Honor Referendum 2: Electric Boogaloo

Virginia Law Weekly March 2, 2023

Sarah Walsh '23
Editing Editor

We’re back, baby. If you’re seeing news about an Honor referendum and feeling a sense of déjà vu,[1]you’re not alone. Just last year, UVA students voted—by an overwhelming margin—to pass an Honor amendment reducing the University’s single sanction of expulsion to a two-semester leave of absence. Now, there’s a new Honor referendum on the table. This time, students will be voting on whether to replace the single-sanction system, which has existed for almost 200 years, with a multi-sanction system.

The referendum[2]—which is effectively a student body ratification of the updated Honor constitution that was passed within the Honor Committee on February 12—outlines a number of changes to the current Honor system, including the expansion of the possible sanctions that students would face if convicted of an Honor violation.[3] If passed, it would be the first successful multi-sanction legislation since the Honor system was first introduced in 1842. The referendum will need both 10 percent of the student body and three-fifths of the voting population to vote in its favor to pass, and that student body includes Virginia Law students. As you’ve probably guessed, based on the number of SBA campaign posters and smiley face stickers currently floating around the Law School, it’s currently UVA election season. So, with the time for voting already upon us, here’s what you need to know about the new and improved Honor referendum.

Changes Under the Proposed System

The biggest change proposed by the referendum is the replacement of the current single-sanction system with a multi-sanction one. Under the new constitution, sanctions would be applied on a case-by-case basis, rather than under a “one-size-fits-all” approach. The possible sanctions that students could face would include (but not be limited to) education, amends, the aforementioned two-semester leave of absence, and expulsion.

While this does mean that the proposal brings back expulsion only a year after students effectively voted to eliminate it, James Hornsby ’24 emphasized that expulsion would only be available as a sanction in an extremely limited capacity and would be reserved for especially severe Honor offenses. As the Law School’s only delegate to this year’s Honor Constitutional Convention,[4] Hornsby helped draft the multi-sanction system proposals that the Committee used to craft the referendum. He explained that one of the major changes included within the referendum—aside from the expansion of possible sanctions—is the inclusion of a new “permanent sanctions” question within the guilt-determination process.

Under the current system, a panel for guilt determines whether an alleged offense meets the definition of an Honor violation and whether the accused student is guilty of committing the offense. The new system would require the student portion of the panel for guilt—which would be made up of five Honor Committee members and seven randomly selected students—to decide whether the offense at issue calls for expulsion or other permanent sanctions, including transcript notations. As Hornsby explains it, if less than five of the seven students on the panel vote for a permanent sanction, then those sanctions—including expulsion—will effectively be placed in “a glass box,” unavailable as possible sanctions for that particular offense. If the five-sevenths threshold were met, then the new sanctions panel—composed of the five Committee members on the guilt panel—would be able to hand down those sanctions, but they would not be required to do so.

Hornsby also highlighted that another major change proposed by the referendum involves what are called “Informed Retractions” (IRs). Introduced under the old system, where the single sanction for Honor violations was expulsion, IRs were meant to be a way to reward students for taking responsibility for their actions and making amends to the UVA community. If a student filed an IR prior to their Honor trial, they would be rewarded with a lesser sanction for their actions: a two-semester leave of absence.

If that lesser sanction sounds familiar, it should: Last year’s Honor referendum reduced the single sanction from expulsion to that two-semester leave of absence. The problem is that it forgot to address IRs when it did so, effectively making it so that filing an IR is now equivalent to entering into a guilty plea for an Honor violation—except that students filing IRs also have to “make amends” (write a letter apologizing for their transgressions), meaning that in return for owning up to their mistakes, they actually get to do more work than they would otherwise. Since a system that punishes students for being honest and trying to make amends is deranged, the proposed system would make it so that a student who filed an IR would automatically have any kind of permanent sanction taken off the table for them once their case went to the sanctions panel.

Why We Need the New System

Now, is the system proposed by this year’s Honor referendum perfect? No. But as Hornsby describes it, “It’s a good step in the right direction.” A single-sanction system, which ignores the severity of alleged offenses and the context in which they were committed, inherently lacks the compassion and fairness that all students deserve. It ignores the permanent impact that an Honor conviction can have on a student’s life, affecting not only their future job and graduate school prospects, but also their ability to graduate from the University altogether. A student found guilty of committing an Honor violation is ineligible to receive financial aid during their leave of absence, stands to lose University housing and scholarship eligibility, and—if they’re an international student—can lose their visa status if sanctioned. Add in the fact that data collected on the Honor system has indicated disproportionately high reporting and sanction rates for African Americans, Asian Americans, and international students,[5] and it becomes clear that the current system needs to change. While the proposed multi-sanction system won’t magically solve all these problems, it at least recognizes that the problems exist and offers a fairer, more compassionate Honor system in response. At the very least, it’s a good step in the right direction.

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saw8rc@virginia.edu

[1] Shoutout to Olivia Rodrigo, the voice of a generation.

[2] For more information on the referendum and how the proposed system would work, see Ashley Mosby, Honor Committee Sends New Constitution Outlining Multi-Sanction System to Student Body, Cavalier Daily (Feb. 14, 2023), https://www.cavalierdaily.com/article/2023/02/honor-committee-sends-new-constitution-outlining-multi-sanction-system-to-student-body and Ashley Mosby, Decades in the Making: A Closer Look at the Proposed Multi-Sanction System, Cavalier Daily (Feb. 23, 2023), https://www.cavalierdaily.com/article/2023/02/decades-in-the-making-a-closer-look-at-the-proposed-multi-sanction-system.

[3] Defined as a significant act, committed with knowledge, of lying, cheating, or stealing.

[4] See Sarah Walsh, Organization Named After Lying Will Represent Law School in Honor Convention, Virginia Law Weekly, Oct. 26, 2022, at 1 if you’re interested in learning about some of the fun lil’ shenanigans that surrounded the Law School’s involvement in the Convention.

[5] Riley Walsh, Geremia Di Maro & Erica Sprott, Report Shows Disproportionate Honor Violation Reports of Asian Americans, International Students in Recent Years, Cavalier Daily (Feb. 18, 2019), https://www.cavalierdaily.com/article/2019/02/report-shows-disproportionate-honor-violation-reports-of-asian-americans-international-students-in-recent-years?ct=content_open&cv=cbox_latest. See also https://report.honor.virginia.edu/#1; https://transparency.honor.virginia.edu/.

Dobbs and Democracy

Virginia Law Weekly March 2, 2023

Andrew Allard ’25
Executive Editor

This past Thursday, February 23, the Law School’s Journal of Law & Politics hosted its 40th Annual Symposium, entitled “Dobbs and Democracy.” Panelists discussed the capacity of American democracy to address reproductive rights and the role that state constitutions and prosecutorial discretion may play after Dobbs.[1] The Symposium included three discussions, with panels moderated by the Law School’s Vice Dean Michael Gilbert, Professor Anne Coughlin, and Professor Bertrall Ross.

The star-studded event drew a packed crowd to Brown Hall. Among the Symposium’s attendees were former Virginia Attorney General Mark Herring and NYU Law Professor Melissa Murray ’97, who delivered the keynote address. Professor Murray is a leading expert in family law, constitutional law, and reproductive rights and justice, and a co-host of the Supreme Court and legal culture podcast, Strict Scrutiny.

Professor Murray offered a dim, if at times jocular, assessment of the Dobbs decision overturning Roe v. Wade and Planned Parenthood v. Casey. Professor Murray, who observed in 2018 that “there is every reason to believe that [then-Judge Kavanaugh] would provide the fifth vote necessary to overturn or severely undermine Roe,”[2] expressed her lack of surprise at the Dobbs decision’s outcome and tone.

But Professor Murray did express surprise at the leak of the opinion in May. “I was surprised by the fact of the leak. And when the formal opinion came out, I was surprised that there weren’t a lot of substantive changes.” Professor Murray noted that the Supreme Court claims that its practice of exchanging drafts internally forces Justices to refine their arguments. “This draft opinion was substantively the same as what actually was announced. It was almost as though Justice Alito was saying, ‘You’re perfect. No notes.’”

Professor Murray was unconvinced by the formal opinion’s claim to be returning the issue of abortion to the democratic process. Professor Murray criticized the majority’s “selective and itinerant vision of democracy.” She expressed her view that the Fourteenth Amendment’s liberty protections are capacious enough to include reproductive freedom. Considering the Amendment’s passage in the wake of the Civil War, one could argue that it explicitly contemplated bodily autonomy.

Responding to the argument that reproductive freedom is enumerated nowhere in the Constitution, Professor Murray asked, “Who gets to participate in the project of identifying and enumerating rights?” Professor Murray argued that by vindicating only those rights that it identified through the lens of history and tradition, the majority in Dobbs was binding constitutional rights to “moments of profound democratic deficit.”

Asked whether she thought there were any redeeming features of the Dobbs majority opinion, Professor Murray quipped: “Well, it certainly fueled my research agenda.” But Professor Murray also expressed some approval of the majority’s insistence that the opinion did not affect other substantive rights. “The opinion is very clear—this is just about abortion. I hope that that dividing line remains intact. I don’t know that it will.” Professor Murray highlighted Justice Thomas’s concurrence, which she described as a reaction to Justice Kavanaugh’s moderation. “He was sort of like, ‘Hold my beer.’”

Professor Murray suggested that Dobbs may encourage activists to think about the other ways in which we might be pro-life. She lamented that “the interest in potential life begins and ends with the fetus.” Professor Murray expressed hope that Dobbs might lead to greater protection for families, such as paid family leave, pregnant worker protections, expansions of healthcare coverage, and greater protections for Black and Brown bodies. “If you are pro-life, you must ask yourself whether the current state of state violence against certain individuals is acceptable.”

Not all in attendance shared Professor Murray’s views of the pro-life movement. After the keynote concluded, UVA Law’s Professor Julia Mahoney objected to the claim that pro-life individuals only care about the fetus. “There are so many people who identify themselves as pro-life who are interested in so much more. To say that their concern just begins and ends with the fetus doesn't do people a service.” Professor Mahoney criticized the Symposium and called for a follow-up event. “The Karsh Center is supposed to be non-partisan. It’s supposed to put on events that have a range of ideas. This has not—I think—been what the Karsh Center is supposed to do.”

Professor Murray responded that the pro-life movement is at least largely focused on the potential for fetal life. But Professor Murray also cited the Whole Life Democrats, which she described as a group of Black, evangelical Christian Democrats who favor redistributive methods to promote a pro-life agenda, including expanding the earned income tax credit, expanding access to healthcare, and increasing opportunities for education, among other things.[3]

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tya2us@virginia.edu

[1] The topic was inspired by an argument made by Justice Alito in the Dobbs majority opinion: “Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process . . . Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277 (2022).

[2] https://www.judiciary.senate.gov/imo/media/doc/Murray%20Testimony.pdf.

[3] Professor Mahoney responded that she follows the group on Twitter. But a review of the 3,300 accounts followed on her public account (@JuliaMahoneyUVA) did not reveal Whole Life Democrats (@WholeLifeMov). Professor Mahoney does follow Susan B. Anthony Pro-Life America, Secular Pro-Life, and Virginia Law Advocates for Life.

Law in a Time of War: VJIL’s International Law Symposium

Virginia Law Weekly March 2, 2023

Monica Sandu '24
Production Editor

We are living through one of the most volatile periods of the last decade. From Russia’s war in Ukraine to Iran’s freedom protests, the international landscape is dramatically changing. On Tuesday, February 21, the John Bassett Moore Society of International Law and the Virginia Journal of International Law hosted the 72nd Annual International Law Symposium. The headline topic was “China vs. Taiwan: Using Current Conflicts to Predict the Future,” aimed at answering that crucial question: What’s next?

War is as much a battle of information as it is bullets. The symposium’s first panel, “Cybersecurity’s Role in Conflicts,” centered around this technological battlefield.[1] Hosted by Veronica Glick,[2] Raymond Romano,[3] and Zhanna L. Malekos Smith,[4] and moderated by Professor Kristen Eichensehr, the panel discussed advancements and concerns in cyberspace, especially those relating to the war in Ukraine. The first major question concerned why Russia had not been as destructive in its cyberattacks as first feared in the early days of the war. First, massive cyberattacks are extremely costly. Second, there may be a greater value in keeping communication and data infrastructure intact, as they can be used to gather more information. Wiping everything out at once might cripple the opponent, but it also cuts off a valuable resource. Scorched-earth cyberattacks may thus be a Pyrrhic victory.

The panel noted that we’re not out of the woods yet. The biggest threat remains the potential targeting of physical infrastructure, such as dams and power plants, the effects of which would be devastating. It is also very difficult to trace who is responsible for cyberattacks and to identify the attack’s effects. How can you tell if a private citizen is working on their own, if they are conducting so-called “patriotic hacktivism,” or if they are acting directly at the behest of their government? How can you trace all harm back to a particular source? These challenges make prosecuting cybercrime extremely difficult, especially when certain digital actions may become a real-life act of war. Moving forward, the panelists identified several fields to keep an eye on: artificial intelligence; data sovereignty; and the risk of space debris, along with the potential offensive capabilities of space debris-cleaning satellites.

The keynote talk was given by Beth George, a partner at Wilson Sonsini and former Acting General Counsel for the U.S. Department of Defense. Like the name of the symposium suggests, George spoke about the future anticipated for Taiwan in light of Russia and Ukraine. Following a brief overview of the history of Taiwan, George discussed the constitutional challenges to mounting an American response should China attack Taiwan. Would the president have the independent authority to take the United States to war? George described how the Department of Justice uses a test based on the anticipated nature, scope, and duration for the use of armed forces to see if a given action would rise to the level of constitutional force. While low-level hostilities are unlikely to escalate, and the president may be able to act without infringing on Congress’s Article I power to declare war, the use of force against a sovereign such as China, rather than a non-state actor, inherently carries a high risk of escalation.

Next, George highlighted how the United Nations Charter forbids the use of force against the territorial integrity of another state. While China is a member state of the UN, Taiwan is not. Self-defense cannot be invoked by a non-state entity as a justification for the use of force. Because the United States does not officially recognize Taiwan as a sovereign state, instead choosing to keep the question of sovereignty ambiguous, George recognized that it may be difficult for the United States to intervene in case of an attack by China. Though Taiwan likely meets the requirements of statehood under the Montevideo Convention (a permanent population, a defined territory, a government, and the capacity to conduct international relations),[5] there is also a terrible precedent of recognizing a territory’s independence for the immediate purpose of using force to then defend it. In any scenario, war would be devastating—for Taiwan and for the whole world.

Nevertheless, George believes Taiwan would easily meet a national interest test, given the US’s strong presence in the region. Furthermore, justifications for the legitimate use of force have been widened to include humanitarian interventions, as well as the defense of nationals in peril. In a world as connected as ours, the role of international law ought to be the promotion of peace and the protection of our future.

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ms7mn@virginia.edu

[1] I was unfortunately unable to attend the second panel, “Current Trends in Maritime and Naval Conflicts.”

[2] Partner at Mayer Brown and member of the firm’s National Security and Cybersecurity & Data Privacy practices.

[3] Director, Cyber Threats and Investigations, U.S. Department of State.

[4] Senior Associate, Aerospace Security Project; Adjunct Fellow, Strategic Technologies Program, Center for Strategic and International Studies; Cyber Law & Policy Fellow, Army Cyber Institute, U.S. Military Academy.

[5] https://en.wikisource.org/wiki/Montevideo_Convention.

Meet the Candidates

Virginia Law Weekly February 22, 2023

Grace Stevens ‘24, ggs2tq@virginia.edu
Presidential Candidate

At its core, I believe SBA’s dual purpose is advocacy and events. Accordingly, as I run for SBA President alongside Vice President candidate Kennedy Williams, our platform is two-fold: advance UVA Law’s community and restructure SBA as an organization so that SBA can better accomplish its purpose through its programming. Ultimately, SBA must focus time and energy into ensuring the organization becomes a stronger source of advocacy for all law students and must be intentional with respect to event planning and execution so that everyone feels welcomed into our community. To do so, I hope to rely in part on my prior experience within SBA, where I have served as the Vice President of the First-Year Council, a 1L Senator, and SBA Secretary. My experience in each role will allow me to pinpoint areas in which SBA can improve to be better advocates and organizers for the Law School community.

With respect to restructuring, I find that SBA struggled to meaningfully involve and solicit comprehensive feedback from its Senators, incorporate committee chairs into the organization’s structure and delegate to them a healthy amount of work, and strike a balance between professionalism and approachability. Kennedy and I also recognize the importance of accountability within SBA and its advocacy, and we intend to keep SBA and its members accountable to the student body, while also utilizing standing meetings with administration to keep administration accountable to the concerns of the greater student body that we ultimately serve as a voice for.

Furthermore, SBA has made strides towards strengthening the UVA Law community, but we will continue to work towards building a wider community where everyone feels welcomed. Our platform contains two specific goals with respect to fostering community at the Law School. First, SBA must continue to support student organizations and uplift sub-communities within the Law School without infringing on their core events. Kennedy and I hope to continue the partnerships SBA developed with student organizations for monthly socials this year, while also building upon an internal program connecting Senators to student organizations to develop stronger touchpoints and find areas for support, advocacy, and collaboration. Second, it is important that SBA focuses on improving and expanding SBA’s own programming to continue building our wider community, while also refining our execution of traditional events like Fauxfield and Barrister’s Ball. Specifically, we hope to expand options for students who would prefer to attend events without alcohol and collaborate with affinity groups and other student organizations to determine how we can make classic events, like Bar Review, more exciting for everyone.

Lastly, I intend to be an organized, attentive, and passionate leader. I sincerely want to assist SBA in reshaping the organization’s presence on Grounds and what it means to participate in student government at UVA Law. I hope you consider providing Kennedy and I with the chance to lead SBA forward for the 2023-2024 academic year–we will stay true to our platform and values and serve you all to the best of our abilities.

James Hornsby ‘24, wzp8aj@virginia.edu
Presidential Candidate

Rowan and I are both highly experienced student leaders, and as queer people, we both know what it’s like to not be heard or seen in the legal world. James served as president of his college’s student government, and at UVA Law, he is Lambda Law Alliance’s Interim President, a Law School Ambassador, a Peer Advisor, and a 2L Senator. Rowan was a student senator and vice president of their college’s student government. At UVA Law, they were First Year Council President before serving as a 2L Senator and Co-Editor-in-Chief of the Virginia Journal of Criminal Law. We want to use our experiences to give back to the law school community and give a voice to those who need it most. We are both tested leaders ready to be your SBA President and Vice President.

In office, we will act in three spheres: amplifying students’ voices within SBA, asserting the school’s voice within Charlottesville and throughout Virginia, and enhancing opportunities for fun and community.

In amplifying students’ voices, we will rethink the ways SBA operates within the University’s internal functioning and provide more leadership opportunities for students to apply their passions and lived experiences. Namely, we will reshape SBA’s Senate. Our vision for the Senate will empower each class’s Senators to take on a more active role. As Vice President, Rowan will run the Senate, and they will meet weekly with the Senate to organize and plan as committees, write and pass legislation, and speak with administrators about issues that arise at the school. Through this new approach, Senators will have a greater voice in SBA, giving students outside of SBA a greater voice into how the law school functions. Senators too frequently take a passive role in SBA, and their unique skills and experiences are not applied for the benefit of all law students. Rowan and I will change this.

We are extremely excited to use SBA in a new way to advocate for the law school. As one of the best law schools in the country and the most well-respected law school in the Commonwealth, we hold unique powers as law students to lead change at the state level. If elected, we will incorporate a legislative component into SBA to give students a direct way to advocate for issues they care about in Richmond. This new element of SBA will enable law students to participate in regular legislative updates, create opportunities for students to interact with legislators, and travel to Richmond to speak at House and Senate meetings. When UVA Law students speak up, people listen. As your SBA President and Vice President, we will give students the opportunity to have their voices heard.

While we want to improve SBA’s internal functioning and its relationship with Charlottesville and Virginia at large, we don’t want to stop the fun! We will continue to host events like Fauxfield, Barristers, Bar Review, etc. But we also want to add more events that provide students across classes the opportunity to build connections with one another. One event we want to implement is a Field Day, where all classes come together to compete with their sections in games like Tug of War or Capture the Flag. We hope to host a Family Weekend, giving students a way to show loved ones a peek into the law school experience. Additionally, we can spice up Bar Review by incorporating theme nights periodically throughout the year.

Rowan and I will lead SBA so students feel represented inside and outside of the law school, while having fun along the way. We hope to earn your vote.

Tommy Cerja ‘24, dmk7kc@virginia.edu
Presidential Candidate

Refresh. Empower. Celebrate. Join us in refreshing SBA events and programming, empowering student voices, and celebrating all the members of our student body! My name is Tommy Cerja, and I am running for President alongside my incredible colleague, friend, and hopeful future SBA Vice President, Nina Herth. My time at UVA Law has been well spent. I have found community, learned new hobbies, made lifelong friends, and discovered passions both personal and professional that were completely unexpected. It is my hope as SBA President that I will help cultivate an atmosphere where every student is able to take full advantage of their time at UVA Law.

REFRESH. SBA led events foster community by building shared experiences across the student body. These events allow us to take a break, develop friendships, and have fun—all of which are critical to avoid burnout. While SBA has staple events that many of us look forward to each year, we hope to re-vamp these events to keep the good and fix the bad. We will prioritize creating new events that cater to a wider range of interests (think: sports watch party, karaoke night, group hike, cultural holiday celebrations). Finally, we will ensure event logistics are smooth so everyone can enjoy them (venues will be big enough for everyone and events will not be planned on religious holidays).

EMPOWER. This campaign is not about us, it is about YOU. Together, Nina and I cover many different organizations and represent both private practice and public interest career paths. TL/DR: We have you covered. We guarantee to keep an open line of communication so anyone can call, text, or email us. As organization leaders, we empathize with how daunting it can be to create programming and work with the administration, and we are here to help. If you have something you want to accomplish, we are happy to help fuel that idea and, if necessary, to passionately advocate on your behalf. We promise to listen with open minds and hearts to all ideas—even ones we may not initially agree with—because encouraging diversity of thought makes our community richer.

CELEBRATE. Let’s be real, being a student at UVA Law by itself warrants a celebration. It is an honor to be a part of a community with such impressive, hard-working, and thoughtful peers. It is easy to get caught up in the grind and forget to take a step back and celebrate all we accomplish as students at UVA. No matter what your law school path looks like, this campaign seeks to remind you just how important you are to our community. We are here to carve out time to properly celebrate not only your achievements, but your whole humanity.

We would be incredibly honored if you put your trust in us with your vote. In return, we promise to REFRESH the slate of SBA events, EMPOWER all students and student-led organizations, and CELEBRATE all that is accomplished by our incredible student body.

Kennedy Williams ‘24, fqg2ff@virginia.edu
Vice Presidential Candidate

My name is Kennedy, and I am thrilled to be running for SBA Vice President, especially with an enthusiastic partner like Grace.

SBA serves the vital role of being students’ representative body, which means it provides a platform for community building, as well as answering to, and being responsible for, the concerns of the student body. The Vice President is the chief programming coordinator and is responsible for overseeing SBA’s many committees, graduation, and many other class-wide activities. My priority as Vice President will be to use the position to cultivate community within the law school. This will work in two ways – I plan to uplift and support smaller communities within the Law School and provide opportunities to foster community as a whole school. This will include engaging with different student organizations and supporting the events they already host, on top of improving and perfecting the quintessential SBA events. As Grace mentioned, we hope to continue to build upon the different relationships SBA has already established with student groups to keep providing fun inclusive events (and hopefully bring kegs back to Spies!). I hope to make SBA’s monthly socials a collaboration with student organizations to enable more groups to share their mission with the student body and allow more students to engage with organizations they may not yet have had the opportunity to. I also intend to collaborate with organizations to “co-host” Bar Reviews to make them more accessible and welcoming.

Moreover, Grace and I will keep ourselves and the rest of SBA accountable to all of you, our classmates. We intend to make approachability and access a focal point of our administration. By further developing our internal program that connects Senators to organization leaders, we can stay more attuned to the needs of different groups. We will host regular office hours to provide anyone and everyone an opportunity to have their voices heard. Furthermore, we intend to keep the administration accountable to student concerns by utilizing existing standing meetings, where we can address needs or concerns raised during General Body meetings, office hours, or casual conversations with our peers.

After spending two years on SBA’s programming committee, serving on the Barrister’s committee as a 2L Senator, and my tenure as Lone Star Lawyer’s Vice President of Social Outreach, I have developed the skills necessary to organize large-scale events in a variety of formats. I would love to introduce (and, again, support the groups on the ground already doing this work) a range of social, educational, professional, and wellness programming. As a Peer Health Educator at Tulane, I worked closely with the administration, student organizations, my peers, and even local businesses to respond to sensitive issues plaguing our community; it required creating a collaborative environment that felt welcoming to all. I intend to continue that work here, as SBA Vice President.

Should Grace and I be elected to serve you, we will work to strengthen our community at UVA Law, restructure SBA to better serve students and organizations, and keep ourselves and the administration accountable to all of your concerns.

Rowan Adams ‘24, vva4qk@virginia.edu
Vice Presidential Candidate

James and Rowan are both highly experienced student leaders, and as queer people, we both know what it’s like to not be heard or seen in the legal world. James served as president of his college’s student government, and at UVA Law, he is Lambda Law Alliance’s Interim President, a Law School Ambassador, a Peer Advisor, and a 2L Senator. Rowan was a student senator and vice president of their college’s student government. At UVA Law, they were First Year Council President before serving as a 2L Senator and Co-Editor-in-Chief of the Virginia Journal of Criminal Law. We want to use our experiences to give back to the law school community and give a voice to those who need it most. We are both tested leaders ready to be your SBA President and Vice President.

James and Rowan will lead SBA so students feel represented inside and outside of the law school, while having fun along the way. We hope to earn your vote.

Nina Herth ‘24, nah3jk@virginia.edu
Vice Presidential Candidate

Refresh. Empower. Celebrate. Join us in refreshing SBA events and programming, empowering student voices, and celebrating all of our student body! My name is Nina Herth, and I am running for Vice-President alongside with my incredible colleague, friend, and hopeful future SBA President, Tommy Cerja. The vibrant, collegial, and brilliant UVA Law community is truly unlike that at any other law school, and we both care deeply about not only continuing our beloved traditions, but also creating new ones. It is my hope as SBA Vice-President that I will help cultivate an atmosphere where every student is able to take full advantage of their time at UVA Law.

REFRESH. SBA led events foster community by building shared experiences across the student body. These events allow us to take a break, develop friendships, and have fun—all of which are critical to avoiding burnout. While SBA has staple events that many of us look forward to each year, we hope to re-vamp these events to keep the good and fix the bad. We will prioritize creating new events that cater to a wider range of interests (think: sports watch party, karaoke night, group hike, cultural holiday celebration). Finally, we will ensure event logistics are smooth so everyone can enjoy them (venues will be big enough for everyone and events will not be planned on religious holidays).

EMPOWER. This campaign is not about us, it is about YOU. Together, Tommy and I cover many different organizations and represent both private practice and public interest career paths. TL/DR: We have you covered. We guarantee to keep an open line of communication so anyone can call, text, or email us. As organization leaders, we empathize with how daunting it can be to create programming and work with the administration, and we are here to help. If you have something you want to accomplish, we are happy to help fuel that idea and, if necessary, to passionately advocate on your behalf. We promise to listen with open minds and hearts to all ideas—even ones we may not initially agree with—because encouraging diversity of thought makes our community richer.

Dorehn Richardson ‘24, gyy8sh@virginia.edu
Vice President of Diversity, Equity, & Inclusion Candidate

Hi! Nice to “meet” you if I haven’t already had the pleasure. I see student government as one of the purest forms of a representative democracy. We are all future JDs. The beauty of this is that as peers the student body has the means to directly express ideas, grievances, and concerns. In turn, SBA can act swiftly to address them. It goes without saying that this school year has been marked by tragedies both on Grounds and around the world that have left many across the law school facing various forms of grief, helplessness, and isolation. As the VP of DEI, my hope is to bolster unity across all intersections such that our bonds surpass the blanket niceties that often accompany “collegiality” and we are all more equipped to lean on each other generally and in times of need.

I am currently the Firm Relations Chair for the BLSA. In my role I host events centered on bringing law firms to campus and increasing their recruitment of diverse talent on Grounds. Over the course of the last seven months, I have had the opportunity to communicate with 1Ls across nearly every diverse intersectionality that exists at the law school from a big law recruiting lens. This experience makes me want to do similar work but on a larger scale. As the VP of DE&I I hope to work with SBA, faculty, administration, and most importantly the student body to increase the integration and representation of these groups in the law school community.

My campaign centers on 3 things: Collaboration, Community, and Cohesion.

Collaboration: Bring the diverse groups of UVA Law together. Right now, affinity groups exist in silos with little interaction between them. With the backing of SBA, I want to use programming and initiatives with multicultural impact and emphasis to bring our various groups together. Many students exist across multiple intersections of diversity, and we can do a better job of recognizing that. Early in the school year I want to host a town hall where each affinity group will have representatives to talk through issues closest to them. From there a game plan can be set to collaborate.

Community: Host outreach events to benefit underrepresented and economically disadvantaged groups and expand our impact in the greater Charlottesville community. While students already do so much through clinics, I am a strong believer in combining having a good time with doing good deeds. I want to host a Holiday Bar Crawl that supports a toy drive and a tutoring program where participants can win a dinner with friends at some of the best restaurants in Charlottesville.

Cohesion: Bridge the gap between as many students as possible by placing a priority on inclusion. With our many student groups, affinity, and interest alike, it is very easy to stay in familiar surroundings and not venture out. At times I have chosen the comfort of my organizations over other opportunities. Though self-segregation is real, I want SBA to make a greater effort of making sure that everyone feels included, rather than merely acknowledged, and comfortable enough to branch out, especially following 1L. As the VP of DEI, I plan to use my tenure to serve as a catalyst for that change. I will advocate for programming that highlights our different interests and invites those unfamiliar with them to join in.

With collaboration, community, and cohesion as my focus I hope to breathe new life into this role and maximize its potential.

Toni Woods Maignan ‘25, fug7rr@virginia.edu
Vice President of Diversity, Equity, & Inclusion Candidate

As a 1L Senator this academic year who served on the Diversity, Equity & Inclusion Student Bar Association Committee, my experience qualifies me for the office of Vice President of Diversity, Equity, and Inclusion. In the fall semester, my classmates elected me to be a Section Representative and 1L Senator to represent my section and the entire 1L class. Throughout my term, I have attended every Student Bar Association meeting and consistently raised issues that my peers have expressed. I now have a better understanding of how the Student Bar Association, the law school, and the university as a whole works. As a member of Virginia Law Women, Latin American Law Organization, and Black Student Law Association, I have not only spent my entire life advocating for minority or disadvantaged populations, but I also know and can articulate the concerns of diverse communities within the law school as well. If elected, I hope to better integrate the advocacy for the diversity, equity, and inclusion of UVA Law students with the Student Bar Association. From my perspective, this advocacy role has fallen mainly on the student organizations. The Student Bar Association should take on more of this administrative burden. As Vice President of Diversity, Equity, and Inclusion, there are many first steps that I would like to take within the role. First, I would send more statements in support of communities, if necessary. Second, I would plan both festive and commemorative events for the community. Third, I would use the Student Bar Association budget to provide additional support to organizations or students as needed. Most importantly, I would be a listening ear, a vocal advocate, and sensitive and responsive to pertinent events and issues as they, unfortunately, inevitably arise.

Daniel Elliott ‘24, zfu3zc@virginia.edu
Honor Committee Representative Candidate

As one of the Law School's current Honor Reps, I hope to continue advocating for the consideration of law students and our perspectives as Honor undergoes changes and strives to better meet its charge of protecting the Community of Trust while also protecting the interests and rights of all students.

Henry Adams ‘24, hla8nr@virginia.edu
3L Senator Candidate

Generally, I hope to be a voice for the 3L class and to make SBA an effective supporter of the varying goals of students in the class and the organizations they belong to. To do that, I am interested in increasing the transparency of SBA, increasing the frequency of community-wide events that are accessible to all, and providing more opportunities for service within the law school and local community. I also want to facilitate stronger connections between student organizations and the SBA so that the organizations can collaborate with and work through SBA to achieve their initiatives.

I am a current 2L Senator and Co-chair of the Community Engagement Committee, where I have had the opportunity this year to work on various initiatives and learn about the inner workings of SBA. I am also involved with several other student organizations and have had the opportunity to build connections with students throughout the school. With this experience and knowledge, I feel well equipped to effectively support student organizations and accomplish goals on behalf of the 3L class and student body at large.

Toni Woods Maignan ‘25, fug7rr@virginia.edu
2L Senator Candidate

As a current 1L Senator, my experience qualifies me to hold the office of a 2L Senator. In the fall semester, my classmates elected me to be a Section Representative and 1L Senator to represent my section and the entire 1L class. Throughout my term, I have attended every Student Bar Association meeting and consistently raised issues that my peers have expressed. This academic year has been particularly challenging for UVA students. I have voiced many concerns, including the impact on mental health and grades in light of the mass shooting; the low reimbursement amount for Take Your Professor to Lunch, which has been subsequently rebranded as Take Your Professor to Coffee in response; and the limits to Barrister Ball tickets this year, which will now be sold earlier in the year; amongst others. I also bring diverse viewpoints along racial/ethnic, gender, and regional lines to the Student Bar Association. If elected, I hope to accomplish next year a number of initiatives that students have highlighted as their concerns or desires. First, students want tissues throughout the law school – not just in the library – to encourage cleanliness, healthiness, and comfort. Second, students want more study abroad location options, specifically in Latin America. Third, students want more flexibility and ease in the Alternative Spring Break Trip for public service. They want a later pro bono hour deadline than February 10th and more spots on the trip to encourage public service within the student body and to support students who have already committed to that career path. Fourth, students want more transparency regarding the governance of UVA. I understand this desire and often share that sentiment even as a current member of the First Year Council and the Student Bar Association. As a 2L Senator, I would promote communication and students’ concerns.

Laura-Louise Rice ‘25, urg8ge@virginia.edu
2L Senator Candidate

I spent this year serving as President of the First Year Council and as a 1L Senator as a responsibility of that role. I have dedicated much of my time and efforts at UVA to speaking up for those in my class and those who feel unheard. I see the importance that running for office holds in bridging the gap between student voices and the administration. In having experience carrying out this same type of advocacy before, I am certain that I am qualified to continue to do so as a 2L Senator.

I believe that as students will always be the ones closest to the student experience, students should be at the forefront of making decisions regarding that experience. As a senator, my job will be look out for the needs of all of the 2L class, not just one specific group. SBA and its senators can play an essential in driving change forward and refusing to keep standards of the past. Every year, our student body evolves with new interests and challenges, and I want to be on the front lines tackling those issues with persistence and accurate solutions in ways administration would be unable to do.

If elected, I hope to continue being a strong and persistent voice for students and their concerns. I particularly want to continue to help keep the 2L class engaged as we no longer will have such an emphasis on our student experience from administration the way we did during our 1L year. A big goal of mine is to make SBA more accessible to ALL students and help facilitate programming and advocacy that looks out for those who love Bar Review and those who don't. Being a 2L Senator is not a matter of me accomplishing my person goals and what I see best, but to look to those around me and gather their perspectives to help implement what the community at UVA Law wants as a whole.

Experts Discuss Lochner & Future of Economic Liberty Under the 14th Amendment

Virginia Law Weekly February 22, 2023

Nikolai Morse '24
Managing Editor

Last Thursday, the Federalist Society at UVA Law hosted a discussion entitled “New Lochner Era? Economic Liberty in the 21st Century.” Andrew Ward, an attorney for the Institute for Justice, and Professor Julia D. Mahoney spoke. The participants discussed the reputation of the infamous Supreme Court case Lochner v. New York[1] and assessed the chances of a reemergence of economic liberty interests in the twenty-first century.

Mr. Ward spoke first, offering his insights into the legal recognition of economic liberty generally, based on his litigation experience. He offered a hypothetical in which someone who wants to open a hamburger restaurant must apply to a government panel for a permit, which then conducts an analysis to see whether there are already enough hamburger restaurants in the region.[2] If the state decided there were, you could not open your burger shop. Mr. Ward said that this hypothetical illustrated the basic operation of Kentucky’s Certificate-of-Need (CON) law, which he challenged in Tiwari v. Friedlander.[3]

Mr. Ward’s clients, Dipendra Tiwari and Kishor Sapkota, were prevented from opening a healthcare agency they had designed to provide home healthcare services to the large community of Nepali-speaking refugees and immigrants in Louisville, Kentucky. His clients intended to help an underserved population, many of whom receive ineffective services because they don’t speak English. Ward said that because the local branch of a large healthcare services company told the state department in charge of issuing CONs that it was able to serve these patients—though Ward noted they were not doing so—his clients were not issued a CON.

Before the Sixth Circuit, Mr. Ward argued that Kentucky’s law violated the Fourteenth Amendment because it restricted his clients’ rights to engage in a common occupation. In response, Kentucky argued its CON law was necessary to lower competitive pressure so that companies could pass their savings on through lower prices. Ward noted that this law arguably resulted in a system of entrenched incumbents. While his firm ultimately lost the appeal, he stated his optimism that the Supreme Court’s embrace of the “history and tradition” test for defining rights under substantive due process would result in recognition that people’s right to engage in a common occupation is deeply rooted in our nation’s history and tradition.

Mr. Ward concluded by noting how many laws which are facially protectionist prevent people from entering into professions on the basis of arbitrary requirements. He said these laws disproportionately affect individuals with criminal records, who are often barred by vague “good moral character” requirements—even in fields whose workplaces are seemingly unrelated to any criminal past, including cosmetology and skincare. Yet even if these laws could be challenged as violating economic liberty interests under the Fourteenth Amendment, Ward said it would likely be insufficient if government actions continued to receive only rational basis review. Noting the prevalence of protectionist laws, he said, “There are far too many of them, and the constitutional standards are far too low.”

Professor Mahoney spoke next and began by noting the hostility towards Lochner, which has translated to reluctance to recognize economic liberty as being protected under substantive due process. Mahoney noted Lochner was seen as reflecting the high-water mark of a time when the Court regularly struck down legislative acts and was seen as being too judicially unrestrained.[4] But in the following decades, this changed. “Put simply, by the end of the New Deal era, there is language in judicial opinions suggesting—with some notable limitations, such as the First Amendment—that the Supreme Court is just going to be out of the business of scrutinizing legislative actions for constitutionality,” said Mahoney.

Mahoney noted, however, that after World War II, the Supreme Court returned to the field in famous cases such as Brown v. Board of Education, Williamson v. Lee Optical, and Ferguson v. Skrupa. However, in the last two cases, the Court applied a “toothless” rational basis review to economic legislation. Mahoney said that while people will occasionally suggest applying a higher standard of review for economic legislation, the response is often a concern about returning to something like the Lochner Court. Noting the specific scorn which Lochner receives, Mahoney stated that when she attended law school, Lochner was regularly cited as being the worst Supreme Court decision ever—notwithstanding infamous cases such as Dred Scott, Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States. Mahoney pointed out that, while there was plenty of criticism about Lochner, there was not much consensus as to why it was so bad.[5]

Professor Mahoney closed by suggesting that the picture for both Lochner’s reputation and its economic liberties might be changing. Pointing to work by Richard Epstein, David Bernstein, and Rebecca Brown, Mahoney said that the view of Lochner as an example of reactionary judicial overreach is being reconsidered. Yet still, she said, going forward, there is a generalized resistance to Lochner and, relatedly, to unenumerated economic rights. Mahoney said that a number of opportunities were available to address the current situation, including judicial recognition of the Privileges and Immunities Clause and the use of the Equal Protection Clause to protect the disparate treatment of similarly situated people’s unenumerated economic rights.

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cpg9jy@virginia.edu

[1] 198 U.S. 45 (1905). For all you 1Ls, this is the case where the Court famously invalidated a New York law which prescribed the maximum working hours for bakers, on the theory that the law violated the “liberty of contract” protected by the Due Process Clause of the Fourteenth Amendment.

[2] The idea itself is blasphemy. #RonSwanson2024

[3] 26 F.4th 355 (6th Cir. 2022). The Sixth Circuit upheld the law as non-violative of the Fourteenth Amendment, and the Supreme Court denied certiorari in November 2022.

[4] Though as Professor Mahoney noted, there were a number of other legislative acts, such as the one in Muller v. Oregon, which the Supreme Court upheld.

[5] Mahoney referenced an article making this point. See generally David A. Strauss, Why Was Lochner Wrong, 70 U. Chi. L. Rev. 373 (2003).

Virginia Law Review Hosts Symposium on Right to Education After Rodriguez

Virginia Law Weekly February 22, 2023

Garrett Coleman ‘25
Staff Editor

This past Friday, February 17, the Virginia Law Review hosted an online symposium, titled 50 Years After San Antonio Independent School District v. Rodriguez: New and Old Fights for Equity in Public Schools. The event centered around the landmark Supreme Court case, which held that there was “no fundamental right to education” within the Constitution. But, where the federal government retreated, advocates at the state level were prepared to bear the burden of fighting for universal quality education. This approach was exemplified by Professor Al Kauffman of St. Mary’s University School of Law, who was the symposium’s keynote speaker. His work as lead attorney for the plaintiffs in Edgewood Independent School District v. Kirby “reversed Rodriguez in Texas.”

To kick off the event, the audience heard from Angela Ciolfi, ’03, Executive Director of the Legal Aid Justice Center. As an education rights lawyer, she had seen firsthand “how the lack of a fundamental right to education played out on an individual and systemic level.” And, as a Powell Fellow, she had much to say about the Justice who cast the deciding vote in Rodriguez. While Justice Powell was a man who worked to build bridges between an old southern aristocratic class and some segments of the civil rights movement, he came from an undeniably privileged background. That background then informed his understanding of the education system and arguably made for a blind spot that came to the forefront in his majority opinion.

Professor Kauffman began his address with a criticism of Rodriguez and the Powell majority opinion. Many of his problems stemmed from the tale of two fact patterns that the majority cherry-picked from. He explained how the majority used examples from California, Connecticut, and New Jersey—states that had a completely different educational landscape compared to Texas. In cities like Newark, it was possible for high-income school districts to have plenty of low-income students. Such a dynamic was not possible in Texas, for several reasons. The first was an “old style racism” against Mexican-Americans, who lived in the poorest districts. As a native of Galveston, Texas, Kauffman has a good deal of personal experience to lean on. Having graduated from high school in the 1960s, he had only ever attended segregated schools. The next reason was that many Texas school districts were much smaller, with homogenous communities. This allowed for a severe gap in funding not seen in the other states used by the majority. Ultimately, Kauffman explained, the defense convinced Justice Powell that the federal courts would take over local school districts, thus jeopardizing the “local autonomy” that features so frequently in his majority opinion. And Justice Powell was also concerned with a slippery slope that led to equalizing funding among universities—a conclusion that Kauffman also came to and advocates for.

Professor Kauffman then went on to praise the dissent of Justice Marshall, who he said was not afraid to “talk[] about the politics” of this decision. Justice Marshall saw the Court’s holding “as unjustifiable acquiescence in a system which deprives children . . . of the chance to reach their full potential.”[1] Both Kauffman and Ciolfi intimated that it was the difference in background among these two men that either obscured or made apparent the ramifications of Rodriguez.

In the part of his address most suited to aspiring litigators, Professor Kauffman explained how he turned his understanding of and frustrations with Rodriguez into impactful advocacy. Better yet, he did so in the state from which Rodriguez came. In Edgewood, Kauffman scrutinized the theory of “local power” through the lens of two school districts in the same county. One was Alamo Heights, a “tax haven district” which spent more money on students. The other was Edgewood, a district with a much higher tax rate but much less money to spend. And by higher, he meant a tax rate that was fifty times higher than in Alamo Heights. Kauffman asked: Who really has local power? This style of advocacy necessarily embraced the political effects that the Powell majority steered clear of. Proper investment in students mattered to educational outcomes. Poor investment, dilapidated schools, and the resulting undereducated population perpetuated the cycle of poverty. And it is impossible to ignore the historical discrimination against Mexican-Americans in this context. Kauffman was able to convince the Texas Supreme Court that these funding disparities did matter and that the state’s constitution mandated a remedy. Because of his work in Edgewood, the Texas Supreme Court held that Article VII, Section I of the Texas Constitution did impose on the legislature “an affirmative duty to establish and provide for the public free schools.”[2]

The keynote address was followed by a conversation with Professor Kimberly J. Robinson, as well as several panels on state responses, school choice litigation, and federalism in the realm of education. Virginia Law Review’s outgoing Online Development Editor, Sydney Stanley ’23, was responsible for securing Professor Kauffman as the fantastic keynote speaker.

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jxu6ad@virginia.edu

[1] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 71 (1973).

[2] Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex. 1989).

Professor Citron Interviews Digital Privacy Scholar

Virginia Law Weekly February 15, 2023

Andrew Allard '25
Staff Editor

This past Thursday, February 9, the Law School’s LawTech Center and Law, Innovation, Security & Technology (LIST) hosted an interview with Chris Gilliard, a writer, speaker, and inaugural member of the Just Tech Fellows at the Social Science Research Council. Gilliard’s scholarship focuses on digital privacy and the intersections of race, class, and technology. The interview was led by the Law School’s own Professor Danielle Citron, whose scholarship also centers on privacy and civil rights. The two discussed the proliferation of products that monitor us and our activity, such as smart home and fitness tracking devices, and their implications for privacy.

To give you a sense of Gilliard’s views on these devices—which he pointedly terms “luxury surveillance”—he has compared Apple Watches and Fitbits to ankle monitors. “What is the difference between an ankle monitor and a Fitbit?” asked Gilliard, facetiously. “One of them collects a lot more data.” Spoiler alert: It’s not the ankle monitor.

I found myself surprised at my own skepticism while listening to Gilliard and Professor Citron’s conversation. For my own part, I suppose I’m somewhere in the middle of the Luddite-tech bro spectrum. I own a Fitbit, which I wear daily. I don’t understand the point of having an Echo. But still, I found it difficult to accept what Gilliard was saying. Could my beloved Fitbit really be that harmful?

This, I suppose, is what worries Gilliard so much about these technologies: They’re insidious. It is difficult to convince those who are already invested in these technologies, particularly when they think they have nothing to hide. “There’s a segment of people who think they’re always going to be on the right end of the camera,” explained Gilliard.

This acceptance is facilitated in part by something called the “Borg Complex,” Gilliard explained. The term was coined by L.M. Sacasas, another tech writer. Star Trek fans will quickly understand, but for the Star Trek-uninitiated, think of it as a kind of tech fatalism. The Borg Complex is a criticism of the modern tendency to assume that resistance to new technologies is futile because they will be inevitably incorporated into our lives. But is this necessarily true? “We don’t walk around with plutonium!” Professor Citron quipped. So why do we so easily accept other (potentially) harmful technologies?

Maybe it was just the Star Trek reference that won me over, but the Borg Complex seemed to me a well-placed criticism. Gilliard cited the recent fervor over ChatGPT as an illustrative example. In a recent article in Slate, he chided the slew of articles declaring ChatGPT’s inevitable destruction of our education system: “The End of High-School English,” “The College Essay Is Dead,” “AI will almost certainly help kill the college essay,” and so forth.[1] An exasperated Gilliard asks, “Why do we keep doing this?”

On its face, what Gilliard argues for is eminently reasonable—that we should actually consider whether we want to accept new technologies into our homes and our daily lives. It is at least plausible that we can refuse these intrusive new gadgets. We ban things all the time—or at least attempt to. But while Gilliard’s warning against blind acceptance of the new is easy to accept, his cost-benefit analysis is probably less palatable to the general public. Asked whether there are ways in which surveillance could be beneficial to society, Gilliard was quick to say no. “The idea that we’re going to somehow leverage these systems that are in the hands of very powerful institutions with a seemingly endless supply of money is pure fantasy.”

This seems like an awfully lofty thing to say about a watch that tells me how many steps I’ve walked. To be sure, there are some serious legal consequences to sharing your personal data with tech companies. Your smart watch data can be used to determine your health conditions. Were it not for the Affordable Care Act’s protections for those with pre-existing conditions, that data could be sold to health insurance companies and be used to deny you coverage.[2] And under the third-party disclosure rule, established by Smith v. Marylandand United States v. Miller, cops may be able to access the data you’ve shared with your fitness app.[3]Professor Citron also mentioned concerns about law enforcement accessing health data from apps that track menstrual cycles—concerns that have proliferated in the wake of Dobbs.[4]

Fortunately, we do have the Affordable Care Act. The third-party disclosure rule has been narrowed in recent years, with Justice Gorsuch even suggesting it should be overturned.[5] And Congress may well extend HIPAA to apply to health and fitness apps.[6] But Gilliard argues that these problems are beyond regulation. “Often, when we’re talking about policy, there’s a discussion about how to ameliorate something. There are things I don’t think are best made less harmful. I think they’re best smashed into bits.”

With such broad adoption of these technologies, it’s hard to imagine the complete rejection that Gilliard describes. Indeed, he noticeably made comparatively little mention of the data collected by our smartphones, perhaps because he knows he would need a crowbar to pry them away from most people. Ultimately, although it is descriptively useful, the Borg Complex is deceptively simple. It’s not as though people accept these technologies without agency and without weighing their costs and benefits. We do that every time we choose to buy—or not buy—the latest gizmo. Certainly, it wouldn’t hurt to think more carefully about which technologies we do and don’t want to adopt. And admittedly, there is an illusion of choice when it comes to those technologies that everyone is expected to use. But I remain skeptical that smashing these technologies to bits is the most plausible or even the most effective solution to our contemporary privacy woes.

Personally, I won’t be taking a hammer to my Fitbit. But perhaps when its battery finally gives out, I’ll consider a conventional watch.

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tya2us@virginia.edu

[1] https://slate.com/technology/2023/02/chat-gpt-cheating-college-ai-detection.html

[2] https://blog.avast.com/what-fitbit-knows-about-you-avast

[3] Thank you, Professor Armacost. Unless I’m wrong, in which case, sorry.

[4] https://www.propublica.org/article/period-app-privacy-hipaa

[5] See Carpenter v. United States, 138 S.Ct. 2206 (2018).

[6] https://techcrunch.com/2022/07/08/house-oversight-letter-abortion-period-apps-data-brokers/

Shaping Justice Conference '23

Virginia Law Weekly February 8, 2023

Andrew Allard '25
Staff Editor

The Law School hosted the 7th Annual Shaping Justice Conference last Friday, February 3, in person for the first time since 2021. Spurred in part by the Dobbs decision overturning Roe v. Wade last June, the theme of this year’s conference was styled “Safeguarding Bodily Autonomy: Examining the Intersections of Health and Justice.” Panel topics ranged from reproductive justice and data privacy issues in the wake of Dobbs to the impact of climate change on indigenous health outcomes. But one panel spoke on an issue of some controversy in recent years, both here in Virginia and nationally: access to gender-affirming care.

The panel, titled “Youth Health Access: Gender-Affirming Care and Reproductive Justice,” was moderated by Professor Andrew Block, with Professor Naomi Cahn, Judge Marilyn Goss of the Richmond Juvenile and Domestic Relations District Court, and Mary Sullivan, an advocate for gender-expansive children, teens, and young adults.

On the legal front, anti-trans legislation meets shifting privacy rights to create looming challenges for access to gender-affirming care. Professor Block explained that when it comes to the rights of minors, “A lot of what the law is about is thinking about who gets to make what decision. When does the state get to decide, when do parents get to decide, and when do children get to decide for themselves?” Framed this way, state bans on gender-affirming care for minors amount to a restriction on parental rights. “There’s some irony in who’s proposing these laws and who typically wants to protect the rights of parents,” said Professor Block. While some courts have held that restrictions on gender-affirming care violate parents’ long-recognized substantive due process right to make decisions about how to raise their children, Professor Block noted that the strength of rights based upon substantive due process is uncertain in the wake of Dobbs.

Unsurprisingly, providers of gender-affirming care have expressed concern over these restrictions. “I don’t think we can overstate how damaging the rhetoric and the talk of bills that are being proposed are in terms of fomenting fear,” said Mary Sullivan. Sullivan noted that while minors in Virginia can access a variety of reproductive healthcare services without the consent of their parents, hormone therapy treatments still require parental consent. Asked whether these lines make sense, Sullivan answered that it depends on the young person, noting that age is a blunt instrument for assessing development.

Sullivan also expressed disappointment that when it comes to anti-trans legislation, “People in positions of power M.S.U.—make shit up.” Sullivan suggested that legislation targeting trans youth is motivated by hostility towards LGBTQ+ people generally, which gives its proponents a claim that they are protecting moral values. Sullivan noted Alabama Governor Kay Ivey’s statement upon signing anti-trans legislation that “if the Good Lord made you a boy, you are a boy, and if he made you a girl, you are a girl.”[1]

But Sullivan says that, in her experience, gender-affirming care is lifesaving. Sullivan noted the significant improvement of mental health outcomes in the over 700 young people with gender dysphoria that she has worked with. “I’ve seen kids who I didn’t think were going to survive who are now thriving through graduate school, who are going to change the world. Even if you didn’t think this was a right, to me, it’s an investment in the future.” Sullivan also noted that, of the nine people she has worked with who have chosen to stop hormone therapy, none of them regretted initiating the treatment or felt that they had made the wrong decision.

Many at the Law School are no doubt already familiar with the slew of anti-transgender state legislation that has been introduced in recent years. In late January, Utah became the fifth state to ban gender-affirming care for minors.[2] And just last week, the Virginia House Education Committee voted to advance two anti-trans bills—one that requires public school employees to inform parents if they believe a student is transgender, and another that bans transgender athletes from playing for the school team corresponding with their gender identity.[3] Six other anti-trans bills were rejected by the Senate Education Committee.[4]Members of the UVA Lambda Law Alliance attended a Monday morning legislative hearing in Richmond to express their opposition to the bills.

Indeed, speakers at the conference’s introductory panel noted the uncomfortable relationship between activism-oriented members of the University community and the current Virginia government. Speaking on the University’s efforts to remedy racial injustices, Melissa Gomes, Associate Dean for Diversity, Equity and Inclusion at the UVA School of Nursing, said that University administration remains committed to its work. “We know what they’re talking about up in the Capitol. And we know that maybe not everyone is supporting this work, but we’re still here to support the work and we’re not going to get rid of it.”

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tya2us@virginia.edu

[1]https://www.nbcnews.com/nbc-out/out-politics-and-policy/alabama-governor-signs-bill-criminalizing-transgender-health-care-mino-rcna23674.

[2]https://www.pbs.org/newshour/nation/how-utahs-new-ban-on-gender-affirming-care-for-minors-is-affecting-trans-teens-in-the-state.

[3] https://lis.virginia.gov/cgi-bin/legp604.exe?231+sum+HB2432; https://lis.virginia.gov/cgi-bin/legp604.exe?231+sum+HB1387.

[4]https://www.washingtonblade.com/2023/02/02/va-senate-committee-kills-six-anti-transgender-bills/

So, You're Applying to Take the Bar

Virginia Law Weekly February 1, 2023

Dana Lake
Editor-in-Chief

Bar applications are a nebulous sort of anxiety for law students, always around but still far enough away that it might be forgotten about for weeks at a time. Sort of like a rainstorm on the distant horizon, or assigned readings in a paper class. Spring semester means it is time for 3Ls to finally ask their firms to shell out the hundreds of dollars these applications cost, and put their honor on the line.

If you are the sort of person who has wondered if you have ever been charged for a crime and you don’t know it, or if you anxiously check to make sure the original copy of your birth certificate has not been consumed by rats since the last time you saw it, even though it never leaves your filing cabinet, this article is for you. The truth is that applying to take a bar exam is not that hard. By spending only ten minutes working on the application every PR class, you can have the whole thing done before the professor even gets to candor.[1]

That isn’t a recommendation to wait until the day before the filing deadline to start, though. If you are a standard applicant who has never gotten a parking ticket and worked for only one company before law school, you can breeze through pretty quickly. But much like law school applications, there are character and fitness questions that can take more time to answer (and provide documentation for) than you might expect. Even seemingly innocuous questions like, “Did this job require you to substantially engage in the practice of law?” can lead you down a rabbit hole that requires a panicked email to your PR professor.[2] No one wants to ask their firm to pay a late fee before they have even started working.

The Uniform Bar Exam and state-specific exams all want to know the same information: Where have you lived, worked, and committed crimes for the last ten years? You will also need your application for any law schools you have attended, which can be downloaded from the LSAC website. Your employment history needs to match between your bar and law school applications, and in general, you should have consistency between both documents. If you listed a C&F issue on your law school app, it needs to be disclosed to the Bar, and vice versa. If you have a C&F issue that you didn’t disclose within your initial application to law school, you will need to file a correction with the school.

It is extremely, extremely rare to fail to be licensed because of a C&F issue. During the investigation that takes place after your application is submitted, if there are additional questions or documents needed, you will be contacted and have the chance to work through whatever issue may have come up.

The real problem with bar applications is that the C&F investigation requires you to be fingerprinted. This is a huge pain in the neck. There are generally two options: go through a company, or DIY. IdentoGO, a fingerprinting company contracted with the state of Texas and other UBE jurisdictions, can electronically send your prints over to your investigator. They take care of everything; you just have to show up with your government issued ID. The locations available for this service are, of course, located at minimum two hours away. The closest office to Charlottesville that does fingerprinting is located in West Virginia, and they are only open on Tuesdays. Appointments book out weeks in advance, so it’s worth getting to this soon. The second option is to go through mailing a paper fingerprint card to your jurisdiction through a company like MorphoTrust USA. After pre-enrolling, you have thirty days to get to a law enforcement agency to have your prints taken and then submit the card.

Applying to take a bar exam might be an anxiety hanging over your head, but it doesn’t have to be. If you managed to fill out a law school application, you can do this easily. Below are the first filing deadlines for UBE states coming up soon.

Alabama, Texas, Kentucky, Oklahoma, Rhode Island: Feb 1

Illinois: Feb 15

Idaho, Kansas, Michigan, Missouri, Nebraska, Utah: March 1

Washington: March 5

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dl9uh@virginia.edu

[1] This is a joke, I did my application like I have done every other law school assignment: in one marathon session with only breaks for more coffee.

[2] Shout out to Professor Mitchell, who does not read the Law Weekly but does respond to emails in a timely manner.

Office of Private Practice to 1Ls: "Winter Is Coming"

Virginia Law Weekly February 1, 2023

Andrew Allard
Staff Editor

After successfully completing their first semester of law school, 1Ls were welcomed back last week with a mandatory reorientation and a quasi-mandatory stress-out session with the Office of Private Practice. OPP wrote in an email to 1Ls that its exclusive event would not be recorded and would contain information not duplicated in email or online. “Wrong!” said one writer for the Law Weekly, who wondered why busy students were being needlessly inconvenienced. So, said writer—despite being more than a little partial to public service—attended the event to provide a summary for our dear readers. No need to thank me.

Tl;dr:

The job market for law firms is better than you might think.
Start networking. But not so much that you get burnt out. Be selective.
Your GPA matters but is by no means outcome determinative.
OPP strongly recommends getting your application documents ready before spring exams start.

Confusingly, much of this information was in fact duplicated in email. I can only conclude that OPP’s red-print admonition to attend the event in person was intended to alert 1Ls seeking firm jobs to the seriousness of the next nine months. In fairness to OPP, that warning is probably well-placed. 1Ls might be eager to let loose now that they have a full semester under their belts, but winter is coming, and with it an avalanche of firms. So, with that in mind, if you want more detail than what is provided above, refer to the OPP Kickoff email sent on January 20. Or, if you want that information filtered through the Law School’s most clueless 1L, read on.

The Firm Job Market

If you’re a consumer of doomsday news, you may be concerned that the imminent and inevitable recession is going to crush your dreams of yachting, caviar, and the like. Fortunately, according to OPP, your concerns may be overblown. Layoffs are not yet widespread and have instead been concentrated in tech-heavy firms. Plus, there’s still a possibility of a soft landing. So just trust the process, take good advice, and you’ll have a good shot at landing a job at a major firm. And, if worse comes to worst, OPP has a game plan. So don’t panic (yet).

Firm Networking

The big message here is quality over quantity. It’s better for you to focus your energy on preparing to network with the firms that you’re really interested in. Nobody should do everything, but everyone should do something. City days or practice-specific events are especially helpful for students with specific interests. There are also some single-firm events if that’s your thing. Look out for emails from OPP or check Symplicity if you’re looking for networking opportunities.

Grades! What Even Are They?

The gist is that your GPA does (not) matter. Some firms care more about GPA than others. But a firm’s GPA preferences do not determine a firm’s quality. Mostly, your GPA helps you develop your networking strategy and prioritize firms. OPP kindly provides firm grade data to interested students. Keep in mind that you are by no means strictly limited to firms within your GPA range, particularly if you have other desirable characteristics (work experience, people skills, connection to the practice area or firm, underrepresented status, etc.), which I’m sure you do! So don’t assume you can’t apply somewhere because of your grades, and if you have questions about what your GPA means for firm jobs, talk to OPP.

Application Timeline

The timeline for interviewing and job offers is not one-size-fits-all. Some firms, particularly in the New York market, will probably open up for early interviews after spring exams. Others may wait for the traditional Summer OGI. To err on the side of caution, OPP strongly recommends having your résumé and cover letters ready to go before exams start. In recent years, some students received job offers as early as June or July. But, as with the answer to all legal questions, it depends. In any event, do not ask for an early interview. That’s weird and a total NYU move. Lastly, be on the lookout for summer job fairs as well. Organic opportunities outside of OGI are a major source of job offers.

Winter OGI

If you are participating in Winter OGI this semester, OPP has a lot of thoughts about how you should do this, including the precise number of times you should knock on the door for your interview. (Yes, seriously.) If you are in this boat (and are anxious enough to be concerned about these kinds of things), then I assume you are already in touch with OPP about interviewing best practices. But in short: Be on time, knock three times before entering, take up no more space than your chair, and don’t wear perfume or cologne. This could mean the difference between landing at Sullivan & Cromwell or the poorhouse.

Honorable Mention

“Please don’t take advice on Reddit.” ’Nuff said.

In closing, if you have any questions, reach out to OPP at privatepractice@lawschool.virginia.edu. 1Ls, they are your office for the next nine months. And if anyone at OPP feels that I have miscommunicated any of the kickoff information, please accept my sincere apologies and understand that I would warmly welcome a corrected event summary from OPP.

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tya2us@virginia.edu

Healing on Grounds

Virginia Law Weekly November 30, 2022

Dana Lake '23
Editor-in-Chief

Two weeks ago, a UVA student opened fire on his classmates. Devin Chandler, Lavel Davis Jr., and D’Sean Perry were killed in the attack, while two other students were severely injured. The UVA Alerts system was activated, first with a shots fired report at 10:32 p.m. This was quickly updated to a shelter in place order at 10:39 p.m. And then, at 10:45 p.m., it was updated again: Active Attacker, Firearm Reported, RUN HIDE FIGHT. The next twelve hours would see about 500 students and staff trapped on grounds as the search for the shooter sent the city into lockdown. Charlottesville City Schools did not open Monday, and the UVA shelter in place order was not lifted until shortly before the suspect was arrested the next morning.

National papers have covered the facts of the attack, the suspect’s previous reported incidents, and the arrest—some in graphic detail.[1] Even with the movement toward more empathetic and informed reporting, the same pattern repeats itself: A community is thrust into the national spotlight on its worst day, people you haven’t spoken to in years message to ask if you’re okay, and then the rest of the world is swept on to the next tragedy while the people they leave behind stay here. How a community heals from a tragedy takes many forms and takes many years. But in the hours, days, and weeks after November 13, we have seen how UVA has begun the process.

UVA Vice President Robyn Hadley, sheltering in place on Grounds, sent an email at 1:16 a.m. that Monday. This was the first communication students received from the University about the shooting not through the alert system. She acknowledged the frightening situation, confirmed she was in direct contact with UPD, and urged the many students still on Grounds to remain in place. University President Jim Ryan ’92 followed up at 4:14 a.m. He provided more facts of the incident and the suspect’s description, linked to the University’s counseling services, and canceled Monday classes. The Law School also messaged before dawn. At 5:49 a.m., Dean Risa Goluboff confirmed law classes were canceled and also provided links to University counseling. Dean Sarah Davies ’91 followed up by making Student Affairs available for students to speak with over Zoom.

While waiting for the suspect’s apprehension, there was little to do but worry and search online for details. The UVA Alerts system, which notified students every fifteen minutes of the situation’s status, and the fast and open sharing of information from administration helped to alleviate anxiety for many students. For those who went to bed early on Sunday, the most complete set of information available was already waiting for them in their inbox. Effective communication from the beginning set the stage for the next few weeks.

In the press conference later that morning, President Ryan and Vice President Hadley were joined by UVA Chief of Police Tim Longo to provide further details and address reporter questions. The national headline was Chief Longo receiving notice of the suspect’s arrest mid-report, but what many students will remember is the raw emotion President Ryan shared. The arrest was clearly only the beginning for him, and he made a point of reiterating the University’s intentions to hold a community mourning. Later, he and his wife would open their own home to students who needed a different gathering space. President Ryan’s compassion, empathy, and clear love for the students of UVA made a warm figure for the community to turn to.

The University instituted a lenient attendance and participation policy for the undergrads that the Law School also adopted. While the undergraduate school could also cancel exams prior to Thanksgiving break, the Law School could not intervene in the November MPRE many 3Ls had already signed up for. Amid concerns of road closures for students testing on Monday and a general sense of emotional whiplash for everyone else, most law students took the exam as scheduled.

The undergraduate Student Council organized an informal gathering Monday night, with electric candles for attendees to hold and place on the steps of Old Cabell Hall. The hundreds of students and community members who attended shared in silent reflection—considering the loss of three much-loved classmates, concern for the injured students still hospitalized, relief that the suspect had been arrested, confusion over his motives, and the ever-present fear of a copycat. Overcoming fear and grief as a community would be the recurring call throughout the formal and informal gatherings held that week.

At a community breakfast hosted by the Law School, Dean Goluboff offered this closing remark: “I hope you’ll give each other grace and support, and I hope you will ask for it.” We live in a small town. Culbreth is a road many of us travel on to get home, to visit friends, and to get to Main Grounds; Culbreth Garage is right across Emmet Street, not some place far away. A tragedy in the community you live in affects you, no matter how tangentially. How it affects you, when you will feel it strongest, and what that will look like is different for everybody. Be patient with your friends, and when you need support, please ask for it.

There are several ways to help the families directly affected by the shooting. Juan Thornhill, a UVA football alum now playing for the Kansas City Chiefs, raised over $30,000 for the families through a raffle he organized this last week. The University is selling UVA Strong merchandise through the UVA Bookstore to benefit the UVA Strong Fund, which supports the survivors, families of the victims, and the broader student community. You may also write letters to the victims’ families, dropping them off at the information desk at the Rotunda or mailing them to: Office of the EVP-COO, O’Neil Hall 130, 445 Rugby Rd., P.O. Box 400228, Charlottesville, VA 22904.

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dl9uh@virginia.edu

[1] The Law Weekly is not staffed by investigative journalists. For details on the ongoing investigation, please refer to cbs19news.com or other local coverage.

Lighting of the Lawn 2022

Virginia Law Weekly November 30, 2022

LOTL Committee
Guest Writers

Photo by Sanjay Suchak, University Communications

We hope to see you all at the 21st Annual Lighting of the Lawn, a beloved University tradition, which will be held this Thursday, December 1, from 7 to 9 p.m., and will be open to the entire UVA and Charlottesville communities.

Doors to the event open at 6 p.m. with a performance from the undergraduate band The Jellies on the South Lawn, accompanied by food trucks, photo stations, free snacks and hot beverages, ornament decorating, and more. The performances begin at the Rotunda stage at 7 p.m. and feature student dance and acapella groups, with the signature light show as a finale.

LOTL is an event that first came into fruition within a context of tragedy following the attacks on our nation on September 11 of 2001. Following those events, the atmosphere on Grounds was altered. What we once knew to be our joyful and traditional Grounds became overwhelmed by a devastating and fearful energy.

Though that fall was marked as a dark time for everyone at UVA, a group of student leaders on the 2002 Fourth Year Trustees Committee were determined to put on an event that would lift people’s spirits. After much brainstorming, Trustee Matt West proposed the idea of tangibly bringing back a sense of light to Grounds by putting Christmas lights up on the Lawn. Once administrators and Facilities Management got on board, students began hanging lights on the Rotunda and Pavilions, culminating in the first Lighting of the Lawn on December 15, 2001.

The event started out modestly, with only a few lights and a couple hundred students in attendance, but twenty-one years later the event has grown exponentially, now drawing close to fifteen thousand attendees each year. Today, LOTL is still led by a group of dedicated students with this same mission to bring joy and light. With performances from over twenty-four student groups, receptions on South Lawn and the Pavilions, and the iconic programmed light show, LOTL is a University-wide celebration of love, light, and each other. What remains the same is that the event is rooted in the same message of unity and community, as this is our last opportunity to gather as a community before we part ways for Winter Break.

In the wake of the tragic deaths of our classmates D’Sean Perry, Lavel Davis Jr., and Devin Chandler, this year’s Lighting of the Lawn is more important than ever in bringing light back to Grounds.

Back in August, the committee chose this year’s LOTL theme to be Full Power. Originally intended as a way to celebrate our strength following the past few difficult years and a return to normalcy, we have reinterpreted this theme to take on a new, more powerful meaning. LOTL Full Power reminds us that it is only when we are together as a community that we have the full power to love, the full power to remember, and the full power to offer light. In many ways, being UVA Strong is our community at full power.

For many in our community, this semester has presented many challenges which have been further exacerbated by recent tragedies. Our hope is that you can join us on Thursday to celebrate this community’s resiliency and unity. It may be the first time in a while that so many of us gather together for a celebration, or perhaps our first time singing the Good ‘ol Song. Whatever this night may mean to you, we hope that you can find moments of community and laughter.

The original mission of the first LOTL is all the more important as our school continues to grieve and heal, and as such, the tone of the event has been adapted to better suit the needs of the community at this time. We hope that this year’s Lighting of the Lawn can again bring joy to our community as we celebrate the lives of the three young men taken from us too soon and remind each other what makes all of us UVA Strong.

More information on this year’s Lighting of the Lawn can be found at our website lightingofthelawn.com or on our Instagram page @lotluva.

All of us in the LOTL committee hope to see you on the Lawn this Thursday.

Attorney and Professor Discuss Supreme Court's Consideration of Affirmative Action

Virginia Law Weekly November 30, 2022

Nikolai Morse '24
Managing Editor

On Wednesday, November 9, the Federalist Society at the University of Virginia School of Law co-hosted a speaker event alongside the Center for the Study of Race and the Law, entitled “Affirmative Action at the Supreme Court: A Discussion on Students for Fair Admissions.” The event featured practitioner Cory Liu, a partner at the Ashcroft Law Firm, who represented Professor David Bernstein as amicus curiae in Students for Fair Admissions v. President & Fellows of Harvard College. UVA Law’s own Professor Kim Forde-Mazrui, the Director of the Center for the Study of Race and the Law, also spoke. Mr. Liu and Professor Forde-Mazrui discussed the recent oral arguments before the Supreme Court in Students for Fair Admissions, the legal and historical background of race-based affirmative action, and the implications of the Supreme Court overruling precedent upholding affirmative action.

Mr. Liu spoke first, recounting how his parents immigrated from China and the challenges he faced growing up in an immigrant family, including facing discrimination and bullying. He described how, in learning about the Civil Rights movement, he felt “like a beneficiary of the advocacy of so many people that came before” and that, despite the United States’ long history of racial discrimination, “the Constitution had the principles needed to support much-needed progress.” Mr. Liu recounted his experience applying to colleges, when he learned about holistic admissions. He described how as a high school student, he struggled to reconcile hearing that “your race can only help you but never hurt you” with schools’ goals of increasing representation of some racial groups, which in his view meant you would necessarily decrease representation of other groups. Mr. Liu noted that in his experience, many Asian Americans felt that in the admissions context, “race was working against us.”

Mr. Liu summarized some of the findings from the years of admissions data that Harvard turned over in discovery. “[T]his confirmed a lot of Asians’ worst fears.” From 1992–2013, Harvard’s admissions data suggested that under an admissions regime which counted only academics and test scores, Asians would constitute 40% of the student body. Adding athletics to the mix, Asians would be 33%. Accounting for legacy and extracurricular factors, the percentage dropped to 26%. Accounting for demographics, Asians came to represent 18% of the student body under Harvard’s admissions formula. Mr. Liu noted that the remaining admissions criterion, titled “personal rating,” resulted in Asians receiving the lowest scores as a group, followed by whites, and in African Americans receiving the highest scores, with Latinos receiving the second highest. Because these differences along racial lines were not present in the reviews of alumni interviewers, but only presented after review by the admissions committee, Mr. Liu suggested that this category was not race-neutral.

In contrast to Fisher v. University of Texas,[1] which made no mention of Asian Americans, Mr. Liu said that “one of the great things about this case is the chance it has given Asian Americans to speak about the discrimination they faced, especially in the admissions process.” He said the effects on Asian Americans had received increasing media attention, with Asian American writers in The New Yorker and Slate describing how they felt compelled to “cultivate not just a sense of individuality but also ways to project ‘Not like other Asians!’”[2] by changing their major to “philosophy, thinking this was one of those impractical fields that most sensible Asian parents would not allow their children to pursue.”[3] Mr. Liu concluded, “I hope this is an opportunity for the country and universities to have a more nuanced and sophisticated conversation about these issues.”

Professor Forde-Mazrui began by contextualizing his remarks, saying, “I am not going to defend Harvard. My main concern is the bigger claim, which is overturning Grutter[4] and banning all consideration of race.” Professor Forde-Mazrui pointed out that there are two claims in Students for Fair Admissions: first, that Harvard’s admissions program violates Title VI of the Civil Rights Act under Gratz,[5] and second, to consider whether the Court should overturn Grutter and hold that universities cannot consider race in admissions. Professor Forde-Mazrui said that while this case could be decided on the first claim’s more narrow grounds, he believed the Supreme Court had taken this case to decide it on the second. Professor Forde-Mazrui argued that overturning Grutter and banning race completely would not help Asian American applicants more than challenging the program under Grutter. Specifically, he pointed to admissions factors like legacy admissions, children of faculty, donors’ children, and athletics—all of which benefit white applicants more than others—that would not be addressed by overturning Grutter. “The remedy does not fit the problem.”

Professor Forde-Mazrui then introduced the framework for his speech, which was titled “Taking the Federalist Society Seriously: The Constitutionality of Race-based Affirmative Action.” He suggested that “whether you agree with affirmative action as good or bad policy, and whether Harvard and UNC have done it in harmful ways, Federalist Society principles compel supporting affirmative action.” Professor Forde-Mazrui began by noting that the Federalist Society has a healthy respect for judicial restraint, state sovereignty, and the democratic process. However, he noted that overturning Grutter would take the decision out of the democratic process, and state legislatures would no longer be able to determine whether or to what degree they support or disallow affirmative action.[6]

Looking next to originalist views of the text, tradition, and history of the Constitution, Professor Forde-Mazrui first pointed out that equality “is a principle of reason, to treat people the same if similarly situated and different if differently situated.” However, the Constitution, Forde-Mazrui noted, does not tell us how individuals are situated. Looking to original meaning, he said that it is clear the Fourteenth Amendment does not mandate colorblindness and was in fact adopted over a competing version which explicitly mandated colorblindness. Professor Forde-Mazrui argued that while he believes the original meaning supports race-based affirmative action, at the very least it is sufficiently ambiguous that the burden to justify taking it out of the legislative process is unmet.

Lastly, Professor Forde-Mazrui said that when you look to tradition after the Fourteenth Amendment’s adoption, as was favored by Justice Scalia, it is clear that there is no deeply-rooted historical tradition against affirmative action. Rather, nearly 80 percent of states allow affirmative action. Professor Forde-Mazrui compared this to abortion regulations, noting that “there are more states that practice affirmative action than states which say anything about abortion . . . and the Court said there was not a deeply-rooted historical tradition” supporting abortion. In closing, Professor Forde-Mazrui stated that “morality supports the theory of affirmative action, and so do the Federalist Society’s principles.”

At the end of a question-and-answer session, Professor Forde-Mazrui asked Mr. Liu how overturning Grutter would have affected a university’s ability to consider his background relating to his parents’ immigration to the United States. Forde-Mazrui said that his concern was the extent to which color-blindness would restrict consideration of important aspects of individuals’ identities which were rooted in their race. Mr. Liu responded that he didn’t think it would foreclose discussion of overcoming discrimination in an admissions essay, though he noted that this very issue prompted Justice Kagan to respond that the lawyers for Students for Fair Admissions were “slicing the salami too thin.”

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cpg9jy@virginia.edu

[1] Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297 (2013).

[2] Jeannie Suk Gersen, The Uncomfortable Truth About Affirmative Action and Asian-Americans, New Yorker (Aug. 10, 2017),https://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affirmative-action-and-asian-americans.

[3] Aaron Mak, The Price of Admission, Slate (Dec. 5, 2017), https://slate.com/human-interest/2017/12/the-price-of-college-admission-for-asian-americans.html.

[4] Grutter v. Bollinger, 539 U.S. 306 (2003).

[5] Gratz v. Bollinger, 539 U.S. 244 (2003). In the challenge to the University of North Carolina, the second claim is that the admissions policy violates Title VI of the Civil Rights Act under Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297 (2013).

[6] Professor Forde-Mazrui noted that California banned affirmative action in college admissions in 1996 through Proposition 209, a statewide ballot measure.

Professor, Activist, and Student Leader Investigate Jackson, MS Water Crisis

Virginia Law Weekly November 9, 2022

Ethan Brown '25
Staff Editor

On November 1, the Student Bar Association (“SBA”), the Black Law Students Association (“BLSA”), and Southeastern Wahoos welcomed three panelists to the Law School to discuss the ongoing water crisis in Jackson, Mississippi. In addition to delving into the specifics of Jackson’s particular situation, panelists also discussed disrepair and infrastructural decay in cities across the country and emphasized the importance of local community activism.

The three panelists—Hope Cupit, Jordan Jefferson, and Professor Richard Schragger—were joined by moderator and BLSA President Keegan Hudson ’24. All the panelists had expertise either with Jackson itself or with resource accessibility. Cupit leads the Southeastern Rural Community Assistance Project, an organization based in Roanoke that provides access to safe drinking water and other essential services in rural southwestern Virginia. Jefferson is from Jackson and attended college at Jackson State University, where he served as student government president. He now attends the Harvard Kennedy School and is a staffer for U.S. Representative Bennie Thompson, who represents Jackson. Finally, Professor Schragger specializes in urban policy and land use at the Law School.

*Pictured*: Jackson, Mississippi.
*Credit*: Brookings Institution.

Jackson’s water crisis began in late August, when heavy flooding contributed to the malfunctioning of the city’s O.B. Curtis Water Treatment Plant.[1] Water pressure plummeted and purifying treatments stopped, causing brown, unfiltered water to come out of toilets and faucets throughout the city. In response, Mississippi Governor Tate Reeves issued an emergency order on August 30 that advised all Jackson residents to avoid consuming water from the city’s water system. This order, which Governor Reeves has renewed until November 22, has left more than 150,000 Jackson residents without access to clean, safe drinking water.[2]

While this crisis officially began in August, some activists say it was a long time coming. Jackson’s aging utilities infrastructure has been neglected by the state for decades; Mayor Chokwe Lumumba estimates that the city’s water system is suffering from almost thirty years of delayed maintenance.[3] Jefferson said that the water supply often becomes an issue twice a year, in response to severe weather: during the winter—when it gets cold and pipes freeze—and during the summer.

Exacerbating the issues of infrastructural decay, Mississippi politicians have failed to direct adequate funding to Jackson to combat these issues. While Mississippi has received federal grant money to improve its water systems for the past twenty-five years, Jackson received funding in only three of those years.

As the only panelist who has recently lived in Jackson, Jefferson provided a unique perspective on these issues. Unfortunately, though perhaps unsurprisingly, his upbringing in Jackson was shaped by multiple resource scarcities. In grade school, he had to share books with several other students because his school could not afford copies for each student. In college at Jackson State, one of his football teammates had to be treated for lead poisoning. Even now, Jackson does not have a formal garbage disposal service, following disputes between its mayor and city council.[4]

Jefferson said that these calamities do not occur in the whiter and more affluent suburban areas outside Jackson.

“The more affluent areas in the state have been getting access to water. Their pipes aren’t bursting. When it gets cold, the pipes are not freezing there,” Jefferson said.

Copit followed up Jefferson’s point by stating explicitly that Jackson’s water crisis is not a problem specific to Jackson or to Mississippi. She noted that low-income communities—which tend to be Black and Brown communities or communities of other marginalized backgrounds—often bear the brunt of environmental injustice. Sure enough, 83 percent of Jackson’s residents are Black.[5] Cupit said that this pattern of intersectionality between racial and environmental justice is visible in her own work in Virginia.

“I’m very proud of the state of Virginia. We have an environmental justice council that’s been codified into law . . . when we look at environmental justice, we look at housing, water quality, poverty. And most of the time . . . people who are Black and Brown are highly impacted. We have to know what to do, what to say, and educate those communities to fight for themselves,” Cupit said.

Drawing on his background in urban law and land use, Professor Schragger pointed to several circumstances in Jackson that have proved especially problematic in tackling water and other resource crises there. First, Jackson’s high poverty rate of almost 25 percent prevents many residents from paying their water utility bills.[6] Second, 40 percent of the city’s property is under non-profit administration, which is non-taxable and thus cannot provide the city with any tax revenue. And third, Jackson has struggled to compete with its surrounding suburbs, which generally provide more favorable tax structures and better community services to retain their residents.

Facing these challenges, Jackson has tried to enforce what Schragger dubs “austerity urbanism”—a policy of weaponizing fines and fees against residents—to generate revenue instead. But Professor Schragger noted that these tactics are not new and have already been tried in other communities—like Ferguson, Missouri—and their effectiveness in resolving the issue of revenue generation is unclear.

During a question-and-answer period, one audience member asked Cupit for advice on how to remain hopeful in the face of despair, particularly when it comes to racial and environmental justice. Cupit said that she tries to remember the people who inspire her when she feels fatigued; she also encouraged using data and facts to win people over. But she acknowledged that the work is tiresome.

“I get hopeless too. . . . When I was reading about Jackson over the last two weeks, getting ready to speak to you all, I was sick. I see what my mother went through, I see what my grandparents went through, and I don’t see a lot of the needle moving,” Cupit said.

SBA President Juhi Desai ’23 asked panelists how dissimilar communities across the country that face similar issues—like water insecurity—can collectivize and work together without waiting around for protection from the courts. Cupit said that the only way to tackle these issues is for someone to be brave enough to stick their neck out and get local communities mobilized.

“A lot of people stay away if it’s too political or too polarizing. They’ll stay away until they see other people coming along, so if you’re going to be a leader, you sometimes have to step out there, sometimes by yourself . . . and get people to come along with you,” Cupit said.

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bwj2cw@virginia.edu

[1] https://www.bet.com/article/2edrvp/jackson-water-crisis-state-of-emergency-extended-mississippi-governor.

[2] https://naacp.org/campaigns/jackson-water-crisis.

[3] https://abcnews.go.com/US/jacksons-water-problems-deeper-pipes-experts/story?id=89973457.

[4] https://mississippitoday.org/2022/10/06/jackson-garbage-pickup-halted-contract-dispute/.

[5] https://naacp.org/sites/default/files/images/Jackson_Infographic-01.png.

[6] https://www.pbs.org/newshour/nation/decades-of-systemic-racism-seen-as-root-of-jackson-mississippi-water-crisis.

Judge Daniel Bress '05 Reflects on Legal Career

Virginia Law Weekly November 9, 2022

Andrew Allard ‘25
Staff Editor

Judge Daniel Bress ’05 returned to Charlottesville last Wednesday for an interview with Professor Aditya Bamzai organized by the Federalist Society at the University of Virginia School of Law. Judge Bress’s long list of accomplishments include serving as Editor-in-Chief of the Virginia Law Review, clerking for the late Justice Antonin Scalia, and, in 2019, becoming a judge for the U.S. Court of Appeals for the Ninth Circuit. Continuing along this path of greatness, Judge Bress now accomplishes his crowning achievement, one which he may never even know for himself: a feature in the Virginia Law Weekly.

Judge Bress’s journey to these auspicious pages has indeed been a circuitous one. Originally from the far-off Garlic Capital of the World—Gilroy, California—he arrived on the East Coast in 1997, when he began his undergraduate education at Harvard. Arriving by a road oft traveled to this Law School, Judge Bress worked as a paralegal in D.C. before beginning as a 1L in Charlottesville in 2002. As he puts it, “I didn’t have great plans for anything; things sort of just unfolded.”

*Pictured*: Professor Bamzai and Judge Bress.
*Credit*: Andrew Allard '25.

Indeed, Judge Bress’s story reveals the gravity Charlottesville seems to exert on the legal world. After graduating, Judge Bress remained in Charlottesville for another year to clerk for Judge J. Harvie Wilkinson III on the Fourth Circuit. In 2006, he began clerking for Justice Scalia, where he met Professor Aditya Bamzai, when the latter was interviewing for a clerkship position. Judge Bress also later returned to Charlottesville on several occasions to teach as an adjunct professor at the Law School.

So, the interview at times felt more like a reunion between two friends. Judge Bress and Professor Bamzai offered stories and praise for the late Justice. Professor Bamzai recalled a time when he, along with three other clerks, convinced Justice Scalia to change his position on a case, though not before the Justice remarked, “I should never have hired all four of you.” Judge Bress, concurring on the important work of clerks, offered an insightful statement on the Justice’s legendary stature: “There was this mystique that he knew all the answers, and that wasn’t true.” Judge Bress nonetheless praised Justice Scalia’s “monumental contribution to law,” particularly in statutory interpretation and his insight into separation of powers. Fondly reminiscing on his time as a clerk, Judge Bress humorously remarked, “If I hadn’t clerked for [Justice Scalia], I’d probably have no friends.”

Turning to his own appointment to the federal bench in 2019, Judge Bress spoke on the challenges and rewards of the position. If you are like me, then you are undoubtedly interested in knowing what the Ninth Circuit tea is. Thankfully, Judge Bress poured us a hot cup—in the reserved and respectful way that one would expect from a federal judge. Unsurprisingly, Judge Bress emphasized the difficulties of the sheer size of the Ninth Circuit, estimating that its immigration docket alone is bigger than the First and Tenth Circuits combined. With such a large docket comes a large and varied group of judges. Said Judge Bress, “We have different personalities, different views of the law.” The judge lamented that a lack of collegiality in the Ninth Circuit—and in the country—is an obstacle to the proper functioning of the judiciary. “There’s a general divisiveness in America right now that we would do best to try to tone down. . . . It’s important to stick to your principles, but some of the conversations get shriller than they need to be.” Judge Bress expressed his hope that returning to in-person work would improve collegiality and restore public confidence in the judiciary.

For those readers that look to the twenty-nine-judge court that is more circus than circuit and think, “Yeah, I could do that,” you are in luck. Judge Bress kindly offered his reflections and advice based on his time as a law student. “You have to constantly challenge yourself. . . . The classes that scare you are typically the ones you should take,” he said, naming Tax Law as an example. For students that received the short end of this semester’s course lottery, this should hopefully come as a good sign that you are destined for greatness—maybe even a clerkship with Judge Bress himself. It is for this reason, as the judge tells it, that he encourages his clerks to work on the cases that they find to be the “gnarliest.”

For the 1Ls fed up with negligence, promissory estoppel, personal jurisdiction, or whatever your doctrinal demon is, Judge Bress had the following wisdom: “There are certain staple classes that, in hindsight, make more sense. . . . Torts, contracts, [and] corporations are foundational elements of American law, particularly for a generalist.” There it is. The kick in the pants you needed to get back to outlining. And while I’m reminding you of the things you want to forget, Judge Bress also had some legal writing advice: Focus on your transitions. “Every one of them is an opportunity to lose somebody, or confuse somebody, or anger somebody.”

That may sound like a lot of pressure. Hell, I spent hours on this article, and that was the best transition I could come up with. But I’ll close with a final bit of wisdom from Judge Bress, a reminder to us all that it is okay to not have all the answers. Speaking about the challenges of transitioning to his judgeship, Judge Bress said, “Unlike in private practice, I can’t call [Professor Bamzai] and ask, ‘What do you think of this?’ I have to ask someone who is twenty-five years old and just graduated law school. So, what could go wrong?” As a twenty-five-year-old myself, what indeed?

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tya2us@virginia.edu

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