To Prosecute, or to Defend?

Virginia Law Weekly September 29, 2021

Nate Wunderli ‘22
Sports Editor

This week I had the opportunity to attend The Real Deal: Public Defense Seminar. This is an annual event, and one that I have attended once before during 1L year. This time, however, I had a different motivation to attend: I am currently in the prosecution clinic at the law school, where I visit the Orange County prosecutor’s office on a weekly basis. I’m also coming off a summer where I engaged in a lot of juvenile defense work. Having seen a little of how both sides operate and view the world, I came into this panel discussion with a much more nuanced view of the criminal justice system and was curious about what these accomplished public defenders would say.

Much of what the panelists said focused on the human aspect of being a public defender. Being able to put your “feet in the client’s shoes,” focusing on the “why” someone committed a crime rather than the “what,” and having the humility to realize that if we were brought up in the same situation, with the same challenges as the client, we might have done the same thing. I could see the compassion emanating from each of the panelists as they described their clients and their work. No doubt some of their clients have done horrible things, but these defenders are able to look at the bright side. There is a certain amount of love that goes into being a good public defender and advocate, and the realization that people are not perfect, that even bad people can change. One of the panelists talked about how being a public defender is not just about bringing your legal knowledge to the table, it is about using the entire breadth of your life’s experience and own personal challenges in order to advocate for someone who, in some cases, most of society would have shunned.

While compassion and tolerance seemed to be at the core of much of the public defender’s work, this is juxtaposed with the stark reality offered by one panelist: sometimes acquittal is not the best option. The panelist said that he has experienced cases where he had got an acquittal, just to see his client commit horrible crimes, even murder, against those who testified against him. Another topic addressed was the number of public defenders who are switching to become Commonwealth attorneys. The panelists were generally not pleased with this trend, even if it means more progressive prosecutors favorable to their clients. While some of it was said in jest, it was also clear that these public defenders are loyal to their profession and the part they play in the legal system. Becoming a prosecutor after a long career as a public defender amounts to almost a betrayal, like switching fanhood in sports.

As one panelist said, some people are able to switch back and forth between prosecutor and defense attorney, while others cannot. While she did not give an explicit reason for why this would be the case, or what qualities make some people able to switch but not others, I am able to draw on my own experience to guess why. The justice system, while chock full of rules, procedures, and formalities, is ultimately about people. On one hand, you have the defendant. If you are only focused on one side, it is easy to feel bad for the defendant. They may have had abuse in their home growing up, got exposed to drugs early, or had any host of issues that ultimately led to their being in the courtroom that day. Life is hard and can push even the strongest person to the brink. Yet here is someone who may have had no opportunities at all, sitting in the courtroom, sometimes with only mild comprehension of what is happening, whose fate is being decided by complete strangers.

On the other hand, you have the victim. Someone whose life was altered permanently by the actions of another. Hearing their story, seeing their anguish, pain, and tears, leaves you first feeling sad for them and also angry at the person who caused them such pain and suffering. How many more people will have to suffer if the individual brought to the courtroom that day is allowed to walk away freely? These are questions prosecutors, and sometimes defense attorneys, have to ask themselves regularly. For some, but perhaps especially for defense attorneys, it may be easier just to focus on one side of the problem in order to be an effective advocate. For prosecutors, who are given wide discretion to enforce laws, it is more necessary to channel both sympathies, almost like a judge. However, without an effective defense attorney to convey information about a defendant and really get to know the defendant, this balancing of justice and mercy becomes skewed.

If this public defense seminar revealed anything, it is that people and an understanding of those people are at the core of the criminal justice system. In a seminar where they could have talked about anything, the panelists focused most of all on one thing: humanity.

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nw7cz@virginia.edu

Discrepancies in Club Funding Raise Questions

Virginia Law Weekly September 22, 2021

Dana Lake ‘23
Production Editor

Because funding negotiations remain ongoing between student clubs and administration, the Law Weekly will avoid naming specific clubs or joining in the speculation as to the overall cause in this year’s funding reduction. The purpose of this article is to fulfill our policy of publishing columns of interest to the Law School--to bring attention to an ongoing issue happening largely behind the scenes.

Applying for funding from the University every year is one of the most important responsibilities for club leaders. Sufficient funding is the difference between catered lunches and BYOB, between guest speakers and PowerPoints. Whatever money is needed for the club to function that isn’t awarded by the school is expected to be made up for in membership dues or private sponsors.

Private sponsorship is an expectation more easily met by some organizations than others. Clubs with a national footprint have a much wider support network than smaller or newer organizations, and clubs focused on channeling students into private practice or particular markets have established donors they can lean on. In the yearly jostling for funds, it is unfortunately often the organizations in the worst position to win outside donations that receive the least amount of money from the school. They are left to make up their budgets with membership dues.

The result is a choice between a rock and a hard place. They can charge their members high dues and host events and activities that will hopefully increase membership and the club’s reputation over several years—the downside being, of course, that these smaller organizations are often affinity groups for people underrepresented in the law, and high dues are a barrier to entry for what is meant to be a supportive space. The other option is cheaper dues, but fewer activities that address the organization’s needs and purpose.

For the 2021-2022 school year, most student organizations at UVA Law saw a reduction in funding from the year before. The Law Weekly, like many groups, received less funding than requested. The reduction in funding this year, when in-person events are actually possible, compared to last year’s COVID-induced freeze on most meetings, is difficult to understand. Why clubs with greater access to outside funding receive more help from the school than clubs with smaller networks is difficult to understand. Why some organizations received substantial funding for travel expenses when their events will remain virtual this year, is difficult to understand. For the organizations interviewed to get background information for this article, that is the central issue—understanding how exactly these determinations are made.

Clubs this year received funding that appeared to be arbitrarily calculated. The funding determinations are meant to be need-based, but understanding how exactly to demonstrate need has been described as a “black box” and “very confusing.” The amount of money requested is clearly not a useful indicator, as most clubs received less than what they asked for and some clubs actually received more. If an organization’s own estimate of their expenses is not the determining factor, what is?

Other factors that may influence the decision are club membership levels, suspected savings levels, scheduled events, and club purpose. We can address club purpose first, because it has some background. Religious affinity groups receive equal funding, regardless of other factors. Their funding was equally reduced this year. For the other factors, it is unclear what the pattern of reasoning is. While some organizations experienced substantial growth in the last year and others had consistent membership numbers or a reduction, the funding awards did not seem to reflect this disparity. It will certainly be difficult to manage an organization of significantly larger size with less money than last year, and some clubs fear they will lose enrollment momentum. Suspected savings seems to be influential in the process, but the savings are not self-reported by clubs. Administration seems to have their own method of determining the fiscal health of different organizations, and this has led to serious misappraisals.

If the amount of money requested based on a club’s estimates of their expenses is not the determining factor (and no one is advocating for a system of blank checks), membership level is not the determining factor, and a club’s ability to successfully solicit donations is not the determining factor, then what determines funding awards? Universally, student organizations understand there will be years with less money available and years with more. What student leaders need to be successful is simply transparency. Without knowing how the decisions are made, organizations have little to go on for appeals. An organization may not know its award was reduced by a significant margin (and Administration will not know if they overfunded by a significant margin) due to misunderstanding, or a real change in circumstances.

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dl9uh@virginia.edu

Virginia Law First Generation Professionals Kickoff Meeting

Virginia Law Weekly September 22, 2021

Nikolai Morse ‘24
Staff Editor

Virginia Law First Generation Professionals (VLFGP) held their kickoff and first general body meeting of the school year on Tuesday, September 14th. Founded in April 2019, the group aims to facilitate the transition and integration of first-generation professional students into Virginia Law and the legal profession.

The meeting was led by Outreach Chair and VP Claire Reiling, ’22, who began by welcoming the gathered students and providing an overview of the organization’s various goals and functions, such as mentorship opportunities, networking, and general law school de-mystification. Representatives from several of the administration’s offices spoke, describing the resources and support they had to offer.

If you are interested in joining VLFGP or just want to hang, please email Andi Schlut at bas7bh@virginia.edu. Photo Courtesy of VLFGP

Lauren Parker ’08, Director of the Office of Private Practice (OPP), highlighted the breadth of support that OPP offers, from cover letters to candid advice on interview outfits. She addressed a common fear of 1L’s and specifically first-gen students, saying “you don’t need to have a lot of contacts to get a good job, you’re at a great law school. But that said, you have a huge network of alums we can and will connect you with.”

Amanda Yale, Director of Public Service, began by noting, “you will not need to know which fork to use to do public service. But you will have a very fulfilling career!” She emphasized the benefit that a diverse background can offer when you are a practicing lawyer as you can more easily relate to clients from a wide variety of backgrounds.

Assistant Dean Jennifer Hulvey described the support the Financial Aid office has to offer, from loan counseling to being able to talk with someone else who had been through the challenges of being a first-gen student, including that friends and family don’t always understand why you are taking on loans for “another degree.”

Ruth Payne ’02, Director of Judicial Clerkships, noting that the worst part of her job was hearing from alums who regretted not trying to clerk, urged students to not count themselves out of applying to clerkships.

Dr. Katherine Gibson introduced herself and pointed out that while law school is a stressful endeavor to begin, the experience as a first-gen student can add additional stress, which she and her office are happy to discuss.

Professor Andrew Hayashi spoke last and offered thanks and advice to the gathered students. “Each of you is a gift to the community and the diversity really matters in the classroom. I encourage you to not just try to get through law school, but to thrive and take advantage of everything the school has to offer.”

Many of those on the panel described their own experiences as first-generation law students. One member of the panel noted that when they came to law school, they assumed most lawyers were “ambulance chasers.” Many other anecdotes revolved around the incomprehensible mist of words that is “law school jargon.” This reporter himself still doesn’t understand why perfectly normal words like “outline” now mean something entirely different.

But the mysteries of law school aside, the meeting was notable for its strong attendance, excellent Wegmans pizza, and the presence of multiple offices from the Law School administration. For an organization that only began in April 2019, VLFGP appears to have established itself within the Law School quickly. When asked what some focus areas are for the organization, Claire Reiling pointed to an effort to connect students with the many alumni and faculty members who were first-gen lawyers themselves. In parting, she commented that many students are unaware of the broad interpretation of “first-gen” that VLFGP employs and urged students who are interested to join.

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cpg9jy@virginia.edu

Panel Reviews Supreme Court Term

Virginia Law Weekly September 15, 2021

Nikolai Morse ‘24
Staff Editor

This past Tuesday at the Federalist Society’s annual SCOTUS Round-Up, Professor Daniel Ortiz, Mr. Giancarlo Canaparo of the Heritage Institute, and Dean John C. Jeffries ’73, discussed several cases from the Supreme Court’s recent term. The event, which was held in Caplin Pavilion, was well-attended and the discussion ranged from captivating legal discussion to what can only be described as a stinging rebuke. A recording of the discussion is available on the Law School’s website, and I would encourage you to watch it.

UVA Law professors John C. Jeffries Jr. ’73 and Daniel Ortiz are joined by GianCarlo Canaparo of the Heritage Foundation. Photo Courtesy of UVA Law

Professor Ortiz first discussed Fulton v. City of Philadelphia, the case in which Philadelphia stopped referring children to the Catholic Social Services (“CSS”) foster care agency because it refused, on religious grounds, to certify same-sex couples as appropriate foster parents.

Noting that the case had “culture war written all over it,” Professor Ortiz argued that the interesting legal aspect was the potential for overturning Smith, which has been criticized by free exercise proponents. Professor Ortiz said, “this was a really big deal, not only in defining the borders of the culture wars, but in determining when religious belief entitled one to exemptions more generally.”

The decision by the Court was surprising, first, because it was a unanimous decision that held that removing CSS from the adoption program was unconstitutional and second, the decision did not address Smith! Professor Ortiz described the bemusement many experienced seeing the Court tee up a juicy legal issue for resolution, only to then neglect the issue.

Professor Ortiz ended by posing two questions: first, why does the Court tease us like this? And second, would a big win in such a case be good for religious organizations in the long run?

The second case Professor Ortiz discussed was Brnovich v. Democratic National Committee, which concerned an Arizona law requiring people to vote in person only in their precinct and limiting the people who could collect an early ballot. Highlighting the impact on voting and the stakes of the case, Professor Ortiz noted that in the 2020 Presidential election the vote was 49.36% Democrat and 49.06% Republican. However, the impact of this case was more than purely political, as it implicated Section Two of the Voting Rights Act of 1965.

After reviewing the history surrounding the passage of the VRA, Professor Ortiz described the 6-3 decision in Brnovich as “pulling many of the teeth of Section Two.” He suggested that it was “a kind of bookend for Shelby County v. Holder,” where the Court effectively deactivated Section Five of the Voting Rights Act pre-clearance requirement. Professor Ortiz closed by noting that “now the next frontier, I think, of voting rights litigation after Brnovich is going to be voting administration. And you've seen some moves of this already in Georgia, in particular. And I don't see how Section Two after Brnovich is going to do any work there at all.”

UVA Law professors John C. Jeffries Jr. ’73 and Daniel Ortiz are joined by GianCarlo Canaparo of the Heritage Foundation. Photo Courtesy of The Heritage Foundation.

Mr. Canaparo began by noting the “golden age of agreeableness” at the Court, evidenced by 44% of decisions on merits cases being unanimous, and two-thirds of all cases having no more than two justices in the dissent. Mr. Canaparo then discussed Cedar Point Nursery v. Hassid, which challenged a California law that allowed union organizers to access farmland without the permission of the owner for up to three hours per day, 120 days per year, to organize laborers. The Court rendered a 6-3 decision that this law amounted to a per se taking.

This case touches on a long-standing debate within the law. One position says that property rights are inviolably enshrined in the Constitution and the other argues that some invasion is necessary for the government to regulate a complex world. In his dissent, Justice Breyer argued that unless the law allows for access 365 days per year, it is not a taking. Mr. Canaparo described the dissent as “something of an anachronistic opinion,” because it “doesn't pretend to articulate an objective standard beyond Breyer's own judgment.”

Mr. Canaparo’s second case was Roman Catholic Diocese v. Cuomo, in which the court granted relief to two houses of worship seeking relief from New York’s maximum occupancy limits during the pandemic. The Court agreed 5-4 in a per curiam decision that under the Free Exercise clause, you must treat houses of worship as well as you treat secular businesses. Mr. Canaparo contrasted this with the Court’s decision last year, in South Bay Pentecostal v. Newsom, not to grant relief, but rather to defer to the state legislature. Noting the shift from the earlier case, Mr. Canaparo closed by referencing Justice Gorsuch’s concurrence, saying “We are back safely into the realm of the Constitution.”

Dean Jeffries opted to begin first with a review of Ex Parte Young (decided in 1908), which established the practice of enforcing the Federal Constitution via injunctive relief against states by naming state officers in the suit. Turning to the recent Texas statute which prohibited abortion, Dean Jeffries described it as “flagrantly, dramatically, incontestably unconstitutional.” Based on the precedent set by Young, we would expect there to be lawsuits seeking injunctive relief against the state officers of the relevant state governmental departments responsible for enforcing this.

Anticipating this, Texas evidently designed its statute to avoid this by providing that no state officer at any level would have a role in enforcing the statute. Rather, the statute would be enforced by what Dean Jeffries called “a system of bounty hunters,” authorizing any resident of Texas to sue an abortion provider or anyone who abets an abortion, and be awarded $10,000 for every abortion prevented – raising the possibility that injunctive relief would not be sufficient to halt the statute.

Calling it “wholly unprecedented,” Dean Jeffries argued that the intent to circumvent Ex Parte Young was the central impact of this case. “For many of you . . . this was an abortion case. For me, it's a rule of law case. By adopting the bizarre scheme of barring all enforcement by state officials, Texas hopes both to act unconstitutionally . . . and to prevent judicial review of its unconstitutional actions. This is a direct attack on American constitutionalism, on the institution of judicial review, and the rule of law. [N]o matter what you think about abortion or Roe v. Wade, we should all be united in condemning this attack on the rule of law.”

Dean Jeffries ended by condemning the Supreme Court’s 5-4 order denying relief, in which the Court said that the stay application presented complex and novel procedural questions. Noting that complex and novel procedural questions are exactly what the Supreme Court is designed to address, Dean Jeffries commented that “their willingness to allow this statute to go into effect gives rise to a suspicion I hope is ill-founded, a suspicion that the majority is so eager to get rid of the abortion rights that they're willing to throw the rule of law over the side to do it.” Dean Jeffries ended by noting that this will not be the last time this issue arises, and that “when it does, let us hope wiser heads and stronger spines prevail.”

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cpg9jy@virginia.edu

The Bake Sale for Afghan Refugees

Virginia Law Weekly September 15, 2021

Mason Pazhwak ‘23
Events Editor

If you walked by Scott Commons this past week, you may have noticed a table loaded with a variety of baked goods. If you stopped by to take a look and grab a treat, you would have seen that all of them had been prepared by students here at UVA Law in order to raise funds to help Afghan refugees. Over the past few weeks, seismic changes have rocked Afghanistan and forced hundreds of thousands of people, many of whom supported the U.S.’s recently-terminated two-decade-long intervention, to uproot their lives and make perilous journeys out of the country to seek safety and a better future. Many are now resettling across the U.S. and face an enormous adjustment after having to leave everything behind. Charlottesville has been a major destination, and many Afghans have found a new home in the city. Ida Abhari, a 3L law student and one of the organizers, emphasized how refugees are often unnoticed, yet integral, parts of the community: “I think it’s important for people to understand that Afghans and refugees from other countries are their neighbors and community members in Charlottesville. They’re your grocery store checkout clerks, Uber drivers, and classmates.” She also drew attention to the fact that many newcomers could really use the help at this moment: “Right now in Charlottesville, there are refugee families who cannot send their young children to school because of the lack of affordable housing, because a family needs a permanent address before they’re allowed to enroll in school. I hope this fundraiser will be a small step towards making sure families have decent housing and can do the basic things like enroll their children in school.” As of the end of last week, the bake sale had raised over $3,000. Of the proceeds, $1,000 will go to the International Rescue Committee (IRC), a leading organization supporting refugees across the globe, and $2,000 will go directly to newly settled Afghan families in the Charlottesville community.

A law student gets their baked goods fix while supporting a good cause. Photo Courtesy of Ida Abhari.

The bake sale also represented an excellent example of coordination within the UVA Law community. The event was led by the Muslim Law Student Association (MLSA) and co-sponsored by the Middle Eastern & North African Law Student Association (MENA), the American Constitution Society (ACS), the National Lawyers Guild (NLG), the International Refugee Assistance Project (IRAP), and Women of Color at UVA Law (WOC). MLSA President Layla Khalid gave all of these organizations, as well as others who volunteered or made donations, a shout-out, saying “It's been very heartwarming to see how fast the Law School community has been able to come together and show support for such an important cause, whether it's baking delicious treats, volunteering to table, or making generous donations. We would not be able to make this happen without the help of MLSA, MENA, ACS, NLG, IRAP, and WOC, who rallied support to help our new neighbors in Charlottesville.”

Efforts like the bake sale are excellent ways to have an immediate impact in the local community while also drawing attention to the larger, more distant events driving their purpose. This latter impact was one of the aims Khalid noted, stating “I hope this fundraiser is able to slightly ease the burden of this life-altering transition for Afghan families, as well as raise awareness in the Law School community of the current humanitarian crisis our communities are facing both locally and abroad.” While many Afghans are now finding new homes in Charlottesville, across the U.S., and in other countries, many, many more remain trapped in Afghanistan, facing a deeply uncertain situation. The country may seem far away, and many feel that there has been enough involvement there after the 20-year engagement that just concluded, but it is critical that law students, and Americans more broadly, don’t forget Afghanistan. The U.S., as a country, can have a major stabilizing influence on how events develop there, and hopefully will continue to play a role in making a brighter future for Afghans. Support in the local community, coupled with this awareness and the advocacy it might inspire, is a great way to help both at home and abroad.

For anyone who would like to continue to donate, please contact either Layla Khalid (lk4hs@virginia.edu) or Ida Abhari (ia7rh@virginia.edu). You can also send donations via Venmo to @MLSAUVA.

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mwp8kk@virginia.edu

Dandelion Returns

Virginia Law Weekly September 8, 2021

"C" is for Celebration. 1L Section C celebrates after the softball game. Photo Courtesy of Christina Kelly '22

Alex Castle and Christina Kelly brought down the house at Dandelion 2021. Photo Courtesy of Christina Kelly '22.

Section E put on a classic (and well received) Dandelion performance with a Free Britney theme. Photos Courtesy of Midge Zuck '24.

"F" is for Fantastic! Section F rocked the color-block outfits for a great performance. Photo Courtesy of Lizzie Pate '22.

"G" is for Go For It! Section G goes all out on their performance. Photo Courtesy of Christina Kelly '22.

Lizzie Pate and Roni Courtney keep the masses well nourished by serving up endless Dominos. Photo Courtesy of Ardi Khalafi '22.

"A" is for Amazing (and ABBA)! Section A gathers after a great show. Photo Courtesy of Christina Kelly '22.

Professor Frampton Practices What He Teaches

Virginia Law Weekly September 8, 2021

Jacob Smith ‘23
Professor Liaison

It is hard to get further from the ivory tower than Professor Thomas Frampton, a former public defender who teaches criminal law and civil rights litigation at UVA. But currently, he is also both a defendant and a civil rights plaintiff. He is not exactly pleased about this situation, which he described as “annoying.” He admitted, however, that it will be a great story to tell once it is firmly in the rearview mirror.

So how did this happen? Before teaching, Professor Frampton worked as a public defender in New Orleans, and he still maintains an active pro bono practice. This January, Professor Frampton helped a client bring a 42 U.S.C. §1983 civil rights lawsuit against the Baton Rouge Police Department after a series of indignities that included a public strip-search of the client and his sixteen-year-old brother.

The civil rights lawsuit settled in May for $35,000. Nevertheless, Professor Frampton said the police “weren’t doing anything” to hold the officers involved accountable. So Professor Frampton’s clients decided to release body camera footage of the search. They posted it to YouTube and put out press releases. It quickly went viral, and CBS Evening News, among other news outlets, picked up the story.

On May 28, the day after the CBS story, and just as he was watching a press conference responding to the media firestorm, Professor Frampton received an email. The Parish Attorney was bringing contempt proceedings against him. In Louisiana, contempt of court is a quasi-criminal offense punishable with a fine of up to five hundred dollars, six months in jail, or both. He alleged that Professor Frampton had released records of a juvenile criminal proceeding without authorization, since his client’s brother was a juvenile when he was searched.

Professor Frampton was “deeply freaked out.” Fortunately, he has an extensive network of contacts in the public interest world and immediately began reaching out. A lot of people were willing to help. He assembled a “stellar legal team”—the ACLU, Tulane Law School’s First Amendment clinic, and two local civil rights attorneys who knew him from his previous work. “I actually feel a little bashful that so much legal brainpower is being deployed on my behalf, when there’s so much other important work,” Professor Frampton said.

Along with providing representation in the state contempt proceeding, this dream team filed a §1983 lawsuit in the U.S. District Court for the Middle District of Louisiana on June 23. They sued the City of Baton Rouge, its mayor, and its police chief. The complaint[1] alleges that Professor Frampton engaged in protected First Amendment activity in releasing the video, and the defendants retaliated against him because of that speech. As illustrated in the complaint, there are troubling questions about why Professor Frampton was charged. To start with, there never was a juvenile court proceeding in the first place against the minor in question. In addition, the camera footage had already been released without formal court authorization to Professor Frampton’s client and to the public defender’s office, and parts were even made public as part of the client’s criminal case record. Finally, Professor Frampton released the footage on behalf of “the individuals whose privacy interests are implicated in the videos,” namely the client and his brother.

As law students, you surely want to know all the nitty-gritty procedural details, so here’s the current situation: to accommodate the federal lawsuit, the Louisiana state hearing has been moved back several times. The parties in the federal case have been briefing a motion for a preliminary injunction and a motion to dismiss, respectively. In the state proceeding, Professor Frampton also filed a motion to dismiss.. About a month ago, he and other witnesses testified in a Zoom evidentiary hearing on his motion for a preliminary injunction in the federal case. Within the next two weeks, Judge John W. deGravelles is expected to rule on those motions. If a preliminary injunction is granted, the state court proceedings will be stayed to allow the federal case to go forward. Normally, federal courts are reluctant to interfere with ongoing state criminal proceedings, under what Fed Courts students will know as Younger abstention,[2] but this case may fall under an exception to that doctrine for bad faith or harassment.

Professor Frampton is much more comfortable teaching and practicing civil rights law than living it. But the law professor has faced the possibility of contempt charges before in his work as a public defender, and he is “hopeful and optimistic” that he will not have to stand trial in the criminal proceedings. And compared with most criminal defendants, Professor Frampton retains fabulous legal representation and has a supportive employer. If nothing else, the situation highlights the City’s willingness to bring criminal charges of questionable validity. As Professor Frampton said, if the Parish Attorney is willing to go after him, a white out-of-state law professor, imagine how they treat indigent persons of color.

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js3hp@virginia.edu

[1] To find the case on Bloomberg, it is Frampton v. City of Baton Rouge, no. 3:21-cv-00362 (M.D. La.).

[2] See Younger v. Harris, 401 U.S. 37 (1971).

Dean Goluboff Welcomes Class of 2024

Virginia Law Weekly August 19, 2021

Risa Goluboff ‘00
Dean of UVA Law

The new school year always brings energy and excitement to the Law School. That is particularly true this year, when, for the first time in eighteen months, we are able to gather in groups of any size without social distancing. It has been a joy to see you getting to know each other, and I look forward to welcoming our returning students next week. There is so much discovery and growth ahead of you—ahead of all of us—this year.

Law school is a transformative experience, and—with orientation, your first assignments, and meeting section mates and professors behind you—you are already on your way. In the months and years ahead, we will teach you the fundamentals of how to think (and write and speak) with the analytical reasoning and precision of a lawyer. We will offer you opportunities to work with real clients on real cases so that you can acquire the integrity, judgment, and perspective that you learn most effectively through experience. And we will expose you to the broad sweep of interdisciplinary perspectives—economics, jurisprudence, history, psychology, and more—that will enable you to see the big picture wherever your career takes you. You will leave here able not only to deploy the law as it is but also to envision what the law can and should be in the future.

Pictured: Dean Risa Goluboff. Photo Courtesy of virginia.edu.

For many of you, law school will be the capstone of your educational career. Make the most of your time here, all the while knowing that we will offer you more opportunities than you can possibly take. That is the beauty of a law school that boasts students who are the best and the brightest in the nation, world-class faculty engaged in groundbreaking and interdisciplinary research, and experiential learning that will let you put your classroom knowledge to work. Join a journal, take a clinic, do moot court, engage with the Charlottesville community, take on leadership roles in student organizations. As you do so, you will encounter some of the many career paths available to you, from trial lawyer to corporate executive, cause crusader to policy wonk to dealmaker. Imagine what these paths might look like for you. Try several on for size.

Just as important as what you will do at UVA Law are the people with whom you will do it. The relationships you build during your time here—with your classmates, faculty, and staff—will enrich your days at the Law School and will sustain you personally and professionally in the years to come. The vitality of our diverse community permeates all we do here. We come from different races, religions, nationalities, ethnicities, and cultural and socioeconomic backgrounds. We have had different life experiences and live different identities. We hold different beliefs, attitudes, and interests, and subscribe to a wide range of political views.

We bridge these differences with a shared commitment to this community, a shared aspiration that our differences serve as a source of humility and strength, empathy and intellectual stimulation. It is not always easy to speak so that others can listen or listen even when the message is hard to hear, but our community of trust and belonging makes that possible. Doing so is necessary to analyzing and solving problems, considering every argument, exploring every idea, arguing for your side, and collaborating with the other. It is essential to becoming the exceptional lawyers you are here to become—UVA lawyers.

Our robust community is also what has sustained us the past eighteen months as we have navigated the COVID-19 pandemic. We have learned both that we cannot anticipate every obstacle that might come our way, and that we rise to them because we do so together. As we return to a fully in-person law school experience this semester—armed with our high vaccination rates and temporary mask mandate—we remain vigilant about keeping our friends, families, colleagues, and neighbors healthy. I ask you to be mindful that we each have different health risks and risk tolerances and to approach those differences with humanity, compassion, and patience. And I ask you to help us continue to nurture and enhance our community so that every member shares in the sense of belonging that makes UVA Law so special.

I look forward to seeing how each of you makes this place your place, and to the paths you will forge during your time here. This moment in our national and global history calls out for exceptional lawyers to lead our government, our institutions, our businesses, and our communities in ways that comport with the core values of our Constitution and our profession. You are on your way to becoming those lawyers. Welcome, and enjoy!

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risa.goluboff@law.virginia.edu

SBA Presidential Address

Virginia Law Weekly April 14, 2021

Niko Orfanedes ‘22
SBA 2021-2022 President

Fellow Members of the Virginia Law Community,

A little over a year ago, on the first Saturday of April, I spent the afternoon with a small group of law students on Copeley Field. It was a balmy, spring afternoon in Charlottesville—yet the walking paths and streets around North Grounds were eerily desolate. For those of us who would remain in town for the duration of the semester, such a scene would soon become all too familiar. This particular Saturday was especially momentous, however, considering what should have been. Copeley Field was supposed to be packed full of players and spectators from law schools around the country for the 37th Annual North Grounds Softball League Invitational—the first of many classic UVA Law traditions to be derailed by the COVID-19 pandemic. Now, a little over a year later, we are faced with the formidable challenge of rebuilding and restoring our once-unwavering sense of community.

Although brighter days are undoubtedly on the horizon, our student body remains—in many respects—at a crossroads. The pandemic continues to take a toll on our mental and physical health. Our viewpoints on critical issues are increasingly at odds. A number of students feel isolated and disconnected from the Law School administration—and, in many cases, their fellow classmates. Meanwhile, Reddit posts and GroupMe discussions have highlighted our dire, longstanding need to curate a drastically more diverse and inclusive student body and faculty.

Too often when faced with these challenges, we, the student body, elect to debate for the sake of debating (we are future lawyers, after all). Words alone, however, are not the way forward. Our current state of affairs calls for strong and decisive action, and it is for precisely this reason why I decided to run for SBA President.

Since assuming office last month, your SBA representatives have hit the ground running. My fellow Executive Board members and I have met with student leaders, raised sensitive concerns to our Law School administrators, and strategized ways to reestablish the events, activities, and traditions that bring us together and strengthen our bonds as a student body. Before the semester ends, I will be establishing the inaugural President’s Roundtable with leaders of each of our law school affinity groups. The purpose of this roundtable discussion will be to identify issues facing our students and to develop action plans to bring our community forward. Because many of the challenges faced by our affinity groups are deeply-rooted and persistent, we will be hosting this discussion on a regular basis throughout the upcoming year. Further, I will be working with our Senators to circulate a class-specific, semi-monthly survey designed to obtain feedback and insight on a number of matters (e.g. administrator accessibility, academic challenges, social events, and general concerns). With this information at our disposal, the SBA can take targeted action to efficiently address the many issues facing our student body today.

Despite our many differences, we all possess a common desire to make our school a better place. During last month’s contested SBA elections, we witnessed record voter turnout across the board—a testament to the passion and care that we all share when it comes to our Virginia Law community. Now, we must channel our passion and unite as we lead our beloved institution into the future.

As we embark on this journey together, I am extremely grateful to be a part of the all-star team that is SBA 2021-22. Moreover, I would be remiss not to give a major shout-out to my predecessor, Katharine Janes ’21. Despite assuming her position amidst the calamity of an unprecedented public health crisis, Katharine navigated our student body through this uniquely challenging year—beginning with our transition to virtual learning and the pass-fail debate— – with vigor and grace. I, like the rest of us, am thankful for her leadership, and I look forward to building upon her successes and accomplishments.

As we leave this difficult year behind us, please know that the process of restoring our community is going to take us all. Together, however, we have the opportunity to leave our school a little bit better off than it was when we first arrived on North Grounds. I implore you to continue to embody the qualities that best represent what it means to be a student at the University of Virginia School of Law. Be compassionate and kind. Uplift those around you. Say hello to a member of our diligent custodial staff. By doing the little things right each and every day, you can make a difference. We all can make a difference. It is an honor to be a part of this community, and I can’t wait to see what we accomplish together. The best is yet to come.

Very truly yours,

Niko Orfanedes

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njo8fm@virginia.edu

"Libel: The Movie" Makes Students Laugh, Cry, Ask for Spotify Link

Virginia Law Weekly April 7, 2021

Dana Lake ‘23
Production Editor

The 113th Libel Show was an absolute joy to watch from start to finish. While Law Weekly likes to keep things light and pithy, I want to make sure this article starts off acknowledging the time and work the participants put into making Libel: The Movie possible. The 112th Libel Show was cancelled due to Corona, upping the pressure to make this year’s virtual event the comeback of the century. Under the direction of Stephanie Metherall ’21 and Jake Sillyman ’21, and produced by Katie Carpenter ’21, this year’s show was a success from start to finish.

Pictured: Chance Maginness '22 as former SBA president Katherine Janes. Photo Courtesy of: The Libel Show.

Libel may tout itself as one of the Law School’s oldest traditions, but it was certainly made much funnier by the work of the Law Weekly Executive Board. I would even say our Exec Board was disproportionately represented, with outstanding performances from Editor-in-Chief Phil Tonseth ’22 as Dean Groves delivering an important message for all law students; Executive Editor Anna Bninski ’23 as Vice President of both ACS and FedSoc; and Managing Editor Stan Birch ’22 as Mr. NGSL in a Survivor parody that had my entire Covid-compliant watch party screaming. Law Weekly’s graduating 3Ls also turned out: former Photographer Kolleen Gladden ’21 served top-tier facial expressions in a skit capturing the exact feeling of being a woman in a Zoom room full of toxic male gunners. Former Professor Liaison Editor Leah Deskins ’21 served as Band Director, a complex role made more complicated by the virtual show. “I never imagined I was also applying to be an audio engineer,” Deskins commented. “I had a great group of musicians willing to work hard, be creative, and be patient with me as I figured out the recording ropes.” As a humble and unbiased viewer, I give them all tens across the board.

A skit show is only as strong as its musical performance. See SNL’s Dick in a Box; see also the Cowbell sketch. Libel: The Movie did not disappoint—the musical parodies were each excellent. Andi Schlut ’22 began the show with a cover of Frozen’s“Let it Go” that demonstrated both lyrical brilliance and probably the strongest vocal performance of the night. Schlut also served as a vocal instructor for the show. “Singing together over Zoom is practically impossible because of the lag and other issues,” she reflected. The solution required innovation and a lot of patience, but the results were undeniable. The show followed this up with an OGI version of NSYNC’s “Bye Bye Bye” that was somehow even more danceable than the original, and a brilliant cover of Aladdin’s “Whole New World” taught me more about Torts in two minutes than the entirety of Fall semester. Parodies of “Despacito” by Luis Fonsi and “Mr. Brightside” by The Killers featured stand-out performances from 1Ls Logan White ’23 and Rachel Dalton ’23. The night ended with a supremely good cover of WAP, and I know I speak for the people when I say: drop the Spotify link already.

The Professor Rebuttal, spearheaded this year by Professor George Cohen, was probably my favorite segment. We poke fun at the spirit of collegiality UVA Law tries to cultivate, but the truth is there is something special here at the Law School. While emotional vulnerability is both lame and embarrassing, I think it’s important for everyone—especially 1Ls who didn’t get the chance to catch this year’s performance—to know that we have a faculty willing to coordinate their schedules and take the time to write, practice, and sing a whole piece for Libel. Law school is hard and professors are intimidating, but there is a real feeling that we’re in this together. I have had more professors sing to me this year than in the entirety of my undergrad experience (Friday Torts, never forget) but it has not lost its charm.

The first-ever virtual Libel Show was hosted through Zoom over three days, allowing rowdy viewers to drink along with the performances but losing out on the joy of laughing along with a full theatre. The cost of admission was only a ten-dollar requested donation. As a viewing group consisting of only 1Ls, there are definitely jokes that went over our heads and professor impersonations I am sure were on point even without the context to understand them. The feeling of everyone I have spoken to for this article is excitement—excitement for more songs, for understanding more of the jokes, for taking bigger roles in production, and more than anything, excitement for an in-person viewing next year. Though it was a cameras-off event, every participant in the show should know there was enough laughing, screaming, and applause in at least one apartment to earn both a noise complaint and some positive memories in what has otherwise been a hellish spring semester.

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dl9uh@virginia.edu

2021 SBA President Farewell Address

Virginia Law Weekly April 7, 2021

Katharine Janes ‘21
Former SBA President

Friends,

You have received countless emails from me over this past year, so I’ll keep my final remarks brief: Thank you. Thank you for trusting me to advocate on your behalf over this past year, and thank you for allowing me the privilege of serving as your SBA President.

This year has certainly turned out to be what none of us expected.[1] For SBA in particular, we quickly realized we would need to modify our vision for the term as a new reality became apparent. Despite this deviation, however, I am proud of the work this year’s SBA invested to make our community the best it can be.

SBA has always aimed to make sure students enjoy their three years in law school. To this end, we have hosted countless Socials, Foxfields and Fauxfields, and Barrister’s Balls to bring students together. This year, though, we hoped that SBA could be different. Not only could it be a place where we enjoy fun activities with one another, but it could also be a space where we, as a community, handle hard conversations too. This academic year, we worked with the administration to integrate student voices into the functioning of our school, including in the faculty hiring process. We had candid discussions about equity and inclusion in ways previously unseen. And we talked at length about how to maintain community during a time of distance, both physical and otherwise. There have undoubtedly been growing pains during this process. However, in my role as President, I have witnessed firsthand the collective desire of our student body to make UVA Law the best place it can be. This work is hard, but students and the Student Bar Association have been willing to do it time and again this academic year.

To the members of SBA 2020-2021: Thank you for your diligence, passion, and dedication during a profoundly difficult time. In particular, thank you to Savanna Williams ’21, Chance Maginness ’22, and Katherine O’Neal ’22. You invested countless hours in your work on graduation, SBA governance, and diversity and inclusion, and I am grateful for having the chance to learn and grow from your examples. The school is better for your work in it.

To the incoming SBA: I look forward to seeing all you accomplish in this next academic year. May it be filled with more socializing, more advocating, and more community-building than any year that preceded it—including this one. Niko, Caroline, Sam, and Ari: You are going to do fantastic things in your new roles, and I look forward to cheering you on as a graduate. And, if you could be so generous, please remember to invite the members of the Class of 2021 back for any festivities on the docket.

With love,

Katharine

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kmj4vg@virginia.edu

[1] I promise, though, to avoid all references how “unprecedented” it has been!

AI and Algorithms in Criminal Sentencing: VJOLT and VJCL Joint Symposium

Virginia Law Weekly April 7, 2021

Michael Schmid ‘21
Ousted Managing Editor

Rachel Martin ‘23
Columns Editor

On April 2, 2021, the Virginia Journal of Law and Technology (VJOLT) and Virginia Journal of Criminal Law (VJCL) hosted a joint symposium on the use of AI and algorithms in criminal sentencing. The discussion was moderated by the Honorable Jed S. Rakoff, Senior District Judge for the Southern District of New York.[1] The panelists were Professor Deborah Hellman of the Law School; Professor Jessica Eaglin of Indiana University Maurer Law School; Julia Dressel, software engineer at Recidiviz; and Alex Chohlas-Wood, executive director of the Stanford Computational Policy Lab.

Technology has revolutionized many fields, and some say it can also revolutionize our criminal justice system. Arguably, it already has: many jurisdictions have used algorithm-based risk assessment tools for years to determine who gets out on bail and how long people are sentenced to jail. The basic idea behind these risk assessment tools is to utilize data about a defendant to estimate the likelihood they will recidivate. Factors like past criminal convictions, employment history, and gender are given different weights and plugged into a mathematical formula. The result is an estimate of how likely a defendant is to skip a court date, be rearrested for any crime, or be rearrested for violent crime specifically, depending on the formula used.

Proponents of risk assessment technology say that these tools will bring much needed objectivity. In theory, algorithmic tools should treat like individuals alike and minimize the risk of judicial bias in the criminal process. They also promise to provide an alternative to regressive practices like cash bail and to reduce mass incarceration by focusing efforts on those most likely to reoffend. However, their use is highly controversial for a number of reasons.

One of the biggest concerns is that the biases and inequalities that have pervaded the criminal justice system are baked into the algorithms. “Any sort of machine learning or statistical model that is making predictions is necessarily going to be built on historical data of what has happened in that system,” Dressel explained. And that historical data reflects decades of criminalization of blackness and poverty. For example, police have historically been more likely to stop, search, and arrest black persons than white persons for low-level offenses or no offenses at all. If the algorithm identifies “age of first arrest” or proxies for race like zip codes as factors that predict recidivism, this has the possibility of perpetuating the harms of those policing practices into the future.

Another overriding theme was the concern that these risk assessment tools will be overvalued[2] because they are “scientific.” Human decision-making elicits more skepticism; everybody knows that people can be prone to biases and errors. In contrast, when an AI risk assessment tool comes to a conclusion about someone's recidivism risk based on purportedly objective, scientific criteria, these outcomes can be seen as more accurate, even if they are really not.[3] Many times, we do not even know how accurate these tools may be, because there is no regulation of or standards for verifying accuracy. What is more, independent researchers cannot do this validation, because the algorithms are kept hidden as trade secrets. They are “black boxes” in an area where mistakes have drastic consequences for real people’s lives.

Additionally, there is a fear these tools can mask the subjective judgments upon which they are based, providing another layer to the “black box” problem. On the front end, the developer of the algorithms must choose which factors are most pertinent to whether a certain individual will recidivate. For example, common misdemeanors like petty theft may be considered while white-collar crime like embezzlement may not be. These choices and the resulting discrepancies get solidified as “objective” truth when judges rely on these tools, thereby reinforcing the criminalization of poor, Black, and other communities.

Professor Hellman, though, said it was important not to forget that judicial decision-making is similarly a “black box.” While she echoed the concern that algorithms tend to be overvalued because of their “scientific” character, she noted that it is difficult, if not impossible, to truly know how much weight judges give to different factors in making decisions about bond, sentencing, and the like. Judges may be influenced by factors that are just as questionable and subjective. She suggested it is ultimately a comparative question: “are we making things worse or making things better [with risk assessment tools], because the alternative isn’t a system that is free of those [same] problems.”

There was broad agreement, however, that we need more transparency. Chohlas-Wood, for example, stated that having detailed, accessible information on exactly what goes into these tools is vital. He pointed to a Wisconsin case[4] where the defendant challenged the use of gender as a factor in estimating likelihood of recidivism, noting that he would not have been able to challenge this potentially problematic category if he did not know it was being used. Similarly, Professor Eaglin argued that we need to know not just what goes into these tools, but where the data comes from, who picked it, and why.

Moreover, perhaps reform and transparency start in a more fundamental place: what questions are we asking about sentencing? Judge Rakoff noted that the use of these tools are predicated on the idea that we should punish people based not on what they have done, but what we think they might do in the future. While many people have celebrated the change in focus from retribution to outcome-based theories of punishment, this is not always a fair or positive thing. Chohlas-Wood elaborated that the question of risk assessment tools in criminal sentencing comes down to policy judgments about the function of sentencing and incarceration. If the goal is to prevent recidivism, “I think there is a lot of promise,” he stated. If, however, the goal is to rehabilitate, then these tools are likely not helpful.

Algorithmic risk-assessment tools also risk dehumanizing people and limiting judges’ ability to adapt outcomes to individual circumstances. Judge Rakoff and Professor Eaglin explained that the rise of AI in judicial decisionmaking in the criminal process reflects the broader and somewhat concerning trend in recent decades of replacing judicial discretion with a framework of rules that cabin or entirely eliminate that discretion, such as the federal Sentencing Guidelines, mandatory minimum sentences, and career offender statutes. Although the Guidelines are now advisory instead of mandatory, many judges still lean heavily on them, and quite a few judges today have never known anything else, as Judge Rakoff pointed out. Judges were “rightfully angry” when the Guidelines first came out, Professor Eaglin expressed, because sentencing is supposed to take into account how an individual got where they are and what will best help that individual and society moving forward. The current focus on “things we can measure” thus makes judges’ jobs harder in some ways.

The role of AI and algorithms in the judicial process is still evolving, and it is likely to be a subject of debate and innovation for some time to come. Chohlas-Wood highlighted that in addition to risk assessment tools, there are other applications of these technologies that are less controversial. For example, he noted the great success of recent programs to increase court appearances by sending automated, personalized text reminders. Dressel said that her organization is working on technology that can model the system-level impact of policies designed to reduce racial and other disparities. She suggested that AI is better suited for this sort of system-level policy research, rather than the individual determinations that risk assessments are currently used for. Professor Eaglin concluded that algorithmic risk assessments are just one of many possible ways to reduce incarceration, and they may not normatively be the way we want to approach the problem. We choose to use these tools; there are other choices.

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ms3ru@virginia.edu
rdm9yn@virginia.edu

[1] Judge Rakoff also teaches the J-Term course “Science and the Courts,” which I highly recommend.— Rachel Martin

[2] I would like to thank Professor Schauer’s Evidence class for arming me with this knowledge.—Michael Schmid

[3] Dressler noted that one popular tool, Compass, likely had an accuracy rate of somewhere around 65%, not much better than a coin flip.

[4] State v. Loomis, 881 N.W.2d 749 (Wis. 2016).

The Uyghur Genocide and China

Virginia Law Weekly March 24, 2021

Nathan Wunderli ‘22
Sports Editor

As part of the second week of HRP’s Human Rights Month, UVA Law was pleased to hear from two speakers on the current Chinese attempt at genocide of the Uyghur people. Zubayra Shamseden is a human rights activist, organizer, and Chinese Language Outreach Coordinator at the Uyghur Human Rights Project based in Washington D.C. Dolkun Isa is a widely-recognized political activist and current president of the World Uyghur Congress and recipient of the National Endowment for Democracy's Democracy Award.

Pictured: Uyghur people protest outside the UN headquarters in Genevea in November 2018. Photo courtesy of: Salvatore Di Nolfi/EP

Who are the Uyghurs?

By the estimates of the Chinese government, the Uyghurs are 11 million strong and live in East Turkestan, otherwise known as the Xinjiang province of China. Uyghurs themselves estimate they number around 20 million people. Dating back to the 8th century, the Uyghurs have been predominantly Muslim, with traces of Christianity and Buddhism as well. They have their own language and customs, completely different than those in China. According to Ms. Shamseden, they are rather moderate Muslims.

What is Going On?

Much like Tibet, on paper, the East Turkestan region is independent from China. The reality is far from that. The Chinese government has employed several strategies, all with the goal of wiping out the Uyghur people, culture, and language and assimilating them into China. While China says they are employing bilingual education programs, in reality the education they use contains very little to none of the Uyghur people’s language. Additionally, while East Turkestan used to be over 90 percent Uyghur, the Chinese government has intentionally implanted Chinese people into the region so that it is now 50 percent Uyghur and 50 percent Chinese. While these attempts at getting rid of the Uyghur people are bad, it is no where close to the worst thing the Chinese government is doing.

An estimated 2-3 million Uyghur people are currently being detained in political “re-education camps.” These camps are numerous and located throughout China. As if there was any doubt of what goes on at these horrific sites, a single site was reported to have purchased 2,768 police batons and 550 electric cattle prods, among other things used for manipulation and torture. The people are typically kept alive, but are brutally dehumanized and tortured. The prisoners are taken from all walks of Uyghur life, including thousands of intellectuals that are currently detained or missing.

Uyghurs get detained and sent to camps for what the Chinese government dubs as examples of “extremism.” For instance, watching a Western movie could get you detained. Communicating with people outside of China or traveling outside of China can get you detained. Practicing the Islamic faith, even something so simple as owning a prayer mat, can get you detained. Refusing to allow government officials to sleep in your bed with you, eat your food, or live in your house? Detained. Reading up on Uyghur culture and history? Good luck at camp. Not only can all these things that we take for granted get you sent away to a “re-education” camp and tortured, but the Chinese government makes it hard to get away with any of these things through extensive surveillance. The minute you leave your house, you are being watched or followed, either by a person or by technology.

What Can We Do to Help?

The Uyghur people are being crushed and abused by China, and it won’t be too long before China’s forceful assimilation strategies wipe out the Uyghur people for good. Fortunately, there are some measures we can take to help, even as American law students. You can 1) Contact your senators and urge them to co-sponsor the Uyghur Forced Labor Prevention Act, 2) Sign various petitions (contact UVA Law’s HRP Rep. Alex Karahalios (ank3jf@virginia.edu) for more details), including one to refuse to hold the Olympic Games in China in 2022 unless the camps are closed, or you can 3) donate to the UHRP. Every time there is a human rights crisis, the mantra is “never again.” Unfortunately, never again is happening right now to the Uyghur people, and it is now or never to respond.

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nw7cz@virginia.edu

Student Bar Association Elections Are Here (President and VP Platforms)

Virginia Law Weekly March 17, 2021

This year, the Student Bar Association (SBA) is running contested elections for the President, Vice President, and 3L/2L Senator positions. Each of the candidates’ arguments for President and Vice President are featured below, and voting will be open from Wednesday, March 17 until Friday, March 19. We encourage you to learn more about the debate and the candidates, as well as exercise your right to vote for your upcoming SBA representatives!

These statements are presented unedited so that you may consider the candidates based on their own work.

Candidates for President

Chance Maginness

Hello friends! For the many of you that know me, you know how much I love this school and (too probably too great a degree) SBA as well. For those of you who I have yet to meet, allow me to say a few words about why I’m running for President.

If you elect me to be your President, I promise that I will spend every day bringing back what we’ve lost due to the pandemic. I will work tirelessly to revive our community and make it stronger than ever. And I have a few ideas how:

I’ll revive and expand SBA keg socials.
I’ll start a lunch program to encourage more students to stay in the law school.
I’ll start a party pass program to increase social events outside of school.

I’ll work with NGSL to make sure this year’s 1Ls can experience Dandelion and softball.
I’ll bring about better inclusivity trainings for students and faculty.
I’ll centralize the way SBA works so that more students have better access to us and the administration.
And hopefully I can also start a fiction section in the library.
(And a school drag show, if I can swing it.)

I genuinely love this school. I love the people that I’ve met. I love the faculty. I love the arguments and the ideas and the banter and the jokes that we all share. I’ve also loved being in SBA. I have cherished the opportunity to work on behalf of my fellow students over the past two years, and I am proud of the work that I have accomplished through my tenure as SBA Treasurer and through the Governance Reform Report. I have devoted every day of my time here to making this school a more welcoming and fun place for everyone. It is because of that devotion to you all that I’m running for President. I’m not doing this for fun, or to make a point, or because I need the job. I’m doing it simply because I love this school and I care about making sure that you all love it as much as I do. 

As such, and really regardless of the outcome, it is my only hope that I can spend my last year here as I have spent my first two - serving all of you. 

Katherine O’Neal

I’m Katherine O’Neal and I am running for SBA President. I have served in several different roles in SBA, and my passion for service and my time as a member of SBA has allowed me to advocate for mental health, programming, and wellness initiatives. I sincerely hope that I can continue to be a zealous advocate for all students of UVA Law as President. 

While UVA effectively serves many students, a large portion of our student body is underserved and under supported. Collective action is important, and I believe that SBA can do much more with our power and position at the school to fight for equity. I would ensure that SBA serves to amplify and support the initiatives of our affinity groups and use our power to press the administration to make greater changes. My first step would be investigating the gaps in support for diverse students. After soliciting student feedback early in my term, I will move towards creating school-wide programs and push to accelerate current initiatives, such as expanding student and faculty bias training. I will continue to advocate for transparency and accountability from the administration regarding diversity and inclusion efforts. 

My second focus is community. At UVA we pride ourselves on the strength of our relationships, but COVID has tested our resolve. I will ensure that finances are not a barrier to participation in events while also planning more frequent school-wide activities to foster cross-class community. One idea I have is a carnival at The Park with food trucks, beverages, and music for the whole community. I would also plan events just for current 1Ls so they get the chance to meet each other and form relationships. Some other ideas I have are a welcome back bar crawl and a Halloween party. 

Access, accountability, and transparency between SBA and those that we represent are vital to our mission. Under my administration the executive board would host a bi-annual town hall so the entire student body has ample opportunity to voice opinions and hold exec accountable. I would also push for SBA to be more involved with Main Grounds in order to ensure that our needs are advocated for. COVID has shown us that Main Grounds decision-making has an impact on our lives, and it is important to be represented in those conversations.

Niko Orfanedes

It goes without saying that we, as a student body, are at a crossroads. The pandemic continues to take a toll on our mental and physical health. Our viewpoints on critical issues are increasingly at odds. A number of students feel isolated and disconnected from the law school administration – and, in many cases, their fellow classmates. Meanwhile, Reddit posts and GroupMe discussions have highlighted our dire, longstanding need to curate a drastically more diverse and inclusive student body and faculty. 

Too often when faced with these challenges, we, the student body, elect to debate for the sake of debating (we are future lawyers, after all). Words alone, however, are not the way forward. Our current state of affairs calls for strong, decisive, and robust action – and that’s where my running mate, Caroline, and I come in.

Together, we are going to ENGAGE with the difficult issues facing our students, EMPOWER the voices of our fellow classmates, and ENRICH your experience as members of the UVA Law community.   

With respect to my qualifications, I have been involved in student government throughout my academic career. Prior to law school, I served as Vice President of my high school student body and was an active member of the student government-affiliated leadership community at the University of South Carolina. Currently, I serve as co-chair of the SBA’s Community Engagement Committee, a committee of service-oriented law students dedicated to serving those in need within the UVA, Charlottesville, and Albemarle communities. I am also actively involved with a number of other student organizations on-grounds, and I recently co-captained Team UVA in an extramural, professional basketball arbitration competition.

Additionally – and perhaps most importantly – I have significant, real-world experience as a leader and an advocate. As a college freshman, I successfully lobbied for a more lucrative sales commission for all minimum-wage employees of a multi-state corporation. More recently, while working post-grad as a marketing strategist at a corporate resort, I advocated for improved working conditions and compensation benefits for front-of-house employees, and, in recognition of my leadership, I was honored as the resort’s first-ever employee-of-the-year in its twenty-five years of operation. 

At the end of the day, I am not a politician. Rather, I am a man of action. As your President, I will listen to, advocate for, and collaborate with you each and every day. Together, we can accomplish something truly special.

Candidates for Vice President

The following statements from the Vice Presidential Candidates are unedited, so that you may consider the candidates based on their own work.

Elizabeth Kruse

I am running for Vice President because I want to give back to the upcoming 3L class and the law school as a whole. As Vice President, my primary duties would be planning graduation and other celebratory events for the 3L class. My great hope is that increased vaccination will allow these celebrations to take place in person, however as VP I will do my best to bring together the class in the safest and most respectful form available. As a member of the Executive Board, I promise to be a fierce advocate for the student body, ensuring that the Student Bar Association is receptive to student concerns and transparent in our decision-making. I will promote equity and inclusivity in all of our policies and goals, and strive to face difficult problems head-on.

I believe I am qualified to serve in this position because of my long-standing commitment to this school and its betterment. As a 1L Senator I worked hard to bond our class and advocate for our interests on SBA. As the Vice Chair of Transparency for the SBA Governance Committee, I led a team of students in developing policy recommendations to give students greater access to decision-making and important information affecting their time at the law school. As Student Council Representative, I have worked to pass legislation that creates positive change for the entire university and protects student interests during this difficult time. As a Double Hoo, I have spent the past six years in Charlottesville, and have loved calling UVA home. Because I love UVA so much, I can see its flaws clearly, and I am not afraid to advocate for change for the better. I want this place to be the best it can be, and I hope I have the opportunity to work toward that goal as Vice President.

Caroline Spadaro

Today, our community is facing incredible challenges, from the toll of the pandemic on mental health, interpersonal connections, and our law school experience, to students feeling as though their voices are not heard or respected. We are at a critical crossroads and it is the essential role of SBA to pull a seat up to the table for every student organization and every individual to be sure their voices are represented and acted upon.

Should we be elected to serve you, my running mate, Niko, and I will work tirelessly with SBA and the administration to build a community in which each student sees a reflection of the inclusivity, collegiality, and values that brought us to call this school home. Together, we will ENGAGE with the difficult issues facing our students, EMPOWER the voices of our fellow students, and ENRICH your experience as members of the UVA Law community.  

Having served as a 2L Senator and a First-Year Council representative, I have seen the triumphs and adversity our peers have faced and am well prepared to work with my fellow executive board members, senators, and student organizations to zealously advocate for this community’s best interests.

As Panhellenic President at the University of South Carolina, I led a community of over 4,200 women, facilitating philanthropic efforts and community-wide educational, social, and professional programming, maintaining a high standard of engagement from all member organizations. The skills built in managing the roles of my executive board members would translate incredibly well into building cohesive and productive teams to ensure that each SBA committee is operating individually and collectively to their highest service of the student body. I also helped to plan the inaugural “Cockstock” Concert at the University of South Carolina, bringing a free Rae Sremmurd performance to campus, which was an incredible success and learning experience in large-scale event organization. As a student member of the University President’s Diversity and Inclusion Advisory Committee at South Carolina, I have worked with university administrators, professors, and my peers to face issues in creating a community in which people of different backgrounds and beliefs work together to create a collaborative and welcoming environment for all 

Should I be elected to serve as your Vice President, I look forward to working with an equally passionate team to take decisive action on behalf of our students from day one.

3L Senator Platforms

Virginia Law Weekly March 17, 2021

This year, the Student Bar Association (SBA) is running contested elections for the President, Vice President, and 3L/2L Senator positions. Each of the candidates’ arguments for 3L Senator are featured below, and voting will be open from Wednesday, March 17 until Friday, March 19. We encourage you to learn more about the debate and the candidates, as well as exercise your right to vote for your upcoming SBA representatives!

These statements are presented unedited so that you may consider the candidates based on their own work.

Ansley Seay

As a 3L Senator, I will advocate for not only my fellow 3Ls, but the entire student body, in these isolating times. My time as a 2L Senator has given me the opportunity to learn how SBA operates. While SBA has vigorously advocated for our student body this year, I have observed a disconnect between SBA and the student body. While all students are welcome at SBA meetings and SBA members are willing to discuss issues with any student, I do not believe all students know who to talk to about their individual concerns. As a 3L Senator, I hope to work with the Executive Board to find a solution to this problem, such as assigning each student a senator in their class. Such an assignment would give each student a point of contact to voice any concerns or comments about their individual experience, no matter how small.

Caroline Spadaro

Having served as a first-year council representative and as a current 2L senator, I have seen how our class has both struggled and succeeded in our first years of law school. We have built a wonderful community, but have faced adversity that we did not imagine, and it has resulted in many students feeling that their voices are not heard by the administration or by their peers. We are at our best as a community when everyone has a seat at the table, and I want to continue to work to amplify student voices to SBA and the administration. One of my greatest strengths is my ability to create a team environment in which everyone feels welcome, and should I be re-elected as a 3L senator, I look forward to work to ensure that our final year at UVA Law is one in which our class leaves a lasting change.

Chance Maginness

Howdy folks, it’s me again. I won’t take up too much space here because I think I outlined in pretty good detail why I’m running in the Presidential Platform section of this edition. But, allow me to take just a moment to tell you why I’m also running for 3L Senator.

Like I said in my Presidential blurb, I’m doing this because I care. It’s traditional for presidential candidates to also run for 3L Senate as a show of their commitment to this school. But this is more than just a symbolic gesture for me. I truly do feel that regardless of what position I hold, serving my fellow students (and fellow future 3Ls) is the most important thing I can do. I hope that you give me that opportunity.

Connor Kurtz

In 1970, Dr. Hunter Thompson ran for sheriff of Aspen CO on the Freak Power ticket. His goal? To bring freaks, druggies, and dropouts into politics.

I’m the Freak Power candidate for SBA senator. And I’m campaigning like a rat in heat to give voice to those of us unrepresented by the dominant channels for official student representation. This disaffected group includes—but is obviously not limited to—centrists, liberals, conservatives; non-Dillards; 1L softball dissenters; the untrustfunded. We freaks want tolerance. We don’t want to run the place. We just want to be a small part of it.

I have little in the way of a platform besides a promise not to be an unthinking avatar for North Grounds orthodoxy and an aspiration to be the xylospongium SBA needs. Oh, and I’m proudly in the pocket of Big Hot Beverage, having sold my political soul to restore “free” library coffee.

Davin Laskin

My priority for the 2021-2022 academic year is to bring back the sense of community and collaboration we had when I started in the Fall of 2019. Last year, events like dandelion, barrister’s, feb club, and fauxfield brought the law school together and served as a much-needed outlet for stress relief to complement our rigorous academic workload. Many students have expressed frustration with the strictness of the restrictions imposed on the law school and its resulting impacts on both students’ mental health and the school’s sense of community as a whole. By August, we will be in a much different situation – I believe it is imperative that we focus on social events and traditions to bring UVA Law back as the collegial standout amongst our peer schools.

Margaret Shin

My name’s Margaret Shin, and I’m running to serve as your 3L senator next year. SBA needs to be more proactive in cultivating an inclusive environment where everyone, regardless of background, ideology, or identity, feels at home; in educating the student body of and combating the isolation that diverse students often experience; and in working closely with other grad schools to ensure we’re in the room when decisions that affect us are being made on Main Grounds. I’ve spent the last two years as your SBA Senator working to ensure that diverse voices are seen, heard, and represented; to foster grace and empathy towards our classmates; and to work with the administration to increase the diversity of our faculty and student body. I hope to continue having these opportunities next year and represent the class of 2022 as a 3L Senator.

Molly Mueller

Next year, the 3L class will be the only one that knew UVA Law before Covid. I want to help make sure that the things we loved about UVA last fall still live on past the time of the pandemic, while also taking the opportunity to assess what needs to change. One of the most important parts of my experiences at UVA has been my connection with my classmates, so one of my priorities will be to create experiences to bring people together. As student body treasurer in college, I helped student organizations host events on campus. I would apply this programming knowledge to SBA events. Working with so many different student organizations in college also helped me realize how valuable it is to support a wide range of interests and initiatives on campus. Doing the same at UVA Law will help ensure that everyone can find their community here.

Morgan Maloney

Hello! My name is Morgan Maloney and I am running to be a 3L Senator. This past year on SBA, I have focused on two key issues: student mental health and the needs of public service students. Working with the Health & Wellness Committee, I initiated and launched the SBA COVID goodie bag program. As a public service student, I have sought to make sure that our particular needs were represented in SBA, especially around questions of clinic grading. This upcoming year, I would like to continue advocating for student mental health and public service students.

I sincerely hope that next year can finally be “normal” again and, as a class and a community, we can come together. But, regardless of the public health situation, I hope to make our 3L year our best year yet of law school. I would be honored to receive your vote.

Valera Bamgbala

I would like to dedicate my candidacy specifically to the racial issues that have been brought to the forefront by social media this semester. As a 3L senator, I would like to extend myself to individuals and communities that continue to feel the blunt reality of racial issues permeate our community. As a 3L senator, I will be creating office hours in which anybody would be welcome to voice their concerns, and I will ensure their anonymity should an issue be brought to the SBA. As a woman of color, and a first generation lawyer, I believe I can serve as an excellent resource. Furthermore, I seek to increase inclusion across the board, through the Diversity Committee and the Programming Committee. “Diversity” should cease to be an ideal, and must become, at the very least, the baseline reality. A safe, supported, and diverse community should be our normal.

2L Senator Platforms

Virginia Law Weekly March 17, 2021

This year, the Student Bar Association (SBA) is running contested elections for the President, Vice President, and 3L/2L Senator positions. Each of the candidates’ arguments for 2L Senator are featured below, and voting will be open from Wednesday, March 17 until Friday, March 19. We encourage you to learn more about the debate and the candidates, as well as exercise your right to vote for your upcoming SBA representatives!

These statements are presented unedited so that you may consider the candidates based on their own work.

Cassie Stanton Cox

Hello, I’m Cassie, and I’m running for 2L Senator because I genuinely enjoy speaking to and spending time with our class. As a 1L Senator, I was vocal in SBA meetings to get extended library hours and breaks for the sake of 1L sanity. I will continue advocating for our class by fighting for more support for public interest students and hosting 2L town halls.

I have a background in event planning, so I’m excited to help plan Barristers and Bar Review. My main priority will be unifying events for 2Ls. I hope to help host a Welcome Back event and events in Spies. Whether you elect me or not, I plan to be the first one in the door to gatherings like these so I can meet more of you. I hope you choose me to represent you as a 2L Senator as we seek unity in our class!

Clint Roscoe

I’m running for 2L Senator because I want to bring our class closer together. I ran for and was elected to a 1L Senator position because I expressed a desire to engage directly with the 2L and 3L class about what the law school is like during “normal” times. I wanted to hear about the regular, day-to-day social operations of the law school, in the hopes that we might be able to return to that when the pandemic was nearing its end.

Pandemic precautions like social distancing and masking are as important as ever, but I remain confident that these requirements will not outlast our time here at UVA. Extracurricular events, student atmosphere, and (to borrow our school’s favorite phrase) a collegial environment, are part of the reason I chose UVA, and I’m guessing they’re a big reason that you’re here as well.

Holly Bard

1L has posed unique challenges for us all—journal tryouts and internship hunting on top of regular classwork is stressful enough without the social isolation that a pandemic requires. My platform, Here & Beyond, is uniquely tailored to these challenges. 

The first phase, Here, focuses on utilizing our budget to provide the types of wellness resources we need through the rest of  a challenging Spring semester. For example, as an elected representative on First Year Council, I’m spearheading an initiative to get free Headspace memberships for our entire class. 

The next phase, Beyond, is about making up for lost time. Many of us were attracted to UVA Law by its reputation as “the fun T14.” Once social distancing restrictions are relaxed in the Fall semester, I want to program as many social events as possible so we can see the fun side of UVA Law for ourselves.

John Brown

Look, I’ve never been involved in student government. In college I didn’t think any group of students could accomplish anything important for a student body of over twenty thousand. But the smaller size of the law school makes me believe that the SBA can actually markedly improve the experience of everyone at the law school. I hope to be able to help the school bounce back from this Zoom filled year in my role as a senator and see what the limits of what the SBA can accomplish are!

Juhi Desai

I think my platform can be boiled down to one word - community. I’m interested in being an SBA senator because I care about the law school community and I’m interested in helping serve it. I consider myself an ally and an advocate and I think I’d do a good job as senator of listening to our peers, really hearing what they need to feel supported and safe and then making those things happen. I love planning events which would be great for the programming portion of SBA and I also love talking to people which would be great for the advocacy side of SBA. I just want everyone in law school to be vibing and feel comfortable and supported here and I hope to help with that as a senator.

Mita Ramani

Hi, UVA Law! My name is Mita Ramani, and I am running for 2L Senator. Over the past year, I have had the honor of serving as your 1L Senator. Our class has faced unprecedented challenges. Yet, we have persevered, and our success during 1L is a testament to our resilience. As your 2L Senator, I hope to plan events that give our class the chance to foster deeper connections, explore the Charlottesville community, and frankly just have more fun (Bar Review and Barristers anyone?!). I also hope to work closely with the Diversity Committee and new Assistant Diversity Dean to push forward new initiatives to make UVA Law a more inclusive and equitable community. I deeply appreciate how working in SBA has given me the opportunity to voice student’s concerns to the administration and SBA at large, and I hope to continue this work next year.

Riley Segars

My name is Riley Segars, and I am running for 2L Senator. During my first term, I carved for myself a position where I was able to raise many concerns from students that the law school often overlooked. For example, I helped make sure that the bookstore accommodated overseas and remote students by advocating for extending the deadline for when books had to be returned after first semester. Going into 2L, I plan to keep this mentality of looking out for all the people of the Class of 2023. SBA is meant to advocate for the needs of every student, including those who, like me, have no idea what the heck is going on and are just faking it until they make it. As such, I will continue to advocate for flexibility and adaptability, especially given the uncertainty of how the law school will be next year.

Trevor Floyd

None of us got the UVA experience we expected this year. That means we have to go double next year, for everyone in our class and especially for the people who will be showing up to Charlottesville for the first time as 2Ls. Keggers in Spies? Yes. Softball? Yes. Admitted Stu – er, Matriculated Students Weekend? Yes! Your great idea? Sure, we’ll do that too! We can make this whatever we want it to be, so why hold back?

Rebuilding the UVA Law community – in fact, making it better – has to happen fast and it has to include everyone. In my previous life, I produced theatre, which means I am used to working with a diverse team of people, making money go far, and successfully pulling off the impossible. So if building an even better UVA Law seems impossible, then I’m your guy.

UJC Rep Platform

Virginia Law Weekly March 17, 2021

This year, the Student Bar Association (SBA) is running contested elections for the President, Vice President, and 3L/2L Senator positions. While uncontested, the platform for the candidate for the University Judiciary Committee Law Representative is featured below, and voting will be open from Wednesday, March 17 until Friday, March 19. We encourage you to learn more about the debate and the candidates, as well as exercise your right to vote for your upcoming SBA representatives!

This statement is presented unedited so that you may consider the candidates based on their own work.

Dear UVA Law classmates:

I submit I am qualified to serve as one of your two University Judiciary Committee ("UJC") Law Representatives for four reasons.

First, because I have responsibly served on university disciplinary boards before. I was appointed by my college's administration to serve as a student representative on the college's Sexual Misconduct Board. In this role, I served on three-person panels that adjudicated student Title IX claims, ranging from sexual harassment to rape.

Second, because my principal legal interest is in the concept of a "fair trial"; specifically, how procedural rules protect this outcome. UJC Representatives (a.k.a. judges) must appreciate this area of the law because, as a public university, U.S. constitutional protections apply. In particular, the Fourteenth Amendment's Due Process Clause. Under U.S. Supreme Court precedent, the clause ostensibly protects against the "unfair or mistaken findings of misconduct and arbitrary exclusion from school." Goss v. Lopez, 419 U.S. 565 (1975). In the U.S. Court of Appeals for the Fourth Circuit, due process means "the opportunity to be heard at a meaningful time and in a meaningful manner." Tigrett v. Rector and Visitors of University of Virginia, 290 F.3d 620, 630 (4th Cir. 2002) (quoting Richardson v. Eastover, 922 F.2d 1152, 1160 (4th Cir. 1991)). In short, my interest in due process will make me a consistent voice for enforcing strict procedural regularity on UJC.

Third, this summer I will be interning in chambers for a federal district court judge, who is also a former federal prosecutor. I expect that, in this experience, I will learn how to better balance the interests of the accused against the accuser. This, I trust, will serve me well as a judge on UJC.

And fourth, I have been endorsed by The Cavalier Daily, the University's student newspaper.

I hope to earn your vote.

Adam Younger

More Mercy: Criminal Justice, Twitter, and Beyond

Virginia Law Weekly March 17, 2021

Jacob Smith ‘23
Professor Liaison Editor

Should we define people by their worst acts? Of course not! Especially at a time when criminal justice reform is increasingly popular, it is uncontroversial to say that American criminal justice ought to be more merciful. What was surprising about Judge Stephanos Bibas’s talk on “The Decline of Mercy” was not the principles he applied to criminal justice reform, but their striking application to how we treat each other on social media and as aspiring lawyers.

Judge Bibas’s “The Decline of Mercy” talk occurred on Wednesday, March 10, hosted by the Federalist Society. Judge Bibas is a former Assistant United States Attorney and currently sits on the Court of Appeals for the Third Circuit.

Mercy is an important principle in criminal justice. Mercy tells us to judge acts, not actors. As Judge Bibas described it, mercy is that which allows us to grow beyond our past wrongs and “turn over a new leaf.” Without mercy, Judge Bibas seemed to imply, punishment would last forever and we would always carry the guilt of past wrongs.

According to Judge Bibas, our criminal justice institutions do not embody mercy the way that they should. While activists tend to be suspicious of the past, Judge Bibas suggested that modern criminal justice can learn something from the American colonial era when it comes to mercy. Specifically, American criminal justice has neglected three themes: punishing wrongs instead of wrongdoers, confronting criminals face to face, and looking forward instead of backward.

Punishing wrongs, not wrongdoers

Judge Bibas described colonial criminal justice as focused on “punishing wrongs, not de-personing wrongdoers.” Severe penalties like hanging or banishment were rare. More often, lawbreakers would be required to pay a fine or make an apology. Even public shaming tended to be swift and soon over. Wrongdoers would receive “swift and temporary” punishment, and then they would be forgiven and reintegrated into the community. A common Christian faith contributed to a common sense of humanity: “We’re all sinners, and we all deserve some punishment, but we all can turn over a new leaf.” But today, when our felons are released from prison, they cannot vote or live in public housing, and they may be forced to disclose their criminal records on job applications. Judge Bibas described them as “a permanent class.”

Face-to-face

Having the public confront wrongdoers face-to-face is also valuable. Judge Bibas described criminal adjudication in the colonial period as “centered around jury trials” and akin to a “morality play.” Lawbreakers received their punishment and verdict in a very public way. Local criminal justice occupies much less public attention today. Criminal justice is “professionalized.” Jury trials are rare. In response to a student question, Judge Bibas acknowledged that jury trials do require more resources today in part because of valuable procedural protections. However, other aspects of jury trials could be streamlined. One negative result of our extremely low rate of jury trials is that the public is less aware of how criminal defendants fare in our courts.

Forward-looking

Third, criminal justice ought to look forward more than it looks backward. First-semester criminal law taught me that retribution and deterrence are big players when it comes to justifying criminal penalties. However, Judge Bibas thinks those backward-looking justifications should take a back seat to the wrongdoer’s future. Crime is generally not a rational act, and so an ex-ante law-and-economics perspective is less relevant. But people do change, and criminal justice should account for that. Once again, things were different in the colonial era. “Judges and juries could accept apologies, they could recognize change, they could nullify and reduce punishments,” Judge Bibas said.

Mercy on Twitter

Criminal justice reform is hard enough. However, Judge Bibas was not content to stop there. Judge Bibas brought his three themes of mercy to bear on social media. Theme one: we should not define someone by their worst act—even if that act consisted of evil words posted online. Theme two: we should face criminal wrongdoers face to face. We should also not “hide behind phone screens” and dehumanize those we disagree with online, but keep on engaging them. Theme three: “there should be no civic death penalty.” We ought to allow wrongdoers a chance to repent—even when the wrong is a tweet.

Mercy for Lawyers

Finally, how can we be merciful lawyers? Judge Bibas offered some suggestions during his speech and the question-and-answer period that followed. We should listen to understand, instead of listening to respond. Judge Bibas mentioned that taking notes while listening can be helpful. We should also start with the assumption that others are acting in good faith. As a judge, for example, one should “read the majority opinion with great care,” and only then decide one will dissent. And we should treat others with the same respect and dignity with which we want to be treated.

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js3hp@virginia.edu

Justice Through Education: Reclaiming Our Democracy

Virginia Law Weekly March 10, 2021

Sai Kulkarni ‘23
Culture Editor

On March 2, CARE at UVA Law hosted an event with three distinguished scholars and advocates to discuss the role of education, citizenship, and diversity in fighting back against the problems that led to the insurrection on January 6, 2021. Professors Erika Wilson of the University of North Carolina School of Law and Rachel Moran of University of California, Irvine School of Law, as well as Mr. David Hinojosa of the Lawyers Committee for Civil Rights Under the Law, framed the discussion by focusing on how school lines creating de facto segregation can lead to events like that of January 6th. Our own Professor Kimberly Robinson was a fantastic moderator, who introduced plenty of important points of her own.

Speakers pictured from laft to right: Erika Wilson (Photo Curtesy of https://law.unc.edu/people/erika-k-wilson/), Rachel Moran (Photo Curtesy of https://www.law.uci.edu/faculty/full-time/moran/), David Hinojosa (Photo Curtesy of https:// lawyerscomm… — Speakers pictured from laft to right: Erika Wilson (Photo Curtesy of https://law.unc.edu/people/erika-k-wilson/), Rachel Moran (Photo Curtesy of https://www.law.uci.edu/faculty/full-time/moran/), David Hinojosa (Photo Curtesy of https:// lawyerscommittee.org/staff/david-hinojosa/).

Before going any further, I want to note that the talk was both highly informative and interesting. The event lasted an hour, but I ended up with over four pages of notes because I wanted to make sure I noted all of the essential points they were making. I came away from the event more educated and with a desire to take a class from Professor Robinson in the future.

The discussion was focused on the idea of a “shared fate” between all Americans: the idea that we are all in this together and helping our fellow citizens is key to our success as a nation. All of the panelists pointed to the breakdown of this concept, with educational segregation as a major cause behind the divisions and hatred leading to the insurrection (and broader society today). Each panelist presented a number of problems and solutions initially, followed by a brief Q&A session. Rather than attempting to cover all of the numerous issues presented by the panelists, I think focusing on the main ideas proposed by each, along with their proposed solutions, will give readers the best taste of the event.

Mr. Hinojosa opened with the idea that learning together helps kids understand, respect, and accept one another’s differences. He focused on the dual problems of re-segregation and the lack of proper civic engagement in schools. He pointed out that we are not only re-segregating schools by site location, but by housing, transportation, and school choice as well. Essentially, private and charter schools are allowed to self-segregate; even schools that are targeted at one group (i.e., Black students) perpetuate segregation through isolation. Mr. Hinojosa also noted that increasing school funding won’t solve everything. Better state laws outlining support for civic education are needed. High stakes testing drives what is being taught, so pulling back from that approach can promote the kind of educational and civic engagement needed to re-assert the idea of a shared fate.

Professor Moran of UCI focused on racial inequities in education and how the education system is unequipped for the age of disinformation. Racial inequity, she pointed out, prevents students from becoming active participants in our democracy. Students with fewer resources are not given the help needed to earn good paying jobs, relegating them to the margins of the economy and politics. Professor Moran argued that even the kids who “escape” segregated schools [she used this descriptor with clear reservations] are denied access to social networks enjoyed by some of their classmates, which can be stepstones to the middle class.

With regards to the other problem, she points out that the pandemic showed how inept the schools are for the social media age. There is no discussion about educating consumers about the information on social media. The inability to discern between fact and lies on the internet was a major contributing factor to the insurrection. Thus, she advocated for including discussions of important issues into the curriculum. Professor Moran even proposed having Big Tech enter into classrooms to teach about both private and public information (especially on data mining and privacy) and educate students to be better producers of content.

Professor Wilson focused on the opposite side of school segregation and the entitlement it creates. She pointed out that segregation concentrates advantage by creating predominantly white and affluent schools. Symbolic messaging, she emphasized, is important. The idea that in a racially diverse area there are stratified, segregated schools can foment a feeling of entitlement, winners, and losers due to the allocation of resources. The racial isolation and economic isolation create a segmented society with some idea of a hierarchy and harms the idea of the “shared fate.” It prevents us from focusing on the needs of children collectively and keeps parents focused on the needs of only their own child.

Inequality skews more privileged people towards their own view of where they belong in a democracy, and leads them to support voter suppression (and participate in events like the insurrection). Professor Wilson’s idea of a practical solution is based on her research in school district lines: she wants to eliminate the commitment to community funding and boundaries. More succinctly, she wants more creative funding mechanisms and to get away from property taxes being the main funding source for schools.

The three panelists brought up a lot of important ideas when thinking about how education can play a role in the divisions that underlie our society. In the Q&A session, they discussed how interschool tracking (AP kids vs. non-AP kids) and charter school funding mechanisms can also undermine the “shared faith idea.”

I admit that the vast majority of this article was me recounting the findings and proposals of these esteemed scholars. Unlike the vast majority of what I’ve written for the Law Weekly, there are no hot takes to be written here. The sad reality is that we are at a time of deep division and educational segregation. Though schools are no longer under the official policies defeated by Brown v. Board, we still find ourselves separated from one another at a young age due to administrative workarounds. The two problems of civic disengagement and school boundaries causing de facto segregation are intertwined. I hope my fellow law students, who will shape the policies of tomorrow, take the discussion I distilled above and internalize it. Reshaping how we approach curriculum, funding, and the boundaries of education could be essential to the future of our Republic.

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omk6cg@virginia.edu

Crossfire: The Adequacy of Antitrust Law

Virginia Law Weekly March 10, 2021

Donna Faye Imadi ‘22
Current Events Editor

On March 3rd, UVA Law’s Federalist Society ushered in the forthcoming Spring season by hosting a vibrant discussion on the ever-blossoming topic of “The Adequacy of Antitrust Law: Is Big Tech too Big?”

On one hand, Jessica Vu[1] advocated yes - with a spin. Big Tech is not subject to antitrust discipline due to inherent size; rather, the anticompetitive practices of Big Tech are the impetus for reining in their power under the Sherman Act. On the other hand, Daren Baskt[2] advocated for viewing antitrust law in the eyes of the “consumer welfare standard” (a standard which assesses welfare by the metric of price to consumers). Baskt’s case hinged on the concern that antitrust reform aimed at Big Tech would have consequences across the economy and is unnecessary for ensuring preservation of consumer welfare.

Moderating the debate, Professor Paul Mahoney quickly passed the baton to Professor Thomas Nachbar, who laid the groundwork for issues animating antitrust in Big Tech. Professor Nachbar elaborated on what the law is, leaving ideas about what it will be or should be to Vu and Baskt.

Professor Thomas Nachbar | Multisided platforms and network effects

“Antitrust law is about competition and largely ignores issues pertaining to social harms,” Professor Nachbar opened. He further introduced the broad debate over the ‘consumer welfare standard’ and whether antitrust should be used as a tool to address harms beyond “increased prices” to consumers. He left this an open question, as it currently animates the debate within the broader field.

With this theme in the fray, Professor Nachbar narrowed his presentation to Big Tech. He explained how the Supreme Court decision in Ohio v. American Express, “was the first opportunity for the U.S. Supreme Court to address antitrust harms in complex multisided-platforms, adopting an economic understanding with an emphasis on collective pricing of complementary products.” This is significant, he went on, because although multi-sided platforms are not limited to Big Tech, they do characterize the nature of these companies’ operation (Google, Facebook, Amazon, Apple).

So, what are multisided platforms? In the context of social media, they are platforms with two groups: Users [group #1] and Advertisers [group #2, connected by the platform intermediary site [i.e., Facebook, Google]. Another more palpable example is Uber. There are riders [group #1], and drivers [group #2], the Uber app connects the two.

Professor Nachbar continued, these “two-sided platforms are characterized by indirect and direct ‘network effects,’” which influence the amount of users on both sides of a platform. The greater the number of users on one side, the more likely others will join that same side of the platform, which is a direct network effect [the more friends you have on Facebook, the greater likelihood you will join it, as opposed to MySpace]. This direct network effect creates more users on one side of the platform. The benefit of those direct effects in group 1 influences the reward reaped across the platform by group #2 [the advertiser side] because more people will see advertisements. Thus, advertisers reap benefits across the two-sided platform [an indirect network effect].

He then explained how this two-sided structure complicates the antitrust inquiry of consumer harm across the platform and calculus of market power, citing issues that arise in a winner-take-all market structure. Then, Professor Nachbar passed along this sketch to Vu and Baskt to color in.

Jessica Vu | Sherman Act enforcement against conduct, not structure

Vu did not argue that “Big is bad.” She meticulously cast her view within the scope of the Sherman Act, arguing that antitrust laws need to be enforced against Big Tech firms’ conduct, not merely as a result of their structure, stating that “[the] crime is taking action that hurts competition”, not that they are “too big.” She maintains that the consumer welfare standard is predominant, but that consumers are being harmed if one measures the cost as decreased choice [acquisition of potential competitors], quality [as measured by privacy degradation], and innovation.

Vu furthered that enforcement is justified in light of measures by 48 state Attorneys General (AG) and the Federal Trade Commission suing Facebook, and two recent lawsuits against Google by the Department of Justice and 11 state AGs. She continued that these complaints “illuminate anticompetitive conduct, such as antiforking agreements, copying, self-preferencing, revenue-sharing agreements, exclusive contracts,” allegedly deployed to restrain competition. Although many of these allegations are not traditionally seen as anticompetitive on their own, innovative theories of harm or greater legislative guidance may be required to mitigate these harms. “There is no special exception for the tech industry because they exist online. Just because it’s hard to physically realize their power,” she said.

Overall, her view was that, “these lawsuits are not punishing businesses,” rather they are “punishing businesses for the conduct of breaking antitrust laws.” Her bottom line: “Big Tech threatens the free market and competition. Consumers/businesses stand to suffer in absence of action.”

Daren Baskt | Stick to tradition. Beware of “a cure worse than the disease.”

Countering, Daren Baskt represented that antitrust should be focused on consumer welfare, as defined by Robert Bork’s writings in the Antitrust Paradox. By determining antitrust inquiries in strict economic terms (measured by impact on price), he argued, antitrust will be less-prone to unpredictability and the social-policy preferences of judges.

“Antitrust is the wrong tool for addressing bias/censorship concerns,” Baskt said. Further, he warned “reform aimed to reach exclusively Big Tech will lead the federal government to use antitrust as a ‘weaponized’ tool ‘across every industry.’” Citing Justice Scalia’s opinion in Verizon v. Trinko, Baskt voiced concern that new legislative proposals punish “being Big,” and may disincentivize innovation. He identified proposals that would make it difficult for start-ups to have “exit-options” and shifts in burdens-of-proof as particularly problematic.

Baskt concluded that any “policy issues should be specifically, narrowly drafted to fit the harm,” not create broad antitrust reform. The U.S. is the world’s tech leader. “Why should we threaten that leadership?” he ended.

Consensus Borne of Debate?

If Baskt concedes that Big Tech has been engaging in unlawful conduct, then it’s possible that “the green light to the federal government to reshape entire industries,” as he put it, is not necessary to discipline Big Tech. Rather, as Vu put it, citing Northern Pacific Railway, Section 2 of the Sherman Act is sufficient to reign in Big Tech to allow “unrestrained interaction of competitive forces” to “lead to the best allocation of our economic resources, lower prices, highest quality, and greatest material progress…”

At this time, it is competition in the marketplace of ideas and competing policy preferences that are animating the antitrust debate. In the spirit of antitrust, we must hope that the loudest voice in the room does not stifle others, but that the most “meritorious” proposals will chart the path ahead.

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dfi3un@virginia.edu

[1]Current Chief Counsel to Senator Marsha Blackburn (R-Tennessee), where she advises on Senate Judiciary Committee issues.

[2] Senior Research Fellow at the Heritage Foundation