Senator Whitehouse '82 Visits UVA Law

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Kathryn Querner ‘22
Features Editor

On Thursday, February 18, UVA Law Democrats (Law Dems) hosted U.S. Senator Sheldon Whitehouse (D-RI) (’82) for an extended Q&A session. The hour-long Zoom event began at 5:15 p.m. and was well-attended; nearly sixty students and professors joined the event. Attending students also had the opportunity to place an order at Roots, paid for by Law Dems. Because of the risky driving conditions caused by the winter storm, students had the option to either order at the time of the event or for the following day when weather conditions cleared up.

Senator Whitehouse’s career path illustrates his commitment to public service. He has held roles including the U.S. Attorney for the District of Rhode Island (1994-1998), and has served as a U.S. Senator for Rhode Island from 2007 to present. Some of Senator Whitehouse’s objectives as senator include addressing climate change, reforming the criminal and juvenile justice systems, and rooting out dark money from elections.

As Senator Whitehouse is currently one of the most senior Democrats on the Senate Judiciary Committee, many students posed questions related to the events of January 6 and Donald Trump’s impeachment. The senator labeled January 6 as an “infuriating and humiliating day,” and shared that he felt “nauseous” thinking about this “lasting blot on our country.” He called for a 9/11-type commission to look into the events of January 6, noting that he would like to have lawyers hired to dig up the facts and figure out who was behind the event. He would like to see some accountability for right-wing apparatuses that stir people up, propagate lies, and advocate for this kind of mischief.

Pictured: Senator Whitehouse '82 diligently answered questions and offered sound advice to those in attendance. Photo Courtesy of law.virginia.edu.

One student asked Senator Whitehouse about the possibility of changes that might be made to the judiciary in upcoming years, especially in light of the solidified conservative majority in the Supreme Court. The senator shared that court-packing is a drastic measure, so Democrats should do their research and engage with the public before making a decision to pursue this path.

Regarding one of the senator’s key initiatives involving bipartisan climate change legislation, Eric Seifriz ’22 asked how this critical issue has become so partisan in recent years and what we might do to detangle the issue of climate change from political polarization. Senator Whitehouse explained that the 2010 Citizens United ruling by the Supreme Court opened the door for the fossil fuel industry to obtain unlimited campaign finance spending, which they used to influence the Republican party and punish those elected officials who chose to challenge the fossil fuel industry. This created the polarization of the issue of climate change that we see today. 

Regarding whether he enjoyed the event, Seifriz shared, “This event was a great opportunity to hear a U.S. Senator speak so candidly on a wide range of issues, while letting the conversation be driven by his audience. I especially appreciated hearing his assessment of the climate crisis and how we got to this point. We have been learning about the history of the modern environment movement in Environmental Law this semester, so to hear the firsthand account of someone who has had a front row seat to these policy debates—and his assessment of what has gone wrong and needs to change going forward—was edifying.”

Chance Maginness ’22 questioned the senator about bipartisanship. When asked for his thoughts on the event, Maginness commented, “I really appreciated Senator Whitehouse taking the time to come talk to us. Not a lot of sitting U.S. Senators would take the time to come answer our random questions about politics and do it so earnestly. Of course, I would’ve rather he been using his time to question impeachment witnesses instead of avoiding my criticisms of bipartisanship, but hey, I’ll take what I can get.”

Senator Whitehouse also shared some advice for students: Having had the opportunity to work for the public interest and engage with the Rhode Island community, the senator recommended that students consider entering the public sector and running for political office. “Life will be richer even if you lose . . . if you can afford to get away from the private sector . . . you should.” He did mention that one downside of holding public office has been the publicity, but overall, the senator reiterated, “I’ve loved it, and it has made my life so much richer.”

Law Dems President Will Scheffer ’22, who organized the event, commented, “It’s a rare opportunity to get to watch a U.S Senator hold court for an hour, but what really made the event special to me was listening to the incredibly thoughtful and insightful questions that my UVA Law classmates put to Senator Whitehouse over the course of an hour. It was a nice reminder of what makes our school special at a time when I think many of us are feeling either physically or figuratively distant from the Law School community.”

The senator concluded by discussing his years spent at UVA Law, specifically referencing the good memories he has of the Foxfield Races. Senator Whitehouse’s generous donation of his time, thoughts, and advice to the UVA Law community spurred valuable political conversation, and hearing a U.S. Senator speak was a unique opportunity for all who attended.

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kmq8vf@virginia.edu

Panel Discusses Practicing Law in the "Age of Colorblindness"

Anna Bninski ‘23
Staff Editor

“Anything I’ve said about this is online already, so why change?” asked Judge Angel Harris, before speaking in very plain terms about the racial disparities that she sees in the criminal legal system.

On Tuesday, February 9, the Law School’s Diversity, Equity, and Belonging Committee hosted a formidable panel of speakers in conjunction with SBA’s Diversity Week and in recognition of Black History Month. The accomplished trio of Black criminal law practitioners—Judge Angel Harris, former criminal defense attorney and current Orleans Parish Criminal District Court Judge; Mike Herring ’90, Commonwealth’s Attorney for the City of Richmond for over a decade and current partner at McGuireWoods; and Alanah Odoms, Executive Director of the ACLU of Louisiana—shared their perspectives on issues raised in Professor Michelle Alexander’s book, The New Jim Crow as well as advice for current law students.

The first question posed by Professor Thomas Frampton, who moderated the panel, focused on The New Jim Crow. The premise of Professor Alexander’s book is that the criminal legal system, in its current “colorblind” iteration, accomplishes the same work of subordination and exclusion that overtly racist prior regimes sought to enforce.

            Judge Harris agreed with the premise, pointing particularly to the effect of mandatory minimum sentences on communities of color, disparate opportunities to plead down, and the “caste system” created by the disenfranchisement of people who have been convicted of a crime.

The inevitable Zoom problems that plague every contemporary talk left listeners briefly in suspense as to whether they would get to hear from Odoms, but after some brief wrangling she was able to share that she keeps a pocket copy of the Constitution on her desk. “I like to remind students that slavery and involuntary servitude are ingrained from the beginning,” she said, reminding listeners that the Thirteenth Amendment allows for the involuntary servitude of people convicted of a crime. Odoms also highlighted the “insidious operation” of legal financial obligations, given that most people in jail are not formally charged with a crime, but rather, unable to make bail and simply stuck there, thereby being denied a speedy trial. Expanding on Judge Harris’s point, she noted that disenfranchisement of Black voters has been particularly systematic in the South.

Pictured: Professor Thomas Frampton (Bottom Right) moderated the panel on gathering Black perspectives on the practice of criminal law, featuring Judge Angel Harris (Top Left), Mike Herring (Top Right), and Alanah Odoms (Bottom Left). Photos Courtesy of Anna Bninski '23 and law.virginia.edu

Herring recalled reading Slavery By Another Name—which is about the racist system of forced labor that persisted from the Civil War into the twentieth century—while serving as a prosecutor. “I was so troubled. I could not force policy in such a way as to cripple my office . . . I was torn by the reality of the genesis of our criminal justice system with what we as modern practitioners thought we were doing for the greater good.”

Speaking to changes that he has seen over the course of his career, Herring said that he sees law students today rejecting the traditional roles of prosecution and defense, a shift from the conviction-oriented training he received as a young prosecutor. He also described the difference between reactions to the last two drug epidemics: crack and opioids. While appreciating the shift to a treatment-based response, which can be seen in the opioid epidemic, Herring noted that this reaction was sorely missing in response to crack-related drug infractions. “I hope that the difference in approach is a product of cultural evolution and not disparity, but time will tell.”

Odoms recounted seeing change follow President Obama’s appointment of Eric Holder as U.S. Attorney General, particularly in the guidance he gave to prosecutors about marijuana infractions. She also noted the educational work done by Black Lives Matter and other groups, which has led to a more diverse group of people running for prosecutor positions. “If you take folks committed to justice and fairness and put them in these positions, you’ll see a difference.” She also emphasized that the legal system should seek wholeness for the individuals and communities who have been harmed, rather than trying to “exact as much retribution and trauma as possible on people.”

Judge Harris cited Virginia’s current moves toward abolishing the death penalty as a positive development “that I wasn’t expecting to hear when I heard it.” More broadly, Judge Harris observed that she’s seen people become better informed, and less afraid to push issues and to question previous models. “Part of it is beginning to change the narrative . . . the way we talk about criminal courts. There was always this value judgement: Why are we pushing for the rights of ‘criminals?’ I say in quotes, as though they were not human beings deserving dignity and respect like everyone else.”

The panelists also discussed the need for data-driven policy; redefinitions of accountability; trauma-informed practice; the rewards and difficulties of working within a flawed system; and nuance within restorative justice. “For a certain level of offender, removal is the right option,” Mr. Herring said, while noting the importance of examining sentencing disparities. “But we need to be careful not to indict ourselves and the system so much that we pass back to communities an unfair burden.”

In parting words of wisdom for students, both Odoms and Judge Harris shared that they did not seek Law Review positions, opting instead to find programs or research that fit their specific interests. Odoms also had a question for young lawyers—or any lawyers—to keep in mind. “Any job you do, recognize that you have to come back into the community. What will your answer be to the community that you were responsible for serving?”

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amb6ag@virginia.edu

Originalism in the Twenty-First Century

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Jacob Smith ‘23
Staff Editor

“Originalism’s critics have failed to convince America that originalism is a bad idea.” Suggesting that originalism had in a sense never left, Professor Kurt Lash presented evidence from contexts as diverse as McCulloch v. Maryland and the recent debate over former President Trump’s impeachment that it has always been popular to claim the “moral high ground” of adhering to the original meaning of the Constitution. Professor Lash attributed originalism’s survival to the persistence of the idea of popular sovereignty—that the people’s will, as embodied in our Constitution, should be respected.

But Professor Lash’s words also reflected two major threads that pervaded Friday’s symposium. On one hand, commentators recognized that originalism has achieved a historical position of influence in the legal academy and judiciary. But they were also keenly aware of the challenges that originalism faces as they discussed topics related to the subject of the Third Annual Originalism Symposium, “Originalism Under Fire.”

As in prior years, UVA’s Federalist Society chapter hosted last Friday’s symposium, but of course this year’s event was held via Zoom. “I’m proud that our Federalist Society chapter has, despite the challenges posed by the COVID-19 pandemic, continued our tradition of bringing top legal minds to UVA for discussion and debate,” said the symposium’s chairman, Connor Kurtz ’22. The symposium featured professors, judges, and a handful of other commentators— including David Lat, the founding editor of the infamous blog website Above the Law.

Pictured: The panel discussed the different approaches that led the the Bostock opinion. Photo Courtesy of Jacob Smith '23.

            One external challenge to originalism comes from the Right. Some readers may not know that there is a Republican school of thought that has an attitude of hostility, or at least wariness, toward originalism. As originalism and the Supreme Court have come under increasing scrutiny, those voices have grown louder. Last year Harvard Professor Adrian Vermeule proposed an alternative to originalism: common-good constitutionalism. Vermeule’s conclusion, as described during the panel by Newsweek Opinion Editor Josh Hammer, is that “we should instead overtly go for substantive and normative conservative outcomes.”

            In contrast, the landmark decision Bostock v. Clayton County has stirred debate among adherents of originalism, with some supporting and some opposing Justice Gorsuch’s reasoning. Some of those perspectives were on display in a discussion of “Textualism after Bostock.” Textualism is sometimes considered the statutory analogue of originalism, which is often thought of as a method of constitutional interpretation.

In Bostock, both Justice Gorsuch’s majority opinion and dissenting opinions by Justices Alito and Kavanaugh followed textualist approaches, but they arrived at radically different conclusions. Professor Tara Leigh Grove favored Justice Gorsuch’s approach, which she described as “we focus on the statutory language, and that’s that,” in contrast to the “more flexible textualism” applied by the dissenting justices, which considered factors such as social context and practical consequences. Professor Josh Blackman, in contrast, thought “Justice Gorsuch failed to acknowledge that the Court’s precedents were inconsistent with textualism.  “Textualism is apolitical in that it looks to the meaning of a word, as opposed to a question of policy values in a statute,” said Jessie Mann ’23. “It was fascinating to hear the different arguments for how staunch Justice Gorsuch was in his Bostock opinion.”

Popular misconceptions are another challenge faced by originalism. In a discussion of the public perception of originalism, Lat addressed some common misunderstandings. Originalism, at least in its most prominent version, focuses not on the Founders’ intentions but on the Constitution’s original public meaning. Nor does originalism demand strict constructionism or anachronism. The Constitution can be construed “as broadly as necessary” to embrace all it originally meant and its original meaning can be applied to new contexts.

These misconceptions persist. Lat noted that folks on the street tend to think of originalism as “antiquated” and “harsh.” I refer readers to the penultimate episode of Netflix’s A Series of Unfortunate Events, where a pseudo-originalist court requires everyone to wear blindfolds since “justice is blind.” But I think originalism’s biggest challenge is persuading liberal Americans that it is more than a Republican power play. As one of Friday’s panelists noted, perhaps the easiest way to advocate for originalism is to point out cases where it has not favored Repubican outcomes, like Bostock and certain Fourth Amendment opinions authored by Justice Scalia. Still, it is reasonable to expect skepticism to continue so long as the Supreme Court’s originalists are all conservatives.

James Ford ’23 expressed this kind of skepticism, stating that “originalism is just paleo-conservatism with more steps.” Many Democrats agree, if calls for court-packing are any indication. The challenge for the Supreme Court’s originalists is to persuade observers that their methodology truly is non-partisan and to do so at a time when the stakes are higher than ever. In the balance hangs not only originalism’s reputation but also, just maybe, the Supreme Court as we know it.

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js3hp@virginia.edu

A Fireside Chat with Former Solicitor General Noel Francisco

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Devon Chenelle ‘23
Staff Editor

On Wednesday, February 3rd, the UVA Law Federalist Society hosted “A Fireside Chat with Former Solicitor General Noel Francisco.” For the event, Professor Scott Ballenger (BA ’93, JD ’96) interviewed Mr. Francisco on his wide-ranging career.

            Professor Ballenger began the talk by introducing Mr. Francisco, noting they met “25 years ago,” in “Justice Scalia’s chambers” while serving together as co-clerks. Appropriately enough, the talk began with a recollection of Mr. Francisco’s time as Scalia’s clerk. Francisco described a situation when Justice Scalia “had written a dissenting opinion . . . a classic Scalia dissenting opinion,” and gave it to his clerks to look at. The clerks told the Justice “if you tone down the rhetoric, you might get other justices to join it.” But when Scalia gave a re-draft of his opinion to the clerks, he had “actually jacked up the rhetoric,” remembered Francisco, as Scalia said “sometimes, I’ve just gotta be me.” That, Francisco said, is his “favorite story of Justice Scalia, and what probably epitomizes what he’s about.”

            Explaining Scalia’s reasoning, Francisco noted that Scalia was “engaging in a debate across time,” and “his goal was to persuade others.” As proof of Scalia’s success,  Francisco explained that at the start of Scalia’s tenure “he was one of the only strict textualists on the court,” and “now there’s probably a textualist majority of five.”

Pictured: Former Solicitor General Noel Francisco reflected on experiences working in the government, private sector, and clerking for Justice Scalia. Photo Courtesy of en.wikipedia.org

            After a few years in the private sector, Francisco was selected for a position in the Bush administration, which he described as “one long stint, with two jobs.” The first of those jobs was as Associate Counsel to President Bush in the Office of Counsel to the President. Francisco said, “What’s exciting about working in the White House’s counsel office, you’re in the middle of the action.” Francisco noted that “the best place to hang out in the West Wing was right outside of Karl Rove’s doors,” because “Rove would have a line of celebrities walking in and out.” During that time he met Bono and Bruce Willis.

            After working in the Office of Counsel to the President, Francisco moved to the Office of Legal Counsel, which involved fascinating legal work. He highlighted a case involving an inquiry into whether “an appointment at the Vatican violated the foreign emoluments clause,” where “it was a really interesting set of issues that in all those years had not gotten any significant treatment from OLC or from anyone else.”

            Mr. Francisco began working for the White House again when he was appointed Principal Deputy Solicitor General for the United States on January 23, 2017, and was confirmed by the Senate as the Solicitor General on September 19, 2017. Mr. Francisco described the Solicitor General’s office as the “entity within the DOJ that represents the U.S. in almost all cases before SCOTUS,” but, he noted “it can play a much broader role within the Executive Branch, as basically, the Department looks to the Solicitor General to provide advice on how to pursue the major pieces of litigation being carried on on behalf of the federal government.” He described his role as the Solicitor General as seeing “whether these policy positions can be reasonably defended,” and asking whether there is “a reasonable argument I can make to defend the president’s policies.”

            In addition to his extensive background working for the government, Mr. Francisco also has an impressive track record in the private sector, where he currently works as a partner at Jones Day. Reflecting on the differences between the private and public sectors, Francisco said, “I think when you’re in private practice, you have the opportunity to see a much broader range of issues,” because “often in government your position and strategy is locked in,” while “when you’re on the private side, you have to be a lot more creative.”

            Mr. Francisco concluded his talk with advice for young lawyers on finding a balance between your work and personal life. “I think that the most important thing for every lawyer to do is to understand who the client is and how to serve that client,” said Francisco And, “When you’re a young lawyer, your clients really are the more senior lawyers you’re working for, [and] your job is to make them look good.”

            The most successful attorneys, Francisco thinks, “Are those who understand the role they’re supposed to play.” Lastly, Francisco noted that despite his successful and high intensity career, he has still been able to strike a balance. “You know, I work hard, but I don’t think it’s been unmanageable,” said Francisco, noting, “I go to my children’s sporting events, I go golfing once or twice a week with my daughter,” and “I think clients recognize we need to have lives as well.” This law student found those to be inspiring words from someone far busier and more successful than himself, and hopes others will find them helpful as well.

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dnc9hu@virginia.edu

Preparing for Journal Tryouts? Check Out the New Changes

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Christina Luk ‘21
Editor-in-Chief

            The University of Virginia School of Law’s journal tryout program has always been unique from journal tryouts at other schools. For one thing, we have a unified tryout that all journals, including the Virginia Law Review, use to select its members. Most schools have a separate tryout for each journal or one tryout for specialty journals and another for law review. Second, our tryout, as 1Ls may have noticed, happens in the middle of the Spring semester. Our peer schools, on the other hand, throw their 1Ls into the crucible immediately after spring finals, which is a bit like asking someone to run a marathon after a friendly triathlon. My favorite thing about the our tryout program though, and arguably the best thing about it, is that it only takes a single weekend. Unlike the one to two week long ordeal that our peers at other schools suffer, our tryout is quick if not easy.  

            However, this year, the Journal Tryout is taking place across two weekends instead of one. According to Jess Feinberg ’21, outgoing Membership & Inclusion Editor for VLR and the Tryout Administrator, the reason is two-fold. First, the move to two weekends is in good faith meant to relieve stress and to allow for more breaks and flexibility. The second half of the tryout gives a full three days (Friday-Sunday) for the writing component, a change that encourages students to take breaks. Second, that built-in extra time will hopefully help folks with special accommodations to spend up to twice as long on the tryout, whose final day overlaps with Wednesday classes.

            1Ls will work on the Editing Component the first weekend, capped at eight cumulative hours, and they will have the second weekend for the Writing Component, which requires them to read 250 pages of materials or fewer and write an eight page paper. 2Ls and 3Ls will note that this is both a shorter writing assignment and a lighter reading load—a twenty and seventy page reduction from last year and the year before, respectively. On top of these changes, 1Ls will be allowed for the first time in Tryout history to use the searchable online Bluebook.

            Other major changes include a revamp of the Journal Tryout Toolkit, a comprehensive PDF of important dates, rules, and information about the tryout process and the participating journals. The biggest change from last year is an expanded table of contents and the inclusion of new “checklists” to help 1Ls keep track of the many moving parts in the Tryout. There is an Honor Code Checklist for the confidentiality rules and one checklist each for the Editing and Writing Components. The Toolkit this year also features “Easy Access Materials” at the beginning of the packet for easy reference.

            These and other changes were made in response to feedback solicited from last year’s participants. When asked what the most common complaints were, Feinberg commented, “Most of the feedback was about very discrete things, like how the Honor Code Rules were scattered throughout the Toolkit, which is why they’ve been collected as a Checklist this year.” Thinking on the feedback a little more, Feinberg shared that a number of people really enjoyed the topic from last year, “which was great news, and something I’m trying for again this year.”

            Other changes have been more subtle. For example, this year’s Toolkit has more information about VLR’s Holistic Review, the process by which half of VLR’s new members are chosen. According to the Toolkit, seven VLR members will sit on the Member Selection Committee, which decides on new members by considering their Editing Component scores, Writing Component scores, personal statement, and very limited grade information. The selection happens across three rounds, and limited grade information is provided about the fifty finalists. When asked about the new inclusion, Feinberg responded that it was in the interest of transparency. “In the past,” she shared, “not knowing how the Holistic Review process works gave students a lot of stress. And since we already shared a lot of the same information with 2Ls last spring, when we found out the semester would be pass/fail, it makes sense to just be transparent about it moving forward.”

            So who exactly makes these changes? There is a Unified Journal Tryout Committee composed of the heads of each journal, and this committee usually makes decisions. Due to the pandemic, however, and the Office of Student Affairs’ reluctance to involve too many students before an official decision was made about Spring Break, Feinberg worked with Dean Davies to come up with a contingency plan that eventually became the current tryout process. As for the Toolkit, Feinberg spent over twenty hours tweaking, rewriting, updating, and reorganizing the document over Winter Break. And she has made major strides in improving the document. Having personally read the Toolkits from all three years (why), I can assure the 1Ls that this is the most readable one to date. Plus, there are all these nifty new hyperlinks that make the document especially navigable.

            For the 1Ls who are about to embark on the tryout process, Feinberg had this advice to give. As the outgoing Membership & Inclusion Editor, she encouraged everyone to submit a personal statement to VLR. She shared, “I wasn’t sure when I was writing mine what VLR was looking for. I can’t speak to what this year’s Membership Selection Committee will do, but I can say that last year, we looked for the perspective you would bring to help us round out the journal and for people we would want to work with. You don’t need to write about saving the world. Just give us something honest and authentic.” Feinberg also had more general advice as the Tryout Administrator. For those of you only using the online bluebook, Feinberg recommends putting in the effort to read through the rules and to perhaps take handwritten notes as an alternative to tabbing it—whatever will help you familiarize yourself with the rules. As for the writing component, "there’s an abundance of time, take breaks, it’s not the same gauntlet anymore!”

            It’s undeniable that this year’s Journal Tryout will be different. It’s also undeniable that a lot of thought and care have gone into these changes. Whether or not all these changes are here to stay will depend on feedback from this year’s tryout, to be collected in a survey sent out later this spring. So to all the Tryout participants this year, I wish you good luck!

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cl3eh@virginia.edu

Diversity Week Celebrates 15th Anniversary

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Dana Lake ‘23
Staff Editor

Kathryn Querner ‘22
Executive Editor

            This week, February 8-12, UVA Law is celebrating its 15th annual Diversity Week. The ideals promoted during this week-long event are summed up in the Diversity Pledge:

“As a member of the UVA Law community, I hold that . . . Every person has worth as an individual. Every person is entitled to dignity and respect, regardless of class, color, disability, gender identify, nationality, race, religion, sex, or sexual orientation. I affirm that prejudice has no place in the UVA Law community—now or ever.”

            Diversity Week began as an initiative by Lambda Law Alliance in 2006, in response to an act of hate against two UVA Law students. The incident of intolerance occured at the Foxfield Races—two openly gay UVA Law students were verbally and physically harassed by a fellow student. This high-profile incident drew widespread outrage from the community. Lambda saw an opportunity to draw on the community’s unified shame toward the act of hate, and established Diversity Week as a celebration of and devotion to respecting our differences. 

            The initiative behind Diversity Week was published as a letter to the editor from Lambda in the Law Weekly, signed by a number of UVA Law professors, students, and student organization chairs.[1] Lambda implored, “If UVA Law gains a reputation for intolerance, we lose valuable insights and perspectives when minority students choose to go elsewhere . . . UVA Law is special. All students ought to share fully in the privilege of participating in its rich traditions and strong sense of community.”[2]

            These sentiments remain as salient today as they were then, as core values of love, tolerance, and community are under siege by widespread, hateful, and intolerant political messages. To continue UVA Law’s tradition of rejecting intolerance, Diversity Week offers a number of events to honor and celebrate the diversity within our community.

            The week of events started out strong on Monday with the BLSA and WOC’s panel “A Black Lady Courtroom.” Four judges from every level of the judicial system, including a member of Virginia’s Supreme Court, discussed what it means to be a Black woman in the law.

            Tuesday continued as the busiest single day of Diversity Week, with three events spread throughout the day: There was a panel on “Perspectives on Diversity in Big Law” at 12:30 p.m., featuring minority attorneys from half a dozen Big Law firms; it was followed by  a common read event based around the book “The New Jim Crow” and the experiences of Black criminal law practitioners at 5:00 p.m.;  and the day wrapped-up with a Lambda and HLA event at 6:30 p.m. discussing the ramifications of the COVID-19 crisis on the queer community.

            Diversity Week’s inaugural keynote takes place on Wednesday at 12:30 p.m. with Robert Grey. Grey is the president of the Leadership Council on Legal Diversity and senior partner at Hunton Andrews Kurth. As the first person of color to serve as chair of the ABA House of Delegates, Grey is a national leader in bringing diversity and inclusivity to the legal profession and every student is encouraged to listen-in on his session.

            Thursday’s events include  a dinner talk and Q&A on the transition to public interest from private practice. Additionally, there is a focus on diversity in private practice at 5:00 p.m.

            Friday concludes with a reading and reflection session at noon, centered around the experiences of minority students here at the Law School. Students have the opportunity to share their reflections with the panel organizers to foster discussions rooted in the everyday reality of being a minority at UVA. Every student is invited to attend and contribute.

            In between the spiritual growth, horizon-expansion, and networking, participants have several opportunities for a catered dinner from local restaurants. The first 30 registrants for sessions Tuesday through Friday will be treated to meals from restaurants like Mahana Fresh, Pearl Island, Pachamama Peru, and Mochiko Charlottesville. Check out the brochure emailed on 2/4 for details.  Law Students can also grab friends and join in a virtual diversity trivia on Wednesday, hosted by SBA.  There are prizes for first and second place and the event will be via Twitch. Finally, there is a free t-shirt for every student who signs the Diversity Pledge. It’s a sharp design, and they are available for pickup in Hunton Andrews Kurth Hall.

            This year’s Diversity Week features a wide array of speakers and topics, combined with a variety of accessible panel times and ways to participate. There is a place for every student to get involved this week. Celebrating and respecting diversity is critical to fostering an inclusive and welcoming UVA Law community. To affirm a commitment to diversity, please sign the Diversity Pledge. This year, the Diversity Pledge will be virtual in order to minimize contact and ensure social distancing. Be a part of the tradition and sign at: https://forms.gle/3pDE3vctymuvcsZx6.

            Let’s work together to contribute to UVA Law’s efforts to promote respect and diversity.

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dl9uh@virginia.edu
kmq8vf@virginia.edu

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[1] “Letter to the Editor: Community Must Be Supportive of All Students,” Virginia Law Weekly, Vol. 59. Number 5, September 29, 2006.

[2] Id.

Elaine Jones '70 Addresses the Past, Faces the Future

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Devon Chenelle ‘23
Staff Editor

Last Friday, January 29, Elaine Jones ’70 delivered the keynote address at the symposium titled “From the Equal Rights Amendment to Black Lives Matter: Reflecting on Intersectional Struggles for Equality.” The symposium was sponsored by the Center for the Study of Race and Law and the Virginia Law Review and was very well attended. Arjun Ogale ’21, EIC for VLR, was pleased with the turn out and remarked, “It shows that the law school community has plenty of interest in learning about the history and development of intersectional legal movements. This is something that law journals and legal academia ought to be highlighting.”

This writer also caught up with Professor Kim Forde-Mazrui, one of the main organizers, about the meaning behind the symposium topic. Professor Forde-Mazrui replied that for him “intersectional struggles for equality” meant two things: “First, that it is important to understand that stigma and discrimination works so as to disadvantage and advantage people unfairly, not just when they are of a particular race or sex or other group, but when their identity combines multiple groups. Second, that groups need to work together to achieve change.”

Pictured: Elaine Jones '70 spoke both of her challenges and how to look towards the future at the symposium. Photo Courtesy of law.virginia.edu

Just before Jones took the virtual center stage, Dean Risa Goluboff presented the Gregory H. Swanson Award to Nirajé Medley-Bacon ’22 for her tireless dedication to justice within the community.

Jones, the Law School’s first female African-American graduate, was introduced by Professor Kim Forde-Mazrui, who described Jones’ numerous accomplishments and achievements, including how Jones worked for the NAACP’s Legal Defense Fund (LDF) for thirty-four years and became the fourth director-counsel of LDF in 1993—the first woman to hold the position. In 1999, Jones was awarded the Thomas Jefferson Foundation Medal in Law, UVA’s highest legal award. Professor Forde-Mazrui described Jones as a “beam of light entering the room” when he met her in 1999, and said that he has felt like “Elaine Jones’s student” as he has worked with her over the last several weeks.

Jones’ keynote address was titled “Navigating Law and Politics in Pursuit of Racial Equality—Lessons from the Front Line.” Jones began her talk by discussing her role in Furman v. Georgia, the Supreme Court case that led to the abolition of the death penalty in thirty-seven states. During her work on the case, she had to travel to Georgia to deal with a recalcitrant government clerk who was refusing to certify the case record, and, after explaining to the clerk, southerner-to-southerner, that “without her I would lose my job,” successfully got her to provide the necessary signature.

After her graduation from Howard University, Jones worked in the Peace Corps for two years in Turkey. That experience would serve her well during her time at UVA Law, Jones noted that “after having gone through Turkey, Charlottesville was really not that different.” Jones experienced distinct kinds of discrimination in Turkey, as “the Turks told me to my face that there was no such thing as a Black American,” while “the white volunteers didn’t like me.” Eventually, she grew to form valuable friendships with her Turkish students and their parents. Through this experience, Jones said, “I taught myself to believe I could be successful and that I could navigate the law school terrain.”

Upon her arrival in Charlottesville, Jones faced a new set of challenges.

“At UVA,” she said, “I was keenly aware that as the first [female, African-American student] I had the responsibility to open things up for others like me . . . I knew I had to succeed at Virginia.”

“I knew I could not develop a complex of any kind,” she continued, “I had to nurture and develop a positive attitude . . . I also could not internalize negativity . . . and whenever there was anything adverse that occurred, I reminded myself I had supporters at the Law School.” She was aware, she said, that “many other women of color were depending on me, and I could not let them down.”

Jones fondly remembered Hardy Dillard, who was the dean at UVA Law when she was admitted, and also her contracts professor. She did, however, have some negative experiences, including a time when one of her white female classmates mistook her for a member of the cleaning crew. “I said nothing,” recounted Jones, “and went on about my mission, for I had no space for her inside my head.”

“While I was at the Law School, I had a mission to accomplish,” Jones remarked, and she felt it was important to not “clutter your mind up with things that are extraneous to who you are and what you’re trying to accomplish.”

Jones set such a strong example that UVA Law became a family tradition, as she stated “the university went back to my family when it admitted its second African-American woman, and that woman was my sister.”

Drawing from her extremely successful career in impact litigation, Jones emphasized the importance of collaborative work in achieving desired outcomes, and declared that, “I have learned in my thirty-five years of practice that coalitions are essential to making progress.” She also noted that “in social justice and civil rights litigation, it matters not only what the issues are, but it also matters who the plaintiffs are . . . I don’t think it should matter, but it does,” because “it is important that it is not somebody that . . . brings to the mind of the Court issues that are not relevant to the case.”

Jones also reflected on the importance of voting rights for all Americans, as she referred to the franchise as “the corn of the realm.” She noted her own experience assisting in the passage of the Motor Voter Act, which offered a simplified voter registration process for anyone signing up for a driver’s license.

Jones concluded her talk with reflections on the meanings of tolerance and respect, and the long-term goals of social justice. “Tolerance,” she said, “means you do not have to like my skin color, my age, my size, my gender identity, or anything else about me, but you do have to respect my right to be different.” And she continued, “‘Respect’ is the right word I think, rather than tolerance,” because “tolerance infers something is lesser than,” and “it tends to elevate me above you, because I can look down and tolerate you.” Yes, “Respect is the word.”

“I submit,” said Jones, “that the goal should be to live in an environment with mutual respect for our differences.”  In her long career of civil rights advocacy, Jones had done much to help create just such an environment.

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dnc9hu@virginia.edu

Midway Toast: It's Like Drinking Together, Alone

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Stanley Birch & Phil Tonseth ‘22
The Brash Brothers

Much like climbing a mountain, one’s journey through law school is full of ups and downs. 1L is an uphill climb, slogging through your first week of class, your first cold call, and first exams, all while attempting to navigate the job search and social clubs to truly immerse yourself into UVA Law. As a 3L, you’re on the downslope, focusing on getting safely and smoothly to graduation so the next exciting journey can begin. 2L, well it’s a mix of both. You work through OGI or finding a public service career, you take leadership roles in different clubs, and establish and grow friendships that will extend far beyond the confines of North Grounds. This interesting dichotomy of both an uphill and downhill challenge was aptly celebrated during the Midway Toast for the class of 2022 and explored by a number of speakers. 

            Over 100 2Ls joined Dean Sarah Davies, Kate Duvall, Professors George Cohen, George Geis, and Ann Coughlin, Vice Dean Leslie Kendrick, and Dean Risa Goluboff to celebrate and toast what is the midway point of the Class of 2022’s legal education. With the undercurrent of the pandemic upsetting the normal celebration, along with the journey a class would have typically experienced, Dean Goluboff succinctly remarked, “You’ve had to navigate challenges before you that no class has.”[1] While celebrating the resilience and flexibility of the class that Dean Davies spoke of, Dean Goluboff challenged the Class of 2022 to think with excitement and anticipation about what’s left in the second half of their journey through UVA Law. What horizons are there to be broadened, or specializations to explore? Have we as “half-lawyers” begun to truly discharge the trust that is placed in us as members of the legal profession?

            The focus of the event did not only look to the future, however, as Vice Dean Kendrick made sure to celebrate the midpoint as its own moment. Quoting both Winnie the Pooh and Dante,[2] Dean Kendrick looked at the midpoint as a summit on the mountain, where we could view every crucible we had been through to get to this point while acknowledging that the path down to the next journey brings its own potential snares. From this vantage point at the summit,[3] we have an opportunity to reflect and enjoy a special moment that won’t come again.[4] Not to be outdone however, and—in our humble opinion—stealing the show, Professor Cohen spoke of this moment from a literature, film, and musical perspective. I think it’s fair to say the Class of 2022’s toasts after his speech were as much for Professor Cohen’s confidence and musical acumen as for themselves. Professor Cohen gave a rousing a capella rendition of Jimmy Eat World’s “The Middle” to show we’re still in the “middle of the ride, but everything, everything, will be just fine.”

Pictured: Be sure to hold your classmates close when you finally get the chance. (Well . . . maybe not this close). Photo Courtesy of Phil Tonseth '22.

            Professors Geis and Coughlin provided additional perspectives: The Class of 2022 should take this time not only to enjoy the view, but also to change goals and reorient as needed. Saving the heart-wrenching material for last, Professor Coughlin went through the list of things she missed about being in-person and seeing the Class of 2022 in the Law School. From explaining why the “palace” at Darden couldn’t compare to the Law School’s square to hoping a student would just make eye contact with her in class, and from admonishing those that drink too much to praising the invitations to softball games, her point rang true. Kelli Finnegan ’22 concurred, remarking “the small things I never thought much about are the ones I truly miss the most during this pandemic.” As a class, working together through complex problems to grow into the legal profession, the Class of 2022 brought joy to themselves and the Law School community.

            Although this entirely occurred on Zoom, Caroline Elvig ’22, opined that “the celebration and excitement was still present. I’m proud of the Class of 2022 and how far we’ve come together. This moment marks eighteen months of long readings, supportive classmates and friends, and professors who I know will cheer us on for the next eighteen months and beyond.” John Trach ’22 commented, “There are many ways to view the midpoint of any journey. For some, I’m sure it’s bitter sweet, and for others it’s simply a downhill coast after a steep climb. But for me—having not been in a full class on campus for nearly a year—it feels like a restart of something new, like the completely fresh beginning of a second game of a double header. I feel a sense of excitement to be back in a classroom, to meet the class of 2023 and 2024, and to have the opportunity to participate in all the traditions and activities of UVA Law that evaded me so far.”

Pictured: Student Affairs ensured the Class of 2022 was toasted and treated appropriately to celebrate the occasion. Photo Courtesy of Tom Langstaff '22.

            So as the Class of 2022 raised its final glass of the Midway Toast, a truth that had hidden itself in the ether of social distancing resurfaced: This class, our class, is a phenomenal group that the authors are humbled to be a part of. As we logged off, eager to roam that familiar North Grounds building, vacant of its once-buzzing energy, we were warmed and energized by what we had heard. While we hope to be together and remove the constant distance that has come between us, we know “it just takes some time” and everything, everything will really be alright.

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sfb9yu@virginia.edu
pjt5hm@virginia.edu

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[1] She wondered what the Class of 1920 must have gone through during the 1918 influenza pandemic. We wonder as well if that class had anxiety about whether their camera had to be on or off for remote learning.

[2] Evoking both childhood and death, this helped center the discussion by finding a point in-between, celebrating where we are and what’ve we already accomplished on the long trek.

[3] Dean Kendrick did not imply that the Class of 2022 has peaked, of course.

[4] While we both agree this view is lovely, it’s not the hill we’re willing to die on. Time to keep trekking.

Letter to the Editor: A Plea to Republicans for America’s Long Term

Letters of interest to the Law School community may be sent to editor@lawweekly.org. Letters may be published at the discretion of the Editorial Board and are subject to editing for grammar, style, and clarity, but not content or viewpoint. The Law Weekly does not necessarily endorse the content or viewpoint of any letter herein published.

——

A plea on principle to Americans who happen to have voted Republican:

I believe that a presidential candidate who legitimately won the electoral college should be the President of the United States, even if that winner were not my preferred candidate. I also believe that all presidential candidates should avoid unnecessarily stoking distrust and resentment among Americans over the outcome of an election, even if the candidate stoking such divisiveness were my preferred candidate. I consider calling an election “fraudulent” or “stolen,” as opposed to saying that there are potential irregularities to investigate (if plausible), to be stoking unnecessary divisiveness when all reasonable accounts of facts indicate that the election outcome has been projected legitimately and accurately. 

Applied to the current situation, I would want for Trump to be re-elected President of the United States even though I voted for Biden if Trump had legitimately won the electoral college. As it turns out, however, all reasonable projections of the election indicate that Biden is the legitimate winner of the electoral college. All media that have projected elections in modern history, including Fox News, every court to review Trump’s allegations, and Trump’s own Department of Homeland Security, have stated that the election projection in Biden’s favor, two weeks after the election, is reliably accurate. I thus happen to be in the fortunate position, this election, that the person who should be President—the candidate who legitimately won the electoral college—is my preferred candidate, Joe Biden.

As to unnecessary—and dangerous—divisiveness, Trump is stoking resentment, anger and violence by insisting, without serious evidence, that the election was stolen. It would be one thing if he said there are plausible irregularities that he just wants investigated while the transition to a Biden administration is initiated, subject to being cancelled if the irregularities reveal that in fact Trump won the electoral college. However, not only are there not plausible irregularities that could change the election outcome, but Trump is declaring, before his own litigation has substantiated his allegations, if they could, that the election was a fraud.

My concerns include, of course, the short term threat to our national security, response to the pandemic, and plans for economic recovery that comes from Trump’s unwillingness to coordinate with the in-coming Biden Administration. But the concern that most animates this plea is the long-term democratic and social stability of our country. Physical skirmishes have already broken out between Trump supporters, who are told by their President that the election was stolen, and Biden supporters, who for reasons stated above have good reason to believe that the election projection in Biden’s favor is legitimate, accurate and too large to be overturned by any conceivable facts discovered from further litigation. Both sides are thus being given reason to be angry and those who believe that the President of the United States is telling the truth deserve understanding. The problem is that Trump’s claims of a stolen election, after two weeks of intensive review, have no basis. Trump is therefore inciting resentment and anger for no good reason other than his unwillingness to uphold the value of accepting electoral defeat graciously and peacefully. 

Unless Trump stops encouraging false assumptions about fraud in the election, tension will likely continue to escalate. If Trump were not already on his way out of office, his inflaming of deep-seeded distrust, resentment and potential violence without cause would be grounds to reject his re-election, if not potential grounds to initiate impeachment. Moreover, the unwillingness of most Republican leaders in Congress to openly support an election outcome for Biden that is no less certain than prior elections for Trump and other Presidents makes them complicit in the (potentially literal) flames and blood to come.

I urge you, my fellow Americans, especially those who voted for President Trump, to contact the Trump administration and your members of Congress to ask that Trump concede the election, as Hilary Clinton did despite her electoral college loss to Trump equaling Trump’s loss to Biden and despite that she then, unlike Trump now, won the popular vote. Please ask your elected leaders to put America first.

Kim Forde-Mazrui
Mortimer M. Caplin Professor of Law
University of Virginia School of Law
kfm@law.virginia.edu

The foregoing views represent my views alone and do not purport to represent any official position of the University of Virginia.

Fundamental Questions for Our Democracy Regarding a Federal Right to Education

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Eric Seifriz ‘22
Guest Writer

On Monday November 9, 2020, the University of Virginia School of Law hosted a Zoom symposium entitled “Fundamental Questions for Our Democracy Regarding a Federal Right to Education.” The discussion was borne out of issues raised by UVA Law professor Kimberly Jenkins Robinson’s new book “A Federal Right to Education: Fundamental Questions for our Democracy.” The book includes articles from leading education scholars, edited by Professor Robinson. Professor Robinson is a nationally recognized expert on educational law and policy, as well as on closing educational opportunity gaps and civil rights.

Pictured: Professor Kimberly Robinson, a recognized expert on educational law and policy, spurred this conversation. Photo Courtesy of twitter.com

Dean Risa L. Goluboff welcomed the virtual attendees and President James E. Ryan moderated the first panel, named “Should the United States Recognize a Federal Right to Education?” The speakers at the first panel were Professor Kristine L. Bowman from Michigan State University College of Law, Professor Peggy Cooper Davis from New York University School of Law, Professor Jason P. Nance from the University of Florida Levin College of Law, and Professor Eloise Pasachoff from the Georgetown University Law Center. Professor Robinson participated in the second panel, “How the United States Can Recognize and Define a Right to Education.” 

            In her welcome, Dean Goluboff discussed how the U.S. Supreme Court in 1973 rejected a federal right to education in San Antonio Independent School District v. Rodriguez, but explained that this was not the last word on the matter—it has still been an ongoing legal question in the decades since. Following the welcome, each speaker on the first panel was given eight minutes to speak before a brief Q&A session at the end. 

            Professor Bowman started the panel off by explaining that we need a federal right to education, because if we leave it to the states, they may not always provide substantive protections. Michigan, according to Professor Bowman, has weak and unenforceable educational rights at the state level, combined with limited fiscal capacity and a limited political will to improve matters. These factors together are undermining educational opportunity for Michigan students, who don’t currently have an effective avenue for relief when basic standards in their education are not being met. She gave examples of schools in Detroit having textbooks that are decades old, windows that don’t open in the summer, and no central heat in the winter. 

On this topic, an exciting case just came out of Michigan—Gary B. v. Whitmer—where the 6th Circuit held that the Constitution affords a fundamental right to a basic minimum education (running counter to the Rodriguez decision). The Gary B. lawsuit asserts a federal right to obtaining a basic education in literacy in order for all children in the country to be able to be baseline participants in our democracy and public life. The full U.S. Court of Appeals for the 6th Circuit has agreed to rehear this case, however, to review the initial panel’s ruling. 

            Professor Davis then took the floor to advocate for the United States to finally recognize a federal right to education, which she says is now broadly considered a basic human right. In her view, education is a fundamental right crucial to the functioning of a democratic republic. Professor Davis also provided a history lesson on the struggles of education for African-Americans throughout American history, from slavery to Reconstruction. 

            Next we heard from Professor Nance, who shared a snapshot of the chapter he wrote for Professor Robinson’s book. He believes that the U.S. should implement a stronger federal response to address the inequalities in the public education system, and considered five rationales to back up this view—economic, criminal justice, health, democracy, and fairness.  He also shared sobering research on how a child’s self-perception is negatively affected by poorly resourced schools.

            Professor Pasachoff agreed with the broader goal of the other panelists of working toward an equitable education system for all students, but doesn’t believe pursuing a federal right to education is the right way to go about this. In support of this claim, she argued—among other things—that relying on courts to interpret our existing Constitution isn’t likely to bring about change, because any court order would still require implementation by the institutions that are already struggling. In Professor Pasachoff’s view, these institutions lack the capacity, not the command, to act. Instead of advocating for a federal right to education, she believes that instead we should focus on educational policy debates about best practices and on improving budgets.

            President Ryan returned to the screen then to host the Q&A session. He himself posed a question to the panelists, then audience members raised a host of issues including whether, if the federal right to education were recognized, our institutions would adequately be able to ensure that no child would be left behind. A second panel, “How the United States can Recognize and Define a  Right to Education,” followed. 

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es5eg@virginia.edu

SBA Update: End of Semester Send-Off

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Katharine Janes ‘23
SBA President

UVA Law,

What a semester we have had. To the students, professors, administrators, and staff who have made the past twelve weeks possible, a massive thank you is owed. It has been an adventure to learn and live alongside you, whether virtually or from six-feet apart.

To our 1Ls, as you approach your first set of law school finals: We (upperclassmen) are thinking about you and sending so many good vibes your way! I am sure you are receiving lots of great advice from your peer advisors, professors, and friends, so I won’t duplicate that here. However, as one small but often overlooked reminder, know that taking breaks is an essential part of finishing the end of this semester strong. Spending time away from school with friends or loved ones over Thanksgiving, for example, is really important to avoid burning out. The same is true on the days following your finals; friends and I would visit a winery or snag food together immediately after we finished our exams, which provided some much-needed R&R. Treating yourself well will help you feel—and ultimately perform—better, so I highly encourage you to set aside the time.

Finally, for those interested, SBA has set up two end-of-semester opportunities for students to reflect on and express their gratitude. The first is for our professors and faculty. On Tuesday, I emailed links to Google Docs where you can leave quick comments of thanks to your professors. Have they worked particularly hard to make Zoom classes successful, offered special sessions for assistance, or created space to talk about life beyond the classroom? We would love for you to share your appreciation for the effort they have expended to make this semester possible for us all. We will compile your notes and send them along to professors before the end of the year. Additionally, SBA’s Community Engagement Committee is spearheading a letter-writing campaign to write words of encouragement for staff who work in the UVA Health COVID Unit. If you are interested in writing a note to these individuals, please reach out to Colin Lee (cjl5cm) or Niko Orfanedes (njo8fm) and they will provide you with cards.

Best of luck to everyone on their finals, and I hope you have relaxing and rejuvenating breaks! I look forward to being back with you all in the spring.

All my best,

Katharine

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kmj4vg@virginia.edu;
sbapresident@virginia.edu

PILA Auction Moves Online

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The PILA Auction is moving online! While we considered hosting a Zoom version of the much-loved fall party, the PILA Board decided to spare you all another awkward video call and is pioneering a totally-new, totally-online auction experience. Same great items, same great cause, new location—PILAUVA.com. As always, the auction supports PILA's mission of providing stipends to UVA Law students who pursue low or non-paying summer internships in public service. There has never been a greater need for public interest lawyers, and PILA is up to the challenge! Thanks to the generous support of faculty, staff, local businesses, and firms, plus the tireless efforts of our grantees, the PILA auction will be live Thursday, November 12 through Tuesday, November 17 for your bidding pleasure. Bid early and bid often on this year's selection of great items, including romantic getaways, outings with professors, jewelry, cite-check passes, and dog snuggles! Items will be available for pick-up/drop off in Charlottesville, delivered digitally, or shipped if necessary. If you have any questions or just want to share your excitement about this year's auction, please reach out to the auction director, Kim Curtis (kcc5fy@virginia.edu).

Women in Public Service: Claire Gastañaga '74 Speaks at Virginia Law Women Event

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Dana Lake ‘23
Staff Editor

Here at the Law Weekly, we try and celebrate an easygoing good news story where we can. 2020 has been a year marked by an overwhelming feeling of doom—when there’s something uncomplicated and optimistic to write on, you can bet we’ll run with it. So, ignoring a certain election that has not yet taken place at the time of this writing, we turn our attention instead to the 100th anniversary of co-education in the Law School. In 1920, three white women were allowed to enroll in law classes for the first time, one of whom would go on to become the first woman to pass the Virginia State bar exam. It would be disingenuous to call this the true centennial of co-education considering it would take another fifty years before UVA Law would see its first black woman graduate (Elaine R. Jones in 1970, the first woman president of the NAACP Legal Defense Fund) but we’re working with what we’ve got.

With this anniversary in mind, Virginia Law Women hosted their annual Women in Public Service event for 1Ls on October 27.  The Zoom event was organized into three sections: an opening address from Dean Golobuff and Claire Gastañaga; a panel discussion where attendees chose between a discussion geared toward a career starting in public service or a career starting in private practice and transitioning later to public service; and small breakout sessions with panelists that attendees reserved ahead of time. The overall organization and transition was pretty seamless and handled by Maggie Woodward ’22 of VLW.

Pictured: Claire Gastañaga '74, Executive Director of ACLU Virginia, discussed a gamut of issues, including supporting women candidates for office. Photo Courtesy of acluva.org

Dean Goluboff (the Law School’s first female dean, if you didn’t know) kicked off the event with her usual positive energy. This year’s 1L class is the first class to enter as more than 50 percent women, one of her long-standing goals. Her short welcome was followed by a speech from Claire Gastañaga ’74 who serves as the executive director of ACLU Virginia. Gastañaga also serves on the Virginia State Advisory Committee to the U.S. Commission on Civil Rights and has been recognized as one of Virginia’s most outstanding advocates for LGBTQ+ rights. She is retiring from the ACLU in the spring, due in part to her desire to make room for the next generation of leaders.

Gastañaga devoted a good part of her speech to the issue of leadership, encouraging women to run for office themselves but also emphasizing the need to support women candidates. She highlighted the insidious issue so many women, people of color, LGBTQ+ and other minority candidates face: I want a candidate that is xyz . . . just not this candidate. It happened to both Warren and Clinton in their campaigns, when women across the country insisted they would prefer a female president . . . they just didn’t think this was the right female for the job. Quoting Gail Evans’s 2003 book She Wins, You Win, Claire emphasized, “Every woman must always play on the women's team . . . every time a woman succeeds, your chance of success increases. Every time a woman fails, your chance of failure increases.”

 Given the strength of this philosophy, we followed up with Gastañaga after her talk to ask her feelings on the nomination of Justice Amy Coney Barrett. Is a woman on the Supreme Court something to celebrate, regardless of her politics? Is there an inherent benefit to a woman having that place of leadership and lending her voice to the court? Do all women truly win when her nomination casts into doubt the future of affordable healthcare, LGBTQ+ rights, and access to safe abortions? Gastañaga in her speech mentioned the tension of supporting women while disagreeing with their politics; she reframed the question to be “not whether I would vote for any woman regardless of her position on issues I care about.  The right question is why a person wouldn’t vote for a candidate who agrees with them on issues they care about just because that candidate is a woman.” In our email follow-up, Gastañaga voiced her concern that Justice Barrett (along with Justices Roberts and Kavanaugh) advised the Bush campaign in the 2000 case (you may have heard of it) Bush v. Gore. Gastañaga would like to see all three recuse themselves in a potential case of Trump v. Biden.

1Ls have the first draft of their major memo due this week, and so many attendees were happy to chat with Law Weekly about their experience instead of working on their drafts. Given another few inches of column space, this section would mostly consist of rave reviews for the free Root bowls provided by VLW for the event (and here this editor will admit to committing the great Zoom faux pas of joining a meeting with the camera off, as I was still wolfing down my own Red Chili Miso Tofu bowl) but the overall feeling was one of gratitude, and surprise.

“I think sometimes at UVA it can feel hard to want to go into a public service career because so many events are geared toward Big Law,” explained Whitney Carter ’23. “I really appreciated the opportunity to connect with other people who are interested in Public Service.” Logan White ’23 agreed: “I attended the ‘Starting in Public Service’ session and really enjoyed the panelist discussion—it was so helpful to have the chance to hear the concerns of other students that want to start in Public Service and get some real, straightforward advice from women who have already gone through it.” Dean Goluboff highlighted the classroom to career support system UVA provides for graduates looking to work in public service, including reimbursement for travel to interviews in addition to the more well-known loan forgiveness program. This was a pleasant surprise for Rachel Dalton ’23: “There were so many more resources available to us to help ease the transition into Public Service than I knew about.”

(Fun Law Weekly Fact: This honorable newspaper elected its first woman editor-in-chief in 1979.)

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dl9uh@virginia.edu

Happy Halloween!

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Virginia Law Weekly wishes you a Happy Halloween! Stay safe and keep it spooky, everyone!

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