Professor Citron Discusses New Book

Virginia Law Weekly November 2, 2022

Ethan Brown ‘25
Samuel Ellis '25
Staff Editors

*Pictured:* Professor Citron answers student questions.
*Picture Credit:* Samuel Ellis '25.

On October 24, Professor Danielle Citron gave a brief talk and answered a panel of student questions about her recently released book, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. The event was jointly sponsored by LawTech, the American Constitution Society, If/When/How, the Black Law Students Association, the Lambda Law Alliance, and Law, Innovation, Security & Technology (LIST).

Professor Citron introduced her book by defining its focal point: intimate privacy. Intimate privacy consists of our innermost thoughts and bodily integrity, and Professor Citron said that these crucial elements of our personal lives are under threat, thanks in part to the rise of digital technology and eroded privacy protections.

To illustrate the types of intimate privacy violations that Professor Citron is worried about, she led with an anecdote about Joan, a recent law school graduate. While traveling for work, Joan stayed at a hotel. Much to her horror, after checking out of the hotel and returning home, she received a video from an anonymous source of her undressing and showering in her hotel room—someone had bugged the hotel bathroom. This source threatened to leak the video to all of Joan’s professional and personal contacts unless she provided more naked photos of herself, and when Joan refused, the video of Joan appeared on PornHub—with her full name embedded in the video—within twenty-four hours. The video quickly spread to 300 other adult websites. Joan’s social media accounts were compromised, and the video was sent to her colleagues, friends, and family members. When she contacted individual sites to get the video taken down, she was routinely denied, or worse, asked to send additional nude images and videos in exchange for the video’s removal.

Joan’s experience shows how digital apps and sites can so easily enable mass privacy violations and lead to intense personal damage in the process.

“Before, Joan loved using social media. Facebook was how she kept in touch with her high school friends. So, because she knew her social media would be weaponized against her, she shut it down,” Professor Citron said.

Professor Citron noted that almost every aspect of our personal lives, even at a granular level, is cataloged by our devices. Where we eat, where we work, who we spend time with, who we sleep with—all of these intimate details are monitored by our phone applications. Professor Citron asked audience members to raise their hands if they’d ever read any of the privacy agreements they signed with various companies and phone applications—aside from a few of her students, nobody had.

Professor Citron explained that everybody has a role to play in the preservation of intimate privacy and protection against its violation. She noted the widespread consumption of digital pornography, which, as detailed in the story of Joan and too many people like her, is rife with intimate privacy violations. Every visit to an adult website, every click, and every subscription signifies monetary contributions to an industry which profits from intimate privacy violations.

“The difficult news is that our intimate privacy is woefully underprotected,” Professor Citron said.

With this context in mind, Professor Citron then turned to answer questions from students, who were members of the several organizations sponsoring the talk. Zoe Kiely ’25 asked Professor Citron for guidance about how queer youth—particularly in states like Virginia, where their rights at school are under siege—can safely navigate online spaces where their privacy may be put at risk.

Professor Citron encouraged all young people, particularly those in marginalized communities, to seek out support in digital spaces and emphasized that those spaces were important tools. But she also reminded them that the average perpetrator of digital intimate privacy violations has about 300 victims before getting caught, so young people should act cautiously and avoid certain behaviors—like sending nude photographs—which severely jeopardize their safety.

Representing the Black Law Students Association, André Earls ’24 asked Professor Citron if there were ways to leverage intimate data to empower marginalized communities. Professor Citron noted that “surveillance is a story of Black surveillance and surveillance of marginalized communities.” The problematic foundation of surveillance renders its use for empowerment to be what Professor Citron calls a “hard possible.”

Professor Citron then compared the United States’s grappling with intimate privacy concerns to similar problems around the world. She noted South Korea as a positive example for what can happen when people successfully organize for government protections against intimate privacy violations. Before the protections, South Korean public bathrooms were routinely recorded so that when women used the restroom, an intimate video was taken and later uploaded online. The heinous practice, known as “molka” (or 몰카), was named after a Korean prank television show and resulted in women either avoiding public bathrooms or carrying a mask and a gap-filler to block the view of the stall interior from the rest of the restroom. Public demonstrations in the late 2010s garnered tens of thousands of protestors and led to the successful lobbying of the South Korean government to take action against the practice. Professor Citron, working with the South Korean government, noted that one of her first key suggestions was to cease the use of the term molka and instead refer to the practices as “digital sex crime content,” so as to indicate the seriousness of such intimate privacy violations.

Professor Citron closed the talk by encouraging attendees to engage with their colleagues about what data privacy and the protection of intimate information means to each individual.

“Let people in your life know your expectations about sharing your email and text. Whatever it is, have conversations with people you care about and communicate with them about the types of privacy you expect of each other. . . . That ought to be how we live every day of our lives.”

Still, Professor Citron warned that while there are steps that can be taken on an individual basis, there is much work to be done before the conundrum of intimate privacy violations can be solved. “It’s a Band-Aid for a bomb.”

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bwj2cw@virginia.edu
sav5mv@virginia.edu

Students Walk Out as Congressman Speaks

Virginia Law Weekly October 19, 2022

Jon Peterson '23
Co-Executive Editor

On Tuesday, October 4, Bob Good, the U.S. House Representative for Virginia’s Fifth District,[1] came to speak to students at the Law School. The talk was originally going to be a small one, set in Brown 104. When I arrived, there were roughly ten boxes of food that had, presumably, been readied for those who RSVP’d to the event. However, far more than ten students were present. Unbeknownst to the administration and the student body at large, the National Lawyers Guild and the Immigration Law Society had planned a walkout for the event.

The walkout was kept secret. According to the organizers, this was to prevent the School’s administration from getting involved by sending the University’s speech policy to protesters and organizers alike. The speech policy, many claim, is designed to make students second-guess their decision to protest. Ariana Smith ’23, one of the organizers, stated that she believes the speech policy is intentionally vague in order to induce anxiety for both organizers and protesters alike when considering whether they will face disciplinary actions for exercising the right. Another purpose of keeping the protest secret, Smith said, was simply to heighten the impact of the protest. “We wanted the walkout to come as a shock, because we think this made our protest more effective.”

It certainly was a shock. Rep. Good arrived to a classroom full of what one can only assume he believed to be students interested in hearing his message. After a paltry applause upon his arrival,[2] the instant the representative began to speak, roughly 85 percent of the room stood up and departed. What happened after the departure is anyone’s guess.[3] However, protesters did not stop at simply getting up and leaving. One of the most fiery moments came when, as he was exiting the classroom, Spencer Haydary ’23 turned and said the following to Rep. Good: “For someone who thinks we're groomers and pedophiles, you sure think about what's in between a trans kid's legs way too much.”

Statements like this are levied at Rep. Good for a handful of reasons. Not to mention accusations that Rep. Good is xenophobic,[4] anti-science,[5] and spreading “stop the steal” election lies,[6] Rep. Good’s first public vote on the Campbell County Board of Supervisors was to reject the Supreme Court’s decision in Obergefell.[7] Rep. Good primaried the former representative for the Fifth District, Denver Riggleman, after Riggleman officiated a same-sex wedding, making that officiation a key point in his campaign.[8] Further, Rep. Good has recently co-sponsored a bill that would render the provision of gender-affirming care to trans youth a felony nationwide.[9]

It is because of this record that the organizations planned the protest. They believe that, by welcoming Rep. Good to speak at the Law School, the Law Republicans have given “a platform to—if not actively endorse[d]—everything that [Rep.] Good stands for and has stood for.” Their goal when organizing this protest, said Warren Griffiths ’23, another organizer, was to challenge the “public conception of UVA Law as a conservative safe haven.” Griffiths went on to point out that, while this vision of the Law School does exist, “you could count on one hand the number of students who actually wanted to attend this event.” For the organizations involved, Griffiths stated, “this protest meant proving to everyone in our community . . . that UVA Law is not a space where these harmful opinions can be invited and voiced comfortably and without resistance.”

This method of protesting raises questions. Questions both about the protest’s efficacy, and about the role that students and student organizations should have when inviting controversial speakers, especially those who are elected representatives, to speak to our community. For organizers like Griffiths, individuals with viewpoints like Rep. Good simply have no place. They are out of step and harmful. Smith, on the other hand, believes that while speakers like Rep. Good cannot be prevented from coming to the Law School, when they do choose to come, they should expect to be met with resistance. “Come if you want, but be prepared to answer for what you’ve said and the atrocious harms you’ve committed,” says Smith. Both speakers, however, do believe that the Law School neither can nor should play a role in either inviting speakers like Rep. Good to the school (either endorsing or sanctioning the decision) or in preventing or encouraging students to protest such events, as the administration often does by circulating the speech policy.

A question raised by this event is whether a speaker can be simply too controversial to be brought to the Law School. While nobody would expect an organization to pull a random person with Rep. Good’s views off the street to come speak, it is another question when that individual is a duly elected representative. Especially when they represent the district in which we currently reside. In many respects, this was a matter of Rep. Good coming to speak to his constituents—young, conservative law students, some who agree with many of his views, and others who do not. Simply put, the fact of Rep. Good’s position as a representative complicates opinions on whether he should be welcome.

It also raises the following question: Are some views, even if held by a majority of the constituents in an area,[10] simply too harmful to a community, which represents a subset of that larger constituency, to warrant giving an individual with those views a platform? What if Rep. Good was not a representative, and was instead an influential legal theorist, or a corporate lobbyist? Would his views be less worth airing out in the public forum of a Law School community that is, truthfully, not represented by Rep. Good in the slightest? In short: At what point does an individual become simply too harmful to speak, and how should that individual’s position affect the calculus? There are no easy answers to this question.

Suffice it to say, the number of protesters at this event far outweighed the number of attendants. So, while Rep. Good may represent some people, it seems that he does not represent us. Perhaps this is an argument for complete exclusion of people with views as incendiary as Rep. Good’s. Perhaps this is all the more reason to present those views here, in a place where they will actually be challenged. Ultimately, however, the protest and Rep. Good’s presence itself were examples of appropriate political discourse occurring at a dangerously influential institution. And, if nothing else, coming together in protest is a powerful thing. “I felt a strong sense of unity with my peers,” said Smith, when asked about why she helped organize the event. That unity, and that sense of community, were some “of the things we had initially hoped to accomplish when we planned the protest.” And, if nothing else, that aspect of the protest was an undeniable success.

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jtp4bw@virginia.edu

[1] Our district.

[2] Incidentally, it was a lone protester who applauded his entrance.

[3] Except for the handful of students who stayed.

[4] Mabinty Quarshie, These 16 Republicans voted against speeding up visas for Afghans fleeing the Taliban, USA Today, https://www.usatoday.com/story/news/politics/2021/08/17/16-republicans-voted-against-special-visas-help-afghanistan-people/8163392002/.

[5] Meagan Flynn and Laura Vozzella, Rep.-elect Bob Good calls the pandemic ‘phony.’ Covid-19 has killed more than 300 in his district, Wash. Post, https://www.washingtonpost.com/local/bob-good-phony-pandemic/2020/12/14/a0f4b504-3e1c-11eb-8bc0-ae155bee4aff_story.html.

[6] Rep. Bob Good’s Statement on Electoral College Certification Vote, https://good.house.gov/media/press-releases/rep-bob-goods-statement-electoral-college-certification-vote. To be fair to Rep. Good’s stance in this press release, he does not outright say that Trump should be president—rather, he uses the typical dog whistle of claiming that the votes must be reviewed to ensure electoral legitimacy.

[7] Meagan Flynn, From quiet Falwell Acolyte to bombastic Marjorie Taylor Greene ally: A freshman lawmaker’s political evolution, Wash. Post, https://www.washingtonpost.com/dc-md-va/2021/12/10/bob-good-liberty-university/.

[8] Catie Edmonson, G.O.P. Congressman Is Ousted from Right After Officiating at Same-Sex Wedding, N.Y. Times, https://www.nytimes.com/2020/06/14/us/politics/denver-riggleman-virginia-primary-bob-good.html. This wedding was between alumni of both the Law School and the business school.

[9] Jennifer Shutt, Va. Rep Good joins GOP drive to criminalize gender-affirming care for transgender youth, Va. Mercury, https://www.virginiamercury.com/2022/09/20/marjorie-taylor-greene-leads-gop-drive-to-criminalize-gender-affirming-care-for-transgender-youth/.

[10] This is not to imply that Rep. Goods’ views are actually held by a majority of his constituents—they may very well not be.

LawHoos Register to Go to the Virginia Poll

Virginia Law Weekly October 5, 2022

Andrew Allard '25
Staff Editor

*Pictured*: ACS's Voter Registration Tabling.
*Photo Credit*: Andrew Allard '25.

With Election Day fast approaching, the American Constitution Society, If/When/How, Lambda Law Alliance, the National Lawyers Guild, and the Virginia Environmental Law Forum jointly organized a week-long voter registration drive at the Law School that ended Monday, October 3. The powerhouse team joined together, no doubt, with the strategic objective of increasing registration among a group of Charlottesville’s most likely registered voters. “Why report on it, then?” you ask? Because democracy is cool.

Since last Wednesday, September 28, ACS and company have encouraged students—read: 1Ls gunning for 1L rep positions—to volunteer to help UVA Law get out the vote. This laudable goal is naturally unable to escape the derision of a writer for the Virginia Law Weekly. Armed with the persuasive power of Doritos and Snickers, the motley crew told me that they had succeeded in registering at least ten students when I stopped by to check in on them last Friday.

The voter registration drive’s volunteers were aware of the challenges inherent in getting students at the Law School to register in Virginia. Said one volunteer, Grace Allaman ’24, “It’s kind of hard because Virginia doesn’t have a lot of competitive races right now.” Allaman was sure to note that students can still vote absentee in their home state and that the drive would be happy to help students seeking information on absentee ballots.

Allaman is right to say that Virginia does not have many competitive races for the 2022 election cycle. Neither of Virginia’s senators, nor its governor, will face voters this November, and at press time, FiveThirtyEight indicates that all but two of Virginia’s eleven House races are either solid Republican or solid Democrat.[1] Suffice it to say that Charlottesville is not situated in either of the competitive districts. In all likelihood, Charlottesville, and with it, North Grounds, will reprise its dependable role as a blue island within Virginia’s Fifth District. But for what the Commonwealth of Virginia lacks in contested elections this year, it more than makes up for in bright-eyed law students.

As they left the drive last week, I asked some of Charlottesville’s newest eligible voters what motivated them to cast their ballots here in Virginia. Will Schweller ’25 made the bold decision to change his registration from his home-state and noted swing-vote territory, Ohio. Asked why, Schweller said, “I want to get involved locally, and I think it makes sense. I’ll be here for the next three years. I should be voting here.” Another new Virginia voter, Colby Woodis ’25, changed from his previous registration in Tennessee. Woodis offered a similar motivation—his newfound home in Virginia—for changing his registration. Asked if he thinks other law students should register in the state, Woodis answered, “I would encourage others to do what their conscience tells them.”

In the tit-for-tat world of modern American electoral politics, it’s hard not to admire the commitment to community expressed by Schweller and Woodis. But I would be lying to you, reader, if I told you I fully understood their position. As a native New Hampshirite, I know a thing or two about the joys of being wooed by candidates seeking a leg up in a competitive election. In my first year of undergrad in 2015, it was a no-brainer for me to choose an absentee ballot for my home state over registration in D.C. Sure, I’ve been registered in Virginia for a few years now, but from time to time, I do miss the privileges of voting in the Granite State.

Thankfully, I am in good company. Another new Virginia voter, Tara Chowdhury ’25, offered a more pragmatic reason for her change in registration. Chowdhury, previously registered to vote in New York, explained her decision to switch to Virginia, saying, “I am a lot more comfortable with the politics around abortion rights and trans rights in New York than I am with them in Virginia. My vote and views feel like they would count more in Virginia, and the post-Dobbs panel held this September really highlighted how changing our voter registration to be able to vote in Virginia is a first step in trying to preserve our rights.” Now, that, I can understand! Chowdhury also encouraged law students to register in Virginia, mirroring the sense of community expressed by her classmates: “I absolutely think people should register in Virginia while they’re here—it’s our home for at least three years! We have a responsibility to be bettering our community, and I think voting is a fundamental part of that.” Undoubtedly.

The levity with which I treat this topic is probably unsurprising to regular readers of the Law Weekly. But voting is, in seriousness, a sacrosanct duty we have as citizens and as lawyers. Because we are here, we are—hopefully—more familiar with the workings of government than the average person. We know how the law can help and hurt. We also know that the right to vote itself has recently become a target of some lawyers. So, as much as I joke about the decision to direct a voter registration drive at a group of people that probably have not missed an election since they turned eighteen, the drive, it seems to me, is about much more than getting law students to vote in Virginia. It is a statement from the student body that access to voting is a public good. In the face of efforts to undermine public faith in elections and make it more difficult for some folks to vote, ACS et al. make it clear that they think more voter registration is a good thing. I can’t help but agree. Regardless of where you are registered, be sure to go to the polls this November 8.

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tya2us@virginia.edu

[1] https://projects.fivethirtyeight.com/2022-election-forecast/house/

Dean Goluboff Addresses Hate Crime and Admin Response at SBA Meeting

Virginia Law Weekly September 29, 2022

Nikolai Morse '24
Managing Editor

Amidst criticism of the Law School Administration’s silence following an unidentified individual hanging a noose around the neck of the Homer statue,[1] which has been designated a hate crime[2] by the University Police,[3] Dean Risa Goluboff spoke to students at the Student Bar Association’s first meeting of the year. The focus of the conversation was both on the hate crime itself and the Law School Administration’s response to it. SBA President Juhi Desai ’23 opened the meeting, noting the circumstances of the recent hate crime and encouraging questions and dialogue with the members of the Law School Administration present, including Dean Goluboff, Vice Dean Michael Gilbert, Assistant Dean for Student Affairs Sarah Davies ’91, and Assistant Dean for Diversity, Equity, and Belonging Mark Jefferson. Desai ended by posing Goluboff a question she noted was on many people’s minds: Why it had taken until now for the Administration to issue a public statement regarding the incident?

Dean Goluboff, who, earlier in the day, had sent the Law School community an email inviting them to attend the SBA meeting and speak with her regarding the hate crime, began by acknowledging the hate crime and the clear symbol of racial violence conjured by the noose. She noted the noose’s connection to lynching, and that nooses are most closely associated with terrorizing Black Americans and other minorities. Dean Goluboff condemned the act, stating “This hate crime is inimical to our values as a law school and a community. I condemn it in no uncertain terms.” She then noted that “because of its history, [the noose] does not impact everyone equally and impacts our Black students particularly.” Its disparate impact notwithstanding, Dean Goluboff said she viewed acts which threatened anyone in our community as a threat to all of us. Rejecting the message of intimidation and exclusion inherent in the hate crime, Dean Goluboff emphasized that “Every person in this room and school has earned their place here and belongs here. I value you, we all value you, and I cannot say how glad I am that all of you are here.”

Responding to the question posed by Desai, Dean Goluboff first pointed to the statement issued by UVA President Jim Ryan ’92 via email, on September 8th, the day following the discovery of the noose on the Homer statue. Noting that in addition to being her boss, Dean Goluboff said that Jim Ryan is a friend and colleague who shares her values, and she considered him to be speaking for her and the entire university community. Speaking about public statements more generally, Dean Goluboff listed several reasons supporting her default policy of not issuing public statements. First, she noted that, given the prevalence and frequency of tragedies and injustices in our world, if she started making statements, she feared that she would not be able to stop. Further, Dean Goluboff argued that if she issued statements selectively, she worried that “picking and choosing causes to make a statement about may hurt the ultimate purpose of making statements, as I see it: to increase a sense of belonging.” Dean Goluboff said she did not feel this was the best way for her to have an impact or lead the Law School. Dean Goluboff ended by saying she believes there are additional, potentially more constructive ways to continue this conversation and implement action at the Law School and in the Charlottesville community. Specifically, she pointed to her email inviting students to join more intimate follow-up conversations, a dinner with the Black Law Student Association 1L’s earlier in the semester, discussions with UVA BLSA Leadership,[4] and conversations in the last two weeks with 1Ls at section breakfasts.

Following Dean Goluboff’s statement, she took questions from representatives of the UVA Black Law Student Association and other students. Responding to the Dean’s rationale for not issuing statements, one student noted that President Ryan’s statement “does not speak to law students because we do not know President Ryan–you are our leader and statements coming from you mean more to us than statements by President Ryan.” The student continued, “Additionally, while there are many worthy causes in the world, this event occurred in Charlottesville, on our Grounds. Charlottesville has a violent history against Black individuals, and incidents like this, particularly without acknowledgement, push minority students away. The minority community at the Law School cannot grow without active effort to quash racism in the Charlottesville community.”[5] Another student acknowledged Dean Goluboff’s rationale, while pointing out its unintended consequences, saying “I understand your intent, but the impact feels as if you do not care. The silence from others in positions of power in this Law School speaks volumes.”[6]

Other students were at times openly critical and angry with what they saw as a lack of care shown by the administration following the incident. One student said “I’m very angry, for two reasons. One, your response . . . about why you are here. You and everyone is here because BLSA dragged everyone here. Black students did the labor that got everyone here and I don’t want you to erase that. Two, the bigger issue about this is the lack of care. Did any of the black students here get an email from anyone? No. In my class alone there are two black students who left UVA because they did not feel safe or welcome here. Thank you for your apologies, but what is your practice going forward about how you will take care of black students?”[7]

Asked if she would issue a statement the next time a similar hate crime occurred on UVA’s Grounds, Dean Goluboff said she “would definitely think about it.” Amidst laughter and groans, she acknowledged that this was likely unsatisfying but reiterated that she tried to be thoughtful about her communications and actions, and that she appreciated and sincerely intended to consider everyone’s feedback.

Some students expressed frustration with what they saw as the recurring nature of student dissatisfaction with administration responses to incidents affecting students of color and other minority groups. A 3L SBA senator noted that this kind of conversation and apology had been heard multiples times before in their time at the Law School, but perhaps more concerning than the administration making or not making statements is the continued tolerance of an inscription honoring a white supremacist who fought for the Confederacy on the floor outside of the Law Library, despite the recent renovations at the Law School over the summer.[8] Dean Goluboff responded that while she had not previously been aware of this, she has since reached out to the people in charge of building construction and the seal is slated for removal. She also pointed out that UVA Law has a new portrait of Elaine Jones, our first black female student, and that is a statement as well.

Other students asked about the administration’s plans to invest in staff to support diverse students and particularly to ensure their safety. In response, Dean Goluboff stated that she was in conversations regarding hiring another person to work with Dean Jefferson. Regarding safety, the Dean said she was speaking with the Darden Dean and VP of Student Affairs on Main Grounds regarding the bus lines and safety of students returning to places off-Grounds where students live in Charlottesville. Stating that she understood the feeling of safety is a larger issue, Dean Goluboff encouraged students to bring ideas to her on how physical and emotional safety can be improved.

At the meeting’s close, BLSA President, Keegan Hudson ’23, called on everyone in attendance at the meeting to think of ways to make the law school community more inclusive, noting that many Black students do not feel welcome or comfortable at SBA events, or even in the halls of the Law School. Desai concurred with Hudson’s statement, noting that while she had heard from many people who were concerned, this concern was not reflected by the number of people in attendance at the meeting, who were primarily members of BLSA and SBA. Desai further acknowledged that she had received feedback that many SBA events, such as Bar Review, were not felt to be inclusive, and that SBA was working on more inclusive programming.

Additionally, Desai proposed two specific events. First, she proposed a Community Chat, consisting of an open forum similar to the discussion as well as the question and answer session at this meeting, after which SBA could issue a letter summarizing the discussion. Second, Desai proposed a Dean’s Discussion, in which the SBA could moderate a discussion between the Deans present at this meeting, which may be held in Caplin Auditorium, allowing a significant portion of the student body to hear directly from the administration.

Commenting on the SBA meeting and steps moving forward, Dean Goluboff stated “I appreciate the SBA for hosting this important discussion, and I appreciate all the students who attended. I learned a lot from the thoughtful questions and comments. I hope students will sign up for the follow-up meetings I announced in my email, and I look forward to continuing the conversation.”

BLSA issued the following statement:

“The Black Law Students Association would like to thank Dean Goluboff for opening up the SBA meeting to discuss the administration’s response to the noose incident. Unfortunately, we left the meeting largely unsatisfied. We hoped to have a more concrete idea of how the administration will respond differently to future acts of racism on our campus, especially ones as repugnant as a noose at an educational institution an hour away from the former capital of the Confederacy. We challenge the administration to present a tangible plan on how the protocol and responsiveness of the Law School will change going forward. Lastly, we are also disappointed by the lack of action and mobilization from the larger student body, particularly from organizations that have overlapping membership with BLSA. We are of the belief that this is not just a Black issue but rather a schoolwide issue. To that end, we would like to strongly encourage the student body to attend the community conversations Dean Goluboff will be holding on Tuesday, Sept. 27 10:00-11:00am, Tuesday, Sept. 27 2:00-3:00pm, and Thursday, Sept. 29 9:30-10:30am. In the meantime, we look forward to helping our community heal and to working together with the Law School administration on addressing this matter.”

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cpg9jy@virginia.edu

[1] The Homer statue is located at the southern end of the Lawn on UVA’s Main Grounds. Its location makes it among the most prominent and central statues on Main Grounds.

[2] A noose is a recognizable symbol of violence closely associated with the lynching of Black individuals. Leaving a noose on public property is a Class 6 Felony under Virginia state law.

[3] Per the latest update provided by the University Police Department, the UPD is working with the local Federal Bureau of Investigation to enhance the video of the incident and develop more information to identify and apprehend the subject. The UPD has released photos of the suspect and his vehicle and offered a $2,000 reward for any individual who has information helpful in solving the crime.

[4] Dean Goluboff specifically referenced conversations with UVA Black Law Students Association President Keegan Hudson ’24 and Social Action Chair Tommy Cerja ’24.

[5] This quote is taken from the SBA Meeting Minutes for the Tuesday, September 22, 2022 meeting. The minutes are available in the weekly SBA email sent by SBA Secretary Grace Stevens (ggs2tq@virginia.edu) and substantiated by notes taken by Nikolai Morse ’24 while in attendance.

[6] This quote is taken from the SBA Meeting Minutes and substantiated by notes taken by Nikolai Morse while in attendance.

[7] This quote is taken from the SBA Meeting Minutes and substantiated by notes taken by Nikolai Morse while in attendance.

[8] On the seal on the floor outside the main entrance to the library, there is an inscription in memoriam to Henry Malcom Withers, a Confederate soldier who studied at UVA Law from 1868-1870. The Law School Board of Visitors previously approved the removal of Withers’ name from Brown Hall.

Panelists Discuss Conflict Between LGBTQ+ Rights, Religious Liberty

Virginia Law Weekly September 29, 2022

Ethan Brown ‘25
Staff Editor

The Karsh Center for Law and Democracy hosted a panel on the intersection of LGBTQ+ rights and religious liberty on Friday, September 23. Panelists discussed conflict between activists on both sides in statehouses and courtrooms across the country before debating the merits of legislative intervention in addressing the issue.

The four panelists—former Utah Supreme Court Chief Justice Christine Durham, Yale Law School Professor William Eskridge, Jr., ACLU Women’s Rights Project Director Ria Tabacco Mar, and University of Illinois College of Law Professor Robin Wilson ’95—were joined on stage by Professor Craig Konnoth, who moderated the conversation.

The panel occurred just days after the Supreme Court denied Yeshiva University’s attempt to block a New York state ruling requiring the university to recognize an LGBTQ+ student rights group. Panelists also noted the relevance of pending Supreme Court case 303 Creative LLC v. Elenis before beginning the conversation.[1]

Professor Konnoth first asked the panelists for their perspective on the extent to which there is conflict, if at all, between LGBTQ+ rights and religious liberty in modern America. Justice Durham said that she did see a conflict between the two sides and pointed to a rise in militant religious assertiveness as a contributing factor in rising tensions. She also explained that dialogue surrounding religious liberty is increasingly focused on the free exercise of religion, almost to the point that activists neglect the Establishment Clause also included in the First Amendment.

“I am constantly reminding people that there are two clauses in the Constitution in the First Amendment regarding religion, and the first clause is that there shall be no establishment of religion . . . I find that a lot of the people I talk to want to go straight to free exercise of religion,” Justice Durham said.

Following up on Justice Durham’s comments on religious expression, Professor Eskridge emphasized that both parties—LGBTQ+ people and religious people—feel that their dignity and self-expression are at stake in interactions like that exemplified in the 303 Creative case. Just as being denied service because of one’s sexual orientation or gender identity is an affront to equality and liberty, Professor Eskridge noted, deeply religious individuals see their own freedom of expression in jeopardy amid changing cultural tides.

“Both sides see themselves as dispossessed,” Professor Eskridge said.

Tabacco Mar was reluctant to equate the two sides’ experiences and argued that conflict between LGBTQ+ rights and religious liberty is just “old wine in new bottles”—that is, a replication of similar battles between racial equality and religious liberty that unfolded in the courts last century. Tabacco Mar brought up the case of Newman v. Piggie Park Enterprises, Inc., where a South Carolina restaurant owner was sued for forbidding African Americans to dine inside his establishments. The courts deemed that, despite the owner’s deeply held religious belief that integration went against the will of God, the policy was incompatible with Title II of the Civil Rights Act of 1964, which protects access to public spaces, regardless of race.

Tabacco Mar said that the quandary of the website designer or cake baker who refuses to perform for a same-sex couple echoes the tension between race and religious belief shown in Piggie Park. She implored audience members to question their discomfort in extending the same protections for LGBTQ+ people in public spaces.

“If it feels uncomfortable in this context, I really urge everyone to ask themselves, ‘Why is that so?’ and to ask why the existence and equal dignity of LGBT people feels so troubling when we’ve come to accept equal dignity of so many others,” said Tabacco Mar.

Wilson agreed with Tabacco Mar that all LGBTQ+ people deserve to wear the “badge of citizenship” that comes with participating in public spaces. But she also cautioned that making these interactions a zero-sum game—and forcing a conflict by making people pick sides between a religious small-business owner and a same-sex couple—is a risky bet for LGBTQ+ rights activists.

“If Republicans see it as a conflict between LGBT persons and a shop owner, they’ll pick the shop owner,” said Professor Wilson.

Instead of forcing religious individuals to serve same-sex couples, whether for wedding cakes or marriage licenses, Professor Wilson said that state legislatures should work to carve out exceptions, so that people are not placed in a position where conflicts may materialize. As an example, she pointed to Utah’s enactment of a statute permitting clerks with religious beliefs against same-sex marriage to opt out of performing those ceremonies, provided that they assist in locating another party to solemnize the legal marriage.[2]

In response, Tabacco Mar raised the concern that once state legislatures get in the business of creating these “opt-out” policies, people will continue seeking increasingly broader exemptions.

Panelists then debated Professor Wilson’s suggestion that state legislatures should work towards forging a compromise between LGBTQ+ rights activists and religious liberty advocates. Professor Eskridge generally agreed with Professor Wilson on the importance of legislative compromise, and he emphasized the role of political pushback in protecting against excessive limitations on LGBTQ+ people’s ability to participate in the public sphere. Tabacco Mar and Justice Durham, however, were both skeptical of how effective state legislators are likely to be in resolving the conflict.

Justice Durham specifically called out the limitations inherent in legislative action, particularly in highly conservative states like her native Utah. “Having spent many years of my life working with the Utah legislature, we have a one-party system; they have so gerrymandered the electoral system that we will never—at least for the next ten years—get anything but not just Republicans, but Republicans who are more conservative than the population at large,” said Durham.

Inspired by audience questions, the panel then discussed the harms experienced by LGBTQ+ individuals who are denied service, as well as those incurred by religious people forced to provide services against their values. Justice Durham suggested that the harms experienced by small-business owners who refuse service are less significant than those suffered by LGBTQ+ people. Professor Wilson, however, expressed concern that the harms experienced by the religious cake baker or website designer may lead to his retreat from civic life, a similarly unacceptable outcome.

In the waning moments of the event, Tabacco Mar vocalized her frustration that LGBTQ+ people are made to compromise their identities for the sake of avoiding conflict and noted that the pain of being denied service cuts deep.

“I encourage everyone to think about what the harm really looks like for the couple that is turned away. It is enduring . . . and it forever changes your relationship with the marketplace,” said Tabacco Mar.

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bwj2cw@virginia.edu

[1] In Creative 303, a Colorado wedding website designer is seeking to block enforcement of the state’s anti-discrimination law that would require her to serve LGBTQ+ couples, despite her religious opposition to same-sex marriage. The case is expected to be heard in October 2022.

[2] https://le.utah.gov/~2015/bills/static/sb0297.html

Professors Speak on Virginia Constitution and Reform

Virginia Law Weekly September 21, 2022

Andrew Allard '25
Staff Editor

This past Thursday, September 15, the American Constitution Society held a discussion on Virginia’s Constitution and current legal issues, including Supreme Court reform and the independent state legislature doctrine. Held in recognition of Constitution Day, the event was led by UVA Law Professors A. E. Dick Howard and Bertrall Ross.

While Constitution Day commemorates the signing of the federal Constitution, Professors Howard and Ross emphasized the importance of state constitutions in legal activism. “Progressives have ignored state constitutions for far too long,” said Professor Ross. Pointing to the rights-forward provisions of Virginia’s state Constitution, Professor Ross emphasized that the federal Constitution does not set the ceiling for rights protections. He acknowledged, however, the difficulties of the piecemeal approach that is inherent to a state-focused legal strategy.

Professor Howard, who was Executive Director of the 1971 Virginia Commission on Constitutional Revision, similarly advocated for state constitutions as a source of legal rights. Professor Howard noted that state constitutions can set a higher standard for civil rights than the federal Constitution and are more frequently amended and responsive to democratic preferences. Professor Howard suggested that as the Roberts Court continues to lurch toward the right, state constitutions offer an alternative path for civil rights litigation.

Reflecting on his work for the 1971 Commission, Professor Howard noted the importance of respecting foundational values while modernizing and recognizing the values of the current day. However, Professor Howard highlighted one regret: the inadequacy of voting rights for former felons. Currently, Virginia felons remain barred from voting, even after serving their sentences, unless their voting rights are restored by the governor. In recent years, the Virginia General Assembly has sought to amend its Constitution to automatically restore the voting rights of former felons.[1] However, that effort stalled after Republicans took control of the Virginia House in 2021.

Turning to federal law, Professors Ross and Howard spoke critically of the growth in originalist interpretation of the Constitution. Noting that originalism was first introduced to the American public in the 1980s, Professor Howard suggested that the legal theory is in large part a conservative reaction to the legal teachings of the Warren Court. Professor Howard pointed to the complexity of history and lawyers’ propensity for cherry-picking as key flaws in originalist interpretation. Describing the recently decided New York concealed carry case, New York State Rifle & Pistol Ass’n v. Bruen, Professor Howard remarked that, “On both sides, they are talking originalism, and they come to totally different conclusions.”

Professor Ross added that originalism often fails to include recent historical developments in its analysis of the Constitution, particularly where it concerns the rights of communities that were excluded from the decision-making process that led to the adoption of our Constitution. While acknowledging that living constitutionalism “may be a bridge too far,” Professor Ross argued that “we need to be responsive to a more recent version of history, rather than the distant past.” Citing Dobbs v. Jackson Women’s Health Center as an example, Professor Ross noted Justice Alito’s emphasis on English common law and legal developments of the nineteenth century, from which women were fundamentally excluded.

Speaking from “the hope from [his] heart,” Professor Ross supposed that there may be room for movement in the justices’ approach to the Constitution. Professor Ross recalled the concerns about a rightward legal shift during the transition from the Warren Court to the Burger Court. While some of those concerns were realized, Professor Ross remarked that the justices ultimately “loosened up” and recognized a need to be responsive to the public. “It becomes clear with threats to [the Court’s] legitimacy that it has to be responsive to majority values that evolve over time.”

Asked about the need for court reform, Professor Ross acknowledged that the Court was never designed to be democratic but suggested that the Court has been distorted by recent disruptions to the nomination process. Professor Ross suggested adopting an eighteen-year term limit for justices to create greater consistency in the timing of judicial appointments and to promote greater accord between the values of the Court and the public.

Professor Ross also addressed the upcoming Supreme Court case, Moore v. Harper, which will present the case for the independent state legislature doctrine. The case, brought by the North Carolina legislature, contends that the federal Constitution’s Elections Clause (Article I, § 4) prevents state judicial review of election laws. Professor Ross noted that courts have never interpreted this clause to have this meaning and that “taking away judicial review in any area of the law opens the door to abuse.” While Professor Howard suggested that the recently created Virginia Redistricting Commission may survive adoption of the independent state legislature doctrine, he finished by saying, “If you take one thing away from this discussion, do not make cash bets on what the Supreme Court will do.”

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tya2us@virginia.edu

[1]Lavoie, Virginia Governor Restores Voting Rights to 69K Ex-Felons, AP News, March 16, 2021 https://apnews.com/article/legislature-ralph-northam-us-news-constitutions-voting-rights-d6116a65502227c9c7ea222caf62e068

Retired Judge: "Due Process Forever"

Virginia Law Weekly September 21, 2022

Anna Bninski '23
Features Editor

On September 15, the Honorable Paul W. Schmidt, a retired immigration judge, gave a talk at the Law School titled “The New Due Process Army.” Drawn by both the prospect of insights into how one might upend the current immigration system and the allure of a non-pizza free lunch,[1] a good crowd of students showed up. The talk was sponsored by the Immigration Law Society, the International Refugee Assistance Project’s chapter at UVA Law, and the UVA Immigration Law Clinic.

Judge Schmidt, who retired from the bench in 2016, served both on the Arlington, Va., Immigration Court, and as a member of the Board of Immigration Appeals in Falls Church. He is now an adjunct professor at Georgetown Law.[2]

*Pictured: The Honorable Paul W. Schmidt during his fiery talk in the Caplin Pavilion on September 15, 2022*

The talk gave us at UVA a taste of what must be a very lively classroom experience for Judge Schmidt’s students at GULC. He started his remarks with complimentary words about the Law School’s immigration law faculty, particularly recommending Professor Amanda Frost’s 2021 book, You Are Not American: Citizenship Stripping From Dred Scott to the Dreamers.

Then, having promised to deliver “the truth, the whole truth, and nothing but the truth . . . as I see it,” Judge Schmidt informed attendees that he was “the PowerPoint of this presentation” before embarking on a freewheeling and impassioned speech outlining the shortcomings of the Executive Office for Immigration Review (EOIR) under both the Trump and Biden administrations. He characterized EOIR as a place where “due process . . . legal scholarship, and best practices go to die.”

The Trump administration, Judge Schmidt averred, pursued a campaign of dehumanization in order to erode people’s rights before the law, with particular effect on migrants, women, children, and people of color. Judge Schmidt also had strong words of criticism for the Department of Justice under Merrick Garland, stating that he had been hopeful for change with the new administration, but that time had not borne out the Biden Campaign’s promises of immigration reform. Instead, Judge Schmidt stated that immigration courts remain awash in “continuing nativist nonsense.”

An EOIR practice that Judge Schmidt took particular exception to was ADR, or “aimless docket reshuffling.”[3] He related woes from immigration attorneys that included immigration courts advancing cases without notifying counsel and scheduling the same attorney for twenty trials in the same month—or for multiple hearings on the same day, in different states, making representation effectively impossible. ADR, Judge Schmidt opined, is “what Garland and the rest of his clueless crew were hired to fix.”

Judge Schmidt also stated that EOIR and the Board of Immigration Appeals need new leadership—and new criteria for selecting immigration judges. The lack of consistent due process protection for people going through immigration court proceedings particularly troubled him. “Due process in immigration court is whatever is expedient on any given day,” he stated. Judge Schmidt also advocated for a coherent ethos of civil rights advocacy that looks at systemic mistreatment and draws connections between, for example, the disenfranchisement of Black voters in the South and the failure of the immigration system to adequately serve Haitian refugees.

Judge Schmidt ended his prepared remarks with the rallying cry, “Due process forever!” and then took questions from the audience.

One listener asked for tips on how to build credibility in asylum cases, when the applicant may not have initially supplied details or, affected by trauma, may have made conflicting statements. Judge Schmidt recommended gathering as much external documentation as possible, such as police reports or data on country conditions, and, if appropriate, to seek a PTSD diagnosis. “Don’t wait for cross-examination,” he advised; rather, counsel would do well to immediately address any discrepancies. He also noted that an immigration judge is generally obliged to consider the record as a whole, so a good array of supporting evidence can ameliorate the effect of confusion in prior statements by the applicant.

Judge Schmidt also noted that if immigration judges have been to border facilities at all, they have probably only experienced a very sanitized tour. Errors in paperwork by border officials are common, and there’s data available on that fact that an attorney may wish to get on record if the original paperwork is what’s causing the discrepancy—it helps to show that government record-keeping, not the applicant, is to blame.

Other practice tips include finding out as much as possible about the judge in a case (are there particular groups for whom he or she has a soft spot?) and making as complete a record as possible from which to appeal, if necessary.

In response to a question about what guaranteed access to counsel in immigration proceedings might look like, Judge Schmidt lamented the “gonzo scheduling system” and lack of coordination that prevent pro bono efforts from filling that gap, but he spoke hopefully about efforts to train non-lawyers to serve as accredited representatives. Judge Schmidt proposed that retired professors would be an excellent population to tap into. “Who better to put together some of these cases that depend on country conditions or making people understand history or country conditions? [There’s] a lot of cultural anthropology in presenting immigration cases.”

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amb6ag@virginia.edu

[1] Vu Noodles: a crowd-pleaser for sure.

[2] This article can’t possibly cover everything he talked about; anyone seeking more Judge Schmidt info can get it on his blog, Immigration Courtside.

[3] As someone whose immediate association with the acronym ADR is Alternative Dispute Resolution, I suffered brief but substantial confusion.

Panel of Experts Reviews Latest Supreme Court Term

Virginia Law Weekly September 15, 2022

Nikolai Morse
Managing Editor

*Pictured: Professor Julia Mahoney, Scott Keller, and Professor Douglas Laycock discussing the Supreme Court term.*

This past Tuesday, a panel of legal experts discussed several high-profile decisions from the Supreme Court’s October 2021 Term. Professor Julia Mahoney, Scott Keller,[1] and Professor Douglas Laycock reviewed cases concerning abortion, the Second Amendment, administrative agency challenges, and religious liberty.

Professor Julia Mahoney began with a review of Dobbs v. Jackson Women’s Health Organization. Professor Mahoney acknowledged the case’s import, which upheld Mississippi’s ban on abortion after fifteen weeks and explicitly overturned Roe v. Wade and Planned Parenthood v. Casey. Professor Mahoney noted the complexity of the Supreme Court’s decision, which contained five opinions, each important.

Beginning with the majority, the Court argued that Roe ignored the text, history, and tradition of the Constitution, which Professor Mahoney characterized as a “shoutout to originalist methodologies.”[2]Reviewing the majority’s analysis of the five stare decisis factors undergirding its decision,[3] Professor Mahoney noted that the first two were decided on originalist grounds and the remaining three on prudential. Professor Mahoney made two overarching points about the majority opinion. First, as it now stands, laws regulating abortion, like laws regulating other aspects of health, will be given a strong presumption of validity. While querying how strong this presumption truly is, Professor Mahoney said it did not appear to be a rational basis review. Second, Professor Mahoney noted that while the majority took pains to make clear that its opinion was limited to abortion and did not impact any other substantive rights based on due process, it seemed unlikely this decision could be “hermetically sealed.”

In contrast, Justice Thomas’s concurrence explicitly called into question any rights premised on substantive due process and called for revisiting related precedent.[4] Professor Mahoney noted that Justice Kavanaugh’s concurrence appeared to reference Justice Rehnquist in noting that the “Constitution is neither pro-life nor pro-choice.”[5] Professor Mahoney said Chief Justice Roberts’s opinion, which concurred in the judgment, was primarily a statement of judicial minimalism, arguing that the Court could uphold both Roe and Mississippi’s abortion ban. Professor Mahoney noted that while Justices Breyer, Sotomayor, and Kagan’s dissent took aim at the majority’s “cavalier” approach to overruling precedent, they did not engage in an equal protection analysis, despite this being a strong argument in favor of Roe.

Turning next to New York State Rifle & Pistol Ass’n v. Bruen, which challenged New York’s concealed carry licensure law, Professor Mahoney suggested that New York lost not only on an objective basis[6] but also due to the perception that the rich and powerful were able to obtain permits, while ordinary citizens struggled to do so. In a majority opinion written by Justice Thomas, the Court held that “consistent with this nation’s historic tradition of firearm ownership,” the Second and Fourteenth Amendments protect citizens’ rights to carry firearms outside the home for self-defense. Professor Mahoney noted, however, that the opinion did not give significant guidance to lower courts in what level of scrutiny they should apply to firearm regulations going forward.

Speaking next, Scott Keller framed his discussion by noting that recent years have seen an increasing number of challenges to administrative laws. Mr. Keller argued that this has been driven by Congress passing fewer laws and administrative agencies filling that gap with administrative actions that have “sweeping policy consequences.”[7] Lastly, Mr. Keller pointed to the Supreme Court’s acknowledgment of the “major questions doctrine” within this context as a significant development.

Mr. Keller first reviewed NFIB v. OSHA, which challenged OSHA’s mandate for businesses with 100 employees or more to either vaccinate or test their employees for COVID-19. Mr. Keller noted that this mandate was made under an emergency temporary standard granted to OSHA by Congress, which had been used less than ten times in the last fifty years, and typically on a narrow topic, such as the presence of a chemical in particular workplaces. Mr. Keller noted that because this was done under an emergency temporary standard, it would take immediate effect for 84 million Americans overnight, without the notice and comment process that is typical for agency rulemaking. “I think it’s safe to say that there really wasn’t a disagreement over, ‘Is this a major question?’”[8] Mr. Keller said. The Court issued a per curiam majority opinion, which held that OSHA did not have the power to enter this emergency temporary standard. The Court said that this power was historically more limited in scope and that since this was a question of vast economic and political significance, the question was whether Congress had been clear in delegating this power, which the majority held it was not.

Mr. Keller then transitioned to West Virginia v. EPA, in which the Court held that the EPA does not have the power to order energy generation shifting (as opposed to ordering particular sites to process chemicals more cleanly). “The Court said…this doctrine isn’t just about hyper-textualism and looking at specific terms,” Mr. Keller said. Rather, the Court said that when there are equally plausible textual interpretations and a major question, then Congress must be clear. Mr. Keller noted that while the opinion “did not mention or overrule Chevron deference directly, that is the opposite of how Chevron deference works.” Importantly, Mr. Keller said, while this case is one in a series of cases over forty years not following Chevrondeference, this was the first case in which the Supreme Court explicitly invoked the major questions doctrine—though, Mr. Keller noted, whether there is in fact a major question is a crucial issue which will be a focus of future litigation.

Finally, Professor Douglas Laycock discussed two religious liberty cases, the first of which he argued was a victory for “religious liberty for everyone” and the second of which “was a terrible gash.” Professor Laycock began with Carson v. Makin, which held that Maine’s “non-sectarian” requirement for otherwise-available tuition assistance to families living in districts without their own secondary school[9] violated the First Amendment’s Free Exercise Clause. Professor Laycock argued that this decision was correct and consistent with concerns at the Founding regarding government funding of religious institutions, which was focused on funds being used to build churches or pay ministers, rather than non-secular education, which was commonplace. The next important question, Professor Laycock said, will be whether the state can place any conditions on funding to non-secular schools.

Wrapping up the panel’s review, Professor Laycock reviewed Kennedy v. Bremerton School District, which held that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” In this case, the Court held that a football coach, who had a tradition of kneeling and praying at the fifty-yard line and was later terminated, was protected by the First Amendment. “If you want to know what happened in this case, do not read the majority opinion; it is a pack of lies. Look at the photos in Sotomayor’s dissent.” Professor Laycock pointed out that the majority opinion appears to ignore the dynamics between a football coach and his players, many of whom began joining him at the fifty-yard line for post-game prayers. Professor Laycock argued that this was “a disaster” and inconsistent with the historical rule prohibiting school-sponsored religious speech or observances. Professor Laycock closed by positing that if a coach can pray at the fifty-yard line immediately following a football game, it seemed plausible that a fourth-grade teacher could pray in their classroom.

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cpg9jy@virginia.edu

[1] Mr. Keller is a founding partner of Lehotsky Keller and the former Solicitor General of the State of Texas.

[2] Though Professor Mahoney noted that other prominent originalists, such as Professor Lawrence Solum, argued the Court’s analysis was not originalist because it failed to pinpoint the original public meaning of due process, the Privileges and Immunities Clause, and the Equal Protection Clause.

[3] Professor Mahoney listed these five factors considered by the Court: 1) the nature of the precedent’s error, 2) the quality of precedential reasoning, 3) the workability of the rules, 4) the disruptive effect on other areas of the law, and 5) the presence or absence of concrete reliance.

[4] Professor Mahoney said this was unsurprising, given Justice Thomas’s well-known belief that unenumerated rights would be better located in the Privileges and Immunities Clause.

[5] Though, Professor Mahoney noted, the concurrence did not go as far as Rehnquist in saying that there could be abortion laws so restrictive that they would be unconstitutional (e.g., “no rational relation”).

[6] Professor Mahoney noted that New York’s law based approval on having a seemingly subjective “special need or condition,” while forty-three other states’ concealed carry laws were based on objective factors.

[7] Mr. Keller pointed out that many litigants to administrative actions are from the states, which, along with “the rise of States’Solicitors General,” has made them effective litigants against the federal government.

[8] Mr. Keller noted that the major questions doctrine, while only explicitly invoked by the Supreme Court in West Virginia v. EPA, has been a doctrine whereby the Supreme Court over the last thirty years has said that when an agency takes an action that is of “vast political and economic significance,” Congress must be clear in its statutory delegation of that power to the agency.

[9] Maine provides a robust tuition assistance program because approximately half of Maine’s school districts do not have a public high school, according to Professor Laycock.

Letter to the Editor: Hate Crime on Grounds

Virginia Law Weekly September 14, 2022

To the Editor:

In the early morning last Thursday, the University Police Department notified the community that it was investigating a hate crime that took place in a prominent location on Main Grounds: A man affixed a noose to the statue of Homer that has stood on the South Lawn since 1907. Later that day, President Jim Ryan issued a statement in which he condemned the act and promised to “undertake every measure to find out who did this and to hold them accountable.” On Sunday, our Black Law Students Association circulated its own statement, underscoring the ways in which such acts “are disruptive to the very education both we and our predecessors have fought so hard to secure.”

We know that many more colleagues share these and similar concerns. A few of us began an informal conversation that leads us to wholeheartedly endorse the sentiment poignantly expressed in BLSA’s letter: that the hurt, fear, and shock experienced by many in our community, especially Black students and other people of color, must compel us to redouble our efforts to grapple with the legacies of racial violence and exclusion here at UVA and in Charlottesville. Whatever the intended message, the act derives most of its power to shock from a history of racial terror, as President Ryan noted in his message. And it is incumbent upon all of us to meaningfully confront the ways in which such racism remains present within our institution today. Having passed the five-year anniversary of the Unite the Right rally a month ago, we note that it was neither the first nor the last time students here have faced such hate.

We know that part of the process towards addressing this shameful history must be instilling a collective commitment to opposing white supremacy. We must be vigilant against expressions of hatred, particularly those in our own backyard. Most simply, we stand with BLSA and all those fighting to make our community a more just, inclusive, and equitable space.

We regret that we were unable to circulate this statement widely before VLW’s print deadline. However, we invite other colleagues to add their names to an online version of this letter, available here: https://bit.ly/3BaUeTN

Naomi Cahn, Anne Coughlin, Kim Forde-Mazrui, Thomas Frampton, Craig Konnoth, Joy Milligan, Kelly Orians, and Bertrall Ross

Professor Frampton Receives $86,000 in Civil Rights Suit

Virginia Law Weekly September 7, 2022

Jacob Smith
Professor Liason Editor

It took well over a year, multiple Zoom hearings, complicated Federal Courts issues, and hard work by a handful of dedicated civil rights lawyers, but Professor Thomas Frampton finally prevailed in his tangle with the City of Baton Rouge. On August 24, the city’s Metropolitan Council approved a settlement award promising to dismiss contempt charges against Professor Frampton and paying $86,000 in legal fees—a sum that could have been completely avoided had the city been willing to apologize.

This episode began when Professor Frampton was blindsided with contempt charges last May. Professor Frampton had successfully represented Clarence Green in a civil rights lawsuit against the Baton Rouge Police Department based on an unconstitutional strip-search of Green and his brother and a warrantless entry into his mother’s home. The case settled for $35,000. After the settlement, Professor Frampton released body camera footage on behalf of the Green family in an effort to hold the police officers accountable for their conduct. The next day, Professor Frampton was surprised to learn that the Parish Attorney for the Parish of East Baton Rouge had filed a petition seeking to hold him in contempt for releasing the video. If the contempt charges succeeded, Professor Frampton could be jailed for up to six months.

The contempt charges were based on the premise that Professor Frampton had released records of a juvenile criminal proceeding without authorization. But it was easy to smell a rat, in part because a newspaper had paid the clerk’s office a small fee to obtain the same video. Professor Frampton immediately began reaching out to contacts and put together an impressive legal team. Professor Frampton’s lawyers quickly sent the Parish Attorney a demand letter. When that did not succeed, they filed a § 1983 lawsuit in the U.S. District Court for the Middle District of Louisiana, alleging that the contempt proceeding was brought in retaliation for protected First Amendment speech.

Professor Frampton spent the Fall 2021 semester waiting for the federal district court to decide his motion for a preliminary injunction and the Baton Rouge defendants’ motion to dismiss. The court finally announced its decision this January. It denied the motion to dismiss and granted a preliminary injunction in a careful ninety-two-page decision. But despite wading through the intricacies of Younger abstention and the preliminary injunction test, the opinion had a clear bottom line: The record was “replete with evidence” supporting the conclusion that the contempt charges had been brought because of the Parish’s “bad faith motive to retaliate.” The court concluded that Professor Frampton had engaged in no criminal activity, and that the Parish had “no hope or reasonable expectation of obtaining a valid conviction.”

Given that one-sided outcome, one would think that Baton Rouge would have been eager to put an end to the litigation. But it dragged on. The city filed an answer. Then Professor Frampton filed a motion for summary judgment, and the city countered with its own summary judgment motion. But eventually, the city “realized the writing was on the wall,” and the parties brokered an agreement through a series of meetings before a magistrate judge. Baton Rouge agreed to dismiss the contempt charges and pay $86,000 in attorney’s fees.

While the protracted nature of the litigation might raise an eyebrow, the city’s negotiating stance was even more questionable. Professor Frampton offered to settle the case for nothing more than dismissal of the charges and an apology to him and the Green family. But the city refused, instead preferring “to set $86,000 of taxpayer money on fire,” in Professor Frampton’s words. Professor Frampton almost showed up to the council meeting that approved the settlement to denounce it, but his lawyers wouldn’t let him.

Now, at last, the contempt charges have been dismissed, and Professor Frampton is rid of what was a very unwelcome distraction. Professor Frampton is glad he will not have to ask Dean Golubuff’s permission to teach on Zoom from a jail cell. But he also expressed frustration about charges that should never have been filed, and bad actors that will probably never have to answer for their misconduct. Unfortunately, it’s unlikely that Baton Rouge voters will pay attention to settlements like this one and hold their representatives accountable, although Professor Frampton and the Green family are still suing one of the officers involved in the original incident.

But Professor Frampton also reiterated that the litigation was a “really educational experience.” How many lawyers (let alone law professors) can think back on personal experience as a civil rights plaintiff and criminal defendant? The episode certainly makes for a great story that will “definitely feature in future classes.” But as Professor Frampton continues representing pro bono clients, he is hopeful that fresh success stories will quickly overshadow this one.

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js3hp@virginia.edu

A Welcome Letter From Dean Goluboff

Virginia Law Weekly August 31, 2022

What a pleasure it has been this past week to meet so many of you, feel the excitement you are bringing to our community, and watch you begin the transformative experience that is law school. You will come out the other side of this year the same person that brought you to UVA, but also a different person. You will have new skills, new ways of thinking, new intellectual resources at your disposal, and new lifelong friends and colleagues.

It may be hard to believe, but you are, just one week into the semester, already transformed. Think back to what you know now that you didn’t a week ago. You know silly but important things like whether you prefer to read cases with highlighters or pens, online or in hard copy. Beyond that, you have started to learn your way around the building, identify student organizations you want to join, and manage your time. You know that a “tort” is is not a type of cake and have learned any number of other words, concepts, systems, and processes. You have read and may even be starting to understand (!) the cases your professors have assigned. Many of you have already survived your first cold call and, I hope, even more of you have volunteered in class using the hand-raising we all practiced at orientation.

As I get to know each of you better, as I see you in the halls or at 1L section breakfasts, I will ask you (again and again) some variation of the question: “What do you know today that you didn’t know yesterday, or last week, or last month, or when you first arrived here for orientation?” It is one of my favorite questions, because you will, invariably, offer some variation of this answer: “So much!” I also hope you will ask this question of yourself—if not every day, at least on a regular basis.

It is well known—one might even say legendary—that the first year of law school can be challenging. That is not because anyone has set out purposefully to make it difficult. Rather, it is because you are learning new approaches to information and to life that are just that: new. They take rigor and application to comprehend, and you will need (and want) to apply yourself with zeal as you learn them.

I encourage you to measure this learning, this transformation, by what happens both inside and outside the classroom. The Law School will offer you more opportunities than you can possibly take. That is the beauty of a school that boasts students who are the best and brightest in the nation, world-class faculty engaged in groundbreaking and interdisciplinary research, experiential learning that will let you put your classroom knowledge to work, and administrators and staff at the top of their fields and devoted to your success. Join a journal, take a clinic, do moot court, engage with the Charlottesville community, take on leadership roles. 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 here are the people with whom you will do it.

UVA Law is more diverse and pluralistic now than at any other moment in its history. Your fellow students come from different backgrounds, have had different life experiences and live different identities, hold different beliefs, attitudes, and interests, and subscribe to a wide range of political views. Your colleagues as much as your professors will regularly expose you to new ideas and approaches to the law.

The exchange of ideas that results is invaluable to the transformational process of law school. You—we all—will have to work hard every day to create and find opportunities for real and productive exchange across our different viewpoints. That will entail exposure to new and varied information and ideas, a commitment to facts and evidence, and critical thinking about those ideas and that evidence. It will take courage in speaking and generosity in listening. The ability to consider every idea, to argue for your side and engage with the other, is fundamental to the mission of the university, the legal profession, and our democracy. In other words, to become the exceptional lawyers you are all here to become, it is essential to learn how to talk and listen with professionalism, respect, and empathy.

None of this is easy, but you have, once again, already begun. You have been thrown together in small sections that have exposed you to new people and their perspectives. You already know that you may be excited to hear from some classmates, professors, and invited speakers and that you may find fault in others, sometimes passionately. It is our goal both to enable speakers to share their views and to enable those who disagree to register their dissent in ways that promote further dialogue.

Achieving those goals is possible in part because of our shared commitment to the extraordinary community you have just joined. We come to the free exchange of ideas with a shared aspiration that our differences serve as a source of humility and strength, empathy and intellectual stimulation. The relationships you build during your time here—with your classmates, faculty, administrators, and staff—will enrich your education, enhance your time at the Law School, and sustain you personally and professionally far into the future.

So when things seem challenging—when you are not quite sure of your footing or next steps—I encourage you to look back. Once you do that, I know you will feel as confident as I do in looking forward as well. At the end of this year, you will be able to see your own transformation. You will, as your predecessors have, come up to me after your last exam of the semester to say, with appropriate pride, that you now appreciate how far you have traveled, that you feel like you are a different person from when you arrived. I know that will be the case, as that is what Law School does. It transforms how we think and what we can do in the world.

I can’t wait to hear your answers to my question, again and again. And to see all you learn and all you do.

Welcome Back to Law School

Virginia Law Weekly August 31, 2022

Dana Lake '23
Editor-in-Chief

Welcome, Class of 2023, to your long-awaited 3Lol. Welcome, Class of 2024, to another round of the grueling slog to summer. Welcome, Class of 2025, to what will feel like the most stressful year of high school you have ever experienced. The Law Weekly remains ready and available (for the 75th consecutive year!) to be your trusted source of North Grounds news and personal opinions stated as fact.

At its heart, the Virginia Law Weekly is a collection of stories about the Law School told from the perspective of students going through it. Our editors have the same questions you do—is Law Review worth the effort? (No.) Do people really dress up for football games? (Also no.) Do my grades 1L fall really determine my whole future? (Only if you are trying to be a SCOTUS clerk.) What is a Dandelion? Will Foxfield happen this year? What does SBA actually do around here, anyway? What is behind those tiny doors on the second floor of Slaughter? Nowhere else on these Grounds will you find a collection of people so willing to use their free time making up answers to these questions than right here at the Law Weekly.

With our monopoly on student publishing, we strive to be informative without taking ourselves too seriously. In between professor dicta and events, you’ll find how-to guides on surviving cold calls and definitive lists on the best chicken sandwich in Charlottesville. It’s sort of a “come for the professor quotes, stay for the COPA” type model. Our weekly meetings run the same way: Come to SL 279 on Mondays at 5:30 for some free Domino’s Pizza, and stay because I guilt you into writing an article for our next edition. If you enjoy working with creative people—the overlap between the Law Weekly Editorial Board and the Libel Show is almost 100%—or you need a fun outlet that isn’t based exclusively around the Corner, come check us out. Do you love satire? Are you an aspiring cartoonist? Have you always dreamed of having a captive audience for a recurring column on some obscure issue you want to shed light on? We have a place for you.

If you don’t want the full commitment of joining our staff, send in a Letter-to-the Editor at editor@lawweekly.org. This paper is better the more students engage with it. Tell us about an event your organization is hosting or a cool thing around Charlottesville you and your friends got up to. Send in a photo to celebrate an engagement. Tell us if we publish something you disagree with, and be ready for some good-faith debating.

For upperclassmen, you’ve heard the pitch enough times by now to have built up a decent immunity. If you join us this year, I offer you instead the ability to control the difficulty level of the Sudoku.

The Law School gets its fair share of jokes and complaints, but the community at UVA is what we build. For many people, it’s the last few years of unrestricted free time and fun you’ll be having before the realities of real employment come in. Make the most of your time here. Go to an event you’re nervous about attending alone. Join a softball team, even if you’ve never played. Maybe even join an organization that will feed you dinner once a week and that has an awesome club room in SL 279. Don’t let the toxic rush of 1L fall determine your whole law school path—you are going to find your people, one way or another.

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dl9uh@virginia.edu

Retired Justice Visits Law School: Espouses Hope

Virginia Law Weekly April 20, 2022

Sai Kulkarni ‘23
Production Editor

This past week, the Law School had the distinct honor of playing host to now-retired Justice Stephen J. Breyer as he was presented with the Thomas Jefferson Foundation Medal in Law. The reason you are getting to read a front-page account of the event is because the Law School was gracious enough to grant myself and our esteemed EIC, Dana Lake ’23, press passes to cover the event.[1] From the outset, it was clear that the event was well-organized. There were six rows reserved for the Board of Trustees, VIPs, and professors. Noted subject of many sketches in the Libel Show, Dean Dugas, was there to escort all the important people to their seats. There was even a surprise appearance in the VIP section by some youths who I assume belonged to Professor Schragger.[2] The room was already almost full by 1:30; turns out students will skip class easily if you give them a legitimate excuse. As is expected from an event featuring a recently retired Supreme Court Justice, there were security personnel all over the premises.[3]

It was easy to tell when the event was about to begin, as there was an immediate hush over the crowd as Justice Breyer walked in from backstage. Unlike a 10 a.m. class, everyone was bubbling with anticipation as the first speaker got on stage: President Jim Ryan. President Ryan spoke both about the prestige of the Thomas Jefferson Medal—the fact that it is the highest honor at the University, since we do not give out honorary degrees—and the “contributions and contradictions” of President Jefferson. His comments about Justice Breyer can be summarized by his praise of the Justice’s “outstanding service…in public service.”

Leading with a short joke, as I am sure she is contractually obligated to do, the next person up was Dean Risa Goluboff. As a former clerk for Justice Breyer, she is one of the few people equipped to talk about him on a personal level. She praised his work on “democracy and deliberation” and labeled him as one of the “statesmen of the highest order.” Her introduction was short,[4] likely because she was about to helm the Q&A portion of the event. After this, Justice Breyer was presented with the medal and proceeded to show it to everyone like, and I am quoting EIC Lake here, “an absolute grandpa.” He very clearly did not write his speech of acceptance and was simply having a good time.[5] The only thing he memorized was his recitation of the Gettysburg Address and the introduction to the Declaration of Independence, presented effectively with a story about his grandchildren. The thing is, though, his speech worked. The whole room was with him the entire time. The main message he gave was one that seemed to stick with everyone. He emphasized two themes from those two famous documents: ideals and experiment. Justice Breyer, in his own optimistic way, is aware that our nation does not live up to the ideals espoused in the Declaration. But at the end of his speech, he left everyone with a quote that I think summarizes his view best: “My friends, it is you who will decide if the experiment will continue.”

After a brief statement by Leslie Bowman, the president of the Jefferson Foundation, the Q&A portion of the event led by Dean Goluboff began. I could spend a long time giving you a full recitation of the questions asked by the Dean and various students, combined with the answers we heard from Justice Breyer. But if you want that, I recommend you go watch the entire event on YouTube; I promise that it is absolutely worth it.[6]Instead, I’ll give you a few answers that have stuck with me the most—I am the author of this article, after all. On the political system, Justice Breyer remarked that, “The Constitution sets a process to create basically a democratic system in order to decide what [we want] at the ballot box.” He noted that the legacy of Brown v. Board can be summarized as a decision leading to a nation of 330 million people that can one day respect each other as people. He cited specifically a conversation with Vernon Jordan to say that the Court helped with that decision but that they didn’t do it alone; desegregation was moved forward by regular people. Despite sidestepping a question about Roe, Justice Breyer went out of his way to note that action is required by the people in keeping the experiment going.

I think most of the crowd, regardless of their views of the man, can respect that he did not become a cynic after many years of public service. In honor of that, I leave with you the quote I think he would like everyone to see the most, even if most of you might be a little too cynical to agree with it: “We do what we can do. Listening, talking, and by no means shutting down people who disagree. Participate. [There are] lots of ways to convince people, but never shut those people off…Stay together. Worry is something to keep to yourself…Be a positive force, and find something you agree with [in the people that disagree with you]. And use it. Be upset at home. But when you are out, [help].”

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omk6cg@virginia.edu

[1] After our fearless leader lobbied the administration. She just really wanted to keep with the theme of political action.

[2] He was escorting them, so it’s a good guess.

[3] @Secret Service, aren’t you glad I didn’t pull an Abed from Community and try to meet the Justice?

[4] Please don’t kick me out of school, Dean Goluboff; this was unintentional.

[5] I don’t blame him; he doesn’t have clerks to make write for him anymore.

[6] Here’s a link, too: https://www.law.virginia.edu/news/202204/american-experiment-launched-jefferson-goes-says-justice-breyer.

Call for Dicta: Professors, We Want to Hear From You

Virginia Law Weekly April 13, 2022

Jacob Smith '23
Professor Liason Editor

Long-time reader of the Law Weekly? New to North Grounds and joining us for the first time? Either way, thank you for reading us! I want to remind you that the Law Weekly and its staff are always very glad to receive letters to the editor. Letters need not be in response to one of our articles.[1] though such letters are certainly welcome. ( Rather, letters on any topic of interest to the Law School community may be sent to editor@lawweekly.org.

This invitation goes out to all members of our readership, even brand-new 1Ls embarking on their legal careers. As we wrote in our inaugural 1948 issue, “This school is here primarily to encourage the development and dissemination of ideas. Let not one of our readers ever discard the notion to publicize his thoughts with the alibi that no one would be interested in receiving them!” We really do want to hear from you.

But the main reason I am writing today is to assure our legal professional readers, and especially our amazing Law School professors, that we are especially eager to hear from them. Professors can and do write letters to the editor, but we also have a space specifically set aside for their learned insights—our Dicta column.

Dicta began in our inaugural 1948 issue with the ambitious goal of considering "basic aims of the law and [the] role of [law] schools." Dean F.D.G. Ribble wrote about the role of the law school in the first Dicta column. The rest of that year’s column focused on criminal justice. Dicta ran on the front page every single week that year, featuring the opinions of judges, attorneys, professors from multiple law schools, and at one point even the Head of Scotland Yard. Where necessary, the Law Weekly published distillations of pertinent law review articles. The final column of that year was written by (or taken from a writing by) Supreme Court Justice Felix Frankfurter.

Since then, Dicta has had its ups and downs. The column probably reached its peak when it was cited by the Supreme Court in 1977. However, as the Law Weekly gradually became less stuffy and more entertaining, Dicta became less of a focus. At some point Dicta stopped (for the most part) covering one topic at a time and turned into a general forum for thoughts on any legal topic. In 1987 and 1988 the since-discontinued Vanguard column took shots at its popularity, claiming that “Dicta is read about as often as the Boston Red Sox win the World Series.” The 1990s saw efforts to “revive” Dicta. The Law Weekly even tried to get students involved, hosting a student essay competition in 1995 and urging 3Ls to submit excerpts from unpublished journal articles in 1996. But Dicta finally reached its nadir in the 2005-2006 academic year when Volume 58 of the Law Weekly failed to publish any Dictas at all. Dicta was resurrected in 2008, flickered out again from 2011 to 2014, was briefly restored in the 2015-2016 academic year, dropped out again in 2016-2017, featured one column in 2017-2018, and then was silent until last year, when Leah Deskins ’21 managed to get two columns published.

Now, today, as the editor who has received the Dicta mantle, I am determined to prevent this from becoming another Dicta-less year. Professors and alumni, I want to hear from you! At this point, Dicta has evolved to more generally feature recent developments in your scholarship, as well as your views about current events in the law. It's basically an outlet to share your research or thoughts with the legal community. Writing a Dicta column is a great way to explore a new idea in a less formal medium, get the word out about recent scholarship, or just communicate something that's on your mind.

Writing a column is ridiculously easy, too: we publish online and in print every week during the semester, ending a few weeks before finals. No need to get pencilled in for a particular week, just send us 800 words whenever you are ready and we will fit it in. You don’t even have to cite your sources. Past Dicta columns have discussed a wide variety of topics: lessons from the life of the late legal philosopher John Garnder, the Takings clause, Obergefell v. Hodge, and D.C. voting rights. UVA professors—I WILL read your law review articles and hunt you down if I have to, but please do give it a shot this year. And non-UVA lawyers, professors, judges, justices, and Heads of Scotland Yard—this invitation is for you too! Regardless of your affiliation, we thank you for your readership and would love to hear your insights.

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js3hp@virginia.edu

[1] Such letters are certainly welcome (we like knowing people actually read what we publish).

New Film Highlights Need for Sentencing, Self-Defense Reform

Virginia Law Weekly April 13, 2022

Anna Bninski ‘23
Features Editor

*Pictured: Film by Directors Natalie Pattillo and Daniel A. Nelson*

[Content warning: discussion of abuse and interpersonal/sexual violence]

On April 6, the Domestic Violence Project at UVA Law hosted a screening of the new documentary And So I Stayed, which looks at the passage of New York State’s Domestic Violence Survivors Justice Act (DVSJA) through the lives of three women who were, or are, incarcerated for the homicides of physically abusive partners.

As folks may remember from 1L Crim, the self-defense doctrine typically requires that a party respond with reasonable force—and get out of a dangerous situation if possible. This structure tends to be weaponized against survivors of domestic abuse, as people ask them, “Why didn’t you just leave?” while disregarding the factors that keep victims in abusive relationships. Factors include financial control, isolation, emotional manipulation, difficulty bringing up or providing for children, and immigration status issues—not to mention the fact that leaving is the most dangerous time in an abusive relationship.

The DVSJA was introduced in the New York State Legislature in 2011 and finally signed into law in 2019. It allows judges to deviate from the regular sentencing scheme when they find that domestic abuse was a “significant contributing factor” to a crime committed by a survivor. Under the DVSJA, a judge can impose a shorter term of incarceration or, if appropriate, an alternative-to-incarceration program. The statute disqualifies third-time felony offenders and second-time violent felony offenders, as well as those convicted of first-degree murder and a few other serious crimes, such as terrorism. (The documentary doesn’t get into the statutory weeds, but these exclusions do a fair amount to undermine the opposition to the statute, depicted in the film, that characterizes the statute as a soft-on-crime, get-out-of-jail-free card).

The film traces the statute’s path to passage, and its high stakes for survivors, through personal stories.

Kim Dadou Brown, a central figure in the documentary, served seventeen years for shooting a partner with a history of physical abuse who was attempting to smother her. After her release, Brown became an advocate for the DVSJA and spent years collecting signatures and lobbying the state legislature while also struggling to maintain employment with a felony record.

Tanisha Davis was sentenced to fourteen years for the death of her child’s father, whom she stabbed once when he was attempting to choke her. The film includes her frantic 911 call, in which she begged the dispatcher to send help immediately and follows the dispatcher’s directions about how to stanch the blood flow. Under the DVSJA’s retrospective clause, which allows for re-evaluation of cases prior to 2019, Davis’s sentence was reduced to eight years—time served, essentially—and she was released to reunite with her son and the rest of her family, coming home in the midst of the COVID pandemic.

Nikki Addimando was sentenced to nineteen years to life for shooting her longtime boyfriend and the father of her children. Addimando had documented years of horrifying physical and sexual abuse, including medical records, and had tried to leave her abuser before. Her case, coming after the 2019 passage of the DVSJA, seemed like exactly the type of situation that the bill was written for. However, the judge in her case determined that there was no reason to believe that her partner was the one committing the abuse—this after the judge excluded evidence that the abuser had filmed his rape of Addimando and uploaded it to a porn site—and that Addimando was not eligible for a reduced sentence under the DVSJA.[1]

Mercifully, a pro bono appeal overturned this misreading both of the evidence and of the statute.[2] But Addimando remains imprisoned, and New York remains one of few states to have a statute equivalent to the DVSJA.

And So I Stayed is not a cheerful viewing experience. But, it’s a moving, educational look at the importance of legislation in real lives. Given the sad prevalence of domestic violence in our society, the film provides a beneficial perspective to anyone with the privilege to advocate for legislative change—and DVP plans to hold a second screening next October, during Domestic Violence Awareness Month.

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amb6ag@virginia.edu

[1] During her sentencing hearing, the judge told Addimando that it seemed like she didn’t want people to know that she “reluctantly consented” to sexual acts she was uncomfortable with…and maybe that was why she killed her partner and needed to spend two decades in prison? I guess it made sense to him.

[2] Coverage from the Poughkeepsie Journal quotes the prosecutor in the case as stating that, “It appears the court simply believed everything the defendant said at trial about the abuse she claims came from her victim,” whom he described as “by all accounts [] a loving father, son and brother, an eternally patient domestic partner — and the one who was really the abused in this case.” Given the extensive documentation of Addimando’s physical injuries, the prosecutor’s statement is a sad commentary on the continued need to educate about, and move away from, the default of disbelieving victims of abuse. (https://www.poughkeepsiejournal.com/story/news/local/2021/07/14/murderer-nicole-addimando-sentence-reduced-domestic-violence-act/7967311002/)

The Title IX 50th Anniversary Symposium

Virginia Law Weekly April 5, 2022

Holly Chaisson ‘23
Guest Writer

Pictured, from left to right: Dean Goluboff, Professor Kimberley Robinson, Deputy Assistant Secretary Goldberg, Professor Emily Suski

Friday’s symposium was the result of five months of planning by student organizations to celebrate the 50th Anniversary of Title IX. Prior to the opening remarks, the law student organizers set the mood with a curated Spotify playlist, kicking things off with Ariana Grande’s “God is a Woman.” Dean Goluboff then welcomed attendees and spoke of her personal connections to Title IX—first, her breaking of gender barriers in becoming the first female dean of the Law School, and second, her participation on the boys’ wrestling team in junior high—feats Title IX paved the way for in her own life. The dean concluded her remarks by highlighting the theme of the symposium: though Title IX has done tremendous work in the fifty years since its enactment, its work is far from over. As many of the panelists would later explain, it is not the case that Title IX’s regulations have benefited equally those it aims to protect.

Professor Kimberley Robinson took the podium next and, like Dean Goluboff, acknowledged that she herself was a product of Title IX and would not be here at the Law School without it. Tracing the progress of Title IX, Professor Robinson reminded attendees that in public school, prior to Title IX, women and girls were taught how to be in the home and presented with essentially three career options: teacher, nurse, or secretary (a position notably not open to Professor Robinson’s own mother due to segregation). Today, this is no longer the case, and while data from a Stanford study shows that Title IX has closed the gender achievement gap in many ways in K-12 schools, there are still gender differences that endure and disadvantage girls.[1] Data tracing teachers’ attitudes show that they believe girls need to work harder in math to achieve, an attitude that affects how they treat girls in the classroom despite the data also showing there is no gender achievement gap in math for students in 3rd–8th grade math. Parents’ attitudes have an impact as well, and data reveal they think of boys as more likely to be gifted than girls. And while Title IX has greatly expanded access to higher education for women, gender disparities still persist, especially in the STEM fields and in attainment of post-graduate degrees. Professor Robinson concluded her remarks by noting improvement is still much needed in the area of high school sports, pointing out that the number of girls participating in sports has still not caught up to the number of boys in high school sports as it existed in 1972. And women are still fairly underrepresented in college sports based on how much of the student body they make up.

The first panel of the day was on the topic of sexual violence and abuses of power in higher education. The panelists discussed factors contributing to gender-based violence on campuses and how Title IX combats this, highlighting the major roles that a lack of comprehensive sex education (including education with respect to the concept of consent) and the pervasive culture of victim-blaming play. A recurring theme during the panel was the disproportionate impacts Title IX had based on factors including race, gender, social status (e.g., member of a fraternity, athlete), and socio-economic status. Unsurprisingly, students who are members of marginalized communities often are most impacted, with complainants finding less success or even being discouraged from bringing their claims in the first place and marginalized perpetrators being found guilty and punished more harshly than their privileged counterparts. When asked how to reform the Title IX adjudicative process to address these disparities, the panelists focused on the role of transformative justice. Lexi Weyrick, a law clerk at Van Dermyden Makus Law Corporation, spoke about how transformative justice would remove the institutional actor and put power back in the hands of the complainants, allowing them to guide the process and address the root of the harm in an effort to prevent future harm from occurring. Her co-panelist Dena Robinson, a trial attorney with the DOJ’s Civil Rights and Employment Discrimination Division, agreed, highlighting the need to ask survivors in particular what they want from the process and the importance of making it so the perpetrator recognizes the harm they’ve caused to prevent future harm, something punishment alone can’t always accomplish.

The second panel focused on access to sports for transgender students, a particularly salient topic for the symposium given that this is a time when transgender and gender non-conforming students are being attacked across the country via state legislative efforts.[2] The panel featured Lindsay Hecox, a student at Boise State University who, alongside the ACLU, is currently challenging a law in Idaho (HB 500) which bans women and girls who are transgender and many who are intersex from participating in sports. The panelists discussed how access to sports for transgender students has indeed made progress in recent decades and that having the friendly Biden administration in office is facilitating more inclusive paths to sports for transgender students. Speaking about the recent bans on transgender students in sports, Ritchie Eppink, a lawyer for the ACLU of Idaho, said these cases are furthering the medicalization of who gets dignity and humanity and that lawyers and advocates fighting these cases need to include the people who don’t have “off-switches” (i.e., trans and gender non-conforming people) in the room when deciding tactics to educate and fight back.

The panel also highlighted the particular issues that arise for K-12 transgender students under Title IX. According to Emily Suski, a professor at the University of South Carolina School of Law, K-12 students suffer more sexual harassment than students in higher education, yet courts do not treat their claims commensurate with the problem and give the latter more protection than the former. Further, the majority of sexual harassment in K-12 public schools is directed toward the LGBTQIA+ community. Lindsay herself testified that the thought of facing potential discrimination in high school led her to make the decision to present as her gender assigned at birth until she reached college. The panel touched briefly on the current debate surrounding the participation of transgender women in sports as it relates back to Title IX. Civil rights attorney Ezra Young pointed out that the higher purpose behind Title IX is achieving gender equality in sports and closing any gaps and that those who are hung up on whether or not trans women are winning more medals than cis women are missing the point if these funding and opportunity disparities still exist. And Professor Erin Buzuvis noted that the argument that the exclusion of trans girls is to protect them fails because it actually harms them by reinforcing the false trope that women are categorically athletically inferior—it is simply not the case that all boys are better than all girls at sports. Lindsay closed out these remarks by reflecting on her personal experience as a trans athlete and made the point that most politicians in these arguments forget that most athletes—in her experience—are not comparing themselves to others, but are focused on doing the best they can for themselves, a truth bolstered by her experience coaching high school track and watching the athletes be focused simply on enjoying the sport and the journey.

The third panel focused on the intersection between access to contraception and gender equality. Both panelists emphasized that while Title IX and reproductive rights don’t always work together, access to contraception is required for true gender equality. Maha Ibrahim emphasized that it is a legal fiction that everyone enters into their educations equal to begin with, because a lack of access to contraception and abortion services on campus is part of the embedded inequity that exists for those assigned female at birth. The bodily autonomy facilitated by access to contraception is also an issue not just for people who can get pregnant, but for anyone engaging in sexual activity (noting that access to contraception includes access to condoms, vasectomies, etc.). Given the myriad barriers posed to access to contraception on campuses, reform in this area is crucial to further the purpose of Title IX in higher education.

The final panel concerned the intersectional failings of Title IX throughout its fifty-year life span thus far. The panelists acknowledged Title IX’s failings with respect to race and suggested turning to critical race feminism as a starting point in moving toward racial justice in this arena. One step schools could take, according to panelists, would be to offer intersectional resources and processes that took into account the multifaceted-ness of student identities rather than ignoring the role identities play in these processes. In implementing Title IX, schools need to examine their processes and ask probing questions like, “Who is it that the school has in mind when they are thinking of a complainant/survivor?” to get at potential issues. For example, if a Title IX office is located in a school’s “Women’s Center,” it indicates a school may be expecting only complainants/survivors who are women, and may unconsciously alienate cisgender men and transgender and gender non-conforming individuals as a result. And because Title IX’s mandate against harassment based on sex includes sexual orientation and gender identity, schools are going to need to continually reevaluate their procedures as the enforcers of Title IX to ensure this mandate is carried out.

Finally, Suzanne Goldberg’s keynote address took the audience on a tour through Title IX’s history and what she imagines as its future. She emphasized that Title IX has gained significant meaning over time as the case law and regulations interpreting it have grown, shaping Title IX throughout its lifetime. Social movements, especially those driven by students, can have a significant impact on the shape of Title IX in the future, and Goldberg urged the students in attendance to reflect on the ways they advocate in relation to Title IX and what they may go on to do in that respect in their careers. Goldberg also highlighted the progress made by the Biden administration (of which she is a part as the Deputy Assistant Secretary for Strategic Operations and Outreach at the Department of Education’s Office for Civil Rights). Recent executive orders are examples of efforts to employ Title IX to address racial injustice in an effort to achieve broader equity and to combat discrimination based on sexual orientation and gender identity, a critical step forward in a post-Bostock world.

While the symposium clearly highlighted the failings of Title IX over its half-century existence, it equally showcased its successes and carved out ways for its purpose to be advanced further, a task well-suited for the Law School’s graduates.

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hmc5wn@virginia.edu

[1] Professor Robinson acknowledged that she was using a binary concept of gender because the data was in these terms and that, as later panels would discuss, gender is a fluid concept rather than a strict binary.

[2] It’s worth noting that the fact that there is no gender-neutral restroom anywhere near Caplin Auditorium resulted in this author (and potentially any of the other transgender and gender non-conforming attendees) missing chunks of this packed symposium in order to access one of the very few gender-neutral restrooms inconveniently located halfway across the law school.

Narcan Training

Virginia Law Weekly April 5, 2022

Darius Adel ‘24
Staff Editor

I had the pleasure of attending the Narcan training event at the Law School last week. The staff from the Virginia Department of Health did a great job. Seeing so many other students spend their valuable time on a Friday afternoon sitting through Narcan instruction was pretty moving. I’ve lost more than a few friends to opioid addiction. The training session brought up a lot of those old memories.

The staff started by giving a short overview of Narcan and what it’s used for. Narcan temporarily treats those who are experiencing an opioid overdose. It literally blocks the opioid receptors in your brain and stops the drug from taking effect for about thirty minutes. During that time, you’ll want to monitor their vitals, call 911, lay them on their side, and apply a second dose if needed.

The best part of the training was that we all received two doses of Narcan. Curiosity had me wanting to try a dose, but, without opioids in my system, I doubt it would do anything besides make me sneeze. Sadly, heroin isn’t my thing.

Seeing so many of my classmates take the time to sit through and learn about this life-saving medicine made me feel positive about the future. Overdoses kill because users are either alone, or because no one around knows how to help. The more people who know how to deal with overdoses, the more lives that will be saved. It’s that simple.

The whole event was strangely emotional for me. Before it, I already had a working knowledge of Narcan. On a few occasions, I even got to apply those skills to help those experiencing a life-threatening overdose. Some have been friends and others total strangers. I had heard that helping a stranger through an overdose is easier because you can work unemotionally. For me, that was not true at all. At the end of the day, that’s still a person in front of you, and that person might die if they don’t get proper help.

Learning to properly apply Narcan is pretty easy. Honestly, even without the training, you could probably just read the directions on the packaging and apply it correctly. The Department of Health staff gave us a ton of detailed guidance. But, basically, you just stick the applicator deep up the person’s nose and spray that puppy in there. After you apply the spray, you want to back off quickly because that person just went from having the best/worst high of their life to a sudden withdrawal. They might flail around, or be pissed at you, or throw up. It’s really a mixed bag with these sorts of things.

My sincere wish is that more people learn about the effects of opioid overdose and how to counteract it. Many of the people I applied Narcan to were unhoused, but they are far from the only ones who use opioids. Just because we are in the UVA Law bubble doesn’t mean that overdoses aren’t a problem. Many of our friends and classmates deal with drug addiction, and the stressful environment we’ve put ourselves in does nothing to help.

If you are interested in learning more about Narcan or want to get some for yourself, you can go to the local Virginia Department of Health building at 1138 Rose Hill Dr., Charlottesville, VA 22903, and they will hook you up.Keep a dose at your desk at home or in your locker. Better yet, bring it to parties! Trust me, you’ll look way cooler than the kid with the half-empty box of White Claws.

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dsa7st@virginia.edu

April Fools Disclaimer

Virginia Law Weekly March 31, 2022

Dana Lake ’23
Editor-in-Chief

Well, it’s that time of the year. April means the 3Ls are truly on their way out, and finals really are on their way in. Flowers are blooming, masks are off, and the temperature is oscillating wildly between the high twenties and low seventies. The gunner pit sees new 1L additions every day, while 3Ls wonder if they should begin doing class readings now or give it another week. Here in the springtime of our youth, the Law Weekly brings you the April Fools edition. April Fools is the edition our editors look forward to above all others (excluding the final edition of the semester, of course) and every article herein is a labor of love with absolutely no factual basis at all.

An astute reader or administrator might wonder how this differs from a regular Law Weekly edition. While our editors usually channel their natural wit and sarcasm into investigative pieces and classic beat reporting—rooted, believe it or not, in real world events—April Fools is the time for cutting loose and pushing editorial bounds to their limit. No quotes in any article herein are collected from a real source; no eyewitnesses bore witness to any events described here with any eyes. Think of it as a funnier, cheaper Libel without the surprise professor cameos or aluminum cans rolling around on the floor.

The April Fools edition has run for the last few years and will hopefully continue for many more. Collegiality is something we malign as much as we brag about it, but traditions like this don’t happen without a level of basic respect. The Law Weekly may poke fun at Student Affairs, FedSoccers, OPP, gunners, the business school, basically every dean, people going into public service, and anyone who doesn’t play softball—but we also hope to contribute to a more open and friendly Law School. Don’t @ us on Reddit, but please do send in a Letter to the Editor. As the highly personal and mean-spirited dissents in our COPAs demonstrate, we can take it as well as we give it.

Enjoy this brief break from class reading and outlining if you’re a gunner, or from Bar Review if you’re riding that curve. Either way, we only have a few weeks left. With special thanks to all our editors, who managed to submit their pieces only slightly later than usual while working Libel.

Read our April Fools articles here.

Looking to History for Truth and Reconciliation

Virginia Law Weekly March 23, 2022

Anna Bninski ‘23
Features Editor

*Pictured (left to right): Dr. Selena Cozart, UVA School of Architecture and Professor Bertrall Ross*

On March 15, the UVA Law chapters of the American Constitution Society (ACS) and the National Black Law School Students Association (BLSA) hosted Dr. Selena Cozart in a conversation with Professor Bertrall Ross, the Law School’s Justice Thurgood Marshall Distinguished Professor of Law.

The well-attended event focused on questions surrounding Truth & Reconciliation Commissions, a model of restoration and justice-seeking that is most well-known in relation to post-apartheid South Africa. The publicity for the event posed these questions: What role does confronting the truth of racial injustice have in helping build a more just world? Are we able to break down oppressive structures without first understanding how they were built and maintained?

The conversation brought those questions close to home; Dr. Cozart has for years been an active participant in the University and Community Action for Racial Equity (UCARE) program at UVA, which has been instrumental in UVA’s recognition and accountability in relation to its unpaid, underpaid, and enslaved laborers. Dr. Cozart’s wide-ranging knowledge of and engagement with the Charlottesville community includes work with Cultivate Charlottesville, an organization that engages youth in building a healthy and just food system, Piedmont Environmental Council, the City of Charlottesville, and the University of Virginia.

The movement toward a potential Truth & Reconciliation body in Charlottesville, Dr. Cozart explained, was “birthed out of community members going to other sites, places and spaces of civil rights battles” in the wake of the events of August 11 and 12, 2017. Some of these communities had gone through Truth & Reconciliation processes, and the pilgrims from Charlottesville were especially impressed by efforts in Greensboro, N.C., to get to the truth of the city’s history during the mid-1970s. So in 2018, some people found themselves asking, “Is there something we can do locally here in Charlottesville?” Dr. Cozart noted that while Charlottesville is far from having its own Truth & Reconciliation Commission, community members are looking to South Africa and to Greensboro for models of how the process has worked.

Movement toward truth and reconciliation, Dr. Cozart emphasized, doesn’t come from an “external evaluation that says ‘You need a Truth & Reconciliation process,’” but instead comes from within the community. “Any community can be that community, but you need people who will get at the truth from a variety of perspectives.” Accordingly, the conversation in Charlottesville has open invitations to those who are not necessarily sympathetic to the goal of assessing the impact of the institution of slavery on American history, government, and society.

Professor Ross made an appearance via Zoom. His remarks and ability to really get into dialogue with Dr. Cozart were sadly truncated by technical difficulties. (He was speaking from Germany, and was hampered both by Europe’s refusal to adopt Daylight Savings Time and by unreliable train Wi-Fi.) However, in the short time that he was able to speak to the gathering. Professor Ross also emphasized the truth aspect: “Truth & Reconciliation requires engagement with inequality, the sources of it, the conditions that have led to current racial inequities, which has been called critical race theory … but it’s about understanding our history.” Education should include this aspect of history from early stages up through law school, Professor Ross stated, but noted that how it is taught is important. “Teachers need training to do it effectively.”

Dr. Cozart agreed about the need to educate educators. “Having expertise in the ability to teach is really important . . . I have seen conversations that lean toward creating a sense of guilt and shame, rather than creating understanding” of the history.

In response to an audience question about tension between truth-focused justice and a “right to be forgotten,” Dr. Cozart observed that she wouldn’t like to have a record of everything she thought at age fifteen. More seriously, she spoke to the importance of having some record of the past, and non-idealized assessment of historical figures, without moving into the nuance-free realm of “cancel culture.”

She also spoke to the use of historical records in the Charlottesville community’s efforts to document the effects of slavery. “We do not have the people who initially experienced the harm, but we do have their descendants,” and records that indicate the impact act of slavery on a wider level. This includes looking at the history of redlining in Charlottesville and looking at the work performed by enslaved people. “If that had been wage labor, how much would they have been owed?”

The conversation covered many more topics than this article cannot adequately convey, including the arc of history, local vs. national Truth & Reconciliation efforts, the necessity of facing “icky stuff,” the recent removal of Confederate statues in Charlottesville, and more.

“We wanted people to learn more about their local community: Charlottesville has been our host for three years,” said Tommy Cerja ’24, Social Action Chair for BLSA. The event certainly checked that box.

“The goal of the event was to think critically about our privilege and the conversations that aren’t happening,” added outgoing ACS president Max Larson ’23 (who had dealt heroically with the worst Zoom could throw at her). “We hope to hear more from Professor Ross next time. His work really is profound regarding race, democracy, and marginalized communities.”

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amb6ag@virginia.edu

UVA Hosts 2022 FedSoc National Symposium

Virginia Law Weekly March 16, 2022

Jacob Smith ‘23
Professor Liason Editor

The weekend before spring break saw large numbers of formally-dressed students roaming the halls of the Law School—an unprecedented event for current students. These sharply dressed individuals were attendees at the 2022 Federalist Society National Student Symposium, titled “The Federalists vs. The Anti-Federalists: Revisiting the Founding Debates.” For those students unable to attend, this article offers a brief summary of some of the symposium’s events. Recordings are available at the Federalist Society’s website.

*Pictured: Governor Glen Youngkin. Photo by Julia Davis.*

Keynote address

Governor Glenn Youngkin’s keynote address opened the symposium on Friday night. Governor Youngkin was introduced by Dean Risa Goluboff to a standing ovation from a packed Purcell Auditorium. The keynote addressed three constitutional issues. Governor Youngkin emphasized the importance of free expression, telling the crowd that intolerance, the “growing tendency to loathe rather than listen,” was a greater threat to American democracy than the “tyrant” Russian President Vladimir Putin. He also emphasized the importance of the rule of law and praised the Federalist Society for helping to support and develop good judges.
But the bulk of the keynote, like much of the symposium, had to do with federalism. Governor Youngkin contrasted the gridlock in Congress with the productivity of the Virginia General Assembly. While Congress only passed 89 bills in a recent year-long session, the General Assembly might send its governor 3,500 to 4,000 bills in a four-year term, each bill addressing a single subject. As further proof that state legislatures get things done, Governor Youngkin pointed to a recent bipartisan bill that gave Virginia parents the power to decide whether their children would wear masks in school. Governor Youngkin invited law students to find work at their state capitals, where the government is “working hard,” not “barely working.”

Populism and the Anti-Federalists

In a Saturday panel discussing populism and the Anti-Federalists, UVA Professor G.E. White offered perhaps the boldest response to the topic, arguing that the colonial era—as well as the current day—was just too different from the late-nineteenth-century period when “populism” was coined for the label to be used intelligently. Old Dominion Professor Michelle Kundmueller thought the Anti-Federalists would have been concerned about populism, fearing that it would erode individual rights and pave the way for tyranny, while Yale Professor Akhil Reed Amar saw their key contribution to popular control of government as the jury, which has lost influence over time.

Modern federalism

Later on Saturday, a judge-heavy panel took up the topic of federalism in the twenty-first century. Sixth Circuit Judge Jeffrey S. Sutton emphasized the importance of state courts, given the sheer number of cases handled in them, and described state constitutions as making possible a bottom-up way of developing constitutional law. California Supreme Court Justice Goodwin H. Liu brought up the “federalism discount,” the watering-down effect that occurs when a legal reform is enacted at the federal level, while UVA Professor Julia Mahoney identified takings, eminent domain, and economic liberties as areas where the interplay between state and federal government was especially interesting and increasingly important.

Plenary federal power

In the symposium’s only debate, Georgetown Professor John Mikhail faced off against Stanford Professor Michael McConnell. Professor Mikhail took the position that the Constitution vested the federal government with broad implied powers. He pointed to the fears of the Anti-Federalists and the practices of the early federal government as positive support for broad implied powers, and explained the Federalists’ silence regarding them as calculated to secure support for the proposed Constitution.

Professor McConnell attached more weight to the Federalists’ stance in arguing that the Constitution did not originally establish a powerful, consolidated federal government. According to him, the modern federal leviathan was more a function of intervening historical and constitutional changes, such as the Civil War, which transformed how Americans viewed the United States; the Fourteenth Amendment, which nationalized individual rights; the Sixteenth Amendment, which gave the federal government access to the nation’s wealth; the Seventeenth Amendment, which removed a state check on the federal government; the Eighteenth Amendment, which led to the creation of a national police force; and the modern integrated economy, which vastly expanded the reach of interstate commerce.

Space does not allow for full treatment of the symposium’s two other panels, which addressed Federalist and Anti-Federalist perspectives on executive power and originalism. For those who attended, the symposium offered the chance to hear from nationally recognized legal scholars as well as an opportunity to rub shoulders with students from other law schools. But the symposium had independent significance in the fight against COVID: as the first in-person convening of the National Student Symposium since the start of the COVID-19 pandemic—and what I would guess was the largest public-facing event at the law school since then as well—it represented a milestone in the Law School’s slow journey toward post-pandemic normalcy.

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js3hp@virginia.edu