Immigration Law Society Highlights Recent Supreme Court Decisions

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Ben Stievater ‘22
Events Editor

On Thursday, October 15, the Immigration Law Society hosted a “Supreme Court Roundup,” wherein three cases from the Supreme Court’s 2020 docket pertaining to immigration were discussed and analyzed. Heading up the discussion was the Law School’s own Professor Kevin Cope, joined by the University of Alabama School of Law’s Professor Shalini Ray. Both specialize in immigration law and brought some insightful takes to the three latest cases.

Pictured: Professors Kevin Cope and Shalini Ray led the discussion concerning recent Supreme Court cases and their impact on immigration law. Photo Courtesy of law.virginia.edu and law.ua.edu.

First up was Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), which concerned the legality of the DHS’s rescission of the Deferred Action for Childhood Arrivals (DACA) immigration program in 2017. The DACA program was established by President Obama in 2012 to allow non-citizens who were brought to the United States at a young age to defer deportation and receive a work permit to remain in the country. At the urging of President Trump, the DHS rescinded the program in 2017. The University of California and other school systems filed suit to protect their affected students, challenging the rescission on the grounds that it violated the Administrative Procedure Act (APA) and DACA recipients’ due process rights under the Fifth Amendment. The Supreme Court reversed the rescission of DACA on the first ground, finding that it met the “arbitrary and capricious” standard for invalidation under the APA, but it did not find the due process argument persuasive. Professor Ray noted that the Court’s reasoning for this was due to the fact that the rescission was based solely on the perceived illegality of the work authorization provision and did not address why the deferred deportation provision was also illegal. The Court also criticized the DHS for failing to consider the reliance many recipients have placed upon DACA’s legality and continuance, from attending school and buying houses to starting jobs and getting married. The fact that the DHS did not engage with this reliance at all furthered the opinion that the decision to rescind the program was arbitrary and capricious.

While a technical win for DACA, Professor Ray cautioned against viewing this case as a total victory. “This was much more of a partial victory,” she said, “as the Court was entirely unsympathetic to the constitutional due process rights argument, barring Justice Sotomayor.” Professor Ray continued to explain that upon remand and the writing of a less arbitrary and capricious order from DHS, DACA recipients could find themselves in a problematic catch-22. If the work authorization of DACA is found illegal in the future, recipients will be allowed to stay in the country but barred from working to support themselves. This situation is untenable and would naturally lead many to work illegally to survive and to risk deportation for breaking the provisions of DACA.

The next case discussed also involved the DHS as it faced a habeas corpus challenge. In Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020), Thuraissigiam, a Sri Lankan citizen, sought asylum in the United States. He crossed the southern border illegally and was apprehended twenty-five yards into the United States. Because he lacked travel documents, he was placed into expedited removal without a hearing. To successfully plead his case for asylum, Thuraissigiam needed to prove he had a credible fear of persecution to the immigration officer interviewing him. He did not do so and then filed a petition for a writ of habeas corpus in the final phase of review before his deportation. The district court rejected his writ for lack of jurisdiction, as the decisions of immigration officers are subject only to limited review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Ninth Circuit then found this limited review unconstitutional under the Suspension Clause, but the Supreme Court reversed.  Justice Alito’s opinion found the limiting nature of the act did not violate the Suspension Clause. Further, he opined that Thuraissigiam’s petition for habeas corpus also failed as it was beyond the scope of the Drafters’ intentions. Justice Alito reasoned that the Drafters intended the writ to be used to escape unlawful detention, while Thuraissigiam sought to use it to secure an additional administrative review of his asylum claim. Professor Ray noted that this reasoning is curious, as obviously it would be difficult to imagine the Drafters could have foreseen a claim like Thuraissigiam’s back in the eighteenth century. She, along with Justices Kagan and Sotomayor, finds it much more sensible to compare Thuraissigiam’s situation to the more recent habeas corpus jurisprudence from the ‘War on Terror.’ Again Professor Ray saw reason for proponents of immigration to be dismayed by the Court’s ruling. In responding to a mere footnote in the Ninth Circuit’s opinion, the majority went out of its way to hold that Thuraissigiam had no due process rights, as his connections in the country were not substantial enough.

The third and final case discussed was quite different than the former two, as Hernandez v. Mesa, 140 S. Ct. 735 (2020) dealt with the rights of a non-citizen in his own country. In 2010, Mexican teenager Hernandez played a game with friends that involved running up to the US–Mexican border, touching the US side of the fence, and running back to Mexico. During this game, a US Border Patrol agent shot and killed Hernandez, who was on the Mexican side of the border at the time of his death. Hernandez’s family brought Fourth and Fifth Amendment challenges, both of which were rejected in a 5–4 decision. The Court declined to extend its holding in Bivens v. Six Unknown Named Agents, 91 S. Ct. 1999 (1971), in which it ruled that an implied cause of action existed for individuals whose Fourth Amendment freedom from unreasonable searches and seizures had been violated by the Federal Bureau of Narcotics. The Court noted that innovation upon Bivens is generally discouraged and that it does not extend to cross-border shootings. The Court also addressed what it saw as potential foreign policy ramifications if it were to extend Bivens, stating both that it could disrupt the executive branch’s role in border security and that it was up to the legislative branch to create a remedy for claims of this type. Professor Cope agreed that extraterritoriality is dispositive in this case, noting that generally, courts are concerned about the slippery slope of regulating cross-border incursions by federal agents or military members. Professor Cope pointed out the far-reaching consequences of a remedy through which civilians from any country where US soldiers had killed or injured anyone could recover.

In closing, Professors Ray and Cope reminded listeners that it is of limited utility to try to extract a common theme from all these cases, as they were all quite different. What is clear, however, is that the Supreme Court is skeptical of the constitutional rights of non-citizens and that such claims are normally unsuccessful. The immigration jurisprudence from the highest court in the land is far from set in stone, however, even with its makeup likely to change with the addition of conservative-leaning judge Amy Coney Barrett. As part of his recent work, Professor Cope recently reviewed 1,700 Seventh Circuit cases, 400 of which Barrett decided. These cases were coded for outcomes, and the results showed that Barrett decided cases with liberal outcomes 13 percent of the time. While certainly not on the liberal side of the Seventh Circuit spectrum, this 13 percent placed Barrett closer to  the middle than some of her conservative-leaning colleagues, a sign thatBarrett is at least willing to grant relief to non-citizens where it is due. Professor Cope noted, however, that it is a limited sample, so only future Supreme Court Roundups will tell.

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bes4cf@virginia.edu

Private Practice Careers in Health Law

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Drew Calamaro ‘21
Satire Editor

On Wednesday, October 14, the Health Law Association (HLA) hosted a panel of private practice healthcare attorneys to share their advice on starting a career in health law. The panelists included Wade Miller ’02 of Alston & Bird Atlanta, Kelley Taylor Hearne ’97 of Faegre Drinker D.C., Eric C. Hall ’18 of Jones Day D.C., and Madison Marcus ’17 of Goodwin NYC.

            When asked about how they found their way into health law, three of the attorneys cited having doctors in their family as a major influence on their career choice. Miller joked that her family told her she could be a health care attorney as long as she wasn’t the one suing the doctors. Miller often conducts internal investigations on behalf of industry clients and defends them against government investigations. Working across from the US Attorney’s office is enjoyable, she said, since the US Attorneys tend to be more cordial and cooperative in litigation.

            Marcus of Goodwin found her way to healthcare law when she took a healthcare regulatory class in undergrad. Hall came to healthcare law after realizing the importance of healthcare to people’s lives while working at the US Attorney’s office one summer in California.

            When asked about their typical day, Kelley Hearne stated she tends to spend a lot of time on the phone with clients discussing contracts. Contracts, she said, are a puzzle, and you are looking into the future to try to see what could go wrong so the client is protected. Miller conducts investigations and discusses with clients what forms of action need to be taken. Her favorite days are at the beginning of investigations, where she tries to figure out what is going on through interviews and document review. She also has a lot of days spent on the phone, but, for the most part, every day to her is different, and she feels that she has a good mix of litigation and investigation in her work.

            Hall stated that the health care survey course and his courses taken with Professor Mimi Riley were hugely helpful for coming into a job involving healthcare law. Marcus discussed her typical day, including working with a biotech company to answer questions about whether the client had violated a statute. She also worked with a provider who had a data breach and helped them prepare a notice to patients affected by the breach. In addition, she helps on the transactional side by helping companies legally invest in healthcare providers.          

            The attorneys ended with advice for getting into health law. Hearne reiterated the importance of knowing the regulatory schemes involved in a given project. She also thought that because many healthcare practices do have a heavy transactional bend, you will end up doing work on a lot of transactions, even if you are often in litigation. Any experience where you can have better insight into how healthcare companies think and the issues they have to deal with, such as an experience with a provider or a pharmaceutical company, will give you a leg up when entering the workforce.

            Miller found that valuable associates have experience with different healthcare agencies. This includes internships in the US Attorney’s office, the FDA, or others. Not only do those individuals come back with specific knowledge, but they also tend to make worthwhile connections, since those with experience know who to call when a pharmaceutical company needs help on a certain problem. Having that experience gives you an edge over your peers. Miller also recommends practical experience for litigation through clinics.

            After the questions were asked, the event went into breakout rooms, at which point this reporter felt that his work was done. I would like to thank all the attorneys for donating their valuable time, and the HLA for hosting the event. If you are interested in healthcare law, consider reaching out to the HLA.

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dac6jk@virginia.edu

UVA Innocence Project Client Rojai Fentress Speaks at the Law School

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Kathryn Querner ‘22
Executive Editor

On Monday, October 5, UVA Law Innocence Project client Rojai Fentress came to speak at the Law School. With the clinical assistance of the Innocence Project, which investigated for years his claim to innocence, Fentress was released from prison just this past summer on a conditional pardon by Governor Northam. He had been incarcerated for twenty-four years.

Pictured: The Innocence Project investigates and litigates wrongful convictions of inmates throughout the Commonwealth of Virginia. Photo Courtesy of law.virginia.edu

To investigate Fentress’ claim of innocence, students of both of UVA Law’s Innocence Project clinics—the academic for-credit clinic and the Student Pro Bono Clinic (VIPS)—worked in conjunction under the guidance of Clinical Directors Deirdre Enright ’92 and Jennifer Givens, as well as VIPS Staff Attorney Juliet Hatchett ’15.

The event was coordinated by Anne Bigler ’21, the lead for VIPS fundraising and outreach, who commented, “I think Rojai’s case was just a perfect example of how incredibly challenging it is to get innocent people out of prison. He was convicted in forty-five minutes and it took twenty-four years to get him out. It was obviously a huge win for Rojai, who is picking up a life he left at sixteen now at forty-years-old. He had just moved into his first apartment and got his driver’s license the day of the event. He is doing so well and is truly radiating joy. He is so grateful for every moment and never lost hope. He’s extraordinary and a one of a kind person.”

She added, “I was really glad so many of the people who followed his story, signed his petition, and donated to his fund got to hear from him directly.”

Many challenges lie ahead of Fentress on his journey to pursuing innocence; for one, Fentress’ conditional pardon does not replace the Court’s original verdict. Accordingly, the Innocence Project continues work with Fentress to pursue his complete exoneration. Rachel Martin ’23, who attended the event, observed, “One of the things that made a big impression on me was how happy Rojai seemed. Despite the incredible injustice that was done to him and the difficulties that lay ahead, he had a joyful smile and a light in his eyes that I think most of us would be hard-pressed to match.”

Pictured: Rojai Fentress celebrates his freedom due to the work of the Innocence Project. Photo Courtesy of cvilletomorrow.org

Another attendee of the event, Josh Short ’21, said, “Rojai had been wrongly convicted and imprisoned for twenty-four years, yet he harbored no ill will toward the prosecutors, witnesses, etc. He is basically a poster child for forgiveness. Also, with all the doom and gloom in the world, he is a ray of sunshine. There was a pretty special moment when he was describing his new apartment and he said something to the effect of: ‘Here I am, a man, loving life and everything it has to offer.’”

Taylor Fatherree ’22 volunteered with VIPS this past school year (2019-20), and her team worked on Fentress’ case. Alongside her team, Fatherree investigated Fentress’ claim with the goal of overturning Fentress’ conviction on the basis of evidence strongly suggesting his innocence.  Through her work with the clinic, Fatherree said that she was exposed to “the many problems in the criminal justice system, one being the difference in the amount of evidence required for a given case—specifically those involving people who are more vulnerable and have less access to resources—to get a conviction, which does not always seem to rise to the necessary level.” 

In an effort to learn more about the organization that has taken on and represented Fentress in his efforts to prove his innocence, I reached out specifically to VIPS—one of the two Innocence Project clinics that investigated Fentress’ case.

Pictured: Professor Deirdre Enright who supervises the Innocence Porhect, celebrates with Rojai. Photo Courtesy of law.virginia.edu

The Student Pro Bono Clinic, more commonly referred to as VIPS (Virginia Innocence Project Student Group), enlists student volunteers to investigate claims by individuals who assert that they have been wrongfully incarcerated. The clinic is open to law students of all years, unlike the academic clinic which is not available for 1Ls, and it is especially relevant to students seeking to work on cases or are interested in criminal justice reform. 

Students are grouped into teams; each team is assigned to investigate specific cases in Virginia. Generally, the Innocence Project takes on cases from incarcerated individuals whose convictions are final and who have exhausted their appeals. The clinic is a volunteer clinic, meaning that the hours worked by the clinic members count toward any pro bono requirement, including the graduation requirement and PILA grants. 

Full-time Staff Attorney Juliet Hatchett ’15 oversees VIPS, facilitating student involvement and case management. Hatchett volunteered with VIPS when she was a student, and since then, the clinic’s organization and engagement have evolved. Before coming back to the Law School to serve in this position, Hatchett practiced white-collar criminal defense work in New York. She noted that the Innocence Project at UVA Law had a big impact on her decision to enter the criminal law field. 

The clinic got its start when students who volunteered with the academic Innocence Project clinic as 2Ls wanted a way to continue working on Innocence Project cases; thus, VIPS provides these students with the opportunity to work on cases and further develop their criminal justice experience for an additional year. The unique partnership between VIPS and the academic clinic, Hatchett shared, allows students to discover their passion for innocence project work through the academic clinic then gives them the opportunity to develop that passion by taking on a leadership role as a team leader at VIPS the following year. 

Due to COVID-19, the pro bono clinic has shifted from in-person to Zoom. It has also begun to focus more on cases involving DNA routes to exoneration, as these cases tend to involve less in-person investigation and thus pose less risk of exposure to COVID-19 for students and those the teams might want to interview. DNA cases tend to have more of an emphasis on filing motions as a route to proving innocence.

The clinic offers applications for student volunteers at the beginning of each school year. And, for anyone who is interested, the clinic is considering offering a winter pro bono opportunity, through which student volunteers would assist the clinic in looking through potential cases to take on. Students hoping to learn more about VIPS and/or the winter pro bono opportunity can reach out to Hatchett (jhatchett@law.virginia.edu).

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kmq8vf@virginia.edu

Space: The Final Legal Frontier - Space Law Expert Meets with Students

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Drew Calamaro ‘21
Satire Editor

On Wednesday, September 30, Professor David Koplow of Georgetown Law spoke with students about space law. Professor Koplow specializes in public international law and national security and is one of the world’s foremost experts on space law.

Pictured: Professor Koplow discussed Armageddon-like scenarios in space. Bruce Willis did not feature as a possible solution. Photo Courtesy of Drew Calamaro, ’21, law.georgtown.edu, and news.sky.com.

The main topic of Professor Koplow’s discussion was asteroid impacts. Professor Koplow said that we are little more prepared than the dinosaurs were for an asteroid impact. There is no way to prevent one, and our infrastructure is not set up to handle a serious impact. This is not an “out there”[1] concern—in 2013, a meteor exploded over the south-west Russian town of Chelyabinsk. It was fifteen-to-twenty meters across and exploded about fifteen miles up in the air. The explosion was the equivalent of 400 to 500 kilotons of TN—twenty-to-thirty times more powerful than the nuclear weapon detonated at Hiroshima. The blast wave knocked down hundreds of buildings and the debris injured hundreds of people. Many Russians thought it was an American ICBM attack.

Although the damage from the 2013 meteor explosion was minimal, it serves as a warning of what could happen if an asteroid were to impact Earth in a more populated region. Every day, around 100 tons of asteroid dust accrue on Earth from upper atmosphere explosions and other extraterrestrial objects hitting Earth. There are also near-misses all of the time when it comes to asteroids.

There are, however, groups that were formed to start preparing for an asteroid impact. The Space Mission Planning Advisory Group (SMPAG—pronounced “same page”) was formed by the UN in part to combat near-Earth objects like asteroids. However, the options available to the international community are limited. They amount to either using an explosive to break apart the asteroid or detonating an explosive next to the asteroid to knock it off course. The first option is undesirable, as the asteroid would, in theory, break up into smaller asteroids, some of which would still hit Earth.

The second option—exploding something next to the asteroid—would heat molecules on its surface to the point where the molecules radiate away, allowing for the asteroid to get knocked off course by the energy of the radiation. Knocking an asteroid off-course may have disastrous results, however, because it may still hit another country.

But fear not—there is a tort regime in place for these scenarios and other space law subjects. Professor Koplow says there are two rules. First, if my spacecraft damages your spacecraft, and I am at fault, then I am liable. Second, you have absolute liability for harms done to the surface of the Earth, given the ultrahazardous nature of space. 

What if you are Bruce Willis trying to save the planet in Armageddon and you need to do whatever is necessary to save humanity, including nudge an asteroid so that it hits a country?[2] If there are treaties in place that prevent this, the UN Security Council (UNSC) could, in theory, supersede those treaties by making its own law. Professor Kaplow proposes that the UNSC draft a law that allows countries to do what is necessary to save humanity, thus superseding any treaties that might impede a Bruce Willis mission.

One attendee asked about international cooperation and its prevalence in space. Professor Kaplow responded by reiterating that international cooperation is a unique aspect of space, despite some rivalry and potential armed conflict. Russia, for instance, launches missions to the International Space Station for the United States. The Soviet Union and the United States cooperated with one another during the Cold War.

Another attendee asked about space terrorism. Could you make something in space hit Earth or your enemy? We don’t have the technology, but Bruce Willis is on the case. What would be the preferred technology for preventing an asteroid from hitting Earth? It may be useful to have nuclear arms in orbit for nudging an asteroid out of orbit. You can often anticipate an asteroid’s trajectory, and, using the nuclear weapons you can adjust an asteroid’s orbit so that it doesn’t hit Earth. However, the nuclear nonproliferation treaty may prevent any collaboration between countries in this area.

At the moment, the United States is by far the leading actor in planetary defense. NASA is the leader in tracking asteroids. Other countries such as Japan have sophisticated programs which collect samples from asteroids. For anyone interested in forwarding United States interests in space, or just space law in general, Professor Kaplow suggests reaching out to experts, reading treatises regarding space law, and visiting NASA’s website, which hosts relevant laws and regulations.

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dac6jk@virginia.edu

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[1] Almost a space pun.

[2] This was a real scenario in the talk. Incredible.

Reviewing Fall 2020 Registration: A Hybrid Lottery for Hybrid Learning

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Stan Birch ‘22
News Editor

In an effort to understand how changes were made to the Law School’s course registration process for Fall 2020, the Law Weekly examined the administration’s communications and reached out to Dean Dugas over email with questions. When asked to sit down with the Law Weekly, Assistant Dean for Academic Services and Registrar Jason Dugas replied that it being a “hectic and busy semester from an operations standpoint,” he would agree to answer specific questions emailed to him, but apologized that he was “not going to sit for an interview.” A common frustration from students is the wall of administrative rules and statements that are sent out, without any real insight as to how those decisions are made. In an effort to better understand the changes and student frustrations of this process, we asked our questions, received a timely response, and now publish this in hopes of clarifying the timeline and decisions leading up to Fall 2020 registration.

Before proceeding, I would like to thank the administration for working very rapidly to provide a registration system and course offerings, given that the process of setting up courses in the past normally took ten to twelve weeks. With the University’s announcement of returning to classes and the new restrictions to in-person learning, that process was condensed into four or five weeks and the speed with which this was handled should be applauded. Dean Dugas—and the Law Weekly—would like to thank Law IT, Adam Seid, and Debbie Proffitt for all of their hard work in making Fall 2020 registration possible.

The first apparent change to the Fall 2020 registration process was its postponement. It seems that, while this change in timing was inconvenient and even burdensome, everyone had come to understand there would be a delay. With the University hesitant to commit to a plan “to safeguard the health and safety of the UVA and Charlottesville community,” it is no wonder the community and the administration were unsure what timeline they should anticipate. With the email from President Jim Ryan ’92 on June 17, announcing the plans to Return to Grounds and hoping to “provide a measure of clarity,” a few questions were answered, but many, many more were raised. Hoping to clarify and give direction for the Law School, Dean Goluboff sent out an email the next day, one paragraph of which commented on the course schedule. This email mentioned that a tentative course list would be released the following week with a more finalized version of courses “as well as the plan for course registration” to come mid-July. Following up on the promise of Dean Goluboff’s email, Dean Dugas emailed the following week to announce that the tentative list of course offerings had been posted on LawWeb, subject to change. All of this was useful information but one piece that would bring stress to students was missing: timing of actual registration.

The first communication to students about the timeline to actually register for classes came mid-July, but it wasn’t communicated directly by a Dean. Instead, the first timeline given to students came from SBA President Katharine Janes ’21 in an email titled “Friday, July 10th SBA Update.” Before sending this email, Janes had been made aware that courses were coming up on SIS, and reached out to Dean Dugas. Dean Dugas provided rough information on the process to Janes, who confirmed and then shared the contents of that information in her email. This Friday afternoon email contained the first direct mention of when registration should begin: “[C]ourse registration (i.e. the lottery process) should start toward the end of next week and continue through the end of the month.” Students who didn’t read the SBA update on that Friday afternoon would have no way of knowing registration could start a week later.

Dean Kendrick emailed four days later “with some academic information in advance of course registration,” but still without mention of an actual or prospective timeline. Two hours later, Student Records and Dean Dugas added the following to clarify the timeline: “As Vice Dean Kendrick explained in her recent email, you will soon be starting the enrollment process for fall 2020 courses, and I will be sending more detailed instructions about that process separately very soon.”

Students ultimately received a timeline of registration directly from the administration when those detailed instructions came the following night with the important subject line: “Enrollment Process Details & Instructions - Starts Friday 7/17 @ 10:00am.” Student Records Office announced registration’s start thirty-six hours and twenty-five minutes before it was to begin. This compressed timeline stressed many, sent shockwaves through GroupMe chats, and went unnoticed by students who would not check their emails until the next morning, giving them even less time to prepare.

Many students anticipated a rapid turnaround and made themselves available to coordinate their new schedule, but this would not be like any prior registration. In addition to announcing the imminent lottery start-date, this short notice email also explained a number of “new aspects” about the new registration process that Dean Dugas likened to LSAT logic games. These “new aspects” represented a complete change of the lottery system groupings pursuant to which students have registered for years and are laid out, in plain language, as part of UVA Law Academic Policies IV(G).[1] Dean Dugas explained that without the University’s finalized Spring 2021 plans, courses could not be registered or confirmed for the spring, removing the option of dividing based on graduation requirements, which typically spans the full year. It was determined that maintaining the registration process along the traditional lines “would [have made it] very difficult to implement students’ preferences for in person or online only in that system,” thus the adjustment to lottery split.

One of students' main concerns with the fall registration process is with how changes were communicated and how that communication limited students' opportunity to hold administrative action accountable. Registration and academic policies may be waived (if waivable) by the Assistant Dean for Academic Services, and “[a]ppeal of any decision by an assistant dean may be made only to the faculty/student Academic Review Committee.” If anyone took issue with this policy change, they would have only had thirty-six hours[2] to complete an appeal. After that time period, they may as well try to unring a bell.

The goals of the policy changes were to provide the best system that would handle digital and hybrid learning. Several students took issue with this change, and many felt overwhelmed with the short timeline. On the other hand, given everything happening over the summer, many students were simply relieved to be able to register but, going forward, hope for clearer communication upfront.  Students want to be kept in the loop about the administration’s decision-making process and would appreciate firmer timelines. Keeping students in the dark only brought frustration where there could otherwise have been understanding and acceptance in a summer fraught with uncertainty.

As Spring 2021 approaches and the world around us continues to be in flux, the administration is hard at work planning for the upcoming registration period. Dean Dugas appreciates “that students have been, and continue to be, patient and understanding about the uniqueness of the situation.” The timeline that Dean Dugas felt comfortable sharing with us was that he hoped “to know the University’s spring plans by late October . . . [and he] expect[s] that the lotteries will start in early November.” The spring process will follow the same lottery split as Fall 2020, “to meet the needs/preferences of instructors and students.” So as the end of this month and Spooky SznTM loom closer, keep your masks up and an eye on your inbox, as COVID and registration could lurk around any corner.

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sfb9yu@virginia.edu

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[1] https://www.law.virginia.edu/policies/vi-courses-and-course-enrollment-1#vig

[2] When asked to confirm that this was the first notice given to the student body about the policy change, Dean Dugas did not provide a clear answer that indicated any other date notice was given.

Professor-Led Panel Unpacks the Potential National Security Threats Posed by TikTok

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Michael Pazhwak ‘23
Staff Editor

            In recent months, TikTok, the popular Chinese video creation and sharing platform, has gained notoriety in a unique and largely unprecedented way: as a national security threat to the United States. As it faces removal from U.S. app stores by order of the President, it has drawn attention to broader concerns about information handled by Chinese-owned telecommunications and technology companies, particularly because of the potential for their forced compliance with the aims of the authoritarian Chinese Communist Party. On Tuesday, September 29, the Federalist Society at the University of Virginia School of Law hosted a Zoom webinar to examine four questions regarding these concerns: 1) Why has US government determined that TikTok poses a national security threat; 2) what is US government doing about it; 3) what are the legal frameworks through which the US is acting; and 4) what might lie ahead. Moderated by Professor Ashely Deeks, the Director of UVA's National Security Law Center, the panel featured two guest speakers. The first was Charles Flint, the Chief of Staff of US Senator Marsha Blackburn of Tennessee, who advises the Senator on a range of issues including foreign threats, data privacy, and content moderation on social media platforms. The second was Sarah Harris, a partner in Williams & Connolly’s Supreme Court and Appellate Practice and a former Deputy Assistant Attorney General in the Office of Legal Counsel at the United States Department of Justice. Harris is responsible for advising the executive branch on legal issues, including those related to national security. A full recording of the event, which this editor highly recommends watching, is available on the YouTube channel of The Federalist Society at UVA Law.[1] For those short on time, a few highlights of each speaker’s main points will be given here.

            The event began with Flint, who came down firmly on the conclusion that TikTok is a threat situated within a broader Chinese strategy, while also discussing counterarguments. He first pointed out that even if there are debates over whether TikTok is presently turning over data to the Chinese government, its attorneys have maintained the legal right for it to do so in the future, establishing data sharing as a persistent possibility. This judgment prompted an analysis of what China could do with what may seem to be innocuous user information of people seemingly insignificant to the Chinese state. Flint emphasized that it is not the present but the future that people should be worried about. Should China become interested in a particular US citizen, it could take disparate data points that are harmless individually and aggregate them into a comprehensive profile that includes personality traits, relationships, and preferences, providing complex profiles that could make the subject susceptible to manipulation. Flint then positioned this supposition within the larger Chinese outlook, which views war as a long-term, often non-kinetic activity within a doctrine of “strategic encirclement,” or subtle action in pursuit of power. He emphasized that the Chinese state’s almost unlimited power over its companies has made them key elements in its strategy. Flint’s examination of TikTok, how it could be used, and the aims of the country using it, makes a persuasive argument that the company poses a national security threat.

            Next, Harris highlighted the challenge that Flint’s conclusion poses to the US government. Harris introduced the Committee on Foreign Investment in the United States (CFIUS) and the International Emergency Economic Powers Act (IEEPA), discussing their legal foundations, how they function, and their potential limitations. She then described how they have been used recently in regard to TikTok. For example, she explained how CFIUS, which reviews transactions by foreign entities attempting to merge with or acquire US companies, recently conducted a retroactive review of TikTok that became the basis for the Trump Administration’s widely publicized demand that TikTok operate as or under a US-owned entity or face a ban. She then provided analysis on IEEPA, which gives the President emergency powers to regulate the property of foreign entities that are subject to US jurisdiction. The act has been used to order a stop to downloads of TikTok and could be used to disable functionalities of the app. Next, she delved into the legal responses that these actions have prompted by TikTok and many of its users.

            Harris discussed in particular a significant action in the US District Court for the District of Columbia, where a judge granted an injunction against the government’s IEEPA action to stop app downloads. She also articulated other legal questions regarding the First Amendment, due process, and a non-delegation challenge that have been raised against the government as part of the TikTok action. Harris concluded with a discussion of several potential resolutions to the dispute, from changing political winds altering government priorities to the acquisition of TikTok by a US entity. TikTok continues to have implications for the larger issue of judicial constraints on presidential power, demonstrating the broad secondary effects of the TikTok question.

            The session concluded with an almost thirty-five-minute-long question-and-answer session moderated by Professor Deeks, who read questions submitted by audience members via the chat. The discussion here was wide ranging and will not be summarized, but both panelists continued to provide deep insight on the strategic and legal issues introduced above, bringing to an end to an event that was informative, intellectually stimulating, and timely as politics, technology, security, and law increasingly intersect.

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mwp8kk@virginia.edu

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[1] https://www.youtube.com/watch?v=VUT6Zmqt8mo&feature=youtu.be

Judge Bernadette D’Souza Discusses Family Law and Her Path to the Bench

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Rachel Martin ‘23
Staff Editor

On Thursday, September 24, UVA Law’s chapter of the American Constitution Society (ACS) and Virginia Law Women (VLW) virtually hosted Judge Bernadette D’Souza, President of the National Association of Women Judges (NAWJ) and Family Court Judge of the Orleans Parish Civil District Court. Morgan Maloney ’22, the Director of Programming for ACS, arranged the event. “I think it is so important for all law students, but especially students from underrepresented communities, to think about careers in the judiciary while still in law school,” Maloney said. “I hope that the event inspired some students who had not formerly considered a career as a judge to begin to think about that as a potential career path.”

ACS President Wes Williams ’22 introduced Judge D’Souza. Judge D’Souza graduated from Tulane University School of Law in 1992. Before becoming a judge, she worked in public interest law for eighteen years representing indigent clients in domestic violence and other family law cases at places such as New Orleans Legal Assistance (NOLA) and Southeast Louisiana Legal Services. Judge D’Souza also taught family law and domestic violence as an adjunct professor at Tulane. She has served on numerous community and national boards and committees, been invited to speak at numerous events both at home and abroad, and been the recipient of numerous awards. She is also the proud mother of three children.

Pictured: Judge Bernadette D’Souza, President of the National Association of Women Judges and Family Court Judge of the Orleans Parish Civil District Court. Photo Courtesy of orleansdc.com.

After the introduction, Judge D’Souza’s first words were, “Students will wonder, ‘Where does she have the time to do what she’s doing?’ It’s when you find the passion that you find the time.” Judge D’Souza explained that after graduating, she could have joined any law firm, but she was “so taken with the work being done at NOLA that [she] wanted to dedicate [her] career” to public interest work.  

Judge D’Souza gave high praise to her students at Tulane, crediting them with the idea to start a domestic violence clinic and applying for the grant to fund it.

“It is the students that can make a difference with some of the social issues that we are confronted with in our country,” Judge D’Souza said. Judge D’Souza encourages students to become involved in clinics, policy advocacy, and other community service projects while in law school. “Just because you’re not a lawyer does not mean you cannot advocate for people in your community.”

Judge D’Souza first started thinking about becoming a judge when she realized the problems caused by not having a dedicated judicial seat for family law matters in her local civil district court. Because none of the judges wanted to handle the domestic violence cases, they were assigned to the newest judges, who would then rotate out as soon as there was another vacancy. As a result, a single case or ongoing issue would often be handled by multiple judges who never really became familiar with the background. To rectify this, Judge D’Souza managed to convince her Senator to introduce a bill creating two dedicated family law seats in Orleans Parish, which subsequently passed. In 2012, Judge D’Souza became the first person elected to the position. 

“It was humbling to receive the support of the New Orleans community,” Judge D’Souza said. She linked the overwhelming support she received with the work she had done for the community over many years, and she recommended that anyone interested in a state or local judgeship similarly work to serve their communities, because it is the people that elect the judge—or in the case of most non-federal appointed judges, vote to retain them. 

The most difficult thing about being a judge, Judge D’Souza observed, is the inability to advocate for one side, as judges must remain neutral. “Besides having the knowledge, experience, [and] expertise . . . to hear these cases, it is so critical that a judge has the proper demeanor and judicial temperament to judge from the bench.” 

However, Judge D’Souza still finds ways to ensure equal access to justice. One of the main ways she does this is by working to help connect people to community resources. Sixty-five to seventy percent of the people coming before her lack legal representation, so she set up a self-help desk in the court, and she arranges for lawyers from pro bono projects to help people do things such as fill out petitions. In addition to legal matters, she also works to connect people with resources for housing, employment, and food, on top of addressing other issues that often coincide with family law cases.

Another way that Judge D’Souza helps those facing domestic violence is through confiscating weapons from perpetrators and issuing various protective and relief orders.  Judge D’Souza recounted an incident from her days as a practicing attorney when one of her clients was gunned down on the courthouse steps moments after winning her case. As a judge, she helps prevent similar incidents from occurring by having her deputy retrieve all of the weapons from a household as soon as there is a finding of domestic violence occurring in the home. Judge D’Souza praised the many recent advances in Louisiana law allowing this and other protections. She advised that it is often up to clients’ lawyers, however, to educate judges and make sure these laws are used to their fullest effect. For example, in Louisiana, judges can now order financial support as part of a protection order, but the issue must be brought before the court in a petition in order for relief of this type to be granted. 

Judge D’Souza gave a lot of advice for people of color, mothers, and other women entering practice or looking to join the judiciary. As an immigrant from India, the only woman in her graduating class, and the mother of three children, Judge D’Souza faced many challenges throughout her legal career. However, her passion for equal justice drove her forward, and she strongly recommended that others interested in public interest work pursue it. “In doing this work you are able to confront [inequalities] head on and obtain justice in coming before the court . . . . Once you develop that confidence and know that you can get justice, you just work at it.” Judge D’Souza also highly recommended taking advantage of the many mentorship and networking opportunities available through organizations such as NAWJ. The best time to start is now as a law student. Finally, Judge D’Souza emphasized the importance of balance. “I think it is so important to have a balanced life. It is difficult because when you have children, you want to be able to know who they are as they are growing up. Make time for the family. There are certain times of the day when you just have to force yourself to make time.”

Judge D’Souza ended on the following note: “If any of you want to do a summer internship, you are welcome to come down to New Orleans.”

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rdm9yn@virginia.edu

Mandatory Vaccinations: Law, Ethics, and Religious Liberties

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Drew Calamaro 21
Satire Editor

On Wednesday, September 23, the Health Law Association hosted Professors Margaret Riley, Lois Shepherd, and Micah Schwartzman to discuss the implications of a vaccination mandate.[1] Professor Riley first discussed the development schedule of a possible COVID-19 vaccine. She explained the development process of a vaccine under the traditional paradigm, which often takes many years, with time allotted for manufacturing scale-up, commercial scale, and validation of manufacturing processes. The end of the process involves regulatory approval and licensure of the vaccine.

The development of a COVID-19 vaccine has been largely facilitated by the federal government’s “Operation Warp Speed,”[2] which has the stated goal of producing and delivering 300 million doses of safe and effective vaccines by January 2021. Accelerating the process, however, begets a whole host of issues. First, Professor Riley was clear to draw a distinction between emergency use authorization and regulatory approval. A safe and effective COVID-19 vaccine will not be approved at any point in the near future. Instead, a vaccine will be authorized for emergency use by the FDA, which may limit the number of people who receive it. Second, manufacturers and governments must overcome supply chain issues. There happens to be a global glass shortage, which may cause shortage in vials necessary to store the vaccine. Some vaccines also have to be kept at temperatures as low as -70 degrees Fahrenheit. There are very few companies with the capacity to ship and store vaccines at such low temperatures, and their ability to ship billions of vaccines across the globe will be put to the test.

Professor Shepherd then discussed Supreme Court precedent regarding mandates and the right to refuse medical care. First, she discussed Jacobson v. Massachusetts, a seminal public health decision that dealt with the state’s authority to mandate vaccinations. In 1902, Rev. Henning Jacobson attempted to refuse a smallpox vaccine that the city of Cambridge had mandated for its citizens. The penalty of refusal at the time was five dollars. Jacobson sued and appealed his repeated losses all the way up to the Supreme Court, which sided with the state of Massachusetts. Professor Shepherd then discussed Zucht v. King, which upheld school vaccination mandates even in the absence of an ongoing pandemic.

These cases, however, were decided in an era before the courts recognized a right to refuse medical care. Professor Shepherd discussed the possibility that a forced-vaccine mandate violates the right to refuse medical care, and also implicates the issue of whether the federal government can use quarantine precedents to justify one. She reiterated that it is important to remember that the Jacobson decision involved a fine as a penalty, whereas forced vaccinations would likely fly in the face of the medical rights developed throughout the twentieth century.

Finally, Professor Schwartzman discussed religious exemptions. Since the Jacobson decision, courts have consistently held that states are not obligated to provide religious and personal belief exemptions to vaccinations. There are currently forty-five states, including Washington D.C., that grant religious exemptions for people who have religious objections to vaccines for school children. Fifteen states allow philosophical exemptions for those who object because of personal, moral, or other beliefs.[3] States including California, New York, and New Jersey have either removed or attempted to remove religious and philosophical exemptions in the wake of recent measles outbreaks.

Professor Schwartzman also discussed the future of religious exemptions in the wake of Supreme Court Justice Ruth Bader Ginsburg’s death. Courts are usually not in the business of creating religious exemptions to vaccine mandates. No court—to Professor Schwartzman’s knowledge—has created a religious exemption to vaccines where none previously existed. However, if a conservative Supreme Court Justice were appointed to replace late Justice Ginsburg, that precedent could change if the issue comes before the Court again.

Toward the end of the discussion, I added a few words about the history of immunization, quarantine, and vaccination mandates. During the Revolutionary War, George Washington mandated his troops be immunized to smallpox through variolation, which involved exposing un-immunized individuals to a small amount of the active virus.[4] This brought troop infection rates of smallpox from over 20 percent down to 1 percent. The first mass-vaccination event in the United States occurred in 1803 in the Old Natchez District of the Mississippi Territory. In the midst of a smallpox outbreak, the governor enacted stay-at-home orders, subjecting those who violated the order and ventured out in public to a $100 fine.[5] The governor acquired the smallpox vaccine and provided it to two-thirds of the city’s 1,400 residents.

While the United States has a long history of utilizing vaccines or immunizations to achieve herd immunity, it is politically unlikely that a federal mandate is around the corner. Furthermore, as Professor Riley pointed out, a mandated vaccine should be both highly safe and effective in a significant proportion of people. Achieving these two baseline requirements in the COVID-19 vaccine may be difficult. Our best hope remains in people’s trust in a vaccine’s safety and their willingness to receive it.

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dac6jk@virginia.edu

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[1] I also had the opportunity to contribute a few comments at the end of the event once the professors were finished speaking since this is my current area of research.

[2] A name Professor Riley attributed to the involvement of the military.

[3] https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.

[4] I did not say this in the event, but I figure you, the reader, might be interested in it.

[5] Today, this amounts to about $2,110.

PLACE and Power: A Conversation with Professor Emily Prifogle and Journalist Earl Swift

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Jonathan Peterson ‘23
Staff Editor

PLACE and Power, an ongoing series held by the Program in Law, Communities, and the Environment (PLACE), kicked off this week with a conversation about “the importance of rural places in shaping the laws, customs, and attitudes of the people who live in them, as well as their role in the cultural and political future of the nation.” The speakers were Professor Emily Prifogle, a legal historian and professor at the University of Michigan Law School; Earl Swift, a Virginian journalist and the author of Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island; and the moderator, Professor Jonathan Cannon, who is head of the PLACE program here at UVA Law.

Pictured: Tangier Island, a small community threatened by rising waters. Photo Courtesy of richmond.com.

The trio began by talking about the guest speakers’ backgrounds. Professor Prifogle’s research places her in the rural Midwest, whereas Swift has spent fourteen months living with the watermen of Tangier Island on Virginia’s Eastern Shore. The pair’s experiences, although undeniably different, yielded no shortage of cultural similarities between the populations. Swift’s watermen were admittedly more insular, relatively cut off from the rest of the country by the Chesapeake Bay when compared to their midwestern counterparts. But, nonetheless, the similarities were there. Both speakers saw a heavy reliance on anecdotal and experiential knowledge in the communities they studied and, as a result, more skepticism of government regulation. A farmer in Wisconsin can, with an inspection, generally tell good farming land from bad farming land. Similarly, one of the Tangier watermen can spot an oyster bed or a good area for crabbing simply through their experiential and cultural knowledge of the area. Neither group sees the necessity for relying on scientific knowledge in their day-to-day lives.

Similarly, both communities distrust outside law enforcement, particularly state and federal enforcement. Swift in particular noted the way in which the community on Tangier handles malfeasances within the community. The community preferred to use local law enforcement and social customs to deal with problems. The same is true of rural communities in the Midwest, although to a lesser extent as a result of the federal highways connecting them to the rest of urban society.

This documented mistrust of outside authority and scientific knowledge can have disastrous consequences, particularly for Tangier, where time is running out quickly. The small island is scheduled to be one of the first to disappear as a result of rising water levels, but according to Swift, the people of Tangier don’t see it. What it comes down to is simply different means of data collection. Local knowledge is, at its base, data collection. As Swift puts it, the locals of Tangier learn about their environment by going out and looking at the water, looking at the catch, and watching the weather. But people, with just their eyes and their boats, are not in a position to analyze accurately the movement of the environment over a long period of time. The people of Tangier will have a hard time seeing the effects of rising water levels without the right resources. For example, one needs an airplane to see the extent of the water level’s rise. And one needs to take periodic measurements of factors like water temperature, marsh accretion, and water levels to begin to understand more minute changes in the ecosystem. These are resources that could come from the State or Federal level.

 Despite being on the periphery of urban life and the national news, rural communities with a population of 2,500 people or fewer make up approximately 1/5th of our nation’s population. Even more impressive, according to the U.S. Census Bureau they inhabit 97 percent of this country’s land. Clearly, this is a significant portion of the U.S. population. That is why the talk ended with this question: What do we owe rural communities? For Swift, the answer relates back to the American identity. These people help to establish the breadth of our cultural identity as Americans. Swift sees them as existing on the edge of American culture “where all the spice is.” Valuing these kinds of pluralistic experiences is important because, when we write off the nuanced and astute perspectives of people on “the edge” of mainstream urban culture, all we’re left with is a “bland, flavorless center.”

Prifogle, agreeing with Swift, wants to do away with the narrative of decline surrounding rural areas. She believes that we owe rural communities the same thing we owe to everyone in our country—respect. Rural inhabitants deserve to be taken seriously and they deserve the same access to public goods as any of the people in our country. And ultimately, as the custodians and stewards of 97 percent of our nation’s land, the best way to bring these people into the conversation is to do just that—meet them in the middle, and include them in the conversation. By doing this and by fostering relationships between rural communities and governing bodies, we can begin a conversation that benefits everyone at the table and promotes active stewardship from every citizen.

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jtp4bw@virginia.edu

Domestic Violence Project Talks Highlights, Patterns, and Prevalence of Domestic Violence

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Anna Bninski ‘23
Staff Editor

Professor Geri Greenspan spoke on Wednesday, September 16, giving a talk for the Domestic Violence Project that kicked off the educational aspect of the organization’s mission this year.

“It’s not what most people picture when you think of court.” Professor Greenspan, who has spent a lot of time in the Charlottesville and Albemarle Juvenile & Domestic Relations District Court, described an environment that’s typically pretty chaotic—and the work of helping survivors of intimate partner violence to navigate that chaos. (Unfortunately, it’s only one of the massive number of hurdles survivors have to face.)

Professor Greenspan has represented survivors of intimate partner and sexual violence for ten years, and she brings that experience to the class she’s teaching this semester: Gender-Based Violence: U.S. Law and Policy. She provided the audience with a crash-course in domestic violence issues in her talk.

Intimate partner violence, as Professor Greenspan defines and encounters it in her work, is “a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner. Abuse is physical, sexual, emotional, economic or psychological actions or threats of action that influence another person. This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound someone.”

Professor Greenspan contrasted that on-the-ground definition with Virginia’s statutory definition of “family abuse,” which focuses on individual acts that include violence, force, threats, stalking, and sexual assault. She emphasized that while only having to prove one abusive act is to the advantage of survivors seeking an emergency protective order, “where you get one act you always have a pattern. It doesn’t come out of the blue.”

Though legislation about intimate partner violence is a complicated and contested topic, Professor Greenspan expects to see an expanded statute in the next few years.

“Obviously the laws are only as good as the people who are applying them,” she said, observing that judges working within the law can make good use of the tools available, such as including financial provisions within a temporary protective order. “Some judges think, ‘This is a protective order, it’s not about money, it’s about safety.’ But money is safety . . . having a house is safety. It keeps you safe from the world, [and] from having to return to your abuser.”

Leaving an abusive relationship, Professor Greenspan explained, is only the first step in what is generally a long and difficult process: Survivors often hope they can take care of all the legal aspects quickly, but divorce and custody arrangements come slowly and can be dragged out by the other party. And that’s on top of the uncertainty that many survivors face when it comes to simple needs like housing and employment.

“[Intimate partner violence] affects every age, every race, every gender, gender identity, sexuality, socioeconomic status, religion,” Professor Greenspan emphasized. She has worked with clients from a wide range of backgrounds, including many immigrants from around the world, and the same patterns appear. “People will say the exact same thing in a hundred different languages . . . no matter where they’re coming from, I can relate to their story, because it’s the story I hear everyday.”

On the topic of hearing stories, Professor Greenspan spoke to the need for everyone—the Law School community very much included—to reach out to any family or friend whom they believe may be affected by domestic violence. “Let them know that you’re ready to talk whenever they are ready,” she said. Professor Greenspan also suggested offering concrete support if needed, such as helping the person involve the authorities, offering them a place to stay, or making sure that they’re able to tap into resources like the local Shelter for Help in Emergency (434-963-4676).

The discussion ranged over many more topics than can fit in this article: the intersection of domestic violence with concerns about policing and immigration status; extracting legally compelling facts from the stories of clients; the developing understanding of trauma and its effects; need for diversity in service providers; and a community network to support survivors with logistics and finances.

The talk was just an opening event for DVP. For those who don’t know, DVP is a student pro bono project focused both on education and direct service. While programs like Wednesday’s talk and further upcoming events during Domestic Violence Awareness Month in October make up the educational side, DVP’s pro bono work continues despite the pandemic.

“The Domestic Violence Project is pleased to continue its long-standing relationship with the Charlottesville Commonwealth's Attorney's office,” said Morgan Maloney ’22, who is spearheading DVP’s COVID-era pro bono project. “As in years past, students are working with the attorneys in the office to help prepare case summaries for domestic violence cases. This semester all volunteering is being done completely remotely. Moving to virtual volunteering was not the smoothest transition but, thanks to the patience and dedication of our volunteers and the Commonwealth's Attorney's office, we are starting to develop a more streamlined system. The strength of our domestic violence prevention community in Charlottesville has allowed us to continue this crucial work even in unprecedented times and with new challenges. I am so thankful for our volunteers and especially for their understanding and grace as we all try to navigate this new system.”

DVP President Alex Karahalios ’21 summarized DVP’s forthcoming work. “We are also currently researching ways to expand our pro bono efforts beyond the Commonwealth's Attorney's Office, create a policy initiative, and adjust our philanthropy efforts to be the most effective they can be in a virtual world. We are already very impressed and encouraged by the participation and interest we have seen from new students and hope to continue that enthusiasm throughout the year.”

Anyone interested in DVP’s pro bono work should definitely get in touch.

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amb6ag@virginia.edu

Dean Groves Discusses COVID-19 Safety Policies

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Drew Calamaro ‘21
Satire Editor

I spoke with Dean Groves (UVA Law ’90) on Wednesday, September 16, about SEC-045.[1] SEC-045 dictates social distancing and safety rules students must agree to while living in Charlottesville. The conversation below is lightly edited, but I think that I stayed true to the points he was trying to make. Thank you to Dean Groves for his time!

Tell me about the process of drafting SEC-045. Who helped, and how did that come about?

            When it was initially drafted, it was very limited in scope. And as we continued to learn from our own experiences and those of other schools’, we tried to figure out what to add, including the exceptions. One challenge with that was that the policy took longer than any of us anticipated to fully vet and get it where it needed to be. The original SEC-045 didn’t contemplate the public health and first amendment collision that was happening in our country, but the moment the policy was done, I sent it to students and said “here’s some things you can do, here’s where I need to be strict.”

            We had our health people, the senior leadership at the university, student affairs—me, the police, the general counsel’s office, so there were a lot of cooks in the kitchen, but in a good way, and it took a lot of perspectives to get the policy crafted.

What took the longest—were there any big sticking points?

            I think it was more trying to figure out the parameters of the exceptions. How do we define those sufficiently so that SEC-045 protects public health, but also generally enough so that a student can look at it and apply to their own circumstances? We also had to discuss whether we were going to have a process where students can request to get an exception, and how we were going to vet those.

What is one thing you would want to tell students at the Law School about SEC-045?

            One important thing that I’ve noticed is that folks are really focused on the letter of policy without thinking through the spirit. For example, we’ve had reports on students in really small spaces but they said, “We didn’t have fifteen people.” People latch onto a number, and I say they should think about what we are trying to achieve here, and then use common sense to say, “Is what I’m doing going to achieve that?”  And if it doesn’t, we need to tweak the behavior to make sure it does.

            I get asked about car rides, for example, and I tell people: If you don’t live with the person, wear a mask in the car, keep the mask on in the car, then think about whether you want to use disinfecting wipes when the person gets out of the car. For example, my husband and I live together, so masks are probably unnecessary. But on the other hand, if I’m picking up a colleague, I need to be making sure we’re wearing masks in the car.

How many reports have you received, what types of things are catching your attention, and what is causing concern or giving you hope?

            So that’s a great question, Drew, and it’s funny—the Washington Post asked me that, so you’re in good company.

Not surprising—those are my colleagues over there.

Your colleagues over there, yeah . . . But the Law Weekly is a much higher priority for me.

            So, to answer the first question, I don’t know. And I’ll tell you why. We have two portals for reporting. We have JustReportIt,[2] and I get a notification whenever someone files a report on there for anything. I can see the report, but actually, it’s the associate dean on call who takes ownership of the report. They will look at it and say, “What is this report telling me? Should I escalate this to Dean Groves for him to review, or is this pretty routine, low level, or just not there?” Then, they figure out what to do.

            Then, there is a second portal called the community portal where you don’t need to sign in through Netbadge. However, the challenge there is that you don’t have to identify yourself, so we often have no one to follow up with or ask questions. The report is then triaged by some folks in community relations, and then some of them are elevated to me or to the Dean’s Office, but we don’t see all of them. We could drill down and get the numbers, but the reality is that we really need to care about the ones with meat on the bone.

            By that, I mean parties over fifteen people—what you might call a pre-pandemic party. The real alarm is when you start to get into some of those higher numbers. I think JMU had a 100-person party or something. Sometimes it may not have been a party—it could have been four roommates living together and playing loud music that someone reported as one. We might get a report that says there were students on the balcony and they get reported. Let’s say one of them was just a friend and didn’t live there. We might have a conversation, educate, and do the right thing.

            But the reality is that we are looking for large social gatherings—that’s the kind of case where there would be swift action. There might be other things that could entail verbal counseling. Whether it’s graduate or undergraduate students, if there are a bunch of people in a confined space, like a super spreader event, that’s the fear. All you need is twenty law students in an apartment and a lot of people leave the party COVID-19 positive. We need to crack down on those things.

During enforcement, what considerations are in the back of your mind other than just safety?

            You’re right, the public health piece is number one. But outside of that, first off, I want to be fair. I don’t want to make a judgment before I talk to the person and let them tell me what happened. I will say there have been situations that looked very bad, but after speaking to the people involved and getting the facts, they turned out to be nothing like what was reported. So you have to come to the table with zero preconceived notions.

            I am also very aware of due process. I have the power to suspend someone immediately, and they have the right to appeal. I am very conscious of the fact that I have to defend any decision I make, and I need to make sure that I make each decision based on applying the facts to the policy and what is appropriate for the circumstances.

            I am also aware that I am not a police officer. I am not a prosecutor. I am a Dean whose primary job is safety and education. Part of my job is to explain to people what they did wrong and why. But primarily, I am thinking of safety, how to stay consistent and fair here, how do I make sure I’m listening fully to the student before making any judgements or decisions, and how do I handle the case in a way that is consistent across cases like the ones that I am seeing.

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dac6jk@virginia.edu

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[1] https://uvapolicy.virginia.edu/policy/SEC-045

[2] www.Justreportit.virginia.edu

Supreme Court Summer 2020 Round-Up: Experts Break Down Major Decisions

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Dana Lake ‘23
Guest Writer

Of the sixty-three cases decided by the Supreme Court so far this term, this summer’s decisions have contained some of the heaviest hitters. The major cases were broken down in the Federalist Society’s Supreme Court Summer Round-Up, which turned out to be one of the most thought-provoking events thus far this semester. Expertly hosted by Vice President for Speakers Chloe Knox ’22 and delivered by Professor Julia Mahoney, Professor Dan Ortiz, and Supreme Court litigator Jeffrey Harris, the Zoom recording proceeded with only one freeze frame and less than ten seconds of someone speaking without unmuting themselves. The recorded session is available through the Federalist Society and this editor encourages you to watch it for yourself. If you are short on time, check out the highlights:

Pictured: Decisions by the Supreme Court this term are likely to cast shadows over major areas of policy for the federal government. Photo Courtesy of Getty Images/Stockphoto.

Most Underrated Decision:  Maine Community Health Options v. United States

Professor Mahoney foresees major ramifications stemming from this decision in the coming years. The Affordable Care Act created risk corridors for insurers, limiting both the losses and gains an insurance company could expect from a particular healthcare plan. The House of Representatives turned over in 2014 and Republicans refused to appropriate money for the deal, resulting in several insurers going bankrupt. The Supreme Court ruled that the United States has an obligation to pay its commitments, and the insurers have a right to seek damages. With the national debt exceeding the US GDP for the first time since World War II, chances are high we will see similar debates over government obligations to pay in the near future.

Most Surprising Decision:  McGirt v. Oklahoma

Professor Ortiz highlighted this case for the insight it provides into the mind of Justice Neil Gorsuch. Joined by a liberal majority, Justice Gorsuch explained in his opinion that because Congress never formally disestablished the Native American reservation that covers much of Oklahoma, crimes committed by Native American tribal citizens on those lands must be brought in federal court rather than state court. Justice Gorsuch’s advocacy for Native American rights in the face of the major impact this ruling has on thousands of already tried cases (and the disapproval of his fellow conservatives) was surprising for most people who forgot Justice Gorsuch is the only true Westerner on the court.

Most Recommended Opinion:  Chiafalo v. Washington

Professor Ortiz assured us that if you are going to read an opinion, it might as well be written by Justice Elena Kagan. Her inimitable writing style and penchant for throwing in pop culture references make her opinions an engaging read even when addressing mundane topics. With this opinion, Justice Kagan dove straight into the hot topic of faithless electors. Just in time for this November, the majority found states do indeed have the right to punish members of the Electoral College who do not vote for the candidate that won their state’s popular vote. Though faithless electors have yet to sway an election, increased scrutiny of the Electoral College in recent cycles has created a real demand for accountability.

The Court’s summer decisions were historic not only for their content, but also for their delivery. With COVID-19 forcing the Court to jump head-first into the 21st century, the public was able to enjoy live-streamed audio arguments for the first time. That brought the joys of unmuted toilet flushes (slate.com points the finger toward Justice Breyer, but listen to the audio of Barr v. American Association of Political Consultants for yourself) and unprecedented involvement from Justice Clarence Thomas.

Greater public access to this year’s decisions has led to greater interest in the tantalizingly named “shadow docket.” Rarely making the front page, the shadow docket refers only to cases the Court submits orders on without taking oral arguments and usually without submitting opinions. In keeping to time, Supreme Court litigator Harris had only a moment to touch on some of these cases. Shadow docket decisions from this summer included: clearing the way for the resumption of federal executions, allowing military construction funds to be diverted to construction of the border wall, and preventing thousands of felons in Florida from voting in their state primary for failure to pay fines and fees. 

The session included a deeper discussion of other noteworthy cases from the summer. Professor Mahoney started off by providing her insights into cases involving the Affordable Care Act, President Trump’s personal finances, and continued efforts by conservative state leadership to limit access to abortion. Professor Ortiz followed up with cases on contraceptives, faithless electors, and Native American rights; Mr. Harris closed out the evening with employment discrimination, DACA, and conflicts at the Office of Information and Regulatory Affairs.

Capped off with an insightful Q&A session that saw the speakers jumping straight in to asking each other questions, the Supreme Court Summer Round-Up was overall a very good use of a precious seventy-five minutes this fall semester.

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dl9uh@virginia.edu

SBA President Welcomes Law Students Back: Outlining SBA's Initiatives for the School Year

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Katharine Janes ‘21
SBA President

Hello, UVA Law!

On behalf of the Student Bar Association (SBA), I would like to welcome our new 1Ls and LL.Ms to UVA. The 2Ls and 3Ls are so excited to get to know you over this coming semester and year. Whether it be through student group activities and events, casual coffee chats in the courtyard, or unexpected run-ins at King Family Polo, we are really looking forward to integrating you as a part of our vibrant community. When upperclassmen offer their emails or phone numbers as a way to reach out, they fully hope that you will be in touch. We—as your Peer Advisors, colleagues, and friends—want to be here for you however we can be during your transition to life at UVA Law.

And to the 2Ls and 3Ls: Welcome back! It’s been lovely to see you all on Grounds and over Zoom since classes began two weeks ago.

SBA has been hard at work over the past few months imagining new ways to bring students together this semester. We know that, for now, things cannot be the same as they were before. UVA’s community is what makes this place so special, though, so in the meantime, we are committed to maintaining our school’s culture by offering creative and exciting alternatives.

Pictured: The SBA Executive Board. Top left, Katharine Janes ’21, top right, Savanna Williams ’21, bottom right, Katherine O’Neal ’22, bottom left, Chance Maginness ’22. Photo Courtesy of virginiasba.com

If one thing has remained constant since last spring, it’s SBA’s passion for getting students tasty and subsidized food. Starting soon, in direct response to your comments in SBA’s beginning-of-year survey, our Programming team (led by Chase Harris ’22 and Steph Metherall ’21) will be rolling out bi-weekly food deals and social opportunities for students. Roots delivery is also back in action, albeit in a slightly different form due to Law School delivery restrictions. Monday through Friday, Roots will be dropping off to Pav and Ivy and waiving any delivery charge (check your email for further details). SBA’s Academics & Faculty Relations Committee (co-chaired by Joanna Borman ’22 and Alex Retzloff ’21) is also expanding the “Take Your Professor To Lunch Program.” This semester, if you and at least three other students host a Zoom “lunch” with a professor, SBA will contribute $10 to each person’s meal. Finally, our Health & Wellness team (led by Isabelle Perfetto ’22 and Danny Seidita ’21) has worked to expand access to healthy food by sponsoring weekly deliveries from Bellair Farm, in partnership with Student Affairs.

SBA has also stayed busy throughout the summer advocating for students and their interests. On one front, our Governance Oversight Committee (chaired by Chance Maginness ’22) has drafted its report on student representation, transparency, and academic policies and will be presenting its findings to the administration before the end of this month. The Committee will recommend changes such as eliminating the employment provision from our academic policies, ensuring students are represented in the work of every faculty committee, and changing clinic grading to credit/no credit. In tandem with these efforts, our Diversity Advisory Council (headed by Ida Abhari ’22, Will Hinton ’21, and Christina Luk ’21) is also drafting a memo on changes its membership would like to see made at UVA Law relating to diversity and inclusion efforts, including student involvement in the hiring process for the new Dean of Diversity, Equity, and Belonging, securing more support for diverse students at the Law School, providing talk-forums to share experiences, and supporting our diverse affinity groups in their own advocacy. Retaining diverse faculty and recruiting diverse students is a chief concern for the Council. Meanwhile, our Health & Wellness team is seeking to establish services to improve mental and physical health, including expanding access to counseling services and offering free virtual workout classes. Finally, SBA is working with the Darden Student Association to support the elimination of the tuition increase through a letter that will be presented to the Board of Visitors during their upcoming meeting on September 10 and 11. All of this has been done with an eye toward our mission of making UVA Law the best and most inclusive place it can possibly be, and our student advocacy will continue to be a central part of our efforts moving forward this semester.

While we are proud of the work we’ve done—and are excited for the work to come—we could always use more voices at our table. If you would like to become involved with any of SBA’s efforts mentioned above, please consider applying to one of our sixteen committees and subcommittees; we would love to hear your thoughts on what UVA Law needs, as well as get your assistance in making that happen. The application can be found in Savanna Williams’ latest email to students and is due this upcoming Friday. Finally, if there is anything you would like to see offered or hosted by SBA—or if you just want to chat!—swing by one of our SBA meetings, drop in my office hours on Tuesdays from 2:30-3:30 p.m., or get in touch with me or any of the individuals listed above. While there remains considerable uncertainty around how the school year will unfold, SBA is here to help our community navigate these times together. 

All the best,

Katharine Janes

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kmj4vg@virginia.edu
sbapresident@virginia.edu

Online Competition: When Will Students Get Sent Home?

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Drew Calamaro ‘21
Satire Editor

My fellow law students and COVID avoiders,

A storm is coming. A wave of undergrads is on the horizon and there is no end to their numbers in sight. Each vector comes from afar, bringing with them the many strains of COVID-19 (two—some would say two too many) that are spreading throughout the country. Of course, the school administration could choose to NOT do this, thereby protecting the student body and the city of Charlottesville as a whole, but here we are.

As a result, we have a situation where we all KNOW the school will go completely virtual at some point, but we don’t know when. Or maybe we do… Here at the Law Weekly, we believe everything should be made a game, and, to that end, we are providing a reward to the person who most accurately guesses the date and time at which an email will be sent out that entirely shuts down undergraduate classes.[1] Here are the rules:

Your guess: Go to lawweekly.org and click on the link to the Google survey (you must be logged into your UVA email to access).[2] You will be required to include your name and email, and others who fill out guesses will be able to see yours as well. You are warned. The tiebreaker, if needed, will be naming who sends out this email.

Deadline: Your answer must be sent by Sunday, Sept. 6, at 11:59 p.m.. This is a hard deadline.

Online shutdown event definition:  I will personally determine whether the email meets the definition of a full switch to online classes. Even if classes are not entirely online, I think we can agree that if the vast majority of classes become virtual, it counts. But it’ll be an “I know it when I see it” situation. Do I believe it should be a democratic process to determine if the email counts? No. Do you know why? Because I am the one organizing this.

Determination of closeness:  I will publish everyone’s guesses on a Google Sheets document, which you will be able to access. If the tiebreaker fails to establish a clear winner, we will hold a socially distanced footrace to determine the ultimate champion.

The prize:  A Dr. Ho’s Humble Pie gift card. I can promise you I did not pay for this, but the Law Weekly clearly has Bezos-level deep pockets. Maybe the true prize is the knowledge that at some point, you will be able to walk around Charlottesville without running into an infected undergraduate.

That’s it. Good luck, stay safe, and guess away!

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dac6jk@virginia.edu

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[1] And sending undergrads back to the virtual realm where they belong.

[2] If you think this sounds like a naked attempt to garner clicks to our highly intuitive and advanced-looking website, then you think correctly. The Law Weekly must still drink at the fount of clicks for our affirmation.

Dean Goluboff Welcomes Class of 2023

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Risa L. Goluboff ‘00
Dean of UVA Law

Photo Courtesy of virginia.edu

To say that we begin this school year at a challenging moment is an understatement. The unprecedented COVID-19 global pandemic continues, and it has ushered in an economic crisis unprecedented in its own right. We are in the middle of a national reckoning with racial injustice. A hotly contested election fast approaches.

As we navigate these challenges together, this year will certainly differ from any that has come before. In your first week of classes, you have already seen many ways in which that is the case. You wear masks, take some or all of your courses online, keep your distance from one another, and watch your professors through Plexiglass. You monitor your health and worry about both your own health and that of others. You are being asked to fulfill obligations to each other and this community that no class before you has had to contemplate.

So much remains the same, however. This is your first year of law school, and that means it is the start of an exciting intellectual, personal, and professional journey for each of you. That is, as it always is, a joy to behold.

This year will transform you, as the first year of law school always transforms 1L students. The opportunities before you—both during your time here and in the careers that will follow—are almost limitless. Our faculty, administrators, 2Ls, and 3Ls are eager to help you begin to take advantage of those opportunities and to find your way around the Law School. I mean that in the literal sense: Note, for example, that there are two Caplin Reading Rooms—the one in the Library and the one off Scott Commons—as well as both a Caplin Pavilion and a Caplin Auditorium. (Mortimer Caplin ’40 was an alumnus, a member of the faculty, and a loyal and generous donor.)

I mean it in a figurative sense as well. Our world-class faculty is dedicated to initiating you into the mysteries of the law and bringing their innovative research into their instruction as they do so. Outside of the classroom, fellow students, faculty, and staff offer countless ways for you to connect with each other and dive into our community, both virtually and in small groups. We are here to help you navigate the intellectual challenges ahead of you and identify the aspects of the law and law school—areas of study, service projects, political causes, student organizations, extracurricular activities, research opportunities, career paths—that give you a sense of purpose and belonging and enable you to thrive. We are here to help you find your path and to support you at every step along it.

It will not always be easy, for the reasons made (in)famous in popular culture and mythology: required classes and cold calls, oral arguments and journal tryouts and job searches. But it will no doubt be rewarding. This year will prepare you not only for the rest of law school, but for the amazing, varied, as yet unknown careers that you will each make your own.

You will spend hours each week with your new classmates, over screens and otherwise. Take advantage of opportunities to connect and engage with each other. As I said during orientation, the legal profession is dedicated to testing ideas with argument and persuasion. Lawyers both ask difficult questions and must hear difficult answers. It is not always easy to speak so that others can listen or listen even when the message is hard to hear. It may be even harder to do those things this year, when we are coping with a new normal that feels anything but, engaging in important and difficult conversations about race, and witnessing and participating in that most central of our democratic institutions: voting.

I am confident that we are up to the task. We are a community that cares deeply about each other and makes dialogue across difference a hallmark. We come from different races, religions, nationalities, ethnicities, and cultural and socioeconomic backgrounds. We have had different life experiences and live different identities. We hold different beliefs, attitudes, and interests, and subscribe to a wide range of political views. We each have our own unique hopes and dreams. We bridge these differences with a shared commitment to this community, a shared aspiration that our differences serve as a source of humility and strength, empathy and intellectual stimulation. The community of trust and belonging to which we each contribute takes real dedication and effort to maintain, and it is worth every ounce of such effort. It is essential to all we do here and to becoming the exceptional lawyers you are all here to become.

This moment in our nation’s history calls out for exceptional lawyers. Lawyers will lead our government, our institutions, our businesses, and our communities through the many changes on the horizon in ways that comport with the core values of our Constitution and our profession. You will follow in the footsteps of a learned profession committed to justice and the rule of law. You will become those lawyers.

As you run through what can seem the gauntlet of 1L year, you will gain new skills, new ways of thinking, and new intellectual resources. You will also make new friends and colleagues, connect with new mentors, and have new experiences that will enrich and transform you. You will become essential members of this community. Through it all, you will find here the joy and humanity that is at the core of UVA Law and that, more than anything, remains very much the same as it always has.

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risa.goluboff@law.virginia.edu

Welcome Letter from the Editor

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Christina Luk ‘21
Editor-in-Chief

Hello and thank you for picking up the Virginia Law Weekly! We are the Law School’s one and only student newspaper and you are in for a treat. Inside these pages you will find the heart and soul of the UVA Law community. As Editor-in-Chief, it’s my privilege to introduce you to what we’re all about and to entice you into our ranks.

Now, in years past, welcome letters have tended to be pretty upbeat and funny—but nothing about this year has been ordinary. I mean, we started the year with an entire continent on fire, and no one really expected it to ramp up from there. COVID-19 has forced us all online, impacted our communities, and tested our resilience, kindness, and care for each other. The events of this summer unfolded like a slow-motion fever dream. Disease, death, police brutality, protests, and, of course, the ever-ramping up election. We are buckling in for the second half of an already crazy year.

What an incredible time to attend law school. So much has changed. A look around the Law School reveals a different space. There are stickers on the floors and tables, cameras and plexiglass have been installed in every classroom, and a thousand hand sanitizing stations litter the halls. Folks are wearing masks (or they had better be!) and many of us are online this semester.

The start of the year brings everything rushing back—the excitement, the nostalgia, the burning curiosity of whether the snack office will still provide snacks. Old and new students alike, we’re grappling with social isolation, missing people closest to us, and deciding on the next stage in our legal career. We’re all trying to figure things out. Now is the time for community, solidarity, and laughter. Now is the time for optimism—to say that we will meet each new challenge with grace and perseverance. That we are all here because we were called to something outside of us.

We at the Law Weekly are called to “community.” When our back is up against a wall, our first impulse is to put pen to paper (fingers to keyboard) and write. My goal for the paper is to build our community, celebrate our triumphs, discuss room for improvement, and give voice to every member of the Law School. Over this year, I want to introduce you to your classmates and professors, spotlight clubs, inspire laughter and hope, and above all, show that we are a community of thoughtful and caring individuals. That we are unafraid to share our opinions and that we respect all voices, especially those who have had the fewest opportunities to speak.  

So, to the 1Ls, welcome to the Law School. In the time-honored tradition of upperclassmen giving unsolicited advice, I urge you to look for joy in your lives. The passions that sustained you before law school will nurture you the next three years. You will find like-minded individuals who share your values—people who will be your dearest friends and fiercest champions. I encourage all of you to grab this school year by its horns. Reach out to people, get virtual coffee, go to office hours, and join a student organization that sparks joy for you. There is no dearth of extracurricular offerings at this Law School. I should know, I’ve spent the last two years writing about them.

Speaking of extracurriculars, I’d be remiss not to invite each and every one of you to join the Law Weekly. We publish once a week, twelve editions per semester, and we welcome new members throughout the year from every class. Historically, we met in Slaughter Hall 279 to edit articles, listen to tunes, and eat free Domino’s pizza. In this brave new Corona world, I’m inviting all of you to join us virtually Monday nights at 7 p.m. Please email me if you are interested in joining our mailing list. 

If you have a qualm, a passion, a joke (good or bad), or even just the itch to write—we want to hear from you. Please. Regale us with your views on attending class over Zoom, your awkward virtual hallway encounters, or your funniest professor quotes. Are you discontented with a school policy? Do you have an opinion on the upcoming election? Maybe you have a complaint for our widely cited Court of Petty Appeals? We want it all. Get in touch with us at editor@lawweekly.org.

To ensure you never miss an issue of our rip-roaring fun, please register with us at: https://www.lawweekly.org/register. You can also like our page on Facebook or add us on Instagram or Twitter. We don’t have a TikTok yet, but the shenanigans we get up are certainly meme-worthy.

On behalf of the staff of writers and editors at the Virginia Law Weekly, good luck and welcome to UVA Law! We can’t wait to meet you all!

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cl3eh@virginia.edu

SBA Update: Current and New Initiatives

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Katharine Janes ‘21
SBA President

Hi all, 

It has been quite the month to be a student at UVA Law. When this piece is published, it will have been exactly four weeks since classes went from in-person to online. Since that time, we started taking courses on entirely new platforms; rallied as a student body in support of grading policy changes, against academic policy injustice, and in favor of contract worker wellbeing; and we’ve found new and creative ways to remain engaged with one another. I have been so proud to be a part of the community we occupy and, as SBA President, I am working tirelessly to ensure student voices are heard as decisions are made throughout this time. I wanted to take this chance to outline how SBA has been—and will continue to be—advocating on your behalf. 

The transition to online learning has brought to light many structural problems of concern to students, and SBA has heard student feedback loud and clear. In response, SBA plans to undertake a thorough review of the policies and procedures that impact students at UVA Law.

In line with recent conversations with students and SBA, and following the recent charge by Dean Goluboff in the Law Weekly to “[gather] student views to make recommendations to the curriculum and academic review committees,” we plan to form an ad hoc committee that will investigate three key areas of governance at the Law School: academic policies, transparency in decision making, and student representation within the shared governance structure. This working group—comprised of both SBA and non-SBA members—will serve as a conduit for student feedback on these focus areas, and it will work with stakeholders throughout the school to propose effective solutions to the problems that have been brought to light. It will complete this mission with an eye towards increasing transparency, fostering better communication between students and the administration, advocating for marginalized and underrepresented students, and increasing the power of the student voice in decision-making. A comprehensive report will be produced by the end of the summer, to be presented to Deans Goluboff and Kendrick for review and implementation. This project will be seeking student leadership and participation, and more details about the initiative and how to be involved will be coming to your inboxes soon, so please keep an eye out!

SBA committees have also been hard at work to keep students connected with one another during our time apart. SBA Health and Wellness (H&W), led by Page Garbee ’21 and Chance McCraw ’21, recently initiated the Unsung Hero award to draw attention to acts of compassion and thoughtfulness completed by UVA Law students, faculty, and staff. Our first winners—Will Kelly ’21, Jana Ruthberg ’21, and Cat Guerrier ’21—are wonderful models of what UVA collegiality means in practice. H&W’s Care Package Swap and Quarantine Buddy programs have been wonderful community-building additions, and personally, I have loved their weekly recipe suggestions.

SBA Programming (headed by Taz Jones ’20 and Read Mills ’20) recently unveiled the Lawhoos Eat Local initiative, which aims to support local businesses across the country while giving away eighty free meals a week to students. Finally, Programming’s Card and Letter Writing Campaign aims to send love to the contract staff members of the UVA Law family. I have seen firsthand how difficult it is to coordinate and launch events and activities from afar, so to these committees and all members of SBA, thank you for your time, effort, and service over these past few weeks.

As a final, more personal note, I would just like to thank all UVA Law students for your outreach and involvement over these past four weeks. I, like you, have oscillated between feelings of connectivity and isolation, joy and distress, while we have been apart. These circumstances are not easy for anyone to navigate, but through it all, we have rallied around the mission of keeping students' best interest at heart. If you want to be a part of our structural reform efforts, our programming initiatives, or have ideas you would like to see implemented—please email, text, or call me. I love talking through ideas of how SBA can best serve students, and I look forward to working with you. I hope to see you in-person soon, but until then, I will be sending positive vibes to wherever you may be.

All the best,
Katharine

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kmj4vg@virginia.edu

Joint Statement from Dean Goluboff and Frannie Skardon '22

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On Monday, April 6, at 9:09 p.m., Dean Risa Goluboff and Frannie Skardon ’22 released a joint statement to the Law Weekly in response to our request for further comment from the dean regarding Michael Berdan ’22’s article recapping the Coffee with the Dean event. At this event, students had vigorously discussed the controversy surrounding Ms. Skardon’s appeal to remain a full-time student. The joint statement is reproduced below without edits. The Law Weekly does not necessarily endorse the content or viewpoint herein published.

Statement begins:

We are reaching out jointly to express how glad we both are that Frannie’s situation came to a positive resolution and to share some thoughts about the future.

We have both expressed separately but want to emphasize here together the invaluable contributions service members make to our community both at the Law School and beyond, and honor the sacrifices they make every day to protect our safety, health and freedom. They will always have a home at UVA Law.

The two of us have had productive conversations about how the Law School can improve the administration of its policies in situations similar to Frannie’s. In so many ways, we are in unprecedented times—times that our policies did not contemplate. ABA standards require the Law School to develop and adhere to its policies, including how best to do that as our learning environment has changed. 

Going forward, we are both committed to improving the Law School’s process for implementing academic policies and finding ways to communicate policies in a manner that empowers students and increases transparency. We are eager to work with other students to hear their experiences and feedback.

Dean Goluboff has asked Vice Dean Kendrick to work with the Student Bar Association on gathering student views to make recommendations to the curriculum and academic review committees, both of which include student representatives. Together, we hope this collaboration will improve the implementation of the Law School’s academic policies, maintain the high standards of a UVA Law education, increase our understanding of the hardships military students face, and safeguard the interests and welfare of our students.

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 goluboff@law.virginia.edu

Dean Goluboff Hosts Coffee Chat in Wake of Controversy

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Michael Berdan ‘22
Staff Editor

On Friday, Dean Risa Goluboff hosted a school-wide “Coffee Break” on Zoom. After prefatory remarks, Dean Goluboff opened the floor to student questions.

A number of questions centered on the administrative withdrawal of Frannie Skardon ’22, and her subsequent appeal. Skardon’s National Guard unit was activated March 17 to respond to COVID-19. Skardon notified the administration of her change in status, indicating that the National Guard is accommodating her educational obligations by providing her six hours each day for study. The administration responded that Skardon cannot complete the semester while receiving full-time compensation from the National Guard, citing Academic Policy I.H., which bars students from paid employment in excess of 20 hours per week during the academic year.[1] Skardon was given two options: Take a leave of absence from UVA Law or be administratively withdrawn by the registrar. Skardon was not told about any appeal process or offered any other recourse. She independently discovered that an administrative withdrawal can, in fact, be appealed, so she elected not to take a leave of absence, and the withdrawal was enforced by the administration on Tuesday, March 31.

Having received only twenty-four hours to prepare her appeal, Skardon started an online petition and submitted a letter to the editor about her situation to the Law Weekly, both of which circulated rapidly through GroupMe, Facebook, Twitter, and word of mouth among students and alumni. Although Skardon specifically requested that the media not be involved, within hours, Above the Law published a scathing report on the situation. That evening, the UVA Law official Twitter account (@UVALaw) issued a brief statement to say that the Law School is proud of veterans and that Ms. Skardon’s situation is “working its way through the usual process.”[2] Rep. Doug Collins (R-GA), retweeted the story that evening, calling UVA Law’s actions “Shameful,” and calling on the school to overturn Skardon’s withdrawal.[3] Local news media picked up the story shortly thereafter.[4] In a since-deleted tweet, @UVALaw replied to Rep. Collins, calling the Above the Law article “Inaccurate,” and noting that the matter was still in process. The next day, April 2, after receiving over 5,700 signatures on the petition, and over 140 letters of support, the Academic Review Committee unanimously granted an exception allowing Skardon to remain a full-time student.

In the coffee break conversation with Dean Goluboff the next day, I asked Dean Goluboff the first question, wanting to know whether the Law School will change or review its procedures in light of these events, in order to better handle emergency situations where policy leads to an unacceptable result. Dean Goluboff noted that she is always reviewing events and actions in order to improve, but regretfully declined to answer any further, citing privacy concerns.

My question was followed by a series of questions from Savanna Williams ’21, asking in her personal capacity whether Dean Goluboff had personally contacted Ms. Skardon, whether individual administrators would face discipline for the handling of the matter, why Dean Goluboff did not step in and correct the situation, and why formal statements from the Law School were made that misleadingly presented the issue as an ongoing decision, rather than a final decision being appealed. Dean Goluboff replied that she had not yet contacted Ms. Skardon, but intended to do so. She declined to answer the other questions, citing privacy concerns. Subsequent questions from other students about the institutional implications of these events were also not answered, although student concerns and suggestions were acknowledged.

Other questions were directed to Kevin Donovan, Senior Assistant Dean of Career Development, concerning the impact of COVID-19 on the private practice job market. Dean Donovan noted that firms actively pursue UVA Law students and that it is their interest to maintain ties they have built with the School over such a long relationship. Economic conditions could force them to choose a different path, but firms are working hard to try to welcome new associates and hold summer programs in some form. He also assured students that the Office of Private Practice is working its network of connections with firms for any information, and, over the next two weeks or so, he expects firms to be coming to more concrete decisions about this summer and communicating those to his office and to students. Dean Donovan invites students to reach out to the Office of Private Practice with any questions or concerns.

While students commend Dean Goluboff for hosting a public Q&A session directly following this controversy, members of the student body and I were dismayed that so many questions, even those seemingly unrelated to privacy concerns, were left unanswered. In the midst of this crisis, students hoped that UVA Law would continue to hold to its human-centered values and were concerned that the rigid application of policy nearly carried the day. “I guess my primary emotion is confusion,” says Ida Abhari ’22. “I’m left wondering what is being prioritized here, given the overwhelming amount of evidence that these are not normal times and cannot be treated as such.”

Incoming president of the Virginia Law Veterans, Jordan Armstrong ’22, says his group is “grateful that the general UVA Law community... shares our commitment to the wellbeing of our vets and understands the value that we bring [to the Law School].” But Armstrong, while hopeful that this will lead to improvement in the Law School, also expressed disappointment: “It seems clear that the current policy hurt, most importantly, Frannie during a stressful time, [and] it also undoubtedly publicly damaged the core reputation of UVA Law as a collegial institution.” Air Force Veteran Nevah Jones ’22 echoed the sentiment, saying, “[T]his issue never should have been dependent on an ‘appeal.’ It’s beyond disappointing that the initial decision-maker was either unable or unwilling to make the right call on such a common-sense question.” Admitted students who are armed services veterans were reported to be reconsidering their application to UVA Law in light of the controversy, a feeling that wouldn’t surprise Jones, who commented, “I chose UVA Law because it has a reputation for being veteran-friendly. However, I will think twice about recommending it to fellow veterans going forward.”

I personally remain hopeful that the administration will take steps to remedy what failed last week. Most obviously, the Law School should impose a blanket requirement for administrators to inform all students subject to withdrawal of all possible avenues for appeal. The shared values that make UVA Law both great and good require policies and administrative action structured to support students and keep them in our community. Those values were betrayed when Frannie Skardon was guided toward withdrawal without being informed of her options to appeal. In the wake of the matter’s resolution and the subsequent conversation with the Dean, students expect changes to be made to ensure that this will not happen again.

[Update]

The Law Weekly received a joint statement from Dean Goluboff and Frances Skardon ’22. Read it here.

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mwb4pk@virginia.edu

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[1] https://www.law.virginia.edu/policies/i-academic-policies-and-procedures#ig

[2] https://twitter.com/UVALaw/status/1245539086636630021

[3] https://twitter.com/RepDougCollins/status/1245531120835399680

[4]https://www.whsv.com/content/news/UVA-student-activated-by-National-Guard-nearly-forced-to-withdraw-from-school-569334221.html

Bar Exam Changes Leave Many Unsure of What Will Come Next

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M. Eleanor Schmalzl ‘20
Editor Emeritus

In the last month, the United States has seen drastic change in all areas of life. Beyond businesses shutting down and classes being moved online across the country, the bar exam is one area of specific concern for graduating law students. As of April 6, five states have officially opted to postpone the bar exam that was originally scheduled to be administered in July of 2020: New York, Massachusetts, Connecticut, Hawaii, and New Jersey.[1] The National Conference of Bar Examiners also recently announced how it plans to address bar examination issues for the thirty-five jurisdictions (thirty-three states along with the District of Columbia and the U.S. Virgin Islands) who administer the Uniform Bar Exam every year. The NCBE stated, “To provide needed flexibility for jurisdictions and candidates, in addition to preparing materials for a July bar exam, NCBE will make bar exam materials available for two fall administrations in 2020: September 9-10 and September 30-October 1. Each jurisdiction will determine whether to offer the exam in July, in early September, or in late September.”

  These announcements and changes leave many graduating law students uncertain of when they will be able to sit for the bar exam and anxious about whether a fall administration will even be possible. With delayed administration of the bar exam, those preparing to sit may face several obstacles and challenges in studying for the bar beyond the already challenging, labor-intensive study schedule that is considered par for the course. Challenges may include moving in the midst of studying, starting new jobs, running out of money to live on while they wait to be barred, studying while living in close quarters with others with whom students are self-quarantined, and, most significantly, the fear of sitting for the exam if the student has a compromised immune system. Because of the significant hardship many could be, or are facing, students across the country have been pushing for states to implement an emergency diploma privilege that would allow graduates of American Bar Association-accredited law schools to be admitted without taking the bar.[2]

Law students are not the only individuals pushing for issuance of diploma privileges; law school administrators are fighting on behalf of students as well. The deans of all fifteen of New York’s ABA-accredited law schools signed a letter “urg[ing] the court to adopt a system whereby 2020 law graduates would be able to practice for up to 18 months under the supervision of a licensed attorney” and sent the letter to Chief Judge Janet DiFiore of the New York State Court of Appeals (New York state’s highest court) on April 1.[3] In a school-wide Zoom call with UVA Law’s very own Dean Goluboff, one student asked whether Virginia’s law school deans have discussed the possibility of a similar letter in Virginia. Goluboff replied that a meeting with all the Virginia deans was set for later in the afternoon that day. No further information has been disclosed at this time.

The legal profession also stands to suffer hardship with the administration of a postponed bar examination. While many students face delays in starting legal positions that are contingent on passage of the bar exam, those planning to hire them may also suffer as work piles up with fewer people staffed to handle it. And with many court systems not hearing cases beyond those that are urgent or time-sensitive, mounds of work await those planning to enter offices involved in the courtroom. Many students planning to work in these roles also cannot practice in a courtroom without bar licensure or a practice certificate, most of which usually expire shortly after the results of the July exam were set for release. This means those students will be legally unable to perform certain aspects of the jobs they have accepted for the fall, leaving fewer attorneys and more work than usual to be done.

Even if an emergency diploma privilege option is given, further questions exist for students planning to sit for a bar exam in one state with plans to waive into another jurisdiction shortly thereafter. Wisconsin is the only state at this time that regularly offers a diploma privilege option whereby students who attend a Wisconsin law school and meet certain requirements will receive admission to the state’s bar without having to take an admission exam. However, this privilege does not allow Wisconsin attorneys to transfer this admission to other states where they may like to practice, meaning students who went to school in Wisconsin but want to practice in Virginia (for example) would need to sit for Virginia’s exam to be able to do so. Thus, as students and administrators advocate for a change in policy, the many complications and questions that exist beneath the surface add to the challenging decision facing bar licensure groups across the country.

These challenges, along with others, will continue to grow and manifest as the impacts of a delayed bar exam become transparent. The difficulty at the forefront for those planning to sit in July 2020, however, is the uncertainty of what will happen next. Many graduates begin studying for the July bar in May after their graduation, but whether that is advisable or not cannot be known until more information is released by various jurisdictions. As students advocate for alternative means of getting barred and worry about the challenges they face in sitting for a traditional bar exam, they have to set plans now for their future when what their future actually holds is very uncertain.

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mes5hf@virginia.edu

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[1] http://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information

[2] https://www.law.com/2020/03/30/amid-more-bar-exam-delays-push-for-diploma-privilege-grows/

[3] https://www.law.com/newyorklawjournal/2020/04/02/fall-bar-exam-gets-pushback-from-ny-law-deans/