Law Weekly Exclusive Interview with Senator Sheldon Whitehouse '82

Virginia Law Weekly April 3, 2019

Anand Jani ‘20
Special Projects Editor

In what is certain to be a relief for those students who find themselves academically in the middle of the pack at the Virginia School of Law, Senator Sheldon Whitehouse ’82 was never on the Dean’s List or a candidate for a Supreme Court clerkship. By his own account, the Senator’s law school career was “relatively undistinguished.” Justice Richard Neely of the Supreme Court of Appeals of West Virginia once quipped, on a visit to UVA Law during Whitehouse’s 3L year, “I sometimes find it difficult to be always serious about the law and that is reflected in the fact that my law clerk next year is Sheldon Whitehouse.”

Senator Sheldon Whitehouse ‘82 discussed his career and his time at Virginia Law with the Law Weekly. Photo credit UVA Law.

Nevertheless, through his own dedication to the pursuit of public service, Senator Whitehouse now finds himself as one of UVA Law’s most venerable alumni. Serving as the junior United States Senator from the State of Rhode Island, Senator Whitehouse’s accession to the office shows us that success is not determined solely by grades and accolades but rather by one’s undaunted passion and willingness to commit.

In February of this year, Senator Whitehouse graciously spoke the Virginia Law Weekly about his journey through the public sector and reminded us that it is not about where one begins their path but where they end it––and the journey along the way. The Law Weekly is pleased to share his insights with this article.

In the most extraordinary admission throughout our interview, Senator Whitehouse revealed that one of his favorite courses at UVA Law was Civil Procedure. Taught by former Virginia Law Professor Stephen Saltzburg, Senator Whitehouse confessed that he found the class, which is a bane to most first-year students, “interesting and even fun.” As a show of good faith that Senator Whitehouse has not lost touch with the common law student, he vigorously conceded that this was an “astonishing” thought. Although Senator Whitehouse was a law student without a clear career path or particular academic bent, there was no question about whether he would enter private practice or public service. As the son, grandson, and nephew of Foreign Service Officers, the sense of duty to serve one’s country was inculcated in Senator Whitehouse from a young age. Raised outside of the traditional champagne circuit of politics, his childhood consisted of rural communities, powdered milk, and non-potable water. Places where, although resources were sparse, the people were cheerful and buoyed by a sense of generosity that looked beyond their own personal comfort. Having grown up around Americans who eschewed the safety and comforts available to them at home, Senator Whitehouse developed a sense of civic pride that was baked into his personal code of ethics before he ever reached the halls of UVA Law.

On Senator Whitehouse’s desk sits a collection of quotations that he compiled and published in 2012. The book started as a reference for the Senator to easily access quotes whose broadness made reattribution impossible without hours of research; it grew into a selection of timeless insights and inspiration that outline America’s core values. In typical Lawhoo fashion, Senator Whitehouse turned during the Law Weekly’s interview with him to a quotation from Thomas Jefferson that reads, “That our creator made the earth for the use of the living and not of the dead; that those who exist not, can have no use nor right in it, no authority or power over it; that one generation of men cannot foreclose or burthen its use to another . . . these are axioms so self-evident that no explanation can make them plainer.”

Reflecting upon how his training as a lawyer influenced his philosophy on legislating, Whitehouse stressed the importance of understanding how to distinguish between issues on which one has no choice but to go to battle and those that present an opportunity for a collegial resolution. He also stressed the importance of a good reputation and the confidence of one’s colleagues that you can be a person of your word. Comparing the “class” of one hundred in the United States Senate and his own Law School class of roughly the same size, Senator Whitehouse expounded upon not only the virtue, but also the necessity, of treating others fairly and establishing friendships regardless of ideology or party. He pushed back on the notion that the U.S. Senate has become less stable or less collaborative, but he did allow that so-called “titans” of the Senate (e.g., Senators Ted Kennedy, John McCain, Robert Byrd, and Joe Biden) no longer prevailed within the chamber. The lack of these personal gravitational centers, Whitehouse believes, has changed the personality of the legislative body, as individual lawmakers are less likely to stand out against the greater party structure that splits the upper house of Congress.

When asked for advice for UVA Law students, especially those hoping to enter public service, Senator Whitehouse stated clearly and emphatically, “Dive in! Do not be picky! Work really hard! Try to be helpful! And trust that your behavior in that fashion will attract the attention of people who will want you to come work for them.” Even the most verbose Law Weekly editor cannot make this advice any plainer.

Senator Sheldon Whitehouse’s rise from an average law student who started his legal career in the Public Utilities Regulatory Office of the State’s Attorney General’s Department (at a pay scale that, when measured against hours worked, came out to less than minimum wage) to a U.S. Attorney, a State Attorney General, and finally a United States Senator demonstrates that when the flame burns a bit brighter, you go a bit further. An inspired effort and a relentless drive are the true indicators of success.

To borrow from another’s words, “A man’s reach should exceed his grasp, or what’s a heaven for?” If we can learn one thing from Senator Sheldon Whitehouse ’82, regardless of where we are from, where we are now, or where we will be, we can all reach just a little bit higher.

The Virginia Law Weekly thanks Senator Whitehouse and his deputy press secretary Richard Davidson for their time and efforts in making this interview possible.

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ahj3ez@virginia.edu

Holocaust Survivor Allan Hall Shares His Story and Insights with the Law School

Virginia Law Weekly April 3, 2019

Raphael Cho ‘21
Staff Editor

In the shadow of the 2017 white nationalist rally, Allan Hall, a law professor, engineer, and Holocaust survivor, spoke to the UVA Law community about his harrowing experiences under Nazi occupation and the role of lawyers in fighting extremist ideologies. Hall began the talk by describing his shock and consternation at the 2017 white nationalist rally as his motivation for hosting the talk in UVA. He felt that it was important for students to hear about his experiences and be vigilant in stopping extremism. As a prelude to his story, he posed two questions that nestled into the minds of the attendees: “Can it happen to you? Can it happen now?”

Allan Hall speaking to an audience in Caplin Pavilion last week about his experiences in Nazi-occupied Germany and the importance of civic engagement and the rule of law in combatting extremism. Photo credit Kolleen Gladden ‘21.

Hall was only four years old when Nazi Germany occupied his childhood home of Krakow. Throughout the war his family fled from one city to another, narrowly avoiding capture at each turn. In the early years of the war, his father attempted to avoid capture by bleaching his hair and obtaining a rhinoplasty, which he described as a home surgery in the dead of night, with nothing but “vodka anesthetic.” Later, his family was identified by the Nazis and moved to the Jewish ghettos where he was taken to a holding camp along with hundreds of other children. Although his father was ultimately able to free him, he vividly remembers, to this day, the faces of the children he left behind. Hall’s family then obtained false IDs and posed as Christians but were taken to the Gestapo headquarters after a neighbor informed the Gestapo of her suspicions. Hall narrowly escaped being sent to Treblinka at the age of eight, after the train he was boarding was delayed due to the Nazis’ fears that the corpses would infect their soldiers. Although he was subsequently separated from his family and sent to an orphanage, Hall reflected fondly on his time there as it returned some semblance of normalcy to his life. He was eventually reunited with his mother and hid in an office storage closet during which time his younger brother, Andrew, was born. Following Germany’s surrender, Hall and his family lived under Soviet occupation. Hall and his father were sent to Siberia despite the fact that there were “never formal charges,” but were eventually reunited with their family in France. In 1947, his family immigrated to the U.S. where he and his brother studied law. However, the scars of the war remained with him throughout his life. He stated, “everyone faces depression at one time or another,” and thanked his mental health workers for enabling him to share his story so that others may learn from it.

Despite all that he endured, Hall remained thankful to those that helped him and maintained a sense of humor throughout the talk. He spoke with deep gratitude about the man who assisted in reuniting him with his family. He wished he could thank the man for risking his life to help his family, but knew nothing about him. Hall emphasized that even in the darkest times, “there are people with an extraordinary moral compass.” He also described his brother’s birth and joked that we shouldn’t criticize Pepsi too much as his brother survived off sugar water despite being only two pounds at birth. Although there was an ocean of sorrow in his story, Hall felt it was important for the younger generations to hear it and remember that it was not so far removed from our current realities. In fact, Hall took the effort to shake the hands of everyone in attendance so that if anyone encountered a Holocaust denier, we could say that we shook the hand of someone who lived through it.

In his opening remarks, Hall asked if what he lived through as a child could happen to us today. His answer was an unequivocal yes. He stated that the rhetoric he hears today is horrifyingly similar to the rhetoric heard under Nazi occupation. Hall went on to explain that “when the Nazis took control of Germany, they only represented six percent of Germans,” and that a similar comparison could be made to “all the other extremists” in the U.S. today. And he stressed that “every time you don’t register to vote…you are trusting your lives and the lives of your children to precisely the people you do not want.” When one student asked how we, as future lawyers, could prevent this from happening again, Hall was visibly pleased by the question. As lawyers, he explained, “we are the first line of defense,” and our primary goal is to serve our society. As long as lawyers ensure the rule of law exists, we ensure our societies are protected from discrimination and tyranny. He emphasized that this holds true in both private and public sector practices in that part of a lawyer’s job is to “say no” to any practice that would weaken the rule of law. He stated in simple terms, “when you see something, say something and do something.” While this may sound cliché, Hall reminded all the attendees in the realest terms that, “the only thing necessary for the triumph of evil is for the good men to do nothing.”

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ic7sa@virginia.edu

Sprouting Dynasty: International Tax Moot Court Team Wins Back-to-Back Gold Medals in Brussels

Virginia Law Weekly March 28, 2019

Jansen VanderMeulen ‘19
Editor'-in-Chief Emeritus

The UVA Law team romped to victory once again in this year’s International and European Tax Moot Court in Brussels, Belgium, defeating sixteen other teams—and heavyweight Vienna University of Economics and Business in the final round—to follow up on its surprise triumph last year. Team participants were Ben Kramer ’19, Elizabeth Donald ’19, Colin Cox ’19, and Griffin Peeples ’18. David Rubin ’19, one of last year’s victorious competitors, served as the team’s coach, while Professor Ruth Mason was its faculty advisor.

Greatest of all Tax Students (aka “GOATS”) featured left to right: Elizabeth Donald ‘19, David Rubin ‘19, Ben Kramer ‘19, Griffin Peebles ‘20, and Colin Cox ‘19. Photo Courtesy David Rubin.

Last year, Rubin and a group of dearly departed 3Ls under Mason’s supervision became the first American team to win the fifteen-year-old tax competition, defeating Ukraine’s National University of Kyiv-Mohyla. This year’s competition began in October of 2018. Each participating team received the text of an international tax problem with instructions to submit two briefs over winter break, one for each the applicant taxpayer and the defendant tax authority. Out of twenty-four teams submitting briefs, including teams from Northwestern University and the University of Miami, UVA was among the sixteen schools—and the only one from the U.S.—selected on the basis of the briefs to argue in Brussels. The Vienna team won the competition in 2015, 2016, and 2017, and was, according to Professor Mason, considered “the team to beat.”

The problem was concerned with the interpretation of an international tax treaty, specifically provisions of the UN and Organization for Economic Co-operation and Development (OECD, a grouping of industrialized nations) model tax treaties involving fees for technical services and an anti-abuse rule—provisions that the U.S. never includes in its own treaties, Professor Mason told the paper. “That meant that the team members had no familiarity with those articles from the doctrinal tax treaties course they took with me,” she added.

“[W]e split up the issues amongst ourselves so we could each become knowledgeable on specific subject areas,” Donald told the Law Weekly. Each participant researched particular areas of law and helped draft the brief. “I focused on the taxation of royalties, tax treaty interpretation, and a concept concerning beneficial ownership, which seeks to prevent treaty abuse,” Donald said. She and Cox prepared the case from the perspective of the defendant, while Kramer and Peeples wrote for the “applicant,” or taxpayer.

Arriving in Belgium, the UVA team was pitted against the host school, the Catholic University of Leuven, and the University of Düsseldorf in the round of sixteen, and then universities from Luxembourg and Brazil in the six-team semifinals. Kramer, Donald, Peeples, and Cox all argued in both of the preliminary rounds.

While the first two rounds were argued on the brief that the competitors had been working on for months, the final round was based on an entirely new, forty-five-page brief, one the participants had just twenty-four hours to write. Cox and Peeples argued the final round for the taxpayer. Cox said he was initially “extremely nervous” arguing as the applicant because he had always been in the position of the defendant up to that point, but he and Peeples excelled in the final: “Griffin and Colin killed it in the oral arguments,” Donald said, “They spoke eloquently and were able to cite directly to obscure provisions in the treaty commentary when confronted with difficult questions.” The final round of the competition was argued in front of Judge Peter Cools of the Supreme Court of the Netherlands, Judge Guy Brannan of the UK Upper Tribunal (Tax and Chancery Chamber), and Professor Gerard Meussen of Radboud University in the Netherlands. Peeples won the competition’s overall best oralist on the applicant side, and Peeples and Kramer won best team oralists for the applicant.

Mason was very proud of all the student competitors. “What impressed me most about this team was their dedication and preparation from the beginning of fall all the way through the final round of competition,” she said, “I would receive a modest text from the team saying that they thought they had done well in a round. Soon thereafter, I would receive an email from a professor in Europe who had had a chance to watch the round telling me in glowing terms how impressive my students were, how well prepared, and how powerful their arguments had been.” In news sure to please Professors Buck, Ware, and Fore, Professor Mason commented glowingly about the students’ writing skills: “Their legal writing professors will be glad to know that by the time they turned in their final draft briefs, they had expunged all use of the passive voice!”

The trip wasn’t all business; while making the finals meant the UVA team had less opportunity to socialize than they would have otherwise, several competitors told us of the fun they had in Brussels. Peeples, a famed C’ville dancer, called the Europeans “super fun”—high praise indeed from the Whirling Arkansan.

Rubin, the wistful and grizzled veteran, reflected on his Brussels glory days with typical tact and grace: “I think former NBA coach Pat Riley said it better than I ever could: ‘Coaches who let a championship team back off from becoming a dynasty are cowards.’” Coach Rubin, clearly no coward. Donald waxed poetic about the competition, calling it her “favorite experience in all of law school” and expressing her gratitude to Professor Mason for helping advance the students’ careers.

Now, the task is to keep the UVA dynasty alive. Peeples takes the helm as coach for next year’s team, eager to protect UVA’s crown. If his team leadership is anything like his dance-floor presence, next year’s coaching will be vigorous, surprising, and will likely end up with him on top of the presenters’ table in Brussels.

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jmv5af@virginia.edu

“Where’s the Line?”: JLSA Talks Criticism of Israel and Anti-Semitism

Virginia Law Weekly March 28, 2019

Jansen VanderMeulen ‘19
Editor-in-Chief Emeritus

As the American political spectrum has revealed itself to be increasingly tolerant of criticism of Israel since the election of President Donald Trump, members of UVA Law’s Jewish community have reacted with concern and introspection about what exactly constitutes anti-Semitism.

For decades, support for Israel has been a more-or-less bipartisan proposition. Republican and Democratic presidents alike have supported Israel with military and economic aid and taken Israel’s side in its myriad disputes with its Arab neighbors and the Palestinian peoples of the disputed territories of Gaza and the West Bank. While the United States has sometimes acted as an arbitrator, as it did in encouraging and facilitating the peace treaty between Israel and Egypt, more often it has stood firmly behind Israel whether governed by a liberal or a conservative.

President Trump has amplified U.S. support for Israel, standing firmly behind right-wing Israeli Prime Minister Benjamin Netanyahu, moving the U.S. embassy from Tel Aviv to the disputed city of Jerusalem, and recently recognizing the Golan Heights—which Israel seized from Syria in the 1967 Six-Day War—as Israeli territory. But according to his critics (some of them in Withers-Brown Hall last Thursday), he has also equivocated in his condemnations of right-wing anti-Semites, most notoriously declaring there were “fine people” on both sides of the white nationalist rallies in Charlottesville in August 2017. Trump’s full-throated support for Israel has opened up space on the left wing of the Democratic Party for something rarely seen in American politics: harsh, unmitigated criticism of the Israeli position from national elected officials, most notably Reps. Ilhan Omar (D-Minn.) and Rashida Tlaib (D-Mich.).

It is that criticism, and especially Omar’s, that attracted the attention of UVA Law’s Jewish Law Student Association (JLSA). Omar drew the ire of many supporters of Israel by calling lawmakers’ support for Israel “all about the Benjamins” and calling other lawmakers’ support for Israel “allegiance to a foreign country.” Rep. Eliot Engel (D-N.Y.), the Chairman of the House Foreign Relations Committee, called the latter comment “a vile, anti-Semitic slur,” and the House of Representatives passed a resolution condemning anti-Semitism and other forms of bigotry, including Islamophobia, a short time later. JLSA leaders decided to host a conversation about when legitimate criticisms of Israel stray into anti-Semitic territory.

That conversation, held last Thursday at the Law School, featured voices from across the political spectrum, both Jewish and non-Jewish, and with various levels of familiarity with Israel’s history and politics. One Jewish student described his frustration with non-Jewish friends who simply didn’t understand the significance of the world’s only Jewish state to Jews everywhere. Another student echoed that complaint: Despite his secular attitudes, he felt that Israel’s unique history merited special consideration.

That issue—the unique position of Israel—came up repeatedly. Julian Kritz ’20, JLSA’s outgoing president, explained to participants the Obama-era State Department’s “Three D’s” of Anti-Semitism: “Demonize Israel,” “Double Standard for Israel,” and “Delegitimize Israel.” The conversation proceeded with those principles at its center. Participants in the discussion aired grievances with Israel; one participant, a Jewish liberal, said she “hate[d] Netanyahu almost as much as Trump.” But participants expressed frustration and offense at what they perceived as Israel citics’ targeting of the Jewish state. One student said he found it insulting and conspicuous that critics of Israel, including left-wing critics, seemed to focus so much ire on Israel and leave unmentioned the much-worse human rights abuses of other nations, including other American allies.

The participants also discussed the use of anti-Semitic tropes. Several attendees considered Omar’s “Benjamins” and “allegiance” comments to carry historical anti-Semitic implications. Anti-Semites have often alleged Jewish conspiracies, especially connected to banking and media, as justification for anti-Semitic policy, and Jews before the establishment of Israel in 1948 were often accused of lacking sufficient loyalty to their respective nations. Many participants in Thursday’s event saw Omar’s comments as a continuation of that historical anti-Semitism. Some considered the House’s change from a resolution condemning Omar’s comments to one condemning bigotry writ large a “watering down.” One student compared it to answering “all lives matter” to a claim of “black lives matter.”

While this event evinced a growing Jewish awareness of left-wing anti-Semitism, attendees were careful not to let the right off the hook. There was little love lost between most attendees and Trump’s administration. Several students brought up Trump’s “both sides” comments as evidence that Trump has empowered right-wing “alt-right” anti-Semites. And even while many students were critical of Omar and what they saw as growing tolerance of anti-Semitic rhetoric in the Democratic Party, they were cautious, too. None imputed Omar’s comments to other Democrats, and no one volunteered a willingness to punish Democrats electorally for their tolerance of Omar’s and Tlaib’s outspoken criticism of Israel.

Daniel Grill ’19, who spoke with Kritz about organizing the event, said the event was “a great opportunity to discuss current events as they pertain to anti-Semitism.” Acknowledging that the line between legitimate criticism of Israeli policy was “particularly challenging” because of its necessary intersection “between political and religious identities,” Grill expressed hope that discussions like these can help everyone have a more productive debate about Israel and anti-Semitism more broadly.

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jmv5af@virginia.edu

New Police Chief Shares his Vision with the Law Weekly

Virginia Law Weekly March 28, 2019

Taylor Elicegui ‘20
Features Editor

On Tuesday, March 19, Tommye Sutton, Chief of Police for the University of Virginia, hosted a breakfast meet and greet for the Law School community. Chief Sutton is new to UVA—he joined the UVA Police Department on August 1, after six years at the University of Chicago and Northwestern University. He succeeded Mike Gibson, who retired after leading the Department for approximately thirteen years. Before becoming a police officer, Chief Sutton attended the University of Southern Mississippi, where he received a Bachelor of Arts in English. Chief Sutton also has a Masters in Criminal Justice from the University of Tennessee.

UVA Chief of Police Tommy Sutton stopped by Grounds last week. Photo Credit Kolleen Gladden ‘21.

Chief Sutton went around the room and introduced himself to the students, faculty, and staff. I was very impressed; Chief Sutton was attentive and friendly to everyone, asking questions and genuinely getting to know people. Students came and went, partially attracted by the impressive breakfast spread at the event (Bodo’s, yogurt, bananas, and coffee galore). Chief Sutton was nice enough to sit down with me for a few minutes and discuss his plans for the University’s Police Department and his past experiences.

Chief Sutton wants the Police Department to have a clear identity and be known for collaboration with the community, excellence in service delivery, and community engagement. The nature of policing, Chief Sutton explained, inherently gives the police power. That power, though, comes from the citizens and they can it take back if they don’t trust the police. Chief Sutton raised the Department’s required qualifications for officer hiring. The Department now requires either a bachelor’s degree, four years of military service with honorable discharge, or four years of law enforcement experience. These requirements ensure that the officers will have had exposure to different types of people, cultures, opinions, and experience working in teams. The Department can teach officers the necessary police skills, but they can’t teach empathy or compassion. The new standards are meant to ensure the Department hires officers with the required people skills.

By improving relationships with the community, Chief Sutton hopes to reduce crime and improve safety. Chief Sutton wants UVA students to know members of the Police Department and be able to recognize them on sight. That way, if a student ever ends up in an emergency situation and needs help from the police, the student will already know the officer helping them. Chief Sutton thinks this increased familiarity will reduce, to a degree, the trauma inherent in any emergency situation.

The Department has several specific plans in place for emergency situations and practices those plans often. Chief Sutton told me that the Department has an active shooter plan that they practice every summer with the members of other law enforcement officers in the area. The Department wants to educate the community more about what to do in an emergency. If an emergency situation should occur, the Department intends to execute the plan as practiced. That way, citizens will have a better idea of what to expect and the officers will know how to respond. Additionally, at large events like football games and concerts, the Department sets up the same command post as it would during an emergency situation. By doing so, all of the law enforcement officers get to know each other and get used to working together—allowing them to work more effectively in an emergency situation.

Overall, I was very impressed with Chief Sutton and appreciated the opportunity to get to know him. Chief Sutton’s approach to policing—collaboration, service delivery, and community engagement—and his underlying values of empathy and compassion will serve the UVA community well.

Relevance and Recognition: Perspectives on Black Queerness

Virginia Law Weekly March 20, 2019

Grace Tang ‘21
Lifestyle Editor

On Monday evening, students from across UVA Law piled into Purcell Reading Room (perhaps lured by the smell of Wayside) for an informative, interactive, and timely panel presentation co-hosted by Lambda and BLSA following Black History Month in February.

“It’s important to have these open discussions about black queerness, and bring ideas to the forefront. We want this event to be a conversation starter which addresses tough issues from different angles,” said Jameil Brown ’21, one of the event’s co-hosts. “The event highlights the role that queer black individuals have played in law, politics, history of civil rights, and other movements. There are individuals in this school who may not always be heard, supported and empowered; and we hope to change this through intersectionality activism in the community across disciplines.”

Michele St. Julien, the moderator and other co-host, is this year’s Swanson Award Recipient. She was joined by Professor Kevin Gaines, professor of civil rights and social justice at Main Grounds, Professor Dayna Matthews, professor of human rights and public health at the Law School, and Toccara Nelson ’19, recipient of the inaugural Swanson Award at UVA.

The event kicked off with a recent video narrated by Patrisse Cullors, one of the co-founders of the Black Lives Matter movement and a queer black woman. “Blackness is everything,” said Cullors. “I am black. I am queer. It’s shaped my reality. It’s shaped my world.”

“The struggle for visibility and recognition within public culture of black freedom is part of a long history and persists to this day,” said Professor Gaines. “There has been a challenging history of dismissal and erasure. Black queer people throughout history have been fighting for everyone else.”

Professor Matthews recalls growing up in the New York at the tail end of the civil rights movement and recounts when LGBT groups were not included as part of important conversations when community organizations were invited to share their ideas. Drawing upon an essay called “Privilege,” Professor Matthews discusses shifting the concept of discrimination to broaden and encompass more individuals and the idea that every one of us has a responsibility to make change. When considering avenues where assistance is truly needed, Professor Matthews encourages students to look at who is left behind in the public healthcare system as the clear gap in care provided indicates a legal need. “In black queer legal activism, we should identify those groups and move towards them. Write briefs, get involved.”

Nelson began her discussion with a provoking quote from “Double Consciousness” by W. E. B. Du Bois: “One ever feels his two-ness, an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.” “Nobody in this nation should feel like they can’t be the person they were meant to be,” said Nelson. She points out that artists not known for being a part of the LGBT community, such as Baldwin, have created universal experiences for everyone else. “It is not easy when black queers are pulled from different sides and dismissed from different sides of the equation.”

For those like myself who are interested in learning more and want to engage further, the panelists suggested several media and literature options. Moonlight (movie), Pariah (movie), documentaries on the Stonewall riots, Brother Outsider (documentary), literature by James Baldwin and Audre Lorde are all excellent choices. Additionally, UVA Law students and faculty are encouraged to join the allyship listserv at socialaction@uvablsa.org.

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gt5qy@virginia.edu

The Old Queen is Dead; Long Live the Queen

Virginia Law Weekly March 18, 2019

New and old SBA officers gathered at the Bebedero for a celebratory meal. L-R: Frances Fuqua ’19, MacLane Taggart ’19, Jasmine Lee ’20, Julia Wahl ’19, Rachel Staub ’20, Trevor Quick ’20, Katherine Janes ’21. Photo courtesy F. Fuqua.

By Sam Pickett ’21 News Editor

New SBA Leadership Seeks Transparency, Diversity, and Community

I must admit that the first fifteen minutes of writing this article were spent looking up funny quotes about democracy. I wanted to seem witty, like my esteemed colleague Jacob Jones ’21 in his coverage of Barrister’s, but I couldn’t find the right quote. They were all cynical, and that simply isn’t my personality, especially given the fact that I just won an uncontested election to be the News Editor for the Law Weekly. As I followed the SBA candidates along the campaign trail, I have come to feel a certain pride in the direction the organization seems to be heading and the priorities its members seem to embody. As we look forward to a new year of socials, bar reviews, and other events, I hope to show the UVA Law community what we can expect.

Big Themes

Transparency: It is only right to begin with the initiative that dominated the election cycle. Newly elected SBA President Jasmine Lee ’21 has cited transparency as her primary initiative, emphasizing the need to make SBA more accessible to the student body, and for students to “know that SBA wants to hear from them.” While meetings are open to the general public and minutes are posted online, President Lee hopes to continue conversations with the new student government to make sure that students feel their government represents their interests. Most of the new 2L Senators share Lee’s goals; four of them mentioned the need for transparency in their candidate statements. 2L Senator Christina Luk is pushing for SBA to more regularly update its website1 with its initiatives and to possibly send out a “State of the SBA” summary each semester. Senator Luk’s new colleagues Eli Jones, Savanna Williams, and Page Garbee, all class of 2021, made transparency a similarly important part of their campaign platforms by emphasizing that SBA should not be operating behind closed doors and should be talking to the student body to identify certain goals and priorities.

This need for transparency includes the organization’s finances; newly elected Treasurer Trevor Quick hopes to make the budget available for student viewing as an important measure of accountability and student involvement.

Diversity: A number of SBA’s newest officers chose to focus on diversity. In one of the most illuminating presentations given at the debate, new Honor Committee Representative Stephen Paul ’21 brought attention to international students under the honor system. He called for more direct engagement between “Honor” and international students, such as intermediaries for students who may not feel comfortable approaching their professors and TAs. New 2L Senator Will Hinton also hopes to use his role to promote diversity, emphasizing the need to make students who belong to historically marginalized backgrounds comfortable voicing their concerns. Senator Luk plans to meet with leaders from affinity groups around North Grounds to identify areas where SBA can offer support. In fact, a large part of why Senator Luk ran for office was because of this year’s Diversity fair, saying:

At the event, the diversity tables had been set up outside in Spies Garden while SBA hosted its own social inside ScoCo. The setup was unfortunate, because SBA had effectively barricaded half the doors leading out to Spies Garden with its own food tables. Given the relative darkness and chill of late evening, attendance at the Fair was predictably low. One memorable guy did make it out to the APALSA table––he came to grab a plate because SBA had run out. Standing out in the cold with the other affinity and diversity groups, I felt a great impatience for change. I think that SBA lacks awareness of the struggles that diverse students face on campus.

SBA as an Intermediary: Another commonality among SBA’s new officers is an understanding of the organization as an intermediary between the Law School and the student body. President Lee specifically defines the SBA as “the body that can be an intermediary and speak with administration on an issue, work to address student complaints, and have a voice with Main Grounds.” As the former Secretary of SBA and FYC representative during her 1L year, President Lee has had the opportunity to speak with a great number of students and faculty—a characteristic I believe will make her an excellent ambassador for students’ concerns. 2L Senator Colin Lee (no relation to Her Majesty––the President) sees SBA similarly, in that it “facilitates a balanced dialogue between different interest groups in the school” and “brings [SBA] members together in order to address any concerns that are brought to the organization’s attention.” Senator Lee also wants to make SBA an intermediary between the Law School and the community by reaching out to charities and organizations in the larger Charlottesville community.

3L Senator Read Mills also sees SBA as an intermediary, but on a more practical level. He wants to help student organizations turn their ideas into actions by applying for funding and connecting with other organizations seeking to plan similar events. Mills has been an important contributor to the SBA’s social planning, along with “all-stars” Sara Phipps’20, Tazewell (“Taz”) Jones ’20, Jasmine Lee ’20, Ryan Poche ’19, and Ben Elron ’20, which has given him considerable experience in pulling the Law School together around the joys of food and drank [I know this is a serious article, but I just love phrasing it as drank.]

The Law Weekly looks forward to seeing this group of leaders push for transparency, diversity, and accessibility to the student body. And, most importantly, I look forward to seeing how many free meals SBA provides in the coming year.

Bonus Quiz: Match the SBA Officer to their Bodo’s Order

A) Read Mills

B) Jasmine Lee

C) Collin Lee

D) Christina Luk

1. Plain bagel, egg, and cheddar cheese

2. Garlic bagel with herb cream cheese

3. Toasted onion bagel with scrambled egg, cheddar cheese, and “crisp bacon”

4. Everything bagel with lox and cream cheese

Answers: A(4) ; B(1) ; C(3) ; D(2)

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shp8dz@virginia.edu

#MeToo in the Federal Judiciary

Virginia Law Weekly March 18, 2019

By Sarah-Jane Lorenzo ’21 Staff Editor

As the #MeToo movement continues to inspire critical consideration of sexual harassment, Dean Risa Goluboff introduced Monday’s panel, “#MeToo and the Federal Judiciary,” as a chapter of an ongoing conversation.

Panelists Dahlia Lithwick and Pamela Harris emphasized the particular need to address the issues of power that surface throughout the frequently isolating experience of working in the judicial system. Harris, a United States Circuit Judge of the U.S. Circuit Court of Appeals for the Fourth Circuit, called this conversation long overdue, especially since abuse in the judiciary is difficult to report.

As issues of workplace abuse continue to impede women’s full access to the legal profession, Lithwick, a journalist at Slate and a contributing editor at Newsweek, noted that data on the pervasiveness of abuse in the judiciary is very limited. Many complaints within the federal judiciary are never remediated: the judge may resign, or the complaints just disappear. While we do not know the nature of all of the complaints and some, she said, may be trivial, it is very possible that there are serious allegations going unaddressed.

Both panelists said that while the majority of clerkship experiences are positive, and most judges are good employers, that is not enough. “Inevitably, there are always bad actors,” Harris said. “It feels like a closed system, even from the inside.” Harris noted that both physical and cultural isolation contribute to that closed system, because judges have complete control over their staffs. “There is no accountability and there is no transparency.”

For example, Harris said that “one of the most haunting things” she felt was revealed by the sexual assault hearings following accusations of former Ninth Circuit court Judge Alex Kozinski was that, prior to Kozinski’s confirmation, a former employee described him as an abusive boss. Yet that description, she said, didn’t matter. “There’s no signaling that that’s an important part of the role.”

Lithwick said these issues are power problems in a closed system in which coming forward can lead to lasting personal harm. Power, she said, determines who can come forward and still salvage their career, and that limitation deters many victims from speaking up. She emphasized that law students, and especially women in law school, should never feel forced to endure anything in order to attain opportunities.

In sharp contrast to those abuses of power, Harris said she believes a central role of a judge and of the rule of law is to protect against abuse of power and to hold power accountable. “I think that raises very interesting questions about whether there’s room in the system for judges who don’t know how to do that and who are themselves abusing power,” she said.

Yet Harris said she is hopeful that the system is moving forward. For example, she believes changes to the Rules for Judicial Conduct Proceedings that outline and forbid abusive behavior are a crucial type of effective signaling. “Writing it down is at least a first step,” she said. She noted that the federal judiciary has also hired its first judicial integrity officer, and that in the Fourth Circuit, clerks are now trained on how to report issues of abuse. While she recognized that changes will likely be gradual, she believes there are many judges who are very committed to addressing issues of abuse, and who are equally committed to making changes.

Ultimately, Lithwick said, one of the most important remedies to abuse within the federal judiciary will be keeping it in our focus. “The problem isn’t over when somebody steps forward,” she said, “and the system isn’t fixed when one person steps down.”

Federalist Society Hosts Originalism Symposium

Virginia Law Weekly March 18, 2019

By Colin Snider ’19 Guest Contributor

In recent years, no theory of judicial interpretation has been as widely praised, criticized, and debated as originalism. While originalism itself is a simple concept—that judges should interpret the Constitution according to the understanding of those who ratified it—originalism raises interesting questions about whether it accomplishes its objectives and how it should be applied. What should a judge do when the meaning of the Constitution is unclear or nonexistent? How should judges react to subsequent developments in caselaw and practice? Does originalism actually constrain judges or is it a tool for judicial activism?

Last Thursday, the Federalist Society at UVA played host to constitutional law scholars, practitioners, and judges who grappled with these and other questions. Building off their fall “Originalism 101” seminar, hosted by Professors Caleb Nelson and Saikrishna Prakash, the Federalist Society sought to confront some of the critiques of originalism and explore disagreements among originalists themselves. As expressed by the symposium’s keynote speaker, Judge Thomas Griffith ’85 of the United States Court of Appeals for the D.C. Circuit, the symposium served as an opportunity for originalists to “recalibrate” and “reconsider” originalism’s fundamentals.

Original Understanding and Substantive Rights

The day kicked off with Judge Diane Sykes of the Seventh Circuit moderating a panel on originalism and the Due Process Clause. Professors John Harrison of UVA Law and Randy Barnett of Georgetown Law began by reiterating that due process, as originally understood, was more of a procedural guarantee than a way for courts to substantively review the content of laws passed by Congress. It could be thought of as a separation of powers requirement that Congress not exercise judicial power and that courts bind themselves to the rule of law. Substantive review of laws passed by legislatures, argued Harrison and Barnett, comes from other sources like the Bill of Rights, the Commerce Clause, and limits on police power.

However, fealty to the original meaning of the Due Process Clause leaves originalists in somewhat of a bind. What do they do with the fact that substantive protections in the Constitution, such as the Commerce Clause and Privileges and Immunities Clause, have lost their strength? Scott Ballenger, Partner at Latham and Watkins and Professor at UVA, suggested that despite its more limited original meaning, substantive due process is the “tool at hand” courts have to protect fundamental rights left unprotected by changes in Supreme Court doctrine. As an example, Ballenger cited his work in Abigail Alliance, in which he argued that the individual right to self-defense included the right to purchase experimental drugs to fight cancer. Even though the Founders would have seen the right to self-defense as one of the first fundamental rights of nature, the D.C. Circuit declined to use substantive due process in the case. On a similar note, Professor Julia Mahony suggested substantive due process could be used to tackle unique twenty-first century problems such as civil asset forfeiture, crony capitalism, and administrative state overreach.

When the Text Runs Out

What should originalists do when the text of the Constitution is unclear? After a wonderful lunch debate on judicial restraint between Clark Neily of the Cato Institute and Mark Pulliam of Law & Liberty, the symposium took up the issue of what to do when the text of the Constitution is ambiguous or does not answer the question before a court. Panelists Joel Alicea from Cooper & Kirt, Professor Stephen Sachs from Duke Law, and Professor Lawrence Solum from Georgetown Law discussed this issue.

To begin, each panelist discussed what motivates originalism. Professor Sachs observed that originalists are faithful to the original meaning of the Constitution not necessarily because the Founders got it right, but because originalists believe that original meaning is the law. Constitutional changes should take place by amendment, not by judges. Alicea commented that a judge’s approach to constitutional interpretation depends on their personal political theory and how they see the role of judges. Finally, Sollum noted that it makes sense for originalists to examine the philosophy of language and history, just as some judges defer to economics or science in their opinions. Originalism is, after all, like any scholarly discipline.

When asked by Judge John K. Bush of the Sixth Circuit, the moderator, about what advice they would give judges about what to do when the text is indeterminate, Professor Sachs suggested judges look to background principles of law, such as the legal maxim that “no man can profit from his own wrong,” which the court relied on in Riggs v. Palmer. Alicea suggested that canons of construction, history, and precedent [if consistent with original public meaning] can take judges quite far in discovering the mean of the Constitution. Finally, Sollum argued that if ambiguity persists, judges might look to the objective purpose of a provision of the Constitution or, if all else fails, defer to the political branches.

Conclusion

Overall, the panelists at the symposium raised excellent arguments, both for and against originalism. They grappled with the difficulties originalists face when they confront longstanding changes in original meaning, such as the Due Process Clause. Panelists made strong arguments for why originalism should or should not constrain judges. They also addressed what originalists should do when their methodology leads them to an inconclusive result. The day concluded with a re-argument of The Slaughterhouse Cases by Dominic Draye, Solicitor General of Arizona and Elbert Lin, Former Solicitor General of Wester Virginia. Judges Griffith, Sykes, and Bush did their best to re-create the atmosphere of the original argument. It was a fantastic to see the distinguished advocates and judges recreate one of the Supreme Court’s most infamous cases. It was a fitting end to the symposium.

ISSA Injustice: Plight of British-born Rapper Representative of Contradictions of American Immigration System

Virginia Law Weekly February 28, 2019

Julie Dostal ‘19
Staff Editor

On January 29, 2019, rapper 21 Savage (Shéyaa Bin Abraham-Joseph) performed his single “A Lot” on the Tonight Show with Jimmy Fallon. In place of J. Cole’s feature, 21 Savage inserted a new verse. The verse included the following lyric: “been through some things, but I couldn’t imagine my kids stuck at the border. People was innocent couldn’t get lawyers.”[1] On February 4, 2019, U.S. Immigration Customs and Enforcement arrested Mr. Abraham-Joseph after a “targeted operation with federal and local law enforcement.”[2] ICE spokesperson, Bryan Cox, delivered a statement identifying Abraham-Joseph as an unlawfully present United Kingdom national.[3] Mr. Abraham-Joseph legally arrived with his mother on an H-4 Visa in 2005. His visa expired in 2006. At age 12, through no fault of his own, Mr. Abraham-Joseph’s presence in the United States became illegal.[4]

Photo courtesy of Photo 11: Roy Rochlin, Getty Images

In addition to the identification of Mr. Abraham-Joseph as an illegal United Kingdom national, ICE also effectively labeled the rapper a fraud, discrediting his public persona as an Atlanta rapper and portraying him as a nefarious felon. An ICE spokesperson commented the following to CNN: “his entire public persona is false.”[5] Prior to his arrest by ICE, 21 Savage’s Wikipedia page stated he was born in Atlanta, Georgia. In an interview with XXL Magazine in 2016, the rapper stated he was “from Decatur, Georgia,” located in the Atlanta Metropolitan Area.[6] The public also interpreted the rapper’s reverent loyalty and common mention of the city of Atlanta as indicative of his birthplace.

Fans may not have been aware of where 21 Savage was born, but the U.S. government most definitely was. The ICE statement is clear. Mr. Abraham-Joseph's “public persona is false.” The intention is also clear. ICE intended to capitalize on the rapper’s alleged deception with regards to his citizenship to manipulate the public into disclaiming 21 Savage. The agency attempted to sever the rapper’s fourteen-year ties to the city where his brother died, where his three children now live, and where he started charity programs to help children in his neighborhood with financial literacy and school supplies.[7] ICE then labeled Mr. Abraham-Joseph a felon. Mr. Abraham-Joseph was convicted of felony drug charges in 2014.[8] The penalty was later expunged. The agency failed to mention the expungement in its official statement. Instead, ICE identified Mr. Abraham-Savage as a felon and a foreigner. The agency’s garnered its intended response from the American public.

“Immediately following news of the detainment, narratives echoing ICE’s language proliferated online. These quips relied on the dangerous logic of ICE’s statement: the implication that Abraham Joseph’s newly revealed immigration status renders him a fraudulent cultural interloper.”[9]

Public commentary demonstrated a marked lack of engagement with the life of 21 Savage. Further, the public’s embrace of ICE’s depiction of 21 Savage as a fraud and a felon demonstrates a “an unfamiliarity with the agency’s wide-ranging tactics to discredit its detainees, and the broader systems that contribute to that targeting.”[10] In May of 2018, a U.S. District Court held that ICE falsely claimed that detainees were affiliated with street gangs in order to successfully deport the individuals.[11] ICE failed to include relevant information regarding Mr. Abraham-Joseph’s arrest record. The agency also actively worked to discredit an individual who has tirelessly represented Atlanta and actively serves the community through philanthropy and taxes. It is essential that the public sensibly engage with the facts surrounding the arrest and deportation proceedings of
21 Savage.

On February 13, 2019, 21 Savage was released from ICE custody.[12] He paid $100,000 to be released on bond. A statement by the rapper’s lawyers revealed the U.S. government was already aware of 21 Savage’s immigration status. The rapper’s U visa application has been pending for over a year. A U visa is available to those who have been victims of a crime in the United States, have suffered physical or mental injury as a result of that crime, and who are helpful to law enforcement or government officials in an investigation or criminal prosecution.[13] 21 Savage’s U visa application likely relates to injuries he suffered after being shot six times by rival gang members. The rapper’s lawyers noted his visa application. The statement read in part:

“Mr. Abraham-Joseph has never hid his immigration status from the US government. The Department of Homeland Security has known his address and his history since his filing for the U visa in 2017, yet they took no action against him until this past weekend.”[14]

Despite the government’s previous awareness of the rapper’s residence, 21 Savage was arrested while driving with his cousins in Atlanta. Mr. Abraham-Joseph recalls he looked up from his steering wheel to see flashing blue lights and guns. A helicopter was also present during his arrest.[15] He was then put into the back of a car without further explanation. He told reporters that his only understanding of his arrest came from overhearing an officer state, “we got Savage.”[16] The rapper now sees himself as an important advocate for poor black Americans and poor black immigrants whose interactions with immigration authorities and law enforcement may not receive mainstream media attention.

21 Savage remains determined to stay in the United States. Fellow rapper and mogul Jay-Z is helping to pay for 21 Savage’s legal representation during his deportation proceedings. The arrest of 21 Savage and the subsequent media efforts by ICE to manipulate the public’s opinion of the artist should concern Americans. The pointed attempts to de-othorize 21 Savage are troubling, if not explicitly racist in their attempts to preserve an image of what it means to be American. Mr. Abraham-Joseph’s story is not unique. His presence in this country, like many DREAMers, was not the result of his own actions. His constant fear of deportation shaped his everyday life and public persona. His heavy-handed treatment by ICE is representative of similar experiences of other detainees. But other detainees rarely have access to the resources and representation which he has. Hopefully, his case serves to inspire empathy and further thought on how our government treats detainees.

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Jpd5pd@virginia.edu

[1] https://hypebeast.com/2019/1/21-savage-a-lot-the-tonight-show-starring-jimmy-fallon.

[2] https://www.washingtonpost.com/arts-entertainment/2019/02/03/rapper-savage-arrested-by-ice-agents-who-say-hes-united-kingdom-not-atlanta/?utm_term=.ff056cff611d.

[3] https://www.theatlantic.com/entertainment/archive/2019/02/21-savages-ice-detention-false-promise-black-citizenship/582013/.

[4] https://www.washingtonpost.com/arts-entertainment/2019/02/03/rapper-savage-arrested-by-ice-agents-who-say-hes-united-kingdom-not-atlanta/?utm_term=.ff056cff611d.

[5] https://www.theatlantic.com/entertainment/archive/2019/02/21-savages-ice-detention-false-promise-black-citizenship/582013/.

[6] https://www.interviewmagazine.com/music/21-savage-seth-rogen-interview.

[7] See the ISSA Bank Account and ISSA School Drive programs in East Atlanta. https://www.billboard.com/articles/columns/hip-hop/8467380/21-savage-hosting-issa-back-to-school-drive-third-year.

[8] https://www.nbcboston.com/entertainment/entertainment-news/21-Savage-ICE-UK-505280672.html

[9] https://www.theatlantic.com/entertainment/archive/2019/02/21-savages-ice-detention-false-promise-black-citizenship/582013/.

[10] Id.

[11] https://slate.com/news-and-politics/2018/05/federal-judge-accused-ice-of-making-up-evidence-to-prove-that-dreamer-was-gang-affiliated.html.

[12] https://www.cnn.com/2019/02/13/us/21-savage-rapper-release-ice/index.html.

[13] Id.

[14] https://www.washingtonpost.com/arts-entertainment/2019/02/03/rapper-savage-arrested-by-ice-agents-who-say-hes-united-kingdom-not-atlanta/?utm_term=.ff056cff611d.

[15] https://www.nbcnews.com/news/us-news/rapper-21-savage-describes-arrest-ice-we-got-savage-n971951.

[16] Id.

Editor's Farewell

Virginia Law Weekly February 22, 2019

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

Virginia Law Weekly February 21, 2019

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.

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!

[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.

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]

[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

Virginia Law Weekly February 14, 2019

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

Virginia Law Weekly February 11, 2019

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.

—-

lw8vd@virginia.edu

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

Virginia Law Weekly February 11, 2019

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.

——

mes5hf@virginia.edu

2Ls Toast a Job (Halfway) Well Done

Virginia Law Weekly February 11, 2019

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 — 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.

----

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

Virginia Law Weekly February 1, 2019

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

Virginia Law Weekly January 23, 2019

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

[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

Virginia Law Weekly January 23, 2019

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

Virginia Law Weekly January 23, 2019

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