Discussion with New Jersey Secretary of State

Virginia Law Weekly March 30, 2023

Jordan Allen '25
Professor Liaison

This past Wednesday, March 22, the American Constitution Society and the Black Law Student Association hosted a conversation with New Jersey Secretary of State Tahesha Way ’96. Secretary Way is the thirty-fourth Secretary of State for New Jersey, having been appointed by Governor Phil Murphy and sworn into office in 2018. Way is also the President of the National Association of Secretaries of State (NASS). Prior to being appointed Secretary of State, Way spent time as an administrative law judge (ALJ) and as an elected representative on the Passaic County Board of Chosen Freeholders.

Opening the event with prepared remarks, Secretary Way began with the story of a medical emergency at nineteen which motivated her to seek out a career in which she could help others in return. After completing her undergraduate education at Brown, UVA Law was her top choice for pursuing her goal. Besides the education itself, her time at the Law School allowed her to connect with the community, clerking for the Virginia Legal Aid Society and the United Steelworkers of America—and to meet her husband Charles Way, a former fullback at the University.

Secretary Way, as the chief elections officer for New Jersey, spent much of the event discussing elections in the current political environment. During her remarks, Way highlighted the importance of such a position as the nation deals with an “upheaval of democracy.” Invoking the efforts in many states to limit voting rights and access under the guise of “election integrity,” a consequence of the Supreme Court’s decision in Shelby County, Way drew a sharp contrast with efforts to expand the electorate and access to the polls in New Jersey. Pointing to the 2020 general election, Way spoke of the importance of her role in clarifying election procedures and guidelines, such as the question of curing mail-in ballots. Turning to the upcoming arguments in Moore v. Harper, Way highlighted the dire consequences which would follow if the U.S. Supreme Court were to embrace the independent state legislature theory, giving legislatures immense power over administration of elections. Several questions revolved around electoral issues, with one student wondering what someone outside of elected office can do to support access to the polls. While Secretary Way emphasized that electoral politics often change quickly, imploring those in attendance to consider running for office, she also directed students to other avenues for involvement, both in the public and private spheres.

Though discussion of voting rights constituted the bulk of the event, Secretary Way also spoke of some of the other areas she has overseen as Secretary of State. While responsibilities within the Secretary of State’s authority vary from state to state, Way outlined some of the work done in addition to overseeing elections. This included chairing New Jersey’s Complete Count Commission, a non-partisan commission established to achieve a complete count in the 2020 census. Way also oversees the state government offices supporting New Jersey’s arts, culture, history, and business communities, a great source of enjoyment for the Secretary.

Secretary Way also highlighted the importance and impact of her identity as a Black woman. Being the first African American in the Association’s 118-year history to hold the presidency of the NASS, Way is conscious of the fact that a century ago, she would not have been able to hold her position. This history of disenfranchisement and alienation for people such as herself has fueled a desire to have everyone vote and participate in the political process. Way also emphasized the importance of representation, highlighting an experience from her time as an ALJ. An African American litigant whom Way ruled against came up to her afterwards and thanked her, as seeing someone like himself in such a position reinforced his perception of having received a fair hearing.

A sizable contingent of New Jerseyans came to the event and, in typical fashion, made their presence known throughout the Q&A portion.[1] Asked about the effects of the political climate on elections in New Jersey specifically, Secretary Way identified misinformation campaigns in the 2019 election and threats against election officials in the 2021 election as troubling issues facing the state.

While the talk revolved around many of the problems facing the Nation and individual states, the overall tone and message remained optimistic about the prospect for progress and the ability to make change, both through positions such as Secretary of State and the efforts of individuals on the ground. “No matter where you live, you can make a difference,” Way emphasized, whether through litigation, volunteering in elections, public interest work, or partisan involvement with party organizations. In times where various factors are “threatening our democracy,” it is integral for those capable to do their part and defend the electoral process. “It is great to know my state has a champion like her,” said Nolan Edmonson ’25.

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guj9fn@virginia.edu

[1] I say this with pride, having spent my undergraduate years in New Jersey.

Hiking Through UVA History

Virginia Law Weekly March 23, 2023

Ryan Moore '25
Law Weekly Historian

Pictured: Left, 1867 Map of Albemarle County (Credit: UVA Law). Right, Henry Martin (Credit: https://encyclopediavirginia.org/12010-f4464de63ccacdb/).

Shortly after noon last Thursday, I joined fifteen of our fellow classmates outside the Law Library. Our mission: partake in an hour-long guided walking tour through North Grounds history with Randi Flaherty and Addison Patrick of the UVA Law Library. Our trek covered portions of the Rivanna Trail behind our Law School. UVA is our home for the next few years, and it’s interesting to learn about the history of North Grounds and the people (both free and enslaved) who lived here.

Our first stop on the hike was the Park at North Grounds. When the University first excavated the land for development, workers discovered a possible stone quarry used by the Monacan Indian Nation. The Monacan Indian Nation is believed to be the first inhabitants of the land that became the Law School and were likely present on the land for thousands of years.

Our hike continued into the woods behind the Law School. From 1863 until 1963, the prominent Duke family owned this land. The Dukes were white slaveholders. The patriarch, Colonel Richard Walter Duke, Sr., was an officer in the Confederate military, a member of the US House of Representatives, and a UVA Law alumnus.[1] His son also graduated from UVA Law.[2]

During the Civil War, Confederate troops wintered in the Duke family’s woods. Parts of the University were used as a field hospital for Confederate war casualties. However, on March 3, 1865, the Union army captured Charlottesville. President Lincoln’s Emancipation Proclamation, declaring “that all persons held as slaves” within the Confederacy “are, and henceforward shall be free”[3] meant freedom for the enslaved peoples of Charlottesville, including those held in bondage by the Duke family. Many formerly enslaved people left Charlottesville with the advancing Union army. Due to poor recordkeeping, we are unable to determine what ultimately happened to many individuals enslaved by the University and prominent slaveholders in Charlottesville. We do know that the Duke family’s chef ended up working as a private chef in New Jersey.

The Duke family home still exists, intact, on the Rivanna Trail. The ironically named “Sunnyside Residence” is now used as admin housing for the University, although it is currently unoccupied. It apparently is still in good condition, and if it has a washer and dryer, it’s already better than my apartment.[4]

Our second-to-last stop was the ruins of the old Albemarle County Poorhouse, which stood from 1809 until 1870. At the time, the Poorhouse was perhaps the most diverse space anywhere in America. All those deemed by the state as unable to take care of themselves (the poor, the very young, the elderly), regardless of race, would have all lived in these housing complexes. Not much remains of this era except a few stacked brick walls and the government’s continued marginalization of the economically disadvantaged.

Our final stop was the former Charlottesville barbecue grounds. I was surprised to learn North Grounds used to host multiple high-profile barbecue clubs from the 1860s until the 1930s. The Duke family hosted the annual Cool Spring BBQ Club, an elaborate, all-day event for prominent members of the Charlottesville community. (Mostly Black) chefs would braise and cook the meat with a mixture of salt and vinegar and slow roast it over coals. If I go into any more detail while writing this article, I will cave and order Zaxby’s for dinner, and my wallet cannot afford it.

The Dukes also hosted BBQ events for fellow UVA Law alumni and those associated with the university. My favorite part of the tour was the photos Randi and Addie passed around to the group. One of these photos depicts Henry Martin, the long-time university bell ringer and head janitor of UVA. Born enslaved in 1826 at Thomas Jefferson’s Monticello, Martin was one of more than 4,000 enslaved people who built the University of Virginia. Martin worked for UVA from around 1868 until his retirement in 1909. He became one of the most recognizable parts of UVA daily life at the time.

As a descendent of enslaved persons myself, I struggled with deciding to attend the University of Virginia. UVA is the flagship university, built with enslaved labor, of the same state that enslaved ancestors on my father’s side of the family. The University has a long way to go to address its historical connection to the institution of slavery, the “hideous blot”[5] supported by our university’s own founder, Thomas Jefferson. The UVA President’s Commission on Slavery published the University Report less than five years ago.[6] In a sense, the North Grounds tour (and my writing this article) is my own effort to process attending the University of Virginia.

I highly encourage everyone to check out these sites themselves on the Rivanna Trail, which is easily accessible from the parking lot behind the Law School. For those interested in learning more about Henry Martin, PBS Newshour recently covered an exhibit featuring his portrait on Main Grounds.[7] Randi also teaches a course on this subject called “Race and Slavery at UVA North Grounds,” cross-listed with the Department of History. The University plans to offer it again in spring of 2024.

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tqy7zz@virginia.edu

[1] https://en.wikipedia.org/wiki/Richard_Thomas_Walker_Duke.

[2] I guess legacy admissions were a thing even back then.

[3] https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation.

[4] Seriously, I don’t have a washer and dryer.

[5] https://www.monticello.org/thomas-jefferson/jefferson-slavery/jefferson-s-attitudes-toward-slavery/.

[6] https://slavery.virginia.edu/.

[7] https://www.pbs.org/newshour/arts/images-of-black-life-black-joy-are-immortalized-in-historic-charlottesville-portraits.

How to Clerk: A 1L Guide

Virginia Law Weekly March 23, 2023

Ethan Brown '25
Features Editor

On Wednesday, March 15, Senior Director of Judicial Clerkships Ruth Payne ’02 gave 1L students a preliminary overview of the clerkship application process, a monthslong—and perhaps even yearslong—journey to occupy some of the most coveted judicial positions across the country.[1] The session, which to this 1L was a freakish reminder that our time in law school is almost a third of the way done, delved into the Whys, Whos, Wheres, and Whats of clerking.

Before breaking clerkship applications down into their constituent parts, Payne tackled the biggest question first, and probably the one that matters most to the anxious 1Ls reading this: At what point do most 1L students need to think seriously about clerkship applications? Payne explained that for the vast majority of us, applying will begin in earnest during our 2L year, likely about a year from now, during spring 2024. However, for a very small portion of students, particularly those interested in clerking for conservative circuit court judges, Payne said that the process could begin as early as this semester and go into the summer.

Why Clerk?

For students on the fence about whether clerking is the right career move for them, Payne painted a compelling picture. First, clerks get exceptional training from their judges. Unlike at law firms, where junior associates are thrown onto sprawling projects, perhaps with limited feedback, Payne said that judges are at the pinnacle of their career during their time on the bench—and they have a lot of time to provide their clerks with meaningful guidance. Second, in her fifteen years at UVA Law, every clerk Payne has worked with has reported improved writing skills, which benefits lawyers both in litigation and transactional practice. And third, clerks don’t get grunt work—they perform substantive duties at their judge’s behest and aren’t treated as rungs at the bottom of the ladder, as freshly minted lawyers might feel in Big Law.

Who Can Clerk?

In Payne’s own words, “Anyone who comes to UVA Law can clerk,” with the obvious caveat[2] that most of us will not be completing those clerkships at the Supreme Court. Regarding grades, Payne emphasized that most clerkships are not that grade-sensitive; she even mentioned one judge she works with who said they rarely even look at applicants’ transcripts. Like with recruiting through OPP, Payne said that students with less work experience and less leadership experience at the Law School may need to rely on grades more throughout the process relative to their peers. But she in no way suggested that high grades were necessary to land a clerkship, even those—like federal clerkships—that many UVA Law students assume require impeccable academic credentials.

While Payne was insistent that anyone who wants to clerk can do so if they stick with it, she also cautioned that the process is competitive. Most judges receive thousands of applications for only two or three spots, so being flexible and patient is vital.

What Kind of Court Can I Clerk for?

Interested in appellate litigation, academia, and living like a cloistered monk? Then a federal appellate clerkship may be for you! These clerkships are highly competitive positions focused on legal research and the intricacies of constitutional law. They tend to be more grade-sensitive than federal district courts. Meanwhile, federal district courts tend to be much faster-paced than their appellate counterparts. Clerks draft motions, attend status meetings and hearings, and generally gain more practical experience that can be easily translated to a law firm environment. Payne also explained that some clerks will opt to do an appellate clerkship for a year immediately after they complete a one-year trial court clerkship, enabling clerks to experience both settings.

Payne also encouraged us to consider state court opportunities, particularly state supreme courts for those interested in appellate litigation. Because the types of law clerks are exposed to during their clerkships vary wildly from what they may see in their legal practice afterward, clerking in a state court where you do not intend to practice is not a concern. Even if the state’s substantive law might not be translatable to your post-clerkship plans, the practical experience will be. Additionally, fifty states means fifty different universes of clerkship applications, all with their own deadlines and eccentricities—so there’s something for everyone.

Where Should I Clerk?

Lots of judges look for geographic ties, so if you’re willing to go back to your hometown for a year or two to clerk, those ties can go a long way. Some markets differ—New York and Washington, D.C., for example, tend not to require geographic ties because they understand why young lawyers are motivated to move there. Geography also influences hiring timelines. Payne said that virtually no clerks will be hired to clerk in D.C., NYC, or California immediately after their graduation because those jurisdictions know they can get experienced attorneys, and why would they bother hiring plucky law school graduates when they can get their hands on jaded third-year associates?

Another note on timelines: While there is a federal hiring plan in place that asks judges to wait until students have four semesters of grades before consideration, compliance with this protocol is weak—with only 60 percent of judges actually following it. So, some judges will start hiring clerks after 1L, and typically, conservative judges move quicker than liberal judges in considering and hiring candidates. But Payne reiterated that UVA does a good job of “getting ahead of the market,” so students hoping to apply only to liberal judges should not feel dissuaded by having to wait until 2L to begin their application process in earnest.

What Materials Are Required?

Simple: cover letter,[3] resume,[4] writing sample,[5] and three letters of recommendation.[6] And, if you’re lucky, an interview with the judge and/or his current clerks.

What Should I Be Doing Now?

If you’re applying this summer—likely to conservative, federal appellate judges—get in touch with Payne. Otherwise, concentrate on finals, because all things being equal, you will have more options with better grades. And make sure to monitor your health and wellness. This is a long-term process, and the more relaxed you can be in approaching it, the better.

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bwj2cw@virginia.edu

[1] DISCLAIMER: If you are a 1L interested in clerking who wasn’t able to make the session, I highly encourage you to reach out to Payne, who through her fifteen years of service at UVA Law knows about 1.7 million times as much information about judicial clerkships than this article can possibly contain.

[2] Though maybe this isn’t as obvious of a comment as I thought it was, judging by the handful of people who came in Day 1 of 1L fall thinking that landing a SCOTUS clerkship was going to be as straightforward as getting on the eighth-grade honor roll.

[3] Judges hate them, but thankfully, most clerkship cover letters can be short and sweet—and even replicate content from judicial internship applications.

[4] No special format required, just use whatever resume you’ve worked on with OPP or Public Service.

[5] Do not use anything from LRW if you apply after 1L. Use something self-edited either from your 1L summer job (with permission), from a higher level writing class, or from another faculty-mentored experience.

[6] Preferably from law school professors, or from relevant work or pro bono supervisors during law school.

Panel Discusses Suit Challenging Abortion Pill

Virginia Law Weekly March 15, 2023

Garrett Coleman '25
Managing Editor

From left to right: Professor Naomi Cahn, Assistant Dean Leah Gould, and Professor Margaret Riley (Photo Credit: University of Virginia School of Law)

On Tuesday, March 28, If/When/How organized a panel to discuss the pending case of Alliance for Hippocratic Medicine v. FDA. The panelists were Professors Naomi R. Cahn and Margaret Foster Riley, as well as Assistant Dean for Public Service Leah Gould. A decision on the case is expected any day now, but this discussion provided information on likely outcomes, the merits of each argument, and the potential implications for abortion and administrative authority more generally.

The case revolves around a medical abortion drug known as mifepristone (“MIFE”),[1] which Professor Cahn called “safer than Tylenol.” It is the first in a series of two drugs that are used in a medical abortion. Professor Cahn also said that these procedures constitute over half of all abortions in the United States. The second drug, misoprostol (“MISO”), is not currently under consideration because it was approved by a different procedure. Professor Riley noted that it can be used for medical abortion by itself, but that this is not the preferred method. Further research is currently being carried out.

The Alliance for Hippocratic Medicine (“AHM”) claims that MIFE was improperly approved under Subpart H of the Federal Food, Drug, and Cosmetic Act (“FDCA”).[2] In the FDA Modernization Act of 1997, Congress clarified that Subpart H was meant to apply to treatments for a “serious or life-threatening condition.”[3] AHM disagrees with this characterization of pregnancy and therefore rejects the FDA’s authority to approve MIFE. While MIFE received Subpart H approval in 2000, its FDA oversight did not end there. MIFE was also subject to a Risk Evaluation and Mitigation Strategy (“REMS”) that was approved by the FDA in 2011.[4]

Professor Riley, with her background in food and drug law, had plenty to say on the validity of AMH’s argument. She claimed that their preliminary brief was filled with “cherry picked” data and that she does not see how it could pass factual review. She also said that the weight of the scientific research was clearly in favor of the safety of MIFE. It is even safer than many approved contraceptives. Further, she tied this case into a larger conservative mission. For example, the Goldwater Institute has wanted to “eviscerate” FDA authority for many decades. In her view, this is part of an attempt to restrict the FDA’s ability to issue a “scientific assessment of the benefits and risks.” She also pointed out that “[t]he weakness for the FDA is that . . . it doesn’t deal with moral issues.” And this opens a lane for states to insert moral considerations into their restrictive legislation, putting it outside of the FDA’s purview.

Her thoughts may not be persuasive to this court in particular, though. Plaintiffs were careful to select the Amarillo division of the Northern District of Texas, in which Judge Matthew Kacsmaryk is the only judge to sit.[5] Judge Kacsmaryk was appointed by President Trump and confirmed by the Senate in 2019. And he is a “devout Christian” who has been described by his sister as someone who is “passionate about the fact that you can’t preach pro-life and do nothing.”[6]

Professor Cahn laid out two options for this court. The first involves deferring to the FDA and its administrative authority. She does not expect this to occur. Rather, she expects Judge Kacsmaryk to conclude that the FDA “overstepped its authority” and that this abortion pill is unsafe. From there, he can send the issue up to the Fifth Circuit, issue a district-wide injunction, or issue a nation-wide injunction.

A complicating factor—and a potential pathway for pro-choice activists—is that there are other recognized medical uses for MIFE and MISO. According to Professor Cahn, the former can be used to treat complications from miscarriages, and the latter is used to treat gastric ulcers. Professor Cahn likened this to how condoms also prevent disease, or how contraceptives are arguably designed to regulate other functions. In the face of increasing scrutiny from those wishing to restrict abortion, these alternative functions will be important.

When the discussion shifted to the potential fallout from this case, Dean Gould raised the concerns of surgical abortion providers. As the primary alternative to the more common medical abortion, she was concerned that there would be a huge influx of surgical abortion patients following restrictions on MIFE. She also said that there will be a “bottleneck . . . at the provider level.” Some of that is attributable to the medical school practice of making abortion an optional training. And some of it can be traced to the generalized fear of doctors that they will be violating the law by providing abortions. Dean Gould also mentioned the implications of bounty laws for abortion services that assist women in more restrictive states. Her view was that these organizations are under low risk when operating outside of the restrictive state’s jurisdiction.

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jxu6ad@virginia.edu

[1] Patricia J. Zettler, et al., Alliance for Hippocratic Medicine v. FDA—Dobb’s Collateral Consequences for Pharmaceutical Regulation, 388 New Eng. J. Med. e29 (2023).

[2] Id.

[3] Id.

[4] Id.

[5] Caroline Kitchener & Ann E. Marimow, The Texas Judge Who Could Take Down the Abortion Pill, Washington Post (Feb. 25, 2023), https://www.washingtonpost.com/politics/2023/02/25/texas-judge-abortion-pill-decision/.

[6] Id.

From the New EIC: Come Join UVA's Best Journal

Virginia Law Weekly March 15, 2023

Nikolai Morse '24
Editor-in-Chief

I remember the Student Activities Fair from my 1L year very well. It was a humid, sunny day in Spies Garden, and I was dazzled by the glamor and self-assured authority of the 2L and 3L leaders of various student organizations, flanked by cardboard trifolds and smudged sign-up sheets. Out of an overpowering Midwestern compulsion to be polite, I awkwardly signed up for the listservs of nearly twenty groups I had zero interest in joining. After nodding and muttering something noncommittal and unintelligible to then-president of Common Law Grounds, something caught my eye. Near the center of Spies, I saw a table covered with koozies, popsicles, and a speaker blasting Doja Cat. Standing around the table were a group of students, red solo cups in hand, who seemed to have been plucked from a Big Ten tailgate[1] and dropped in the middle of our student activity fair. Thus, I was (somewhat confusingly) introduced to the Virginia Law Weekly.

Since my first semester at UVA Law, the weekly meetings held in SL279 have been one of the high points of my week. Each Monday[2] we gather to eat pizza, catch up, and plan stories for the next week’s paper. The creativity, humor, curiosity and—let’s face it—megalomania[3] that I have witnessed in these meetings encapsulates everything I find special about going to school here. From reviews of Charlottesville hiking trails and taco trucks, to covering events hosted by leading legal experts, and the occasional school controversy—for me, the Law Weekly has reflected the range of interests and personalities in our school. Accordingly, it is an honor and candidly, a huge ego boost, to serve as the next Editor-in-Chief of the Virginia Law Weekly.

I would be remiss if I did not commend the remarkable stretch of stable leadership[4] the Law Weekly has enjoyed during my time here. I am deeply indebted to the efforts of Chief Justices Emeriti Phil Tonseth ’22 and Dana Lake ’23. Under their watch, this paper has weathered the many ups and downs of the last few years and come out smelling like roses. From their able stewardship, we have learned that with the help of a fictitious lawsuit, or even a snarky ANG, we can handle anything that law school throws your way.

My goals as Editor-in-Chief are simple. First, not to mess it up. This paper has been running for seventy-five years, has been cited in the Supreme Court, and survived COVID-19 Zoom School. Second, I want to ensure that this paper continues to reflect the best things about UVA Law: the diverse interests of its students, faculty, and staff; our famed collegiality and generous spirit; and most importantly, the savage wit of the Law Weekly editorial staff. Joining me atop the colophon are Andrew Allard ’25 as Executive Editor, Garrett Coleman ’25 as Managing Editor, Monica Sandu ’24 as Production Editor, and Ethan Brown ’25 as Features Editor. May our reign be long and peaceful and prosperous for our people.

The strength of our newspaper, like that of the Law School, is defined by what our members put into it. My request of you is this: help us to continue to serve the UVA Law community. Whether it is by sending emails to editor@lawweekly.org to let us know what you thought of the most recent issue, sending tips on important goings-on around the school, sending letters to the editor criticizing our coverage of an event, or even taking the reins and publishing a guest article—this paper is here for all of you, and in the immortal words of Tom Wambsgans, “we hear for you.”

Of course, the best way to wield limitless power make a positive impact is to join the Law Weekly! So, if you have an interest in improving your writing skills, if you think there is an important issue in our school community which deserves more coverage, if you crave the attention of a captive audience, or if you just really want free pizza every Monday night,[5] come join the best journal at UVA Law.[6]

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cpg9jy@virginia.edu

[1] But one of the less cool and less fun schools, like Purdue.

[2] Again, in SL279 at 5:30pm. Come by for free pizza, laughs, and learn how we run the state’s propaganda arm a three-time winner of the ABA Law Student Division Best Newspaper Award!

[3] See the Court of Petty Appeals or one of our many unsolicited advice columns.

[4] This is strictly descriptive of their management of the paper. I make no commitments regarding Phil’s stability, otherwise.

[5] Again, at 5:30pm in SL 279. Just making sure you got that.

[6] This is, of course, an entirely objective assessment, based on the frequency of our publishing, the strength of our editorial staff, and how much cooler we are than Law Review.

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