigator of the Week after successfully convincing a federal district court to issue a temporary restraining order against the President›s Executive Order regarding immigration and refugees. She will speak on the topic of the Executive Order litigation and how Big Law lawyers have a place in immigration litigation more generally. Following her keynote address, a networking reception featuring practitioners from both the public and private sector will take place from 6:00 to 7:30 P.M.

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jpd5pd@virginia.edu

The Shape of Justice

Ryan Snow '18
(he/him/his)
Guest Columnist

It’s not always easy to keep in mind why we’re in law school. However we plan to use our education, the daily demands associated with getting that education often distract us from our goals and the values that inform them. The law school institution itself, for better and for worse, can feel isolated from the real-world issues that inspired and continue to inspire so many of us to become lawyers.

Kristen Clarke, President and Executive Director of the National Lawyers' Committee for Civil Rights Under Law. Photo courtesy of University of Virginia School of Law.

On Friday and Saturday, February 2 and 3, the second annual Shaping Justice Conference brought together students, attorneys, and advocates from around the country who are dedicated to transforming the law in order to advance justice for all people. This year’s conference, titled “Shaping Justice in an Age of Uncertainty,” gave attendees a chance to engage with some of the greatest and most pressing challenges facing our nation and legal system today, and to hear from and connect with practitioners working on the front lines of the fight for civil rights and equal justice.

Panels tackled a broad range of issues, including the absence of justice for the Black community; voting rights; the intersection of reproductive and racial justice; environmental racism and climate change; violence against trans people of color; and the use of “big data” analysis in the criminal justice system. Workshops and plenary panels focused on giving students concrete tools for self-care and sustainable lawyering; navigating law school with values and spirit intact; maximizing opportunities to work on justice issues as a firm lawyer; and a legal observer training on safeguarding the constitutional rights of protesters.

A key feature of the Shaping Justice Conference is its emphasis on integrating legal and non-legal perspectives. As a lawyer serving the public, and especially serving vulnerable communities with a variety of needs, it is not sufficient to work only within the legal system. Lawyers must learn to work with organizers and activists within the client community to identify strategies that balance addressing immediate needs with building effective litigation, which can often take years and itself require close coordination with, and balancing interests between, diverse stakeholders.

“For me, one of the most incredible aspects of the conference was the opportunity to hear from practitioners who are really on the front lines of such a diverse array of fields, and to learn about how they envision those fields’ futures,” said Cameron Duncan ’19, one of the main conference organizers. “During the Environmental Racism panel for example, Professor Marily Nixon of the University of Pittsburgh School of Law spoke about the increasing importance of environmental lawyers and activists working to address the human repercussions of global climate change, in addition to continuing to combat the sources of environmental harms. She noted that, as a result of rising water levels alone, by the year 2100 more than 400 cities and towns in the U.S. will be uninhabitable, no matter what we do now to reduce emission of greenhouse gasses. That absolutely blew my mind.” Much of that panel’s discussion tackled the complex legal, social, and economic challenges associated with relocating entire communities as they are displaced by anthropogenic climate change, which is already being undertaken in coastal regions in Alaska and along the Gulf and Atlantic Coasts.

From left to right: 2018 Shaping Justice Award recipients Jeff Kerr '87, Jeree Thomas '11, and Kim Rolla '13. Photo courtesy of Cheryl Harris.

Another key feature of the conference is its emphasis on issues facing communities underserved by the legal community, and on confronting the ways in which the legal system, its doctrines, and the way they are traditionally taught privilege certain perspectives—particularly wealthy, white, male, and hetero perspectives—over others. “The Shaping Justice Conference is important because it raises the collective consciousness of the law school about social justice issues, and helps set a culture of inclusion,” said Toccara Nelson ’19, who helped organize two panels co-sponsored by the Black Law Students Association. “I felt our panels were excellent in highlighting legal issues facing the marginalized, such as communities of color and the LGBTQIA communities, and that is what this conference is about.”

Many students expressed the importance of the law school hosting a conference dedicated to public service. “Shaping Justice was an incredible experience, and I am very grateful that the University of Virginia School of Law makes it clear that they support public interest students by hosting this conference,” said Molly Cain ’20. “To me, the 1L curriculum can often feel very removed from what I want to work on, and Shaping Justice was the exact energizing force I needed to remind myself why I am in law school. It was awesome to hear firsthand about the work public interest lawyers actually get to do, and to remember that I’m in law school so that I too can do that very needed work.” This sentiment was echoed by Halima Nguyen ’18, who helped organize a panel co-sponsored by If/When/How. “It was a humbling experience to be surrounded by so many people who have done such awe-inspiring work, and to get the opportunity to learn from their experiences in the field. I left the conference with a renewed sense of purpose and passion for my advocacy work.”

The annual conference is sponsored by the Public Interest Law Association, Program in Law and Public Service, and Mortimer Caplin Public Service Center, with individual panels and workshops organized primarily by student groups. The conference is part of a broader move to increase investment in the public service community and opportunities available at the law school, with the goal of making UVa Law the nation’s premier destination for students interested in public service. 

“I was inspired and rejuvenated by the Shaping Justice Conference—from the energy and dedication of our students to the passionate and zealous advocacy of our panelists, alumni, and keynote speaker,” said Crystal Shin ’10, Assistant Professor of Law, Director of the Program in Law and Public Service, and one of the main organizers of the conference. “It is my hope that everyone who attended our conference was inspired and encouraged to continue to fight the good fight in order to advance justice for all.”

This year’s keynote speaker was Kristen Clarke, President and Executive Director of the National Lawyers’ Committee for Civil Rights Under Law, one of the nation’s oldest and most successful civil rights organizations. Clarke’s address highlighted the myriad challenges now facing civil rights advocates and the communities they serve, including a renewed assault on voting rights; a resurgence of white supremacist groups; crises of discrimination in the criminal justice system from policing to mass incarceration; and the current administration’s retreat from civil rights enforcement and pattern of appointing federal judges who are openly hostile to civil rights. Clarke described in detail some of the efforts of the Lawyers’ Committee and other groups to safeguard civil rights, and engaged attendees in thinking creatively about how to meet these challenges.

The conference also honored UVa Law alumni who have dedicated their careers to public service. Jeff Kerr ’87 was honored with the Shaping Justice Award for Extraordinary Achievement for his 25 years of service as General Counsel to People for the Ethical Treatment of Animals (PETA). Kerr described his passion for animal rights as stemming from the knowledge that non-human animals share many of the same experiences, feelings, and social behaviors as humans, and paired his promise to continue working for animal rights with a plea to treat non-human animals as we would want to be treated ourselves. 

This year’s Shaping Justice Rising Star Award was given to two outstanding recipients, Jeree Thomas ’11, Policy Director of the Campaign for Youth Justice, and Kim Rolla ’13, Housing Team Coordinator/Attorney at the Legal Aid Justice Center and a Lecturer at the Law School. Thomas brought the room to tears with a stirring acceptance speech in which she described her perspective on life as a daily gift in having the opportunity to serve others, and service to others as the ultimate expression of love. Rolla followed with her similarly inspiring frame of public service as a gift of personal growth—that you cannot do this work without being changed by it, and that by doing it honestly and consistent with our values, we become better people.

The complete conference program with panel and speaker details is available at pilaatuva.weebly.com/program.html

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rrs5sb@virginia.edu

Halfway There, Living on a Prayer: 2L Midway Toast

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

2Ls join Queen Goluboff for a memorable photo opportunity. Photo courtesy of Law Weekly.

On Wednesday evening, Dean Risa Golubuff gathered with the UVa Law Faculty to toast the Class of 2019 class for their past success and future accomplishments during the Midway Toast. After enjoying some light hors d’oerves, the champagne started flowing, and students began to mingle with professors and catch up with old section mates. For many, it was a chance to reconnect with old 1L small-section friends with whom they no longer shared an identical class schedule.

A few minutes into the function, the crowd went quiet as Dean Golubuff started a short speech. She told the crowd that she was delighted by the amount of people that came to celebrate the third annual Midway Toast before remarking on the importance of celebrating how far we’ve come. Since the beginning and end of law school are shrouded in customs and ceremony, she thought it was only fitting that we have a little ceremony celebrating ‘the middle.’ “Just think,” she reminded the class, “the time you’ve spent here is the same amount of time you have left.” 

Then, Dean Golubuff observed that 2L year seems to be a year where students were constantly “looking out[side]” the school. Between finding jobs and looking for clerkships, students don’t often get to spend time with their section mates from 1L and can feel isolated. She then reminded the 2L class how much they’ve grown since first arriving at law school barely more than a year and a half ago, recalling a 2L who recently admitted to her that they’d been surprised to find that law students really do learn to “think like a lawyer.” 

Dean Golubuff encouraged the 2Ls to take stock of how they feel they’ve developed. If you feel like you want to broaden your legal horizons, deepen your understanding of a specific type of law, or change entirely, then, according to the Dean, now is the time to make the change and to try new things. She thinks two years simply isn’t enough time to become a true lawyer. “This is what the outside world thinks a lawyer is,” she said, holding her hands about six inches apart. Spreading her arms wide she said, “This is what a lawyer actually is.” 

Ending with a short but generous charge from the Dean, the Class of 2019 toasted and cheered each other, taking quick sips from their champagne flutes. 

Overall, the 2Ls seemed to appreciate the opportunity to gather and take a short break from the brisk start of the new spring semester. Carly Crist, 2L, said, “It was nice to acknowledge the halfway point of our law school career.” Alicia Penn, 2L, agreed, “It’s flown by!” Professors were also buoyant following the mid-week celebration. Professor Kim Ferzan remarked that, “It’s so wonderful to get to celebrate the fact that my little 1Ls are now halfway through their law school career.” 

Other students focused on their future. Alison Malkowski, 2L, said, “Dean Goluboff told us to use this time to check out all of the places in Charlottesville that we’ve been meaning to get to for a year and half, and she’s right. Frankly, I would really like to go wherever they got the sauce for the chicken.” No matter what your focus, the future seems bright (and close) for UVa School of Law Class of 2019. 

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knh3zd@virginia.edu

The Kennedy Bust: What We Know

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

The beginning of this semester saw the conclusion of the law library’s most perplexing mystery: what happened to the Kennedy Bust? With the installation of a replacement, the alcove near the Gunner Pit once again has its intended centerpiece. Still, questions linger for the 3Ls and faculty who remember the original. In a series of interviews conducted over the last two weeks, the Law Weekly set out to answer them.

What bust, again?

No bust. Photo courtesy of Law Weekly.

Bust. Photo courtesy of Law Weekly.

For years the alcove to the right of the front entrance to the Caplin Reading Room has contained a small bronze bust of the late Sen. Robert F. Kennedy ‘51. The glass plate in the back of the alcove is etched with an excerpt from RFK’s celebrated “Ripple of Hope” speech, which he delivered to the National Union of South African Students in 1966. The original bust and its replacement are replicas of a statue of RFK made by sculptor Robert Berks, known for the monumental statue of John F. Kennedy that stands outside the Kennedy Center, the Albert Einstein Memorial at the National Academy of Sciences, and the Fred Rogers Memorial in Pittsburgh. Both statues were donated to the law school by Ethel S. Kennedy, RFK’s widow. Taylor Fitchett, who retired as director of the law library this past Wednesday, recalls that she was asked by then-Dean Robert E. Scott to find a suitable place in the library to display the statue as a new employee, some time around the year 2000.

What happened to the original?

By all indications, somebody stole it late on the night of March 27 or in the early morning of March 28, 2016. The administration did not announce the theft as such to the student body at that time; still, Assistant Dean for Building Services Gregory Streit tells the Law Weekly, the University filed a police report on the same day. Fmr. Director Fitchett gives the same account, expressing consternation that the thieves would go to the trouble of stealing a bronze that was literally nailed to its pedestal. Although the bust’s theft has been treated as established fact by the student body for nearly two years, this is, to the best of the Law Weekly’s knowledge, the first official confirmation that the University regards the statue as stolen.

Where did the replacement come from?

Joby Ryan ‘05 described procuring the replacement in an interview with the Law Weekly last week. According to Mr. Ryan, the process was instigated by Peter Vincent ‘95 who learned that the statue was missing this past spring and asked Mr. Ryan to investigate. Mr. Ryan set about trying to find the statue on the open market—entertaining the possibility that the thieves might still be trying to fence it. He also opened dialogues with alumni who might be interested in replacing the piece. 

The team working on the project ultimately included Mr. Ryan, Mr. Vincent, Director Fitchett, Greg Henning ‘05 Law School Foundation CEO Lou Alvarez, and Prof. Emeritus David A. Martin. Mr. Henning, in turn, reached out to one of his childhood friends, Rep. Joe Kennedy III. Ultimately, Ethel S. Kennedy and the Robert F. Kennedy Human Rights Foundation donated the replacement.

Says Mr. Ryan, “We’re grateful to Peter Vincent for pushing it along, and also to Greg Henning, Class of ‘05, for keeping it in the front of our mind. This was a team effort inspired by our alumni.”

How is the new bust different from the old one?

According to Director Fitchett, the replacement bust, contrary to some 3Ls’ perceptions, is slightly larger than the old one. It is displayed on a black stone base with a prominent chip in one corner—not a mistake, as it turns out, but a designed-in feature of that production run. In all other respects, it is identical. A pair of small plaques on its base provide more information on its provenance and donation.

That’s a pretty cool bust. Where can I get one?

Please don’t steal the Kennedy bust in the library. If you want your own, replicas of the bust can occasionally be found at auction. Purists, however, may wish to receive the bust as a gift from the RFK Foundation. This, too, is possible! Recipients of the Robert F. Kennedy Book Award receive the same bust as the one on display in the library, chipped pedestal and all, as well as a $2,500 cash prize. Interested parties can also apply for the Robert F. Kennedy Journalism Award, which carries a $1,000 prize, but does not come with the bust.

On an entirely unrelated note, the Law Weekly accepts student-written letters, articles, and columns on a weekly basis. Submissions are due by Sunday night each week for publication on Wednesday, and entitle writers to free pizza at that week’s meeting, held on Monday at 5 p.m. in the Law Weekly’s offices in Slaughter Hall 279. You can also join the paper as an editor and get free pizza every week in exchange for proofreading a few articles.

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gpr7qx@virginia.edu

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