Editor's Farewell

Jansen VanderMeulen ‘19
Editor-in-Chief Emeritus

It is now a year since I took over as editor-in-chief of the Virginia Law Weekly, and two-and-a-half years since I first straggled into the Law Weekly’s tucked-away office in Slaughter looking for free pizza. Like the remnants of a gallon of wholesome, two-percent milk approaching its eleventh day in the refrigerator, my time has come; this is my final edition as editor-in-chief.

I could wax poetic about the last three-ish years of newspaper editing. About long Monday nights spent with colored pens alongside good friends and sometime-nemeses (lookin’ at you, Anand). About returning the Law Weekly to some of its former glory with two ABA “Best Law School Newspaper” wins in a row. About covering endless talks and symposia and Law School events.

But to be honest, I was never really that into the Law Weekly for the whole journalist thing. Yes, despite what our critics say, the Law Weekly isn’t just goofy thumbs-ups and reviews of various C’ville high- (and low-) lights. In the last year or so alone, we’ve broken numerous important stories, from the Virginia Law Review’s new membership policy[1] to the Copy Center’s move away from free printing[2] and security flaws in the University’s new dual-authentication mechanism.[3] Our coverage of the events of August 2017 were reproduced by the National Lawyers Guild,[4] and our piece on Judge Amul Thapar’s visit to the Law School made it onto SCOTUSblog’s feature on Thapar’s jurisprudence.[5] These pieces and others helped secure our paper the aforementioned ABA awards.

But that’s not what kept me at the Law School until ungodly hours eating more Domino’s in two and a half years than any human should in a lifetime. I stayed for the Law Weekly’s documentation of life at the Law School. For pieces like the one that gave advice on how to survive bear encounters (“The Bear Necessities,” 9 Sept. 2017) and profiles on Law School badasses like Chinny Sharma ’19.[6] For origin stories, like the one about Professor Mitchell’s redhead obsession,[7] and final chapters, like our in memoriam for Professor and former Law Weekly EIC J. Gordon Hylton ’77, who passed away last spring.[8] The way I see it, people can get their news from anywhere. People don’t pick up the Law Weekly for our hot takes on current events or our news about Supreme Court opinions. The paper continues to grow and thrive because we offer something no one else can: stories about life at the Law School from the perspective of students.

And make no mistake: The Law Weekly is thriving. When I got to Charlottesville as a 1L, the paper was just beginning to recover from a low point in its history. Our predecessors in the mid-teens had run the paper into the ground with juvenile garbage. Pot shots, mean jokes, even gross racial stuff. A look at the Law Weekly’s 2013 or 2014 pages is a look at a dying newspaper sadly fallen from its glory days. The editor-in-chief when I was a 1L was Alex Haden ’17, who had joined during what he called “the bad years.” Under the leadership of Alex and then Jenna Goldman ’18, the Law Weekly turned around. Professors emailed me telling me the paper had “come a long way.” Faculty members who had hated the paper’s mean streak and disliked the paper generally started contributing to its pages. One night, I stopped to talk to Frank, the nighttime security guard, and told him I was with the paper. “It’s gotten a lot better these last few years,” he told me. “Way more thumbs ups, not so many thumbs downs.” Our improvement showed: After years in the wilderness, the Law Weekly has won the ABA’s Best Law School Newspaper award each of the last two years.

I could go on about increased circulation and growing classes of 1Ls on the paper’s staff, but you get the point. To all of you loyal readers, thank you for picking the paper up off the stands and for telling me you’re not sure if ANG is a man or a woman. To Professor Doran, sorry for putting your quotes in the Faculty Quotes section even though you told me not to, and p.s. it’s pronounced “broach.” I am glad to say that as the Law Weekly begins its seventy-second year, the paper is as strong as ever and poised to continue to provide readers with the things they love about it—yes, even you, people who complain when we replace the sudoku with a cool crossword. I’m proud to have been a part of this fine old Law School tradition, and it is with confidence that I hand off the reins to a new group of leaders.

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jmv5af@virginia.edu

[1] https://www.lawweekly.org/front-page/2018/11/28/law-review-to-vote-friday-on-selection-overhaul.

[2] https://www.lawweekly.org/col/2018/11/14/changes-coming-to-printing-policy-the-law-weekly-investigates.

[3] https://www.lawweekly.org/features/2018/3/28/do-the-login-two-step-but-read-the-fine-print.

[4] https://www.nlg.org/guild-notes/article/a-view-from-august-12th-legal-observers-in-charlottesville/.

[5] https://www.scotusblog.com/2018/07/potential-nominee-profile-amul-thapar/.

[6] https://www.lawweekly.org/features/2019/2/1/hot-bench-chinny-sharma-19.

[7] https://www.lawweekly.org/features/2018/9/11/lunch-with-professor-mitchell-it-all-started-with-a-redhead.

[8] https://www.lawweekly.org/features/2018/5/2/in-memoriam-an-interview-with-professor-j-gordon-hylton.

Ballers at Barristers: Three Perspectives on the Night

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Daniel Grill ‘19
Staff Editor

As a 3L, I was very excited for my last Barrister’s Ball. Previous Barrister’s Balls were very fun, but each had their own shortcomings from the line at the bar to the music. This year’s event included key improvements that contributed to a fun night for all.

              Upon entering the event, I was hounded by the Law Weekly paparazzi (S/O Kolleen/Pittsburg State Gorillaz). While I was not prepared to answer “who I was wearing,” the makeshift light stand and backdrop created the red-carpet environment Barrister’s has needed. The pictures turned out very nice and were a fun way to remember a great night.

Daniel Natal ’19, Gabriela Wolk ‘19, Maggie Echols ’19, and Alyssa Daniels ‘19 pose for the Law Weekly’s camera with their very cool props. Photo Credit Koleen Gladden ‘21.

              As I proceeded into the main room, I was surprised to see long lines at each of the bars. In light of President Fuqua’s day-before email, I expected short lines. Luckily, the lines moved very quickly and my flashbacks to the lines at last year’s Barrister’s subsided. This was a major improvement from last year when I felt like I was waiting in line for much of the night. The lines may have moved faster because of the separate water and soda-only stations.

              With a corn-syrup-free Bud Light in hand, I decided to explore the food options in the back corner of the venue. Expecting the chicken tenders and sliders of years’ past, I was disappointed with the food options. The first hour of Barrister’s was limited to tortilla chips with salsa and queso, which were not particularly good. I even overheard one 3L, who asked to remain anonymous, say, “This queso is hot trash. We have far better queso where I grew up in Houston. This is nothing compared to the queso in Nashville, where I attended college. I bet I can make better queso at my home on Alderman Road.” Needless to say, the chips, salsa, and queso did not meet expectations. At around 10:30, pizza was served. They served plain, pepperoni, and vegetable pizza. For journalistic purposes, I tried all three and none were very good. I would have preferred pizza from Christian’s or any other local establishment. The food was certainly the low point of the evening.

              Food and drink aside, the music and dancing are undoubtedly the most important part of Barrister’s. Throughout the night, the DJ played great music and it seemed like everyone was enjoying themselves. The dance floor was packed for the majority of the night, which is the true mark of a great Barrister’s.

              As Barrister’s wound down, the Gunners ‘n Roses after-party was just beginning at Rapture. Typical of Gunners ‘n Roses concerts, an eager crowd quickly filled the bar. The band matched the crowd’s energy with a brand-new set list including crowd favorites like Tongue Tied and The Middle ft. Chris Martin ’19. GNR truly brought the heat on Saturday night and set the tone for another semester of great performances.

              In conclusion, Barrister’s was an excellent event. While the food was limited, the lines at the bar were far shorter than last year and the music at the Omni and Rapture was great. It was clear that SBA improved upon the issues we experienced last year.

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Taylor Elicegui ‘20
Features Editor

This year’s James Bond-themed Barrister’s Ball was a smashing success. In keeping with the theme, red, black and metallic long dresses appeared to be the most popular fashion choices of the night. The music choices were great and the dance floor overflowing. Who knew law students could get down so well, particularly to the YMCA?[1] I did see a few too many dance floor makeouts, though—we don’t party in the basement of fraternities anymore, people, and it is officially time to leave the DFMO where it rightfully belongs (with the undergrads). The Law Weekly photo booth was a nice touch and the line wasn’t too long (at least when I was there). Shout out to Kolleen Gladden for her fantastic photography skills. And it was quite exciting when my pictures arrived so quickly.

            The food and drinks were good and plentiful. I heard a lot of rave reviews about the pizza and nachos, and the different table options were a nice touch (both high tops and regular seating). The high tops made a particularly good place to hide your high heels when your feet started to hurt too much, not that I’m speaking from personal experience here. Obviously, the bar lines were a little too long, but I’m not sure that is a problem that can ever be solved without raising the ticket prices to absurd levels.

Eric Hall ‘18, former production editor of the Virginia Law Weekly, with the amazing and incomparable Trina Rizzo ‘19. Photo Credit Koleen Gladden ‘21

            As a dedicated GNR groupie, I left the Omni on the earlier side to migrate to Rapture, so I got in without any problem. I did hear grumblings about people not being able to get in later, which is unfortunate, but I believe these ever-resourceful students found their way to another bar without too much trouble. GNR crushed the show and lead singer Trina Rizzo gave a great performance. I particularly liked the addition of “Shout” to the set. I love any excuse to kick my feet and dance like a fool. Unfortunately, I missed my favorite, “Toxic,” fighting to get to the bar, which was a struggle all night, but I heard it was great.

            All in all, 2L Barrister’s was a blast. SBA did a great job organizing and seeing people all dressed up is always fun. I love getting to see friends I don’t see every day, and it’s always nice to have an excuse to buy a new dress. I can’t wait for next year!

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[1] At least, UVA Law students can tear up the dance floor. I can’t speak for any of our peer institutions, but I would imagine they are not ~quite~ as fun.

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Jacob Jones ‘21
Events Editor

Last semester at PILA, I said to my wise PA that the event felt surprisingly like prom. She replied, “Oh no there’s an actual law school prom in the spring. We call it Barrister’s Ball.” Not knowing what a barrister is or what he does with balls, I played it cool and pretended to know what those words meant just like I always do when encountering other made up law school words. And so, I waited, dreaming about a barrister who was some kind of law school Santa/genie who would give me a clue about fee simples.

I needed to do everything I could to prepare so I didn’t mess things up like my real prom. It’s been awhile since I had done this, so I had to refresh myself on the basics. I watched the SpongeBob episode where he takes Pearl to prom, but that didn’t help too much.  WikiHow gave me some underwhelming advice, including “Make sure your cell phone is fully charged” and “Enjoy your prom!” One wikiHow article had a picture of wine with a crossed-out circle over someone drinking wine, and so I decided the internet was an unreliable source of information for this task.[1] With my go-to sources of advice exhausted, I decided I was going to have to wing it.

First, I needed a date. I don’t remember where I left the megaphone that I used to ask my high school date to prom with, so this time I settled for a simple unilateral contract. Next, I needed to scrounge up $50 for a ticket.[2] Girl Scout cookies were off the table this time around, so I sold some of my highlighter collection and traded up from there.  Then, I needed a pre-prom gathering. My section had a vote on whether to buy Raising Cane’s and pregame with ourselves or mix with a different section, and naturally we went with the chicken. Finally, I needed a limo to show up in style. That was out of the budget, but our Uber driver, Sharadkumar, had a 4.97 rating and offered mints, so I’ll let you be the judge of whether a limo would have been better.[3]

We stepped out of our Uber, and I expected to be greeted by the Barrister. Unfortunately, I saw no one dressed in red, handing out presents, or looking like they came of the 19th century English legal system. I didn’t even see any balls. The man at the coat check seemed confused when I asked. Being an easily deterred person, I abandoned my search for the Barrister and decided to search for a deeper meaning to the night.

So, we stepped onto the dance floor to make the most of the night. I realized that the 3Ls had nothing to lose at this point in their law school experience, and my fellow 1Ls were a bit too comfortable around each other by this point, leading to a lot of DFMOs.[4] Social norms were abandoned in favor of recklessness, and I was a fan.

They say that this is law school prom, but really it was a timeless event. The songs were most of the ones I have been hearing since middle school activity centers,[5] while the open bar reminded me that, shockingly, we’re old enough to be trusted with drinking responsibly. I was having these deep thoughts when someone pointed out there was toilet paper stuck to my shoe. It was actually a napkin, but the damage to my ego was done, and my dance moves were much less wild for the rest of the night.

The legendary Jacob Jones ‘21 strikes a pose with Meg McKinley ’21 at the Barrister’s Ball. Their love was blinding. Photo Credit Koleen Gladden ‘21.

The theme of the night was 007, I think. The photo booth props were my biggest clue and maybe the only one.[6] Students seemed to have a lot of fun. Eliza Schultz ’21 said that “it was like the bat mitzvah I wish I’d had,” despite her bartender not knowing what a seltzer was. There were no tables where you could bid $50 to hang with someone else’s dog like you could at PILA so that was a bummer. This was somewhat counterbalanced by seeing law boyz dress up in silly tuxedos.

We were then uplifted to Rapture, where Gunners n’ Roses was doing their first performance of their Farewell Tour. Despite being packed in like sardines in a barrel, law students seemed to have plenty of fun. The band also played some of the songs I loved in middle school, and still do, but this time it was way better.

The next morning I woke and I realized that for one magical night, we had all forgotten about all the stresses of law school for a night. Through friendship, we had transcended themes, legal concepts, and time to let loose on the dance floor and beyond. And maybe that’s what a Barrister is. Friendship.[7]

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[1] There are 40 results when you search wikiHow for prom. There are dozens of wikiHow articles about prom. My theory is that a middle-aged woman in the Midwest named Betty has written all of them, and her husband, Bill, edits.

[2] Many people have remarked about the high price, especially in comparison to PILA. I talked to an inside source on SBA, and while I don’t remember exactly what he said it made me feel better about paying that much.

[3] But if you judge against Sharadkumar you are WRONG.

[4] I recently learned this means “Dance Floor Make-Out” and I’m excited to use this hip new lingo.

[5] In retrospect, it was weird they were playing “Get Low” and “Hot in Herre” at dances back then. We were like 12.

[6] Many thanks to Kolleen Gladden ’21 for running this!

[7] Still no clue what the ball is though.

The Shape of Justice: Krasner Keynotes PILA, LPS Event

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Michael Schmid ‘21
Staff Editor

The third annual Shaping Justice conference took place February 8 and 9 at the Law School, featuring a variety of panel discussions, workshops, and a keynote address by Larry Krasner, District Attorney for the City of Philadelphia. The event was sponsored by the Public Interest Law Association, the Program in Law and Public Service, and the Mortimer Caplin Public Service Center. Panel topics included gun violence, alternatives to incarceration, the affordable housing crisis, and the opioid epidemic.

Philadelphia DA Larry Krasner keynotes the Shaping Justice Conference. Photo courtesy Rachel Davidson Raycraft.

The opioid epidemic was a focal point of Krasner’s opening remarks. Addressing the tsunami of prescription and illicit opioids that has flooded Philadelphia just as it has regions around the country, Krasner argued that the choices law enforcement officials face in combatting that issue are indicative of the overarching issue facing the criminal justice system today. Krasner shuns what he calls “antiquated notions of right and wrong” with its focus on retribution, harsh penalties, and hyper-criminalization, in favor of a “harm reduction” approach focusing on public health and prevention. When localities fail to treat the opioid epidemic as a public health issue, Krasner argues, it leads people to hide their disease, which results in people “dying from stigma.” Krasner sees the harm-reduction model as the solution to the opioid crisis, as well as a variety of other criminal justice issues, pointing to the success Vancouver, British Columbia has had with their supervised injection sites in drastically reducing the incidences of overdoses and opioid-related fatalities.

Unabashed in his outsider approach to prosecution, Krasner also appreciates the role of pragmatism in effecting change. Reflecting that sometimes people have to put themselves in situations that might make them uncomfortable in order to achieve the policy goals they desire, Krasner stated, “Virtue is nice. Victory is even better.” Krasner pulled no punches in criticizing some elected officials who he believes have neglected the issue of criminal justice reform over the years. “The civil rights issue of our day is criminal justice reform,” he remarked. “Our resources have been hijacked by politicians who have built prisons to get votes.” He believes that voters’ dissatisfaction with past approaches partially fueled his victory and the election of other “progressive prosecutors” across the country. When change is not occurring on the national or state level, Krasner argues that through “progressive federalism” municipalities can be a source of sensible solutions to criminal justice and public health concerns.

Known for his fiery and iconoclastic rhetoric, Krasner has courted criticism by some for his approach to his role as district attorney. However, a little over a year after taking office, Krasner listed a few of what he sees as some of his biggest accomplishments. In part because of his decision to decline to recommend cash bail for twenty-five offenses his office has labeled as innocuous and non-dangerous, Krasner pointed to the significant decrease in incarcerated individuals in Philadelphia: down from 6,500 to 4,700. Crime has remained flat, while violent crime has decreased during Krasner’s tenure, despite opponents’ charges that his policies would have the opposite effect. When reflecting on how some of his detractors might respond to the downward trend in crime in the city, Krasner quipped, “They’re opposed to crime, but they’re very much opposed to me.”

In the Alternatives to Incarceration panel, Angel Harris, Assistant Counsel for the NAACP Legal Defense and Education Fund, emphasized the importance of “directly impacted individuals” having a voice in addressing criminal justice issues. The intersection of mental health and the criminal justice system was topic addressed in-depth during the panel session. Judge Robert H. Downer ’76 of Charlottesville’s general district court noted the successes of the “therapeutic docket” in Charlottesville, a targeted and individualized program which seeks to divert those with mental health issues from incarceration and into treatment programs. “We harm people a great deal when we incarcerate people with mental health issues,” the judge remarked. He also commented that integrating and welcoming formerly incarcerated individuals back into society and giving people a chance at a fresh start is critical to keeping people out of the criminal justice system and reducing recidivism rates. “How we treat those who are released [from prison] is important,” said Judge Downer. This was echoed by Herb Dickerson, outreach coordinator and shift supervisor at The Haven, who said that the criminal justice system should do a better job of dealing with the underlying issues that lead people into crime in the first place. Dickerson hopes that those involved in the criminal justice system “deal with the individual and not the stigma.”

The next morning, students, faculty, and community members packed WB 101 for the Confronting Racism panel, sponsored by the Minority Rights Coalition and the Black Law Students Association. Meredith Horton ’07, Associate Legal Director for the Southern Poverty Law Center, spoke about her work challenging felon disenfranchisement laws through impact litigation. For example, in Mississippi, felons are banned from voting for life. The only ways for a released felon to have their voting rights restored are through (1) a gubernatorial pardon, (2) an executive order, or (3) a state legislator personally sponsoring the person who has completed his felony sentence and submitting legislation to restore his voting rights. This bill must pass with a two-thirds vote and be signed by the governor. Unsurprisingly, said Horton, very few people are successful with this laborious process. Michael Herring ’90, the Commonwealth’s Attorney for Richmond, noted that while most criminal defendants he sees in the courtroom are people of color, the judges, prosecutors, police officers, and defense attorneys are disproportionately white. This imbalance can lead to prosecutors having a skewed perspective on the criminally accused they see in court on their worst day and in their worst form.

Following the last panel session, attendees could choose from a trio of concurrent workshops, titled: Trauma-Informed Care, Strategies for Nonprofit Litigation, and Tools for Legislative Advocacy. The conference concluded with an award ceremony honoring Chinh Q. Le ’00 and Julia Pierce ’98 with the Shaping Justice Awards for Extraordinary Achievement and Michelle Harrison ’12 with the Shaping Justice Rising Star award.

During his keynote address, Krasner said he appreciated the real change to the criminal justice system that is happening in Philadelphia and across the country, but noted how much more work he feels is still left. He urged others to get involved, calling on those in attendance to “be part of history.” As Dean Goluboff noted in her introduction of Krasner, “It is not automatic that change happens. The arc of justice does not bend without people who bend it.”

Judge Reeves Headlines Sexual Harassment Panel

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Lena Welch ‘20
New Media Editor

Judge Pamela Reeves of the U.S. District Court for the Eastern District of Tennessee discussed the development of sexual harassment law Friday at the Law School in an event sponsored by ACS, DVP, VELLA, and VLW. Judge Reeves chronicled her career and how her early foray into sexual harassment law guided her professional development.

“I was excited to invite Judge Reeves to speak because her career is one of firsts, both for her as a female judge in the Eastern District of Tennessee and being on the frontier of sexual harassment law,” ACS Secretary Anna Rennich ’20 said. “I knew that it would be interesting to students both from an employment law perspective, but also as sort of an inspirational story for those of us interested in working on either side of tough issues.”

Judge Reeves did not set out to be a pioneer in sexual harassment law; rather, as Professor Anne Coughlin stated in her introduction, “Those were the problems that needed to be solved.”

As a young lawyer, Judge Reeves had never even heard of sexual harassment.

“I had just taken the bar exam, I had just taken Employment Discrimination Law in my 3L year, and I had no earthly clue what sexual harassment was,” Judge Reeves said.

When she began researching the topic, just two or three cases allowed women to proceed on the theory of sexual harassment. There were no federal court of appeals cases, and it was years before the Supreme Court addressed sexual harassment. But she also quickly learned that companies did not want to be the test case for what they believed to be “boys being boys.”

One of her earliest cases was against the TVA, a political powerhouse and major employer in Knoxville. She came to a resolution that satisfied her clients, and because it kept the allegations from becoming public knowledge TVA was happy. TVA agreed to adopt new policies and procedures as well as training.

“You can make a lot of money off of guys because sometimes, no offense, you guys, they do really dumb things,” Reeves told the group.

So, Judge Reeves set out to become the “sex expert” in Knoxville. But, in sexual harassment cases, it is sometimes hard to know who is telling the truth. Sexual harassment cases typically do not happen out in the open with witnesses.

“People don’t, as a rule, harass strong, confident women. They look for the people who are vulnerable. They look for the people who are not going to push back. And they look for the people who need that job . . . . They know how to manipulate the system.”

After a while, Judge Reeves was not only hired by plaintiffs but by employers. She was able to learn a lot through her opportunities to look at sexual harassment claims from both perspectives. Employers were interested in trainings to help prevent sexual harassment from happening. When Judge Reeves first began training employers, she used faxes and emails. Now, texts and Snapchat screenshots are the exhibits of sexual harassment, she noted.

One of Judge Reeves’s key takeaways from her career is that there is always job security in this area of the law because “humans function as a result of hormones as opposed to common sense.”

Judge Reeves even shared a few “war stories.” In 1987, she began working for the Tennessee Municipal League, traveling across the state to provide defense to small governmental entities and officials.

“You have never seen stupid until you start to represent elected officials in small towns all over the state of Tennessee,” Reeves chuckled.

During her time at TML, Judge Reeves expanded her duties to filing responses to EEOC complaints to avoid the mistakes or inaccurate statements that would cause trouble when TML came in at the trial stage. She also convinced TML to allow her to write amicus briefs as the case law was developing in Tennessee.

Her duties at TML also changed as the league adopted mediation because it was an inexpensive way to resolve cases. Judge Reeves utilized her federal court experience, contacts across the state, as well as her experience as a woman—most victims are female—to develop a huge mediation practice across the state. Mediation provided a good alternative for cases that people did not want to go to trial, whether because of a police chief who could not watch his mouth or because of a big company that didn’t want to risk bad outcomes.

Between 2002 and when she was appointed to the bench in 2014, Judge Reeves also served as an independent investigator. She even pointed out the benefits of the “dumbass defense.”

Judge Reeves shared a story about one of the first cases she worked on after graduating law school. It was a sexual discrimination case that she co-counseled with her first husband. During the closing argument, Judge Robert Love Taylor balked at the idea that Judge Reeves chose not to take her husband’s last name.

“So, I remain convinced that the day Judge Taylor found out that I was replacing his seat ultimately on the bench that he was probably just rolling over and over in his grave.”

Judge Reeves noted that this is an area of the law that is still developing, both in terms of retaliation claims or protecting LGBT folks. She also commented on the interesting developments happening within the judiciary to protect law clerks and clarify their obligations under ethics rules, as well as the importance of educating judges about sexual harassment.

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lw8vd@virginia.edu

Vice-Chancellor Laster '95 Tells VLBR What's Next in Corporate Law

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M. Eleanor Schmalzl ‘20
Executive Editor

Last Friday, John W. Glynn and the Virginia Law Business Program co-hosted A View From the Boardroom: Directors in an Era of Activism. The event included a variety of panelists and, as the keynote speaker, Delaware Chancery Court Vice Chancellor J. Travis Laster ’95. Speakers throughout the day discussed a variety of hot-button corporate legal matters, including issues around activist investors, what it means to maximize value while serving as a member on a corporate board, and topics surrounding diversity in the boardroom.

            The day kicked off with an all-female panel that discussed the question of how to improve diversity on corporate boards. Mary Margaret Frank, a professor of business administration at Darden, discussed the pitfalls of regulations mandating a certain number of women on corporate boards. Frank emphasized the importance of seeking quality over quantity and her optimism that, by letting market forces work, companies will realize the value of board diversity and suffer adverse consequences if they do not move with the tide. Gloria Larson ’77, President in Residence at the Harvard Graduate School of Education, agreed with Frank and discussed how important male allies are. And our own Michal Barzuza of UVA Law echoed Frank and Larson on how critical it is to expand the search when seeking new board directors. Without a thorough search, the best female candidates can go unnoticed.

            Panelists during the rest of the day discussed the continued growth of activist investors, individual people or firms that acquire large shares of stock in a company to try and influence who sits on the board and what company decisions look like. While panelists thought some players in the investing sector played bigger roles than others and had differing ideas on what activism would look like in the future, most agreed that activism is here to stay. As we continue to see growth in activist investing and outsiders work to gain control over board seats, the role of those on the board to maximize value becomes increasingly complex. Laster discussed the role boards should play in maximizing company value, even if that means merging the company or otherwise ending its corporate life.

            Laster, who graduated first in his UVA Law class before clerking, starting his own law firm, and beginning his service on the Delaware Court of Chancery, spoke to students to discuss the key fundamentals behind corporate law and boards of directors. He centered in on key questions such as to whom board members owe fiduciary duties, what those duties are, and what happens when these duties are breached. Laster discussed the differing standards of review on the Court of Chancery and how critical these standards are in making decisions. In closing, Laster encouraged students to apply for clerkships and to not overlook how valuable clerking at the state level can be.

            After spending last semester in Corporations with Professor Curtis, I thought Laster did an excellent job summarizing the key doctrines of corporate law and describing what big issues remain relevant. Most compelling to me was his discussion on what it means to maximize shareholder value. He stressed the importance of remembering that, in aiming to maximize shareholder value, board members shouldn’t necessarily be doing whatever is in their power to keep the company alive as its own entity. Sometimes the best move is to pursue a merger, allow a takeover, or otherwise terminate the corporation for the sake of creating the most value for investors. Laster cited movie rental companies as an example of this important point; these businesses faced an increasingly uphill battle in maintaining value for stakeholders and some, instead of trying to stay relevant, looked for ways to maximize value beyond remaining a corporate entity. Laster emphasized the importance of strategy in the boardroom and left the audience with a lot of great takeaways.

            Several students attended all the panels and discussions held in Caplin Pavilion, excited to learn more about what key issues were dominating the corporate legal profession. Read Mills ’20, said, “The keynote address was fantastic. Vice Chancellor Laster provided valuable insight into how courts view and assess a corporation’s fiduciary duties to activist shareholders. I was really interested to hear his perspective on why Delaware’s standard of conduct and standard of review work together to give corporations flexibility and promote efficiency.” Sydney Mark ’20 also found the event to be a great learning experience. Mark told the Law Weekly, “I thought Professor Curtis did a great job of getting a variety of opinions and thought it was a well-done event. Everyone should be required to listen to the first panel because they were amazing and [the panel] is totally applicable beyond the boardroom.”

Mark and Mills, along with several others, really enjoyed the day spent learning about the big issues that they and their colleagues could be directly addressing in their future legal careers. As these issues continue to evolve, it is important to continue to be engaged in the conversation. Events like this help students take control of their learning and hit the ground running when they enter the legal profession after law school.

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mes5hf@virginia.edu

2Ls Toast a Job (Halfway) Well Done

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Jamie Butkus ‘20
Staff Editor

Last Wednesday evening, the UVA Law Class of 2020 celebrated the halfway point of law school with a “Midway Toast” in Caplin Pavilion. And like most law school events serving complimentary food and alcohol, there was strong turnout. A handful of professors and other Law School faculty stopped by, along with Dean Risa Goluboff, who gave the event’s keynote.

The Class of 2020 throngs Caplin Pavilion on Wednesday. Photo Kolleen Gladden ‘21/Virginia Law Weekly

After everyone settled in, Dean Goluboff spoke about the significance of the Class of 2020 being halfway done with law school. Dean Goluboff encouraged the 2L class to reflect on how much we have learned these past eighteen months, both inside the classroom and through legal internships. 

Dean Goluboff also discussed how a solid legal education comes from three sources: traditional doctrinal classes, practical experience, and studying topics outside of one’s usual interests. The Dean stressed this third point: that engaging in a variety of classes and experiences makes for a well-rounded attorney. Dean Goluboff maintained that lawyers need to be flexible in their approach to the law and avoid specializing too quickly, since attorneys often shift the focus of their practice at some point in their careers. Accordingly, she encouraged the Class of 2020 to get out of our comfort zones the next three semesters, both academically and experientially.

A few 2Ls weighed in on their feelings after the Midway Toast. Lena Welch ’20 told the Law Weekly, “The next morning, I saw a fellow 2L who told me he did not attend the toast. He also expressed his thoughts that law school should only be two years. In response, I shook my head, explaining to him ‘Dean Goluboff said she hoped no one would ever say that.’ And I agree––if it were only two years, I wouldn’t have time to attend the Lego Movie 2[1] with my sectionmates after chatting with them at the toast!” Taylor Elicegui ’20 further remarked on the toast, “The 2L Toast was a lovely event. Dean Goluboff’s speech inspired me to think about all that I’ve learned and set some goals for the next year and a half. It was also great to get so many of my section mates all together in one place.”

As I reflect on my first three semesters at UVA Law, I realize that my experience has far exceeded what I expected when I moved to Charlottesville eighteen months ago. This isn’t to say that the road to this point has been easy. In the words of one of my friends during the Fall of 1L, looking up at me from his laptop while typing an LRW assignment the night before it was due: “Law school is hard.”

Orientation. The first cold call. Noticing that your classmates are way smarter than you. Keeping up with readings. The Civ Pro review session where you realize you know nothing. Finals. Applying to jobs. Journal tryouts. Cramming. Finals. Summer jobs. OGI. Lacking motivation after OGI. Not really doing the readings. Cramming again. Finals again. Rinse, Repeat.

And no, you shouldn’t make comparisons between the Law School and Disneyland. That is some Mickey Mouse heresy right there.

Still, I think that most of us have enjoyed our first eighteen months at UVA Law so far. As I flew back to Charlottesville a few weeks ago, I found that I had missed this place and I was looking forward to seeing friends and catching up with classmates again.

I feel incredibly grateful and privileged to attend this institution, and I think most of us feel the same way.

Cheers to that. Halfway done.

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jab9ed@virginia.edu

[1] Editor’s note: this is the fourth Lego Movie to be released since the series began.

Law at the Cutting Edge

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Grace Tang ‘21
Staff Editor

Conor J. Hargen ‘20
Guest Contributor

Anyone on North Grounds last Friday would have seen a plethora of signs for the Digital Democracy Symposium. They also probably would've noticed traffic worse than normal. That’s because Friday, January 25 was a busy day for the Law School, even by the standard of busy days for the Law School.

Panelists address the LIST Conference on Friday. Photo courtesy Grace Tang ‘21.

The Law Innovation Security and Technology organization (LIST) was at it again, hosting the Digital Democracy Symposium in coordination with the Center for Democracy & Technology, co-sponsored by the American Constitution Society for Law and Policy, the Black Law Students Association, the Center for National Security Law, the Federalist Society, the J.B. Moore Society for International Law, the Minority Rights Coalition, and, last but not least, the Virginia Law Review. The symposium consisted of four panels, an introduction by Dean Goluboff, and a keynote address by Yale Law Professor Jack Balkin. Yes, Friday, January 25 was a busy day indeed.

The goal of this massive undertaking was to examine how technology is threatening democratic institutions and how governments across the globe can respond. LIST Co-Founder and VLR Online Development Editor Chinmayi (“Chinny”) Sharma (’19) wanted to demonstrate that “technology is not some niche subject matter for fringe academics but rather the connective tissue for all areas of the law.” Panels comprising industry leaders tackled the biggest issues of the day, from trustbusting tech giants like Facebook and Amazon to examining the racial biases in cybersecurity.

Trustbusting in the Internet Age

After Dean Goluboff kicked off the day’s events, Professor Thomas Nachbar moderated the first panel examining “Trustbusting in the Internet Age.” The goal of the discussion was to analyze antitrust law in the digital age and whether government should do more to break up big tech companies’ market power. With the success of private sector growth, functional overlaps now exist in services provided by FAANG companies. It has become impractical to place innovative technology into clear silos, making it more difficult to apply traditional antitrust regulations.

Merritt Baer, Principal Security Architect for Global Accounts at Amazon Web services; Bebette Boliek, Professor of Law at Pepperdine; Rafi Martina ’10, Senior Policy Advisor to U.S. Senator Mark Warner (D-Va.); and Chris Riley, Director of Public Policy at Mozilla, engaged in a lively discussion addressing these issues. The panel highlighted gaps in current antitrust laws such as lack of precedent, blurred lines for smaller instances of harm, and the need for antitrust to adapt to better technology ecosystems.

“I thought the Digital Democracy event was timely. ‘Big Tech’ controversies have been omnipresent in the news, and I was really glad that LIST put on an event with leading experts from the industry, government, and media to discuss these issues” said Arjun Ogale ’21. “I particularly enjoyed the ‘Trustbusting’ segment, which focused on how the FTC and antitrust regulators could both level the playing field among competitors and protect consumers at the same time.” Matthew Hoake ’21 agreed. “My favorite panel discussion was ‘Trustbusting in the Internet Age.’ It was great to hear competing arguments for whether or not to use current antitrust authority from those who thought more regulations were appropriate.”

Balkin Keynote

Vice Dean Leslie Kendrick ’06 warmly introduced keynote speaker Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is also the founder and director of Yale’s Information Society Project, which studies law and new information technologies. “Balkin is an incredible scholar,” said Dean Kendrick, “and he has written on a wide variety of issues.”

In his address, Balkin discussed the rise of social media and its effects on free speech, as well as new issues in the age of digital infrastructure. Balkin’s speech was both informative and relevant to what we as consumers see on our social media feeds every day. He stressed three key concepts, “freedom of speech is triangular, freedom of speech is not free, and social media rests on business models.”

In light of the challenges facing free speech on social media, and considering biases such as advertising and other monetary incentives, Balkin suggested using information fiduciaries to reduce conflicts of interest. Similar to using a fiduciary in a business to maintain good faith and trust, an information fiduciary could be used for social media.

“I thought Jack Balkin’s keynote provided some insightful thoughts on our world’s current concerns with cyberspace. Most importantly, I appreciated his analysis of how the current tech giants, Facebook and Google for example, sustain themselves and make profits through gaining a large share of the advertising market, which makes it harder for other forms of media to survive,” said Hoake.

Author Panel

Next up was a panel of authors recently published in the Virginia Law Review. They discussed the potential for new technologies to effect existing government functions, from fake news to DUI smartphone apps. Jacob Ruby ’19 and Michael Weisbuch ’19 moderated.

Adam Gershowitz ’01, Associate Dean and Professor at William & Mary Law School, shared his research into technological changes in the criminal justice system. He examined everything from advancements in police investigation technologies to an iPhone app created by private DUI attorneys that helps users calculate their BAC and know what to say if they’re pulled over for driving drunk.

Sarah Haan, professor at Washington & Lee School of Law, discussed the impact that social media has on political awareness and its toxic effect on fact-based reasoning. Haan’s research also examined tech companies’ responses, including Facebook’s efforts to combat fake news after the 2016 presidential election. These topics are discussed at greater length in her forthcoming Indiana Law Journal article: “Post-Truth First Amendment.”

Katelyn Ringrose, a 3L at Notre Dame Law School, discussed her recent note in the Virginia Law Review. She examined the history of data gathering in law enforcement, from mugshots to DNA forensics, and shared the alarming statistic that 50 percent of all Americans have their personal information stored in a law-enforcement database in some capacity. Ringrose also discussed modern controversies in police technologies such as the use of body-worn cameras by police officers and the murky regulations governing their use.

Jacob Rush ’20 addressed issues of election security from his VLR article. In his presentation, Rush called attention to the fact that election vulnerability is no new issue, and controversies surrounding the 2016 presidential election simply “jolted everyone from their slumber.” Rush further argued that the privatization of election systems presents fundamental risks to election credibility and safety, pointing out that allowing for-profit companies to handle government elections is “nonsense on stilts.”

Does Big Brother See Color

Jay Stanley of the ACLU moderated the third panel of the day, which addressed the potential for technology to reinforce prejudice. Brandi Collins, Senior Campaign Director at Color of Change; Natasha Duarte, Policy Analyst at the Center for Democracy and Technology; Margaret Hu, Associate Professor at Washington & Lee School of Law; Jeramie Scott of the Electronic Privacy Information Center; and Andrew Selbst, visiting fellow at Yale Law School, all spoke on issues of race and technology.

“One of my main takeaways was technology’s impact on the scope of the issues we face today.” said Joy Wang ’21. “Rather than individual interactions that result from racial bias in profiling, algorithms are applying flawed profiling to almost anyone plugged into tech. Another important point from the panelists is that the notion of technology as an instrument of objectivity is in fact a myth. Codes are written by people, who will inevitably inject some of their own biases into the program.”

Information Industrial Complex

The last panel, titled “Information Industrial Complex,” discussed the need for government–private sector cooperation to solve national security problems, including problems created by the private sector. Ellen Nakashima, National Security Reporter for the Washington Post, moderated an engaging discussion between Cliff Chen, Assistant General Counsel at the CIA; Matt Olsen, Chief Trust and Security Officer at Uber; Peter Swire, Professor of Law and Ethics at Georgia Tech; and Ben Wittes, Editor-in-Chief of Lawfare, who skyped in on the big screen.

There was some lively banter between the panelists, who knew a great deal about the subject as many had worked on the public and private sides of this issue. As private companies become increasingly global, retrieving data from other countries for national security purposes becomes more difficult, as does doing business in other countries where data-collection regulations are still unclear. Forcing private companies to cooperate in data sharing is still an open question as well, although all panelists agreed that “the relationship between the government and private sector is imperative.”

Speaking events ended with closing remarks from Greg Nojeim ’85, Senior Counsel and Director at the Center for Democracy and Technology (CDT), with a reception to bring the busy day to an end. 

Going Forward

 When asked about the desired impact of Friday’s many events, LIST President Jeremy Gordon ’20) said: “The Law School has a critical role to play as a home of extraordinary legal expertise and intellectual firepower in addressing the challenges that emerging technology poses to democratic institutions. LIST is committed to continuing those conversations and supporting future leaders in this area of the law.”

Tryouts Announced for Libel 111

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Kimberly Hopkin ‘19
John Dao ‘19
Nicole Llinares ‘19
(Libel “Troika”)

             Did you make a New Year’s resolution to make more friends?  Do you miss the sound of laughter and general happiness?  Did you get grades back and decide you suddenly don’t like law school?  Then auditioning for the 111th Libel Show is for YOU!

             Rewind in case you’ve spent your law school career in a library:  The annual Libel Show is a tradition that harkens back to the days when fraternity hazing was welcomed.  In fact, the Libel Show is actually the oldest non-continuous UVA Law tradition![1]  More importantly, it’s a fun way to meet people and get a free t-shirt.[2]  Also, you can participate in such a variety of ways.  Some people act in skits; others sing or dance in the songs.  We also have a full band for every performance. We even have some people participate in ALL THE WAYS––they get gold stickers.

             Being a cast member in the show isn’t actually a large commitment.  After being cast, each skit only rehearses for half an hour each week until “Tech Week,” which is the week the show goes up and consists of running through the entire show for light and music cues. Although each cast member is required to be present for the entire performance, they are only required to actively participate during their actual scene.  Outside of those scenes, cast members will often study backstage or head further down the hall to socialize.

             “Shut up, and tell me how to audition!” you say?  All auditions are held the week of January 28.  Here’s a simple breakdown of all the available audition times:

Acting: Show up any time within the following windows and read a short skit!  Can be accomplished the same time as the singing audition.

Tuesday, January 29 through Thursday, January 31, from 6:00 p.m. to 9:00 p.m. in WB154

Singing: Show up any time within the following windows and sing a short acapella piece or rap material!  Can be accomplished the same time as the acting audition.

Tuesday, January 29 through Thursday, January 31, from 6:00 p.m. to 9:00 p.m. in WB154

Dance: Show up for one of the following audition workshops to learn a short dance routine!

Friday, February 1, from 3:30 p.m. to 5:30 pm or Saturday, February 2, from 10:37 a.m. to 12:37 p.m.[3] (North Grounds Rec Center Multipurpose Room 1)

Band: Bring your musical instrument to audition during the following windows!

Tuesday, January 30, and Wednesday, January 31, from 6:00 p.m. to 9:00 p.m. in WB152

Email libelshow111@gmail.com with any questions!

Testimonials about how the Libel Show has changed some people’s lives:

“I used to have only two good friends at the Law School, but after Libel I now have three!” – Nicole Llinares

“Some of my students are such little shits; it feels so good to see their lives being lampooned in skits.” – anonymous UVA Law Professor

“I used to be the most popular kid in my class, but now I’m the most popular student in the whole school” – John Dao

“I wasn’t a part of Libel last year, and I really regret it.” – Darden Student who doesn’t even go here

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[1] Yes, we did check this fact against a list of the eldest tenured professors.

[2] Free t-shirt subject to availability. Free beer guaranteed, however.

[3] We’re like totally whimsical like that.

iTrek Trip Brings UVA Law Students to Israel

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Lena Welch ‘20
New Media Editor

Over winter break, forty-four UVA Law students and one UVA Batten School of Policy student participated in the iTrek trip to Israel. The seven-and-a-half-day trip traversed the country, with the group traveling from Jerusalem to the Dead Sea, up to the Golan Heights and Syrian border, and concluding in Tel Aviv. The trip allowed the students to explore the interesting legal questions presented by a complicated place, but they also learned about its historical and religious roots and the vibrant cultures that exist today.

iTrek participants pose in front of an inspirational backdrop. Photo courtesy of Lena Welch ‘20

In addition to the tour educator who stayed with the group for the entire trip, the students heard from such speakers as a former President of the Israeli Supreme Court, a lawyer who focuses on bringing lawsuits on behalf of terror victims, a retired colonel and expert in geopolitics, and a former policy advisor to President Shimon Peres. Additionally, the group heard from a couple of journalists tasked with decoding the complexities of Israel.

The first full day in the country struck a serious tone as the group toured the Yad Vashem Holocaust Museum and the Old City of Jerusalem. For those who have been to a different Holocaust museum or even for those who have been to the Yad Vashem, it provided a powerful experience as it attempts to give each victim a memorial and a name. The Old City was another powerful experience as the students toured the Church of the Holy Sepulchre—the location of the burial of Jesus Christ and as such a holy place for Christians—and the Western Wall, the most religious site for the Jewish people.

"Having the first stops of the first full day of the trip be at Israel's National Holocaust Memorial Museum and Jerusalem's Old City provided historical context to the trip,” Julian Kritz ’20, one of the four student leaders, said. “It showed us the immediate necessity of the modern state, born out of the tragedy of the Holocaust, and the long-term Jewish connection to the country, born out of independent sovereignty of the ancient Jewish kingdoms."

The following day, the students traveled to Bethlehem, which is located in the West Bank. The group spent the morning learning about the occupation with the help of a local Palestinian guide. The separation or security barrier, a refugee camp, and even a trip to the Banksy Museum at the Walled Off Hotel introduced them to different perspectives. The group then made its way up to Manger Square to the Church of the Nativity, the location where Jesus Christ is believed to have been born. The church represents another interesting illustration of compromise, as it features locations dedicated to the Greek Orthodox, Armenian Apostolic, and Roman Catholic churches.

On Sunday, the students visited the Supreme Court and met with Justice Asher Grunis LLM ’72. Justice Grunis provided an expert perspective into the legal system of Israel, including the interesting issues that face a nation without a written constitution, the function of the basic laws, and the limited standing requirements. The students also learned about the mechanics of the court system in Israel.

After a dip in the Dead Sea, the group toured Masada before traveling north to the Golan Heights. After a briefing of the geopolitical problems dominating the region by expert Miri Eisin, the students took an ATV tour by the Syrian border. The group visited Capernaum and the Sea of Galilee before eating at a Druze restaurant, where they learned about the Druze people, a religious minority in Israel, Syria, and Lebanon.

The group closed out its trip in Tel Aviv. After learning about the novel ways in which Nitsana Darshan-Leitner and Shurat HaDin fight on behalf of terror victims, the students traveled to the newly remodeled Peres Center for Peace and Innovation to learn about the late Israeli statesman as well as the impressive future that awaits the start-up nation.

"The goal of the trip, which we hope succeeded, was to show participants a holistic picture of the country,” Kritz said. “We met with Palestinians and Israelis and traveled the entirety of the country. We hope that participants came away with an appreciation for the complexities of Israel and a desire to keep learning more. I know I, as a leader of the trip, left having more questions than answers."

“I had heard great things about iTrek, so I had high expectations, and the trip was even better than I thought it would be,” Tyler Fredricks ’19 said. “All of the leaders were incredibly knowledgeable about Israel and created an engaging, fun, and open environment where we could ask questions and learn more about the country.”

Throughout the trip, the group engaged in processing sessions to discuss and think critically about the narratives they had been presented or the challenging topics they were forced to confront. But the students were left with questions about Israel.

“I think what really stuck with me from the trip was that ‘one’ Israel doesn’t exist,” Cosi Piehler LLM ’19 said. “I came there pretty uninformed and with a somewhat blurry image in mind. Throughout the trip, I realized that Israel cannot be described in one picture or image, but I got a new image that added to the puzzle every day . . . . And I think the other thing that was really striking to me was how much reality differs from what we see in the media and what international law for example dictates. People kind of create their own reality there, which you can only understand if you’ve been there.”

In addition to the educational, religious, and historical elements of the trip, the iTrek included meals that highlighted the mixture of cultures in Israel. Indeed, the main social aspect of the trip surrounded the dining table, as participants connected with one another as well as the three Israeli law students who accompanied the UVA group.

“From a walking food tour in Tel Aviv, to an introspective processing session after visiting the Yad Vashem Holocaust Memorial, to visiting Banksy’s Walled Off Hotel in Bethlehem in the West Bank, to driving ATVs through the mountains of the Golan Heights, iTrek did a great job at showing Israel’s diversity, exploring the Arab-Palestinian-Israeli conflict, and building a personal connection to the country,” Fredricks said.

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lw8vd@virginia.edu

SCOTUS Clinic Wins Big

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Jansen VanderMeulen ‘19
Editor-in-Chief

Students in the UVA Law Supreme Court Clinic reacted with dignified delight earlier this month when the United States Supreme Court ruled for a petitioner represented by the clinic in Culbertson v. Berryhill, 586 U.S. ­__ (2019) in a 9–0 opinion authored by Justice Clarence Thomas. Clinic Director Professor Dan Ortiz argued the case on behalf of petitioner Richard Allen Culbertson, an attorney who represented plaintiffs appealing denials of Social Security benefits, and the clinic students researched, drafted, and edited the briefs in addition to helping Professor Ortiz prepare for oral arguments.

The UVA SCOTUS Clinic poses for a photo on the steps of the Supreme Court. Photo University of Virginia.

Clinic student and Friend of the Law Weekly Lauren Schnepper ’19 outlined the (admittedly rather dry) facts of the case for the paper. Culbertson appealed a client’s denial of Social Security benefits to both the district court and the Social Security Administration, eventually earning the client an award of $35,211 in past-due benefits. Culbertson sought attorney’s fees under 42 U.S.C. §406(a) (aka Title II of the Social Security Act), which governs fees for representation in administrative proceedings, and §406(b), which applies to fees for representation in court. Section 406(b) caps attorney’s fees at no more than 25 percent of past-due benefits. The district court and United States Court of Appeals for the Eleventh Circuit held that §406(b)’s 25% cap limits the aggregate fees awarded for representation before both the court and the agency, while Culbertson argued that §406(b)’s cap applied only to court representation.

The clinic—and Professor Ortiz at oral arguments—emphasized a textual argument. Section 406(b) is titled “Fees for representation before the court” and states, “Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits.” (Emphasis added.) The clinic argued that the crucial phrase was “such representation”—that is, that this portion of the statute referred only to representation “before the court,” and that its attorney’s fee cap did not apply to proceedings before an agency.

The Court agreed with the UVA Law Supreme Court Clinic unanimously, holding in an opinion by Justice Thomas that “the statute’s language is plain” (internal quotations omitted) and that “applying §406(b)’s 25 percent cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense.” The Solicitor General’s office switched positions and supported reversal of the Eleventh Circuit, so the respondent was represented by amicus curiae Amy Weil, who argued reading the statute not to cap damages would result in attorneys’ suing their clients to recover attorney’s fees. Justice Sonia Sotomayor advanced that position at oral arguments, but Professor Ortiz riposted that Congress had elsewhere in the statute provided for aggregate caps and that its failure to do so in this section should be read as intentional. He also noted that the vast majority of Social Security disability claimants are judgment-proof, so the Court shouldn’t worry about attorneys’ suing clients to get their fees. Clinic students were confident they had a “strong textual argument,” according to Schnepper, but others reportedly worried after oral argument that Justice Sotomayor would vote against their position. But their worry turned out to be in vain; Justice Sotomayor joined Justice Thomas’s opinion without comment.

The victory was a long time coming for the Supreme Court Clinic students, who began work on Culbertson on their first day of fall semester. Students spent the semester researching the facts, the legal issues, the circuit split (the Fourth and Fifth Circuits joined the Eleventh in holding that the cap applied to agency proceedings while the Sixth, Ninth, and Tenth agreed with the Court’s ultimate holding), and opposing arguments. Schnepper called the clinic “one of the most demanding things I have done in law school” but called winning at the Supreme Court “amazing.” Annie Chiang ’19 agreed, saying she was “really excited to see that the win was unanimous” and noting her personal excitement that Justice Thomas wrote the opinion given his textualist prowess. Professor Ortiz lauded the clinic students for authoring all but the final redrafting of briefs and mooting him before oral arguments. “The fear of their embarrassing me, an easy prospect, really forced me to up my game. That’s always healthy.”

Participants in Culbertson lavished praise on the clinic for giving them the chance to participate in such a high endeavor. Chiang called the clinic “a very substantive opportunity for me to learn from really smart and talented people at the law school” and credited Professor Ortiz with helping the students understand “how to best communicate legal ideas—something applicable to this coming semester in the clinic and beyond.” Schnepper attended the oral argument in the case and, being able to anticipate the Justices’ questions and even having answers to a few, had “one of [her] cooler law school experiences.”

Other cases remain for the Supreme Court Clinic: On January 11, the Court granted certiorari in Quarles v. United States, an Armed Career Criminal Act (ACCA) case in which the clinic represents petitioner Jamar Alonzo Quarles. But for now, clinic students are doing something classically, authentically law school-ish: reveling in the glory of a unanimous opinion on a highly technical issue. Hats off from the Law Weekly to the UVA Law SCOTUS Clinic.

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jmv5af@virginia.edu

Law Review to Vote Friday on Selection Overhaul

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Jansen VanderMeulen ‘19
Editor-in-Chief

The editorial board of the Virginia Law Review (VLR) will vote Friday on a contentious plan that would overhaul how this Law School’s flagship journal selects its members. The new plan, obtained by the Law Weekly, would limit the number of members admitted on the basis of grades and select half the membership on the basis of a holistic review of applicants’ grades, writing competition performance, and personal statement. The managing board approved the plan by a narrow 16-11 vote.

Current VLR policy is this: The students with the top fifteen GPAs are automatically admitted to VLR, as are the top fifteen performers on the write-on not already admitted by grades. After that, the five students with the next highest grades who also score in the top half of the write-on are admitted, as are the next five highest write-on performers in the top half of the class in grades. Finally, up to ten students are admitted through the Virginia Plan, which considers personal statements specifically tailored to diversity, but is restricted to students in the top half of the class in both GPA and write-on score.

 The new plan replaces the Virginia Plan with an authentically holistic review—eliminating the top-half requirement—and removes the Virginia Plan’s quasi-requirement that candidates come from a historically disadvantaged group. Some of the plan’s features are the same as in years past: the ten students with the highest GPAs would be automatically admitted (down from fifteen), as would the students with the top fifteen write-on scores. But the other twenty-five would be selected by VLR’s Membership and Inclusion Committee.

The seven-person committee would be made up of VLR’s Editor-in-Chief, Managing Editor, a new “Membership and Inclusion Editor” (all three selected by the outgoing managing board) and four members selected by the editorial board and new managing board. The committee would select between fifty and seventy-five students based on an evaluation of their personal statements and their written competition (with the understanding that some of their picks will make VLR through other means and the hope that they would have about fifty candidates to choose from after that). Those students’ information would be sent to the Student Records office, which would send back the students’ cumulative grade information based on relative GPA tier—the committee would not know students’ exact GPAs, just their position in tiers relative to their classmates. And for students whose GPAs come back in the bottom third of the class, VLR would receive no tier information; they would know only that the student is in the bottom third. The members of the committee would then weigh the students’ grade information, their write-on scores, and their personal statements to select twenty-five of them for membership on VLR. Students must receive the votes of five of the committee’s seven members to be admitted.

Supporters and opponents disagreed markedly about the new plan’s merits. Most VLR members who spoke with the Law Weekly did so on condition of anonymity: several pointed to an email sent by VLR Managing Editor Aparna Datta ’19—obtained by the Law Weekly—that informed members that the proposal was “internal and confidential to VLR.” (VLR sources say this was meant to avoid panic among the 1Ls at a stressful time.) Nonetheless, the Law Weekly spoke with nearly a dozen VLR members about the plan, including members of the managing board.

Supporters contend the plan will strengthen VLR by allowing for greater diversity of membership and removing arbitrary hurdles to getting the best students on Law Review. Opponents criticize the plan’s concentration of power in a small number of people, its potential for abuse, and its dilution of what it means to “be on Law Review.”

Several VLR members who spoke with the Law Weekly agreed the current lack of underrepresented students on VLR is a problem, but expressed concern with leaving the selection of half of Law Review’s members to a committee they claim is secretive, opaque, and rife with potential for abuse. “The opposition,” one member told me, “agrees the current lack of diversity is a problem, but thinks this plan is fundamentally flawed because it gives too much power to too few people.”

Another member concurred: “It’s problematic that our current system—one written exam graded on a curve—leaves an unrepresentative group at the ‘top’ of the class,” they told me. “Perhaps [grades and the writing competition] are arbitrary, but discretionary selection from a committee is surely more arbitrary.” Another VLR member agreed: This process “will create opacity, confusion, and stress among 1Ls” unsure how exactly one “gets on Law Review.” Other members worried about the potential for backroom politics, or at least the perception of unfairness. “People will inevitably wonder whether popularity, politics, networking, or other inappropriate factors played a role,” a member said. “Especially since the personal statements will be impossible to keep totally anonymous.”

Another member—who supported last year’s expansion of the Virginia Plan but opposes this plan—echoed that concern, worrying that this “gooey process” could spawn selection based on popularity or even corruption and collusion among the members of the committee, who, though required to give weight to each of grades, the write-on, and the personal statement, are under no obligation to disclose their weighting or have a consistent metric for balancing the three factors. One member called the committee’s discretionary power “insane.”

Supporters of the plan respond that these concerns are overblown or just plain wrong. Editorial board member Kareem Ramadan ’20 told the Law Weekly that while the small number of people selecting half of VLR is a “valid concern,” the concern that the committee would pick members based on politics or favoritism instead of merit is misguided. “I can’t imagine five of the seven people on the committee won’t care about grades,” Ramadan said.

Several supporters also pointed out that scores on the writing competition and GPA are highly correlated; perhaps unsurprisingly, those who do well on law school exams also tend to do well in the writing competition. This means that under the new plan, while the committee wouldn’t see the grades of applicants until after it has narrowed the pool to fifty-or-so candidates, it would have a good idea of candidates’ caliber based on their writing competition results. What’s more, supporters dispute the idea that grades and write-on scores are any less arbitrary than the holistic process that will be applied by the committee. “[M]argins for admission to the law review are incredibly fine,” one member told me, “and there are a vast number of extraordinarily qualified candidates.”

Supporters also contend the holistic review will allow the committee to take into account compelling life experiences that would benefit VLR. “[G]rades and journal tryout scores are clearly not the only markers of success,” Dana Raphael ’20, an editorial board member, told the Law Weekly. “People with fascinating and varied backgrounds—particularly backgrounds that would make adept members such as prior editing experience—should be considered fully for VLR.”

Another member concurred, telling the paper, “I believe that an array of skills, perspectives, and experiences prior to law school is not only valuable but necessary to the continued strength of this publication.” Responding to criticism that too much power is vested in the seven committee members, this member told the paper, “It is set up so that, functionally, the outgoing Managing Board is able to choose about half of the members and the full membership of VLR is able to choose the other half, and any student who is accepted to VLR through the committee process must receive a supermajority of votes, which I think will both do a good job of allowing various perspectives of the broader Law Review to be heard and ensuring that so-called ‘back-room politics’ are virtually impossible.”

Most contentious was the idea, pitched by some opponents of the plan, that selecting half of VLR’s membership through a holistic process will lead to a dilution of what it means to be on Law Review. “I worry that the new discretion-heavy process may take away from some of VLR’s cachet in job and clerkship interviews. Before, being on VLR meant you finished your 1L year at the top of your class or as one of the standouts in the writing competition,” the source told the Law Weekly. “I’m not sure what being on law review will mean to employers or judges if no one knows how students are chosen for membership.”

Another member told the paper the new plan would be “catastrophic in the long term” as it becomes clear that law review membership is no longer a proxy for either high grades or stellar writing. One member was blunter: “Excellent grades—grades good enough to place a student in the top 10 percent of the class—do not happen by accident but are the result of hard work. This plan diminishes the value of grades while vesting discretionary authority in a committee of seven.”

Supporters of the plan sharply disputed the idea that the plan would lessen VLR’s cachet, pointing to the law reviews of Harvard and Columbia Law Schools, which both utilize holistic admissions processes and have not suffered corresponding reputational damage. “The University of Virginia produces exceptional graduates,” Raphael said, “and changing the process by which students are admitted to VLR is unlikely to affect anyone’s employment opportunities.” Another member added, “I think that the implication that [the prestige element] will change is an exaggeration, if not patently false” but also said the worry about prestige “misses the mark,” and that the value in Law Review is not conferring the benefits of membership on its students, but “in the quality and diversity of its scholarship.”

VLR Editor-in-Chief Campbell Haynes ’19 voiced support for the plan in his personal capacity, writing to the Law Weekly, “This membership reform proposal is the result of months of hard work, research, and outreach to other law reviews.” He wrote that the new process “will make our membership process fairer and more open to all” because “selecting a sizable portion of the Review through holistic review will allow VLR to ensure that all students have the opportunity to be fully considered.” Haynes concluded, “It will also allow us to identify potential editors who are strong across the board. That will make us even better at our main job: publishing thought-provoking legal scholarship.”

This is the last edition of the Law Weekly for the semester; there will be no follow-up to this report until January. The leak that produced this piece, as well as long experience with law students, leave us skeptical that we will have to wait until then to hear of the result of Friday’s vote, however. Readers are encouraged to keep their ears perked on Friday. And a timely reminder: tips may, as always, be sent to editor@lawweekly.org.

*Editor’s Note: This article has been edited to reflect that the initial review of candidates for VLR will take into account not just candidates’ personal statements, but also their writing competition scores. It has also been edited to reflect that the managing board approved the plan by a vote of 16-11, not 14-11.

Justice Kennedy Swings by Law School

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Jansen VanderMeulen ‘19
Editor-in-Chief

Retired U.S. Supreme Court Associate Justice Anthony M. Kennedy visited the University of Virginia School of Law on November 15 and 16, christening the new Karsh Center for Law and Democracy and displaying a humorous side rarely seen from the bench.

Retired Justice Kennedy onstage. Photo Kolleen Gladden ‘21.

Kennedy, 82, was originally scheduled to visit the Law School in September, but the visit was postponed due to Hurricane Florence’s approach. This rescheduled visit took place on the Thursday and Friday preceding the Thanksgiving Recess, but attendance at Kennedy-related events was undiminished.

Several venues in the Law School played host to the retired justice—Professor Micah Schwartzman ’05 described Kennedy as “generous with his time”—starting with a combined sitting of Professor J. Scott Ballenger ’96’s Civil Liberties and Professor Schwartzman’s own Religious Liberties courses on Thursday. There, Justice Kennedy—the author of famed civil and religious liberties cases such as Church of the Lukumi Babalu Aye v. City of Hialeah, Lawrence v. Texas, and Obergefell v. Hodges—lectured on his jurisprudence and took questions from students.

Next on Thursday, Kennedy participated in a lunch in the faculty lounge with a group of students selected from diverse backgrounds. The justice talked about his own experience in the law: law school at Harvard, returning home to take over his father’s law practice in Sacramento, and being appointed by President Gerald R. Ford to the Ninth Circuit. He quoted Aristotle, stuck up for the Socratic method, and recalled the very different days during which he began his law practice in Sacramento, days he said lived up to the term “old-boys club.” Asked his favorite film, Kennedy gave a classic Kennedy answer: Guess Who’s Coming to Dinner, the 1967 version starring Spencer Tracy, in which Tracy’s daughter is set to marry a black man, which makes her parents uneasy. As Kennedy describes the film, Tracy’s character stands out on his San Francisco balcony wrestling with his convictions, finally realizing that he’s wrong, that his opposition to the marriage was derived from his prejudice.

Readers needn’t be experts in Justice Kennedy’s jurisprudence to know he was often held to have changed his own mind. From Planned Parenthood v. Casey, in which he joined the joint opinion upholding the core of Roe v. Wade despite previous opposition to legalized abortion, to Fisher v. Texas, in which he upheld the University of Texas’s affirmative action program after previously voting to strike it down, Justice Kennedy was renowned on the bench for his willingness to reconsider his own previous positions. Kennedy largely avoided providing answers to substantive legal questions, responding to Molly Cain ’20’s thoughtful question about how his opinion in Town of Greece v. Galloway—upholding explicitly Christian prayer by councilmembers in municipal meetings—might influence zoning variance decisions relating to religious minorities with a fascinating story about his own experience representing a client before a zoning commission.

On Friday, Justice Kennedy appeared in Caplin Auditorium as part of the kickoff of the Karsh Center for Law and Democracy. Funded by a record $44 million donation from philanthropist financiers Bruch Karsh ’80 and Marth Lubman Karsh ’81, the Karsh Center promotes “civil discourse and democratic dialogue, civic engagement and citizenship, ethics and integrity in public office, and respect for the rule of law.”[1] Justice Kennedy’s visit was the perfect fit for the Karsh Center’s kickoff. Professor Schwartzman told the Law Weekly, “Justice Kennedy—both in the classroom and at his public interview—emphasized the importance of reason-giving in judicial decision making. The Court’s only power is the power to persuade by the reasons it gives. The mission of the Karsh Center is to foster civil discourse, which is about the exchange of reasons and about justifying how we relate to one another under the rule of law.”  

Dean Risa Goluboff introduced the Karshes to talk about their gift and about Justice Kennedy. Telling the story of how he moved to California to clerk for then-Judge Kennedy, Bruce Karsh reflected on Kennedy as a boss, calling him “courteous and kind” and recalling how the judge would invite him over to his house for dinner to spend time with his young family. Bruce Karsh went on to work for O’Melveny & Myers and then in private equity, co-founding Oaktree Capital Management. Martha Karsh spoke next, calling Kennedy “a beacon of wisdom, jurisprudence, and leadership.” She thanked Kennedy for welcoming Bruce and her to their family and California and quoted Jefferson: “Honesty is the first chapter in the book of wisdom.”

After the Karshes finished speaking, Dean Goluboff introduced David Rubenstein, who interviewed Kennedy for the event as part of his David Rubenstein Show on PBS. The conversation between Rubenstein and Kennedy centered on Kennedy’s years on the court and his reasons for leaving. To the latter question, Kennedy answered, “It’s hard leaving something you love, but you can do it for something you love more,” telling of how he had spent too many years working away from his wife Mary. Quizzed about his feelings toward his successor, Justice Brett M. Kavanaugh—who clerked for Kennedy and endured a brutal confirmation process that included accusations of past sexual misconduct—Kennedy ducked the direct question, but said, “The public will see that the system works” and reassured the audience that the Court “is operating in a collegial, thoughtful way.” When Rubenstein noted there were now two former Kennedy clerks on the Court (Kavanaugh and Justice Neil M. Gorsuch), Kennedy quipped, “All we need is one more and we can rule the world,” drawing laughter from the unsuspecting audience. That wasn’t his only laugh line; Kennedy caused laughter throughout the audience with his surprisingly on-point imitation of President Ronald Reagan, who knew Kennedy when he was governor of California and who nominated Kennedy to the Supreme Court.

After talking with Kennedy about the inner workings of the Court, Rubenstein asked about his plans for the future. Writing and teaching, Kennedy replied. He also expressed an openness to sitting on the lower courts and brought up Aristotle again. Aristotle thought, Kennedy said, that democracy was a bad form of government because it could not mature. “Our destiny—our duty—is to prove him wrong.” Kennedy wrapped up by telling the crowd what he wanted the American people to know. He reiterated his faith in the Supreme Court, telling the audience that the Court “is dedicated to finding what the law is,” that its work is “not a partisan exercise,” and that “the work of freedom is never done.”

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[1] https://www.law.virginia.edu/karsh/about.

Tomorrow We May Die: PILA Auction Last Chance at Pre-Exam Social Life

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Jacob Jones ‘21
Tyler D’Ambrose ‘21
Staff Editors

The PILA Auction is a special annual event that allows UVA Law students and professors to join in courageously consuming inordinate amounts of alcohol while bidding on hot-ticket items ranging from poker with professors to choosing someone else’s next tattoo. The proceeds go towards cash-strapped UVA Law students who earn grants to work in low-paying public interest jobs over the summer.  For the first time, the event was split into two separate auctions: a live auction on Thursday evening (featuring free alcohol and professors being pied in the face), and the Yule Ball-themed silent auction on Saturday night. Dividing the events proved successful this year: around 600 tickets were sold to Saturday’s “Law School Homecoming”—many more than were sold last year—and on Thursday, one lucky student paid $350 to pie Professor Mitchell in the face[1].

Silent Auction attendees mill excitedly around the auction tables. Photo Kolleen Gladden / The Virginia Law Weekly

The division of events allowed professors to bid on fancy items, such as private band performances and music lessons with guitarist extraordinaire Read Mills, without interacting with students over the weekend. It also excused students and professors alike from having to mutually acknowledge how much the student body likes to drink, and for that reason, many awkward interactions were avoided. Eager Thursday bidders spent more than twice as much during the live auction this year than last, which will hopefully enable students to do more public interest good in summers to come.

Saturday’s silent auction[2] featured men donning their best JCPenney or Sears suits and women puttin’ on the ritz with their snazziest dresses. Over 600 students and their dates crammed into a hotel ballroom for the event. Silent auction ticket items featured common themes including dog sitting, gift cards,[3] and various offers from talented people promising to teach the rest of us skills we can use to impress our mothers over winter break.[4] It seemed everyone had pregamed sufficiently to feel just fine about placing max bids on items ranging from stick-shift driving lessons and home-cooked meals to the chance to choose somebody’s next two-inch tattoo. Students who were most inebriated were easy to recognize by the trails of max bids in their names scrawled illegibly around the room.[5]

For many items, competition was fierce: Multiple items quickly reached their maximum bid amounts, and law students desperately tried to outbid those maximums. Sometimes, people left mean comments in the margins for their competitors. Fortunately, a good samaritan scribbled over nasty comments and wrote “I ‘heart’ you” instead. There was no shortage of items to bid on, and since there were no announcements of who won, everyone got to go home feeling like a winner. The hottest ticket item was a 2”x 2” tattoo of the bidder’s choice offered by the bold Andrew Sexton ’19, which quickly reached its $650 buyout. The legality of buying rights to a part of someone’s body is sketchy at best, so it is important to make sure we all normatively enforce this contract through peer pressure.

While the event was supposedly Harry Potter-themed, there were no magicians promising to make all of our dreams come true.[6] On the other hand, there were several elixirs offered at the cash bar, which seemed to boost law students’ spirits when consumed in the right amount. Students without the foresight to bring cash were forced to locate the lone ticket booth amidst the drunken crowd. Their struggle was rewarded once they got to see their tickets magically transformed into intoxicating elixirs.

The event provided students with plenty of food, and all were challenged to eat back some of the $35 ticket cost.[7] 3Ls led by Daniel Grill ’19 could be heard grumbling about the price difference between 1L and 3L. “Tickets were what, forty bucks when we were 1Ls?” Grill said. “And we got two drink tickets!” One PILA representative, who spoke off the record with the Law Weekly’s editors, blamed the Omni for driving prices up. The Omni lavishly provided “chicken nuggets,” mystery meat on a stick, pulled pork sliders, and $8 rum and cokes. Many law students hit the dance floor when they were not busy walking around the bidding tables in a magic-potion-induced stupor. While the dance floor was flooded with nerdy law school students, the dancing was surprisingly classy. Most students left plenty of room for Jesus, or whichever religious figure they prefer. As one attendee stated, “Thank God I didn’t see any twerking.” Both flossing and the robot are still considered classy and appropriate dances for a law school shindig, however.

After pre-pregaming, pregaming, and then sweating a lot in an environment that felt like a high school gymnasium for around three hours, many students went home. Those with the courage and stamina to continue the party rallied at Rapture, where their long trek was rewarded with the familiar siren songs of Gunners n’ Roses.[8] For many students, this was the last official chance to go out and party with classmates while collectively and negligently blowing off our outlines.[9] According to meteorologists,[10] winter is coming, and it is time for students to move into the library for the next month. We will now settle down into our favorite corners of the gunner pit to hide away as we slowly become one with our outlines.

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[1] Between the live-auction bidding and the pre-event donation war to choose the lucky professors, students spent a total of $537.48 on pieing Mitchell alone.

[2] Which was actually very noisy from all the music and conversation.

[3] Hopefully not for JCPenney.

[4] Other than 1Ls newfound ability to say a string of facts and then declare “res ipsa.”

[5] This author’s heart goes out the drunken guy or gal who bid over $75 for a basket of life savers and beauty products.

[6] However, Lena Welch was particularly on-theme, with a homemade robe and a time-turner in her bun.

[7] Or $30, or $40, depending how early or late you were to the game.

[8] This author takes no official position with regards to the recent Court of Petty Appeals decision concerning Gunners n’ Roses and Panic! At the District Courthouse.

[9] “Res ipsa.”

[10] Also according to Jon Snow and the maesters.

Collins, Macomber Take Lile Title; Harmon is Best Oralist

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Jansen VanderMeulen ‘19
Editor-in-Chief

M. Eleanor Schmalzl ‘20
Executive Editor

The final round of the 2018 Lile Moot Court competition took place on Thursday, November 8 in the Caplin Pavilion. Lights illuminated the podium, sitting front-and-center in the pavilion, as well as the tables covered in black cloth meant for the esteemed jurists who had ventured to Charlottesville for the special occasion. Students and professors alike huddled around the back and along the sides of this packed “courtroom,” with seats hard to find thanks to the large crowd the opponents had drawn to the event. Katharine Collins ’19 and Christopher Macomber ’19 faced Kendall Burchard ’19 and Scott Harman-Heath ’19 in front of Judge Karen Nelson Moore of the Sixth Circuit, Judge Albert Diaz of the Fourth Circuit, and Vice Dean Leslie Kendrick ’06, who substituted for Judge Stephanos Bibas of the Third Circuit. Judge Bibas was unable to attend due to bad weather. As the room buzzed with excited anticipation, the judges entered the room, the crowd stood in respect, and the finalists put their months of hard work to the test.

Katherine Collins and Christopher Macomber after their victory. Photo Jenny Lamerth ‘19 / The Virginia Law Weekly.

This event was the culmination of many months of preparation. Collins, Macomber, Burchard, and Heath began the Lile competition in the fall of their 2L year and progressed through an individual brief (arguing both on- and off-brief) the quarterfinals, and semifinals to reach this final round. After all this work, the finalists faced the problem for the final round, written by Derek Keaton ’19. This final prompt was centered on James Herek, a fictional plaintiff in a § 1983 suit against a police officer. In the fictional problem, the officer interviewed Herek in connection with a scandal in the police department’s forensic lab. The officer told Herek he could be fired if he did not cooperate with the investigation, and Herek admitted to some misconduct. On the basis of Herek’s statements, the officer referred the case to the district attorney, who used the statements at a pre-trial, probable cause hearing. Herek’s statements were suppressed as a coerced confession, and the charges were dropped. Herek brought suit against the officer under 42 U.S.C. § 1983, alleging he was deprived of his Fifth Amendment right against self-incrimination. The litigants addressed two questions: (1) Does the Fifth Amendment’s right against self-incrimination apply at pre-trial probable cause hearings? And (2) Is the officer protected by qualified immunity because his constitutional violation was not “clearly established”?

Annie Chiang ’19 introduced the contestants. Arguing for Appellant Herek, Collins and Macomber led off by arguing that the Fifth Amendment’s protection against self-incrimination extends to pre-trial probable cause hearings and that Officer Bautch violated clearly established law by referring a coerced confession to the DA. Macomber argued that the Fifth Amendment’s application in sentencing hearings made clear that the protection against self-incrimination was not merely a trial right, but one that protected criminal defendants throughout court proceedings. Judges Diaz and Moore pushed back at this point. What about grand jury proceedings? Macomber admitted the right against self-incrimination appeared not to apply in front of the grand jury, but argued that formal proceedings in front of a judge were different. The judges sought a limiting principle: Where does the right against self-incrimination stop? Macomber was ready with an answer: Defendants have a right not to incriminate themselves in formal, in-court, judicial proceedings, not just at trial.

Burchard came next to speak, arguing for Appellee Eugene Bautch that the Fifth Amendment applies only when penalty is at stake, which explains why it can cover sentencings but not the pre-trial probable cause hearing at issue in the case. Noting that Herek had spent a weekend in jail prior to his hearing, Judge Diaz called Herek’s ordeal a “stiff penalty,” but Burchard pushed back, calling the weekend in jail “de minimis.” Burchard acknowledged that the prevalence of plea bargaining had broadened the reach of the right against self-incrimination, but insisted that the right should apply only in adversarial proceedings, which a probable cause hearing is not.

Collins went next, arguing that Bautch’s conduct was barred by clearly established law that prohibits using coerced statements in criminal prosecutions. The judges took turns questioning Collins about how Bautch’s conduct—using a coerced statement at a probable cause hearing—could be a “clearly established” violation of the law when only a few courts had declared the Fifth Amendment applicable at such hearings. Collins urged the judges to zoom out and look at the officer’s conduct more broadly. Bautch referred Herek for criminal prosecution on the basis of his coerced statements; he didn’t know they would be used only at a probable cause hearing, but expected them to be used at trial, when their use would be a clear violation of the Fifth Amendment. Judge Kendrick expressed concern that Collins’s standard muddied the water of qualified immunity doctrine.

Harman finished for Appellee. He argued that widespread disagreement among the circuits about the starting point of the right against self-incrimination precludes a finding that Bautch violated clearly established law. A right is clearly established, he noted, when no reasonable officer could think his conduct was permissible. Haman noted that the purpose of the qualified immunity doctrine of § 1983 law is to give officers space to operate in the gray area of the law. By awarding money damages against officers like Bautch who have no notice that their conduct is a violation of constitutional rights, the courts would pervert the purposes of § 1983, Harman argued.

After a brief rebuttal by Collins, the judges left the room for about fifteen minutes. The guests—students, faculty, and assorted guests—whispered with anticipation when Lile President Amanda Lineberry ’19 brought the judges back in the room. Judges Diaz and Moore both complimented the advocates and assured them they could hold their own in any courtroom in the country; they noted wryly that the students were often better prepared than the professional lawyers who argued before them. Vice Dean Queen Kendrick self-deprecatingly commented that she was out of place among such distinguished jurists (she was not) but complimented the advocates nonetheless, telling Collins, Macomber, Burchard, and Harman that they made her proud to be affiliated with UVA Law. After these compliments, the judges declared that Collins and Macomber were the narrow winners of the contest, and that Harman had won the award for Best Oralist. Harman’s forceful and persuasive tone stood out to judges and observers alike, and all the finalists excelled in their ability to advocate for their clients while maintaining excellent poise and strong skills staying composed in the moment.

Reached for comment, Collins told us, “It’s pretty cool we could get a victory where my answer to a question was, verbatim, ‘Yes. No. Kind of.’ Also have you heard Ted Kennedy is on the plaque too??” Collins also expressed a gratitude toward her and Macomber’s “tireless mooters,” including one N.S., who wore a robe and brought a hammer to make the experience realistic. Macomber expressed disappointment that he was unable to fit the phrase “skrt skrt” somewhere into his argument—he had apparently engaged in a “prop bet” to do just that—but asked that the Law Weekly communicate his gratitude to his section friends who helped him prepare, especially Sarah Ingles ’19, currently in Australia. Harman declined comment. Burchard told us, “It was an honor to compete and I’m grateful for the learning opportunities the competition provided.”

Thanks S'More the Memories: 3Ls "Toast" Autumnal Outing

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Kim Hopkin ‘19
Development Editor

Last Thursday evening, approximately 130 members of the class of 2019 gathered at a bonfire[1] at the base of the Blue Ridge Mountains to celebrate friendships, kick off the start of graduation festivities, and, of course, eat s’mores.

3Ls gather around thier cozy mountain “bonfire.” Photo Kim Hopkin / The Virginia Law Weekly

Organized by Julia Wahl ’19 and Robbie Pomeroy ’19, the 3L bonfire was an exceptionally smooth event, all things considered. Tickets were sold for the reasonable price of $10 and covered transportation, food, and beverages. Bus pick-up and drop-off was staggered among three shifts: green, yellow, and red. This did mean that the green and red ticketed groups had only about ten minutes with each other at the bonfire, but a little planning when buying tickets ensured you could still catch everyone by going on the yellow bus. Perhaps for this reason, yellow bus tickets sold out first.

The night of the event, the buses headed toward the bonfire were delayed due to a traffic accident. Fortunately, a timely email sent to all those who purchased tickets helped keep the start of the evening relatively seamless. The bus ride took about twenty minutes, and for at least one of the red buses, it was (as the kids say) “lit.” Christopher Macomber ’19 described the yellow bus as “not bad at all—why? What happened on the other buses?”

When we arrived at the destination, it was a short yet perilous walk to reach the bonfire. One source said, “Maggie Echols [’19] tripped over a log. I heard she didn’t get up for a while.” This reporter was unable to personally verify this fact, but since said reporter also tripped over one of the two full trees laying at knee level across the unlighted path, it seems reasonable. Alison Malkowski ’19, another Law Weekly reporter on the scene, was able to verify that a rumor was indeed started to that effect, and also that she was told her repeated calls of “LOG!” were “unhelpful.”

Chicken, green beans, and mac n’ cheese from Waysides, as well as a s’mores station, greeted those who arrived at the bonfire safely. In true law student fashion, this was accompanied by a thoughtful selection of kegs: two beer and one cider. Many students reportedly got their fill, including Kat Collins ’19 and Dave Gremling ’19. Collins was extremely happy about the food selection for the evening saying, “Wayside doesn’t get the acclaim it deserves.” However, Gremling noted “a lack of drummies – which are the ideal handheld option.” Perhaps this is why Gremling could be seen stealing food off Collins’s plate throughout the evening.

Although the night was unseasonably warm compared to the rest of the week, the environment was comfortable and fun. The beer stayed cold, the food was definitely delicious, and the fire stayed crackling thanks to the mysterious volunteer fire-tender who emerged from the woods unsolicited, threw wood into the flames for three hours, and then insisted on a ride back because he “is a law student.” While it was difficult to get close enough to the fire to roast marshmallows without burning yourself, several experienced students stepped up so that gooey s’more goodness could be widely enjoyed.

Since the fire provided all of the light and heat, some students complained that they couldn’t see anything or anyone. Nicole Llinares ’19 summed it up perfectly when she said, “The lighting was non-existent. I had a hard time identifying people so I had to spend the whole time talking to the same three people I always talk to, and I didn’t get seconds on the potato salad because I couldn’t find the plates, forks, or potato salad.” However, Macomber, one of Llinares’s three friends, said, “It was so dark I couldn’t see my friends. Then I realized I didn’t have any friends there. So that all balanced out. The s’mores were a nice touch.” Llinares is seeking the identity of the person she met at the bonfire so that she can have a fourth friend. Other than increasing social circles, the darkness also made drinking the pure beer foam that came out of the empty kegs go down easier, so some sources count the lack of light as a win. As Malkowski put it, “I definitely told a lot of people they should go for ‘the views’ and realize now that the event was at night and also in the woods. That said, I have no regrets other than not making more Blair Witch Project jokes.”

The atmosphere of the bonfire was relaxing and friendly. It even included a recitation of “Happy Birthday” for our very own Editor-in-Chief, Jansen VanderMeulen ’19. His heartfelt response was “It’s not my birthday…?” In the words of Pomeroy, “It was so great to see so many people from different corners of our class come together. It was a beautiful night to sit by the bonfire, eat s’mores, and reconnect with everyone.” I can personally echo those statements since I ran into friends from 1L year who I had not been lucky enough to catch up with recently.

All in all, it was a wonderful way to spend a Thursday night with friends—without having to brave the undergrads at the Corner. Personally, I could have done without the antiphonal singing on the bus ride back, when one brave soul decided that being out of range of the radio signal wasn’t going to dampen his ability to party, but it was quite festive. 10/10, would bonfire again.

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[1] Eds. Note: It was more of a medium-sized campfire rather than a bonfire, but no one goes to celebratory medium-sized campfire rallies, so we don’t blame the organizers for exaggerating.

Scenes of Softball

On Thursday, November 25, 1Ls far and near gathered round to hear softball bats ringing loud for all to hear. The Co-Rec and Regular League All-Star games were held at 6 and 7 p.m., respectively, under the lights of Park Field 1. After a softball season of rainouts, NGSL was thrilled to have some softball-brainwashed 1Ls willing to leave the library and duke it out in the name of pure competition to finish off the 1L regular season. This year’s co-rec game was special, with several sections sending two women instead of just one, allowing a more diverse crew to show up and showcase their skills. A hard-fought battle ended before the regular league players took their positions on the field. Standouts of the regular league game included the guy who could get around the bases in a flat 4.2 seconds, the man who managed to hit the ball so it landed directly on top of the outfield fence before popping out of the park for a homerun, and the guy who hit a pop-up to outer space before having the ball fall almost right in front of home plate. A close game with lots of home runs left the regular league players fist-bumping and chest-puffing in celebration of re-living their high school baseball glory days. In a season marred by rainouts and cancellations, the all-star games ended the season on a high note.

Photos Kolleen Gladden ’21 / Virginia Law Weekly

Unlocking Justice: Yates Addresses Public Service Students

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Lena Welch ‘20
New Media Editor

UVA Law students trekked up to Crystal City, Virginia for the Equal Justice Works Conference and Career Fair Friday and Saturday. Students took part in a couple of marathon days, interviewing for public interest jobs, introducing themselves to employers through table talks, and learning more about some of the social justice issues facing the legal profession. The students also had the opportunity to listen to a conversation with former Deputy Attorney General Sally Yates, moderated by Judge Ann Claire Williams.

Yates voiced a clear message to the aspiring public interest lawyers: unlock justice. Yates recounted not only her 27-year career as a public servant, but her early exposure to the legal profession through her father and grandfather, who both served as judges in her native state of Georgia. Although Yates initially tried to resist the family business, after two years working on Capitol Hill, she began law school.

Yates maintained an interest in government. She developed the interest at a young age, recognizing that people “want to have a voice in the things that are impacting you day-to-day.” She also maintained a fondness for Washington, D.C., because she said it was always exciting. “Our local news in D.C. was everybody else’s national news, and I liked sort of being in the center of that.”

After discussing meeting her husband when they were associates at King & Spalding, Yates took a moment to reflect on losing her father––just days before her law school graduation.

“My dad was a high-achieving, Type A kind of person, and he had suffered from depression for a number of years,” Yates said. “My mom and my sister and I really pushed him hard to get help. But, particularly for men at that time, he felt like there was a real stigma associated with any kind of mental illness, and so he resisted getting help. It was an up-an-down kind of thing, and in the months leading up to his death, it was particularly acute. And gosh, I just think back now of just what an incredible race that was. We know that depression can often times be treated as long as people seek the help that they need, and so after sort of this time when I seemed to have some sort of––I guess I’m not entirely sure what this is––but my thought was if I can do anything to help destigmatize mental illness and depression, to encourage people who are suffering to get help, or family members or friends of those who are suffering to be able to get help, that’s the most important thing I can do now.”

Yates also offered some advice for students during their time in law school. Reminding them not to get caught up in the ugly side of competition, Yates noted that someone else’s failure is not your accomplishment, and in fact, “that’s such a really lousy way of thinking or a lousy type of person to be.” She also implored the students to take their charge seriously; lawyers are entrusted with pursuing justice.

“The fact of the matter is, you’re not just a regular person anymore when you’re a lawyer,” Yates said. “You have an ability to be able to obtain justice for people that regular folks just don’t have. You have to be a lawyer, whether it’s in a civil context or a criminal context, to be able to do that. So, there are people out there who are counting on all of us, and in my view that’s different from any other profession. There’s lots of other worthy occupations out there, but there’s not really another occupation that is essential for everybody else in the world to be able to obtain justice, and that’s really going to be in your hands.”

Yates noted that the big, headline-grabbing cases are not what define you as a lawyer; it’s the opposite. The routine cases profoundly impact ordinary people, according to Yates, and those are the cases that move the gears of our justice system.

Yates and Williams recounted some such cases during Yates’s career, including a case which relied on a theory of adverse possession that returned a verdict by an all-white jury in Georgia for her black clients. The pair also discussed the importance of being a trustworthy lawyer as they examined Yates’s prosecution of Eric Rudolph, the Olympic Park bomber, and her work with his attorney to identify where he had buried the remaining dynamite.

The two touched on Yates’s brief time serving as acting Attorney General and her thought process behind coming out against President Donald Trump’s first travel ban. Yates noted that she was not convinced that it was “lawful or constitutional,” and could not allow her attorneys to argue that this ban had nothing to do with religion because “no lawyer should go into court and argue something that’s not grounded in truth. The Department of Justice surely shouldn’t do that, and particularly when you’re talking about something that’s as fundamental as freedom of religion.”

Yates closed by tasking the students in the audience with unlocking justice themselves.

“I think you’re going to find during the time of your career,” Yates said, “that the work that you’re gravitating toward now, public interest work, will be the most satisfying way that you can use the legal diploma that you’re getting. You know, I’ve told people before: it’s worth every penny you don’t make because there is nothing like a mission to be satisfied. And look, I know lots of lawyers in lots of different roles that make a ton of money, and that is absolutely miserable. . .Having a mission, something you believe in, and knowing that you are using this special ability as a lawyer to make the world a better place, you’re going to find it to be the most gratifying professional choice you’re going to make.”

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Lena Welch

lw8vd@virginia.edu

Substitute 'Fauxfield' Bash a Surprise Hit

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Jacob Jones ‘21
Staff Writer

Even without galloping horses, prancing ponies, wide open fields to frolic in, and some other fourth thing that defines the otherwise-annual event,1 the UVA Law student body turned out to show how much they like to get together and day-drink. The 1Ls seemed to be there in the greatest numbers because the pizza was unlimited, and UVA Law students put the true meaning of “unlimited” to the test. After trekking up a narrow stairway that burned nearly as many calories as the pizza contained, students were treated to barbeque bacon, pepperoni, and some sort of pizza with mushrooms on it.2 If you came to this event and did not meet your weekly carb quota in just a few hours, you missed out. Crozet Pizza has some of the best pizza in Charlottesville, and I would like to thank them for hosting our somewhat-sloppy selves.  

A spirited performac from Panic! At the District Court. Photo Kolleen Gladden, Virginia Law Weekly.

Two Law School bands showed up to demonstrate how amazingly talented some students here are apart from their ability to write case briefs. First to take the stage, Panic! at the District Court—the new band composed entirely of 1Ls—made its premiere performance with Dean Dixon on drums, Matt Hoffer-Hawlik on keyboard, Christian Sheets on guitar, Jaqueline Foley singing and slapping the bass, and Zane Clark doing what he does best 3 (playing guitar and singing with a stunning cowboy hat to crown his performance). The band was breaking hearts from the moment they opened up with “1985.” After following with what were surely memorable songs, which were somewhat country in nature, Panic! at the District Court made a graceful exit. Rumor has it they have signed with Interscope Records and will be asking Dean Faulk for a deferral to pursue their true dream of being a legal-pun rock band.  

Their performance––impossible to follow––was followed by a spectacular Gunners N’ Roses performance. Country hits like “Sweet Home Alabama” and “Wagon Wheel” were a few hints to the event’s theme. Both bands created plenty of opportunity for law students who can’t dance to pretend that they can, and this writer took advantage of the occasion. The music was undoubtedly the best part of the event, and we are all grateful our friends and classmates took time to entertain us. 

FYC and SBA put a lot of effort into this and deserve as much applause as Gunners N’ Roses. However, a few things were noticeably missing. The first was an advertised photobooth that turned out to be no more than a pile of hay bales. And speaking of hay, any gathering in the fall is incomplete without a hay ride from an old farmer on this tractor. Where was he, SBA? What could be better than bottomless pizza on a tractor? 1Ls were also required to buy tickets to an event and were given no option to pay less for non-drinking tickets unless they had religious or moral objections. Not drinking was apparently not a good enough excuse, forcing those who didn’t want to drink to subsidize the bad decisions of their peers. This is the sort of injustice this paper strives to call out.4 

With UVA Law students unable to show off their preppiest clothing that I assume they would otherwise wear to an event as bougie as a horse race, they had to make do with the second-whitest5 event theme possible. A cowboy/country theme for this gathering led to many men donning flannels and making other questionable fashion choices, clearly doing their best to look like Woody from Toy Story. In that effort, UVA Law boys donned vests and boots that sadly did not have the spinning spikes on the back that real cowboys wear. Several brave men (although not nearly enough) wore cutoff jean shorts, giving the event some real country credibility.  Turning to women’s fashion, flannels also dominated, with pointy boots and skirts (all impractical for riding horses) making appearances as well. Enough flannels were tied around waists to give the event a slight ’90s feeling, and cowboy hats were everywhere. Many students must’ve used those ten-gallon hats to smuggle in their extra booze.   

While the fashion was fierce, the friendship was fiercer, and the recently formed class of 2021 had a chance to let loose and shake off stress from midterms and two hard months of classes.  More friendship would have been had if Crozet had not run out of their much-anticipated Jello shots far too early in the afternoon.  

Overall, Fauxfield was fun and memorable, and 1Ls should be glad they got to miss the chance to subsidize an over-priced day at the races.  

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1 I am a 1L. I have never been to the real Foxfield.
2 Mushrooms are gross.
3 Aside from being a softball dad 
4 Editor’s note: While the Editorial Board may agree with the statements criticizing the non-drinking ticket option, we also feel the need to call out the 1Ls complaining about paying $25 dollars for the replacement of Foxfield. Given that the normal event usually requires the 1Ls to use hundreds of dollars of their 1L funds to subsidize free eating and drinking for all upperclassmen, these lucky 1Ls have no idea how good a deal they got.  
5 Second most horse-related as well 

PILA 2018: Welcome to the Wizarding World of Public Interest

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Lena Welch ‘20
New Media Editor

UVA Law’s annual PILA Auction has undergone a makeover that would make even Neville Longbottom jealous. The Live Auction will take place Thursday, November 8 from 5:30 p.m. to 8 p.m. in Caplin Pavilion, and the Silent Auction at the Omni Charlottesville Hotel will be Saturday, November 10 from 9 p.m. to midnight. Not only is the PILA Auction a highlight of students’ social calendars, it is the main fundraiser for the guaranteed funding of students participating in public interest summer internships. 

“The reason for having the PILA Auction is to raise money to fund the grants that are given to 1Ls and 2Ls who summer in the public sector and have met the prerequisites for the grant,” Auction Director Shivani Patel ’19 said. “Taking into account faculty and student feedback, we figured that the best way to increase the efficacy of the Auction was to separate the Live Auction from the Student Silent Auction, enabling greater faculty and student involvement. Since we’re holding the Live Auction in Caplin Pavilion during the week, it’s easily accessible to everyone, and bidding on items will be made easier as noise and lighting will not be an issue. Furthermore, we plan on publishing the Auction Program in advance of the Live Auction and will indicate the times that certain items will be auction[ed] off so students and faculty can filter in and out.” 

This makeover is an effort to allow law students, who tend to work with limited individual budgets, to coordinate as groups for bids on high desired items as well as to open the Auction up to faculty. The Live Auction will retain the big-ticket items such as Dean Risa Goluboff and Professor Richard Schragger’s ice cream social, while the Silent Auction will feature donations from local businesses as well as student donations. Patel added that surprises may be in store at the Live Auction. 

“Professors Mitchell and Ferzan are our hosts for the Live Auction, meaning they will have to share the stage, so I’d say expect the unexpected,” said Patel. Professor Mitchell has suggested that he might have a surprise planned that goes beyond the orange suit he donned at the auction a few years ago, so we’ll see.” 

Additionally, the live auction will feature the chance to pie a professor in the face. As part of this year’s PILA Week––which also features the Women in Public Service event sponsored by Virginia Law Women on Wednesday, November 7––students will be able to bid for the opportunity to pie their favorite, or least favorite, professor.  

“We hope that watching a professor get pied in the face at some point during the Live Auction will also attract students and other faculty to the event,” Patel said. 

The separation of the live auction and silent auction is not the only exciting announcement about this year’s PILA Auction. The theme: Yule Ball. Break out your cloaks and wands, Potterheads! Represent your house as you aim to raise money for your classmates who intern at public interest organizations. Accio a good time, am I right? 

“We have promotional Auction videos coming out soon, which, in my opinion, are really awesome, so look out for those!” Patel said. “Some of them will also be showcasing some of the cool items we have received as donations this year.” 

Ticket sales will begin Wednesday, October 31 in Hunton & Williams Hall and run through Wednesday, November 7, with price increases as the PILA Auction nears. According to Patel, “It’ll be a magical night that allows you to forget your muggle status for the evening.”