Statement from Virginia State Senator Deeds

Virginia Law Weekly November 1, 2023

Editor’s Note: Thank you to Senator Deeds for contributing this article. The Senator’s statement does not reflect the views of the Virginia Law Weekly or any of its editors.

The Commonwealth is one of just a few states that has an election every year. The election on Tuesday, November 7, will decide control of the state legislature and determine whether Governor Glenn Youngkin will have the majorities he wants to enact the same regressive legislation we’ve seen rammed through in other states, like Florida.

Even though Youngkin narrowly won election in 2021 and won a GOP-majority in the state house, Democrats still retained a majority in the Virginia State Senate. The Virginia Senate Democratic Caucus has served as a brick wall against radical GOP legislative priorities. But, with the entire chamber up for election this year in newly drawn districts, we have no guarantee of keeping that majority.

Everything we care about is on the line in this election—abortion access, gun violence prevention, LGBTQ+ rights, environmental protections, criminal justice reform, affordable housing, and more.

Republicans promise that they will pass an abortion ban. Youngkin has stated that he will sign into law any abortion ban that reaches his desk. He and the state GOP are running on a fifteen-week ban.

Republicans promise to crackdown on LGBTQ+ rights, including outing queer and trans youth to their parents and banning books showing loving, gay relationships. Virginia is supposed to be for lovers. I cannot believe that we still must fight in 2023 to say these simple truths: Love is love, and people are who they are.

Republicans intend to block marijuana legalization in the Commonwealth and other important criminal justice reforms passed under the previous Democratic administration. They want to roll back important regulatory changes that keep coal ash and hazardous chemicals out of our water supply.

They will stick their heads in the sand instead of confronting the urgent threat that is climate change. Youngkin has already pulled Virginia out of the Regional Greenhouse Gas Initiative, and he will do even more if empowered by a Republican legislature. And they’ll continue to ignore the need for common sense gun violence prevention measures, including restricting weapons on college campuses, requiring safe storage of firearms, and banning assault weapons.

All the progress we've worked so hard to achieve could be gone in just one election cycle. And, if Democrats hold the Senate and retake the House of Delegates, we can send bills to the Governor’s desk and force him to take a position. We can also get to work on enshrining abortion rights into the Constitution, repealing the same-sex marriage ban, and providing for the automatic restoration of voting rights for felons.

We're in year four of Virginia's four-year election cycle. In the first three years the President, the Governor, or Congressional seats are at the top of the ticket and drive turnout. In this fourth year, the General Assembly races are at the top of the ticket. In a low turnout environment, every vote counts, and even races in safer districts could flip because voters don’t come to the polls.

The recent headlines coming out of the Youngkin administration, where state officials have purged 3,400 lawful voters from the rolls, make one thing clear: Republicans only want certain people to vote this election. I urge you to make your voice heard no matter how much they might try to restrict it.

In 2021, just 27 percent of registered voters age eighteen to twenty-nine cast a ballot in the election, and, this year, that number could be even lower. With lower than 43 percent turnout expected in our area, a high youth vote could make all the difference. This is why it's critical that you exercise your right to vote and send a message that Virginia rejects MAGA extremism this November 7.

Because of voting rights reforms passed by Virginia Democrats, Virginia has gone from one of the worst voting rights states in the country to one of the best. You can vote early in-person at the city or county registrar’s office through Saturday, November 4. If you requested a mail ballot, you can drop it off at your election day voting precinct, the registrar’s office, or put it in the mail by Election Day.

I hope UVA Law students who live in Charlottesville and Albemarle will cast their votes for our shared vision for our community. I hope you will vote for me and my fellow Democrats Katrina Callsen (54th District) and Amy Laufer (55th District), who are running to serve in the Virginia House of Delegates. You can find out more about all of our incredible Democratic candidates—including UVA Law student Mike Pruitt, who is running for the Board of Supervisors in the Scottsville District, and Allison Spillman, who is in a tight race against Meg Bryce, Antonin Scalia’s daughter—by going to the Charlottesville Dems[1] and Albemarle Dems[2] websites.

We can’t go backwards this November 7. Vote for a cleaner Virginia, a freer Virginia, a loving and tolerant Virginia. Vote for a Virginia that supports reproductive healthcare. Vote for respecting democracy and protecting our civic institutions. Whatever your reason, cast that ballot and make your voice heard.

[1] https://cvilledems.org/upcoming-elections/2023-11-7-general-election/.

[2] https://albemarledems.org/our-candidates/.

Law School Panel Says Future Challenges to ICWA Likely

Virginia Law Weekly October 26, 2023

Andrew Allard '25
Executive Editor

Last Wednesday, October 18, Child Advocacy Research and Education (CARE), in cooperation with the American Constitution Society at UVA and UVA’s Native American Student Union, hosted a panel discussion of the recently decided Supreme Court case Haaland v. Brackeen,[1] in which the Court upheld the Indian Child Welfare Act (ICWA).

Some 486 tribal nations voiced their support for ICWA, and the decision was welcomed by Native organizations.[2] Said Seth Coven ’25, President of CARE and organizer of the panel, “This is a really important topic that doesn’t get the same coverage as some of the other cases that came out this past summer. . . . The decision was a surprise to some, but in the eyes of CARE and a lot of advocacy organizations, it was a win.”

As the panelists explained, the Brackeen majority determined that ICWA was consistent with Congress’s plenary power to regulate affairs with Indian tribes. The Court also rejected petitioners’ argument that ICWA violates anti-commandeering principles, reasoning that Congress can dictate Indian adoption standards to the states under the Supremacy Clause.

But panelists expressed concern that ICWA may continue to be the target of legal challenges. “It’s only the beginning,” said Professor Andrew Block, who specializes in youth law. “Justice Kavanaugh, in a concurrence, leaves open the door to equal protection challenges, especially after the affirmative action decision.”

To be sure, future challenges to ICWA may ultimately fail. Professor Holly Clement, a former attorney from the Department of the Interior’s Indian Trust Litigation Office who recently joined the Law School as an adjunct professor, suggested that a 1974 case, Morton v. Mancari,[3] clearly weighs against finding that ICWA is racially discriminatory. “I do think you’ll see an equal protection challenge, but I don’t think it will be successful.”

Brianna Baldwin, a medical student at UVA and the president of the Association of Native American Medical Students, likewise explained that, under current law, members of Indian tribes are not a racial or ethnic group, but citizens of sovereign nations. Baldwin noted that in the wake of Students for Fair Admissions,[4] the American Association of Medical Colleges opined that the decision would not impact consideration of an applicants’ tribal membership because it is a political status, not a racial status.

Still, whether Mancari and other precedent can hinder future challenges to ICWA is unclear. Some justices have been willing to depart from the Court’s precedent, as in Students for Fair Admissions itself. Indeed, Justice Kagan even acknowledged in a recent interview at Notre Dame Law School that “there have been ideological divides with one side overturning precedent” in recent cases.[5]

For Native tribes, the stakes of legal challenges to ICWA are high. “Native communities experience higher rates of suicide compared to all other racial and ethnic groups in the U.S.,” Baldwin explained. “Connecting to community, to one’s own language, to one’s culture, to one’s background, can be a predictive health factor for Native youth.” Baldwin noted that the American Academy of Pediatrics and the American Medical Association filed an amicus brief in Brackeen emphasizing the importance of ICWA for the welfare of Native children.

Professor Naomi Cahn, an expert in family law, suggested that while ICWA is not perfect, it has had a positive impact on Native youth. “In Utah in 1976, an Indian child was 1,500 times more likely to be in foster care than a white child. Today—not great, but four times more likely.”

Indeed, such disparities are precisely what motivated ICWA’s enactment in the first place. As Professor Clement explained, ICWA grew out of the relationship between federal, tribal, and state governments. Under the Constitution, federally recognized Indian tribes are independent, sovereign nations, with exclusive power to manage their internal affairs. “The policy of keeping Indians free of state interference is deeply rooted in our history.” Despite that clear separation, Clement explained, “there’s always been a huge conflict with the states wanting to take on jurisdiction and trying to interfere.”

In writing the statute, Congress noted that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” and that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children.”

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tya2us@virginia.edu

[1] 599 U.S. ___ (2023).

[2] Indian Child Welfare Act (ICWA) (Haaland v. Brackeen), Native American Rights Fund, https://narf.org/cases/brackeen-v-bernhardt (last visited Oct. 21, 2023).

[3] 417 U.S. 535 (1974).

[4] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).

[5] Josh Gerstein, Kagan Hopes Supreme Court’s Ideological Divide on Precedent Isn’t Permanent, Politico (Sep. 22, 2023 6:02 PM), https://www.politico.com/news/2023/09/22/elena-kagan-supreme-court-precedent-speech-00117760.

SBA Women's Mental Health and Wellness Roundtable

Virginia Law Weekly October 26, 2023

Caitlin Flanagan '24
Staff Editor

On October 17, the Student Bar Association invited two members of the local Sexual Assault Resource Agency (SARA) to guide a conversation with law students about resources for victims of sexual violence and ways to shape a preventative culture which decreases risk factors for abuse. Carley Mack, the Director of SARA’s prevention team, and Jacqueline Schell, an advocate on SARA’s client services team, joined a group of law students who hoped to discuss their experiences in the Law School and to learn about SARA’s work here in Charlottesville.

Mack began the discussion by describing the work that SARA does in town and in the surrounding counties. The organization’s focus is on providing trauma-informed support services to survivors, as well as identifying creative ways to make communities safer and more empathetic. Practically, their advocates’ broad range of work includes serving as a liaison between victims of sexual assault and their medical providers in local hospitals, collaborating with the University’s Title IX office to ensure that students are aware of SARA’s resources, and assisting survivors with a range of needs. SARA is able to offer survivors care from their own in-house therapy team, and also assists them with filling other critical needs, such as legal representation and safe housing. Mack shared that her favorite part of work is getting tuned into the great range of community resources which are available to provide holistic support to individuals who have survived sexual violence.

Given our context here in the Law School, several questions arose regarding the relationship between SARA and the University’s Title IX office. SARA has a relationship with the UVA Title IX coordinator, Molly Zlock, but emphasized that the scope of SARA’s work with the University is, for the most part, survivor-led. For example, if a student has been a victim of sexual violence and would like an anonymous report to be filed on their behalf, SARA can file that report and subsequently coordinate with the student.

The group discussed the importance of truly confidential resources to a victim of sexual violence. It is essential for many survivors to identify a point of contact who is sensitive to the trauma of sexual violence, well-informed regarding the various plans of action that a victim can take, and who will not break the conversation’s confidentiality, regardless of the gravity of what has occurred. SARA’s representatives discussed the difference between a confidential resource and a mandatory reporter, and recommended that any law student who wants to have a conversation without reporting repercussions get in contact with their advocates.

The roundtable discussed prevention, as Mack and Schell asked the students about the Law School’s culture surrounding sexual violence and its impacts. The group noted that the Law School’s orientation, particularly as compared to other academic institutions, surprisingly does not include an in-person conversation or training regarding sexual assault prevention. Participants in the conversation proposed ways to change the culture surrounding sexual violence at the Law School, including ideas as simple as posting a flyer regarding resources like SARA in the restrooms and at events promoted within the Law School that involve heavy drinking, such as Barrister’s Ball or Bar Review.

Mack provided an example in the form of a poster which SARA has been using in trainings to change the culture around sexual violence in the restaurant industry. The poster describes ways to practice bystander awareness, in the form of “three D’s”: direct, delegate, or distract. Mack provided examples of preventing sexual violence which would fall under each of these categories, to include directly telling someone to stop their threatening behavior, asking someone who is a good friend of an involved party to break up an escalating situation, or distracting someone who seems to be crossing another person’s personal boundaries by telling them that they dropped their wallet near the bar.

SARA’s representatives and the members of the Law School community discussed potential push-back to increasing awareness of sexual violence, and agreed regarding the importance of continuing these important discussions in our community.

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cf3tf@virginia.edu

FedSoc Hosts Live Taping of Advisory Opinions

Virginia Law Weekly October 26, 2023

Nikolai Morse '24
Editor-in-Chief

On Wednesday, October 18, the Federalist Society at UVA Law hosted a live taping of Advisory Opinions (“AO”). As many of our readers are likely aware, Advisory Opinions is a semi-weekly legal podcast, which features “conversations about the law, culture, and why it matters.” It is part of The Dispatch, an American conservative online magazine.

Advisory Opinions is hosted by Sarah Isgur of The Dispatch and David French of The New York Times. Isgur has an array of experiences, ranging from time at private firms such as Wiley Rein and Cooper & Kirk, to the Office of Legal Policy, to multiple political campaigns. French has written for The Atlantic and National Review, served as legal counsel to the American Center for Law and Liberty and the Alliance Defending Freedom, and was President of FIRE (Foundation for Individual Rights and Expression) before serving in the military. Regrettably, neither host attended this great institution for law school.[1]

Wednesday night’s taping included roughly an hour of discussion by the hosts followed by twenty minutes of questions from members of the audience. The hosts covered a variety of topics, including the Fugees rapper Prakazrel Michel’s ineffective assistance of counsel appeal, a study which found that female Supreme Court advocates are interrupted at a significantly greater rate than their male counterparts, Justice Amy Coney Barrett’s remarks calling for a Supreme Court code of ethics, and whether the Fifth Circuit is destined to become the Ninth Circuit (known for its decisions regularly being granted cert by the Supreme Court, only to be struck down in epic fashion).

Following the standard greeting with which the Federalist Society opens its events,[2] Connor Fitzpatrick ’25 introduced the hosts. The hosts then kicked the show off by noting how much happier and better looking their audience was than the typical law school. Considering that the hosts seemed to be staring directly at this reporter’s freshly trimmed goatee, we can all agree they were right.

First, the hosts discussed the rapper “Pras” Michel’s lawsuit[3] in which he was found guilty of acting as an unregistered foreign agent funneling dozens of millions of dollars to influence political campaigns and investigations in the United States.[4] While this case is interesting on the merits, Isgur and French focused on its intersection with artificial intelligence. Specifically, the hosts described claims raised by Michel that he suffered ineffective assistance of counsel (“IAC”) because, among other things, his trial counsel had used artificial intelligence to draft the closing statement.[5]

While the AO hosts thought there might be a claim against the lawyers because they had a stake in the artificial intelligence company they contracted with, the hosts were sanguine about the prospects of the IAC claims. Isgur emphasized that “the Strickland[6] standard doesn’t even come close to describing how hard it is for ineffective assistance of counsel claims to succeed. Falling asleep at the table didn’t count. Failing to call witnesses didn’t count.”

Isgur and French also discussed the question, put forth by other legal commentators, that the Fifth Circuit might be the new Ninth Circuit.[7] The hosts disagreed with the hypothesis of Empirical SCOTUS, that because the Fifth Circuit is known for conservative jurisprudence, it is likely to be affirmed on most of the cases the Supreme Court had granted cert on. Pointing to cases like NetChoice v. Paxton[8] and Community Financial Services Association v. CFPB,[9] the AO hosts suggested that these cases were highly likely to be overturned.

The students in attendance seemed to have enjoyed themselves, and a number hung around after the taping to speak with the hosts. Casey Crowley ’24 gushed, “My favorite part was Sarah’s wit. Her jokes about UVA students being much better looking and charming than Yale or Harvard students were my favorite.”

Describing the decision to invite Advisory Opinions to the Law School, President of FedSoc at UVA Law, Aquila Maliyekkal ’24 stated, “David and Sarah are very thoughtful (and entertaining) interlocutors, and we knew that students that attended would both have a lot of fun and find it very informative. A big part of our mission is exposing grounds to smart, thoughtful conservatives, and we think that’s exactly what the event accomplished!”

Wednesday night’s taping was posted on Thursday, October 19, and can be found on Spotify, Apple Podcasts, and anywhere else you listen to podcasts.[10]

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cpg9jy@virginia.edu

[1] We understand that they attended a Boston-area commuter law school. We respect the hustle.

[2] Straight from the source: “The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Heady stuff.

[3] https://www.politico.com/news/2023/04/26/fugees-rapper-convicted-political-conspiracy-00094073.

[4] We’re open to bets on how many times the prosecutors sang “Ready or not, here I come, you can't hide” as they prepared for trial.

[5] https://storage.courtlistener.com/recap/gov.uscourts.dcd.206880/gov.uscourts.dcd.206880.310.0.pdf.

[6] Strickland v. Washington, 466 U.S. 668 (1984).

[7] Noting the Ninth Circuit’s tendency to be a glutton for punishment, during my 1L criminal law class Professor Jeffries memorably described them as acting “Like lemmings, off the cliff…repeatedly.”

[8] 49 F.4th 439 (5th Cir. 2022) (cert granted).

[9] 51 F.4th 616 (5th Cir. 2022) (cert granted).

[10] Bonus points for those who listen until the very end, when you can hear a weirdly-timed chuckle, courtesy of yours truly.

LIST Hosts Law and Technology Career Panel

Virginia Law Weekly October 18, 2023

Noah Coco '26
Staff Editor

The Law, Innovation, Security, and Technology Society (LIST) welcomed three Washington, D.C. attorneys who specialize in law and technology on Wednesday, October 4. They were invited to discuss their careers and share insights into the broader opportunities available in law and technology. The attorneys composing the panel were Allison Holt Ryan, a partner in the Privacy and Cybersecurity practice at Hogan Lovells; Michael Jones, a patent litigation and prosecution attorney at Rothwell Figg; and Rebecca Weitzel Garcia ’22, an associate in the Privacy and Cybersecurity practice at Wilson Sonsini. LIST President Jeff Stautberg ’25 addressed questions to the panel, and answers to several of these questions are excerpted below.

*Pictured, left to right: Allison Holt Ryan, Michael Jones, Rebecca Weitzel Garcia '22 Photo Credit: Hogan Lovells, Rothwell Figg, Wilson Sonsini*

What skillsets are most important for your job?

All the panelists reflected on the importance of being able to communicate across stakeholders, ranging from government regulators to software engineers. As Weitzel Garcia articulated, she must “translate legalese into engineer speak and engineer speak into legalese.” They all stressed the importance of the capacity to take complex ideas and explain them in simple terms, whether to argue in court or communicate with regulators. For Jones, it helps to have a background in engineering—he has both bachelor's and master's degrees in electrical engineering—especially in his line of patent litigation work, where a technical degree is required for the U.S. Patent and Trademark Office (USPTO) bar. As a partner, Holt Ryan emphasized the importance of building relationships, as this is paramount for engaging with clients and colleagues. She often deals with victims of large-scale data breaches, so the ability to navigate these sensitive issues with panicking clients is a necessity.

What technical expertise is required for your position?

In most contexts, a technical background is not a requirement. It is still helpful, though, to be “tech-curious,” according to Weitzel Garcia. She noted that she often interacts with software engineers who speak about the code they write, so she has had to learn enough to understand and communicate to others what the engineers are conveying. Holt Ryan mentioned that this type of knowledge can be acquired through practices as simple as taking engineers out to lunch and asking them to explain their work through analogies, for instance. This is the type of activity that allowed her—an attorney originally from “the middle of nowhere” Tennessee, with bachelor's degrees in English and Political Science and who did not begin work in her current practice until she was a sixth-year associate—to succeed in her current role.

There are some contexts, however, where a technical background is necessary such as practicing patent prosecution before the USPTO. Although some litigation suits require fewer technical skills, Jones noted, it is otherwise essentially a requirement. Most practitioners have technical degrees, and they often specialize in their relevant areas of expertise.

What does a typical day look like in your role?

No law career panel is complete without this staple. As is often the case, the panelists all expressed that no two days look alike, so they resorted to the classic tactic of describing their most recent day of work.

On any given day, Weitzel Garcia works on a couple of major projects and a few smaller projects. Recently she has been assisting clients through two major Federal Trade Commission (FTC) investigations. In the meantime, she had completed a one-off privacy policy for the Technology Transfers group, conducted typical first-year associate doc review, and engaged in research for a data privacy agreement for an educational technology company.

Holt Ryan generally spends most of her days on client calls. She is currently representing clients targeted by the recent Moveit data breach exploitation. The incident has spawned nearly 200 new privacy lawsuits against the software developer and twenty-five related independent companies. She announced the newest development that all the cases were to be combined into a single class action suit in Massachusetts. That particular day, she spoke with clients regarding settlement strategy in response to this case.

Jones’ days do tend to look a little more uniform. He can anticipate spending approximately half of his time helping clients obtain patents, and the other half litigating patent infringement. That particular morning, he worked through discovery disputes, reviewed legal research, and directly assisted inventors trying to protect their innovations.

What new topics do you expect to come down the pipeline?

Recent actions involving the major regulatory bodies are affecting all of the panelists’ practices. Weitzel Garcia alluded to recent rulemaking at the FTC that she anticipates will impact her clients. In particular, she cited the sweeping commercial surveillance rules governing consumer privacy and data security. She noted that there remain unanswered questions regarding the FTC’s role and whether the rules exceed the FTC’s permitted reach. Holt Ryan referenced the FTC as well but expressed her interest in the “turf war” among regulators like the FTC and Securities and Exchange Commission (SEC) over how they are handling issues such as cyber-attacks and the implementation of AI in industry. Jones likewise expressed excitement in following the rulemaking he anticipates from the new Commissioner for Patents, Vaishali Udupa, as she conducts a review of existing rules.

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cmz4bx@virginia.edu

Statement from the Law Weekly Board

Virginia Law Weekly October 18, 2023

Over the past week and a half, the world has seen the horrific and unjustifiable terrorist attacks in Israel, and the devastating ongoing violence in the Gaza Strip. We unequivocally condemn Hamas’ brutal terrorist attack and offer our most heartfelt sympathy and support to those members of the Law School community who are suffering as a result of these tragic events. Whether your family or friends are in the region, or your faith or ethnicity tie you to it, we want to express our steadfast friendship and commitment to you.

Many of us came to UVA because of its special community and the wonderful people who comprise it. It is important to remember that the measure of friendship is not found in how we conduct ourselves when little is required of us. It is in the challenging moments, where perhaps we seriously, even viscerally, disagree with each other, that we have the opportunity to prove the strength of our relationships. This is not always easy. But it is precisely in times like these that grace, understanding, and friendship are most needed, both for our community and the world which we will all soon enter as attorneys.

Above the doors of our school are carved the words, “That those alone may be servants of the law who labor with learning, courage, and devotion to preserve liberty and promote justice.” We hope that liberty, justice, and peace come as quickly as possible to all Israelis and Palestinians. And we hope that you, our dear readers and friends, will rely on the kindness and support of our community, which we are all so lucky to be part of.

Professors Frampton and Prakash Discuss the Trump Indictments

Virginia Law Weekly October 6, 2023

Noah Coco '26
Staff Editor

Students and faculty gathered on Wednesday, September 27, for the first session of a series on the federal and state indictments against former President Donald Trump, sponsored by the Karsh Center for Law and Democracy. The first session, titled “The Indictments: A Primer,” focused on reviewing the indictments at a high level and addressing basic questions regarding possible constitutional problems that could arise.

The discussion was led by Professors Thomas Frampton and Saikrishna Prakash. Together, they combined their expertise in criminal law and the presidency to provide context to students regarding the upcoming litigation.

Professor Prakash kicked off the event by discussing constitutional issues that may arise in the course of litigation. Many open questions remain about how this unprecedented criminal litigation against a former president, and possible future sitting president, will proceed. The Constitution provides some hints, but not many concrete answers. Unlike the specifically enumerated privileges for members of Congress – speech and debate privileges, for instance – the presidency does not actually have privileges against arrest or prosecution. The only guidance on this issue comes in the form of a memo produced by the Office of Legal Counsel (OLC) in 2000. OLC concluded that a sitting president cannot be prosecuted, or even indicted, in either state or federal court because it would interfere with the president’s ability to serve. This remains Department of Justice policy, although there has been no occasion to challenge it since its publication.

Prakash maintains that the conclusion of OLC is incorrect. He believes that criminal indictments and prosecutions fall within Twenty-fifth Amendment’s categories of incapacities that would make a president unable to adequately serve in his duties. And while the record of criminal indictments against sitting presidents is sparse, he does note one, albeit comical, instance when President Ulysses S. Grant was arrested for speeding while riding in a horse-drawn carriage through the streets of Washington, D.C.

While only speculating about how a criminal prosecution might proceed in the event that Donald Trump is reelected to the presidency before the resolution of the impending litigation, Prakash was much more confident in asserting that there are no constitutional concerns that preclude prosecuting a presidential candidate, even one with the status of former President of the United States.

Prakash concluded by discussing possible defenses Trump may have against the indictments, namely that his conduct was performed in his official capacity as president, and an assertion of executive privilege. It is perhaps unsurprising that former President Nixon provides the closest hint as to whether these defenses will be successful. In cases stemming from the Watergate scandal, courts have held that a president or former president cannot be sued for damages resulting from official acts. Prakash believes, however, that this logic should not extend to criminal charges. Instead, he argues, this question should be addressed by Congress. On the question of executive privilege, too, courts may decide to override Trump’s defense.

Professor Frampton, armed with printed copies of all of the indictments, followed Prakash with a discussion of their contents. Trump faces four separate criminal cases composed of over ninety felony charges. In the time allotted for him to speak that afternoon, Frampton remarked, he had approximately five seconds per felony count.

The first case was brought in New York and primarily concerns allegations of falsifying Trump Organization business records. Wrapped into the facts of this case is the entertaining, yet disgraceful, saga of payments made to pornstar Stormy Daniels. Former Trump lawyer, Michael Cohen (who has already pleaded guilty to violations of the Federal Election Campaign Act) was reimbursed for “legal services” for the payment he made to Daniels. Frampton noted, however, that this case will hinge on whether the prosecution can prove that Trump acted with an intent to defraud, a necessary element for these felony charges.

Trump faces additional federal indictments in the Southern District of Florida in the “Documents Case” for unlawfully retaining documents related to national security, as well as in Washington, D.C. for his actions in the January 6 events that contributed to the disruption of Congressional proceedings and obstruction of the government’s lawful function of certifying election results.

The final case against Trump is the truly sprawling Georgia Racketeer Influenced and Corrupt Organizations (RICO) indictment. The basis of this state RICO indictment is the "idea that there was one, big, criminal conspiracy to subvert the results of the Georgia election,” as Frampton summarized it. The indictment articulates over one hundred overt acts that the prosecution alleges constitutes the conspiracy.

Frampton was cautious not to make any predictions as to the success of any of these indictments, particularly in light of Prakash’s discussion of the uncertainty concerning constitutional restraints and possible defenses at Trump’s disposal.

Two future sessions in this series have been scheduled in the coming weeks. The first, “The Trump Indictments: The Presidential Election and Congress,” will be led by Professors Payvand Ahdout and Bertrall Ross on Wednesday, October 4 at 11:45 a.m. in WB 101. The second session is “The Politics of Presidential Indictments” and will be led by Professors Cynthia Nicoletti and Frederick Shauer on Tuesday, October 17, at 4 p.m. in WB 101.

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cmz4bx@virginia.edu

100 Years of Elizabeth Tompkins

Virginia Law Weekly October 6, 2023

Abigail Williams '24
President of Virginia Law Women

Just over 100 years ago, Elizabeth Tompkins ’23 left the University of Virginia School of Law with her degree and a zeal to begin the practice of law. In 1920, the Law School admitted its first three female students: Elizabeth Tompkins, Rose May Davis, and Catherine Lipop. The Law School’s decision to include women in the ranks of their prestigious class was not made from a desire for equality. Rather, Dean William Minor Lile was responding to pressure from women’s rights activists, namely Mary-Cooke Branch Munford. While Dean Lile appealed to the “chivalry” of the men in the Law School, his comments and the attitude of Tompkins’ male classmates made it clear that women were not seen as equals in the legal field.

During her time here, Tompkins wrote home to her father (who encouraged her pursuit of the law) detailing all the ways she was shut out of the collegiality that UVA prides itself on. In 1921, she wrote “[The men] are beginning to know that I am not after them, and that they have nothing I want.” Despite graduating near the top of her class in 1923 and earning a perfect score on the bar exam, she was underestimated by her peers. Dean Lile predicted it would “not be long before she deserts the profession of the law and takes up that of wife & mother.” Tompkins went on to prove him, and any others sharing that sentiment, wrong.

She was the first woman admitted to the Virginia State Bar, and she clerked for then judge and fellow UVA Law graduate R.T.W. Duke, Jr.[1] After she graduated, Dean Lile changed his tune. In 1924 he noted that “[Tompkins’] powers of acquisition and of appreciation of legal principles were fully equal to those of the men in the front rank of the graduation class” and suggested she pursue her legal career in Richmond. With that advice, she moved away from Charlottesville and began practicing with other UVA Law alumni in Richmond. She later served as a commissioner in chancery for the Richmond circuit court. Drawing on her experience at UVA Law, she became a leader at the University of Richmond and sat on the Board of Trustees. In 1969, she was dubbed “the dean” of women lawyers in private practice by the Virginia State Bar. The next year, she received an honorary Doctor of Laws degree from the University of Richmond for her exceptional work.

We cannot reflect on the last 100 years of the University of Virginia without thinking about Elizabeth Tompkins’ experience. The legal field and university have come a long way since her admission in 1920, at a time when women had to be white, at least 22 years old, and have two years of education before being admitted to the Law School. As Dean Lile noted in June 1921 to a group of alumni, women’s “insistence and persistence – their crying aloud night and day without surcease” begot more inclusive changes to the legal profession. Every person graduating from UVA Law has some of that insistence and persistence; it is inculcated into our hearts and minds through our professors, fellow classmates, and the world at large. In a 1936 article about women in the legal profession, Tompkins described the profession as taking “hard, exacting work and long hours.” By persisting through that hard work, applying what we learn during our time at this institution, and reflecting on the incredible life of people like Tompkins, we can all become better lawyers and make our communities better places.

[1] https://encyclopediavirginia.org/entries/from-recollections-by-r-t-w-duke-jr-1899/.

Professor Xiao Wang Returns to Batten for Constitution Day Talk

Virginia Law Weekly September 29, 2023

Andrew Allard '25
Executive Editor

Could recent controversial constitutional law decisions bring about renewed interest in direct democracy? Through his research, Professor Xiao Wang has found that not only is a new wave of grassroots democracy already here, but also that this response finds precedent in U.S. history.

Last Monday, in celebration of Constitution Day, Professor Wang returned to his alma mater, the Frank Batten School of Leadership and Public Policy at the University of Virginia, to present his research to a packed room of students and faculty. Professor Wang, an Ohioan, opened with a recent example from his home state, where a referendum to be held on November 7 will decide whether to enshrine reproductive rights, including abortion, in the Ohio Constitution.[1] In August, a second proposed amendment supported by the Republican Party of Ohio would have made it more difficult to amend the state constitution by increasing the referendum threshold from a simple majority to 60 percent.[2] That proposal was rejected by voters.[3]

Voters today, Professor Wang explained, are using the referendum process to protect abortion rights in response to the Dobbs[4] decision in 2022. Both the decision itself and Ohio officials’ efforts to entrench the status quo garnered backlash from the public, with one commentator noting, “[O]ur courts have been stacked, our lawmakers have been captured by special interests, our politicians are riddled with corruption, and now our own majority voter power over our constitution is being assaulted.”[5]

In this country that so reveres its Constitution and the rule of law, such a strong rebuke of the legal system is rare. But, as Professor Wang points out, it is not without precedent. Professor Wang’s research suggests that Ohio’s constitutional referendum process grew out of popular dissatisfaction with the courts. As Professor Wang explained, at the turn of the 20th century, the Supreme Court produced some of its most controversial opinions, including Plessy v. Ferguson[6] and Lochner v. New York.[7] In 1912, seven years after Lochner, Ohio held a constitutional convention, during which it adopted its modern referendum process. Proponents of the new referendum process explicitly criticized the courts and judicial review. As one representative put it, “No such power was ever given to the courts. They have simply taken it.”[8]

Ohioans were not alone. Of the twenty-six states that today have ballot initiative or referendum processes in their constitutions, twenty-one enacted them between 1898 and 1918, Professor Wang explained. “You see this sort of popular resentment of the Supreme Court—this idea that these people might interpret the law, but we don’t have to adhere to every one of their court cases. We can have a voice in this.”

But in spite of the tradition of popular constitutionalism in some states, challenges to direct democracy have proliferated in recent years. For example, Amendment 4 in Florida—adopted by 65 percent of voters[9]—sought to end felony disenfranchisement “upon completion of all terms of sentence.”[10] Within less than a year, the Florida Legislature adopted a new law that continued to withhold the right to vote from felons until they paid all outstanding legal financial obligations, without providing a reliable means of determining these obligations—effectively limiting the scope of Amendment 4.[11] Even more astoundingly, in Mississippi, after 73 percent of voters approved an initiative legalizing medical marijuana, the Mississippi Supreme Court struck down Mississippians’ constitutional right to vote in ballot initiatives altogether.[12]

Professor Wang believes that these efforts to stymie popular initiatives have undermined the public’s confidence in government. “It totally makes sense why most people are disillusioned and disengaged.” But Professor Wang, undeterred, suggested that direct democracy can supplement the courts’ role in constitutional interpretation. “The way that we understand [the Constitution’s] relationship to us, what we owe it and what it owes us, how we read it—that constantly changes.”

Noting that defining the Constitution is an ongoing conversation, Professor Wang suggested that legislative change, judicial reform, and direct democracy can all contribute. In closing, Professor Wang implored students to remain involved in that conversation. “Please, for the time that you’re here and the time that you’re out of here, never forget that part of you that wants to see policy change. Use it to make a difference.”

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tya2us@virginia.edu

[1] Julie C. Smyth & Samantha Hendrickson, Voters in Ohio reject GOP-backed proposal that would have made it tougher to protect abortion rights, AP News, https://apnews.com/article/ohio-abortion-rights-constitutional-amendment-special-election-227cde039f8d51723612878525164f1a (Aug. 9, 2023, 9:26 AM).

[2] Id.

[3] Id.

[4] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022) (finding that there is no constitutional right to an abortion).

[5] David Dewitt, Ohio government is already captured by radical special interests. State Issue 1 would make it worse, Ohio Capital Journal, https://ohiocapitaljournal.com/2023/06/29/ohio-government-is-already-captured-by-radical-special-interests-state-issue-1-would-make-it-worse/ (June 29, 2023, 4:30 AM).

[6] 163 U.S. 537 (1896) (creating what became known as the “separate but equal” doctrine).

[7] 198 U.S. 45 (1905) (striking down a New York statute restricting working hours for bakers on the basis of a Fourteenth Amendment freedom to contract).

[8] C. B. Galbreath & Clarence E. Walker, Fifty-second Day, in Proceedings and Debates of the Constitutional Convention of the State of Ohio 1087, 1091 (E. S. Nichols, ed. 1912).

[9] Brennan Ctr. for Just., Voting Rights Restoration Efforts in Florida (Aug. 7, 2023), https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida.

[10] Fla. Const. art. VI, § 4.

[11] Brennan Ctr., supra note 8.

[12] The Mississippi ballot initiative procedure, adopted in 1890, limited the total number of signatures that could be counted from each of the state’s five Congressional districts to one-fifth of the total number of required signatures. After the 2000 Census, Mississippi lost a congressional seat, leaving it with only four. The Mississippi Supreme Court held that this rendered the state constitution’s ballot initiative procedure inoperable. See Initiative Measure No. 65: Mayor Butler v. Watson, 338 So. 3d 599, 607-08 (Miss. 2021).

Titan of Torts Awarded Prosser Prize from AALS

Virginia Law Weekly September 29, 2023

Noah Coco '26
Staff Editor

Astute 1Ls may have noticed one particular name repeated like a constant refrain in the notes and footnotes of their Torts casebook. Some may even see that same name printed on the cover of their own. That name is Kenneth Abraham. A “luminary in the field” of torts according to one of his colleagues, Professor Charles Barzun ’05, this titan of tort law walks among us on our hallowed Law School grounds. In recognition for his extraordinary contributions to the field, he was recently awarded the 2024 Prosser Award from the Association of American Law Schools (AALS) Section on Torts and Compensation Systems. The Prosser Prize is the AALS’ highest award in the field of torts.

Picutred: Professor Kenneth Abraham
Photo Credit: UVA Law

Professor Abraham will be joining a long list of esteemed torts scholars, including former Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, the latter of whom Abraham actually studied under while attending Yale Law School. A review of Professor Abraham’s career leaves no mystery as to why he was selected as a recipient of the 2024 Prosser Award. Throughout his career he has authored over seventy law review articles and six books, and his casebook Insurance Law and Regulation has been a staple among law school insurance law courses. His contributions to the field of insurance law have been particularly influential since the publication of his first book in 1986, “Distributing Risk: Insurance, Legal Theory, and Public Policy.”

Professor Abraham is no stranger to awards for his scholarship and teaching prowess. He was previously awarded the All-University of Virginia Outstanding Teacher Award, the Distinguished Faculty Achievement Certificate from the State Council of Higher Education for Virginia, the American Bar Association's Robert B. McKay Law Professor Award, and he was first among all law professors to be elected an Honorary Fellow of the American College of Coverage Counsel.

It might be expected that such a prominent torts dignitary’s first words as an infant were “duty, breach, cause, and harm,” but Abraham’s entry into the field was not preordained. He enrolled at Yale Law School in the 1960s in an atmosphere with “politics and public policy in the air,” said Abraham. While in law school, he took a year off to be on active duty with the US Army Reserve, a decision he made in order to avoid being drafted into the Vietnam War, and I am sure to also avoid a number of corollary tortious acts. Following his graduation from Yale Law School in 1971, Abraham joined a two-person law firm in Hackensack, New Jersey, that focused on general civil practice. He spent his time at the firm drafting wills, facilitating real estate transactions, and handling small personal injury cases, a far-cry from the heights of torts fame he would later achieve.

Torts was, in fact, Abraham’s favorite 1L doctrinal class in law school, but it was not until his first Visiting Assistant Professor position at Case Western Reserve Law School that his foray into torts scholarship began. Even then, it was not necessarily because of any innate passion for elucidating liability, but simply because the law school was in need of a torts professor. After teaching at Case Western Reserve Law School and subsequently at the University of Maryland School of Law for several years, Abraham accepted a teaching position at UVA Law in 1984. And now, this year marks his thirty-ninth year on faculty at the Law School.

In addition to his contributions to the fields of torts and insurance law at large, he has equally established his impact on the Law School grounds through his interactions with faculty and students. Professor Barzun reflected on the past fifteen years teaching torts alongside Abraham at the Law School and the innumerous questions that Abraham has provided insight into over this period. “What I always love about Ken’s answers,” Barzun said, “is that he would not only tell me what I could say or how to think about the problem, but he would often reassure me that it was okay if I did not know the exact answer.” Professor Barzun continued, “instead of dwelling on it, he’d encourage me to step back and look at the big picture in order to see the deeper themes at work in the doctrine.”

Abraham continues to teach torts to 1Ls, guiding them from their first day of wondering “What’s a tort?” (I cannot imagine that I was the only one) until (hopefully) mastering the rituals of discerning duty, breach, cause, and harm. Ashley Ramsay ’26 is currently taking his 1L torts class and similarly reflected on Abraham’s ability to “challenge the class to think beyond how the Court came to its conclusion in a case and instead, push us to think critically about how the driving principles and philosophy of tort law influences the ultimate holding.”

The next time you pass Professor Abraham in the hallways, remember to congratulate him on the award, ask whether res ipsa loquitur is a useful construct, or give him a recommendation for a great mystery novel, which I hear is one of his pastimes.

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cmz4bx@virginia.edu

Professor Wang Gives Inside Look at Supreme Court Litigation Clinic

Virginia Law Weekly September 29, 2023

Olivia Demetriades '26
Staff Editor

On Tuesday, September 19, UVA Law Professor Xiao Wang addressed a crowd of interested law students in the Supreme Court Litigation Clinic Information Session. He spoke about the clinic’s structure, some exciting potential cases, and the application process.

A recent addition to the faculty, Professor Wang is taking on the role of director of the Supreme Court Litigation Clinic this year. He left chilly Chicago and his role as the director of the Appellate Advocacy Center at Northwestern Pritzker School of Law for warmer weather in Charlottesville. At Pritzker, he supervised the Federal Appellate and Supreme Court clinics. Professor Wang also directed the National Appellate Clinic Network, a project that fosters digital collaboration and the sharing of resources between law students and faculty across the country to advance appellate clinic practice. He plans to introduce this program to the UVA Law community.

During the information session, Professor Wang extolled the benefits of participating in the clinic. While students can expect to greatly improve their written advocacy skills with the countless drafts of briefs they willwrite (and, of course, rewrite), they can also expect to play a role in some pretty influential decisions.

“Supreme Court opinions are breaking news,” Professor Wang said. “And by ethics rules, we don’t represent Chiquita or IBM. We represent the people that Chiquita and IBM allegedly oppressed. That’s a really powerful thing to get the chance to do in your third year of law school.”

The clinic, which is open to 3Ls (1Ls and 2Ls sit tight!), seeks to introduce students to all aspects of the U.S. Supreme Court practice. Students who participate get the chance to work directly with experienced litigators from Covington & Burling, Vinson & Elkins, or with Professor Wang himself as they conduct research, look through the case records, and write and edit briefs. Given the small number of writs of certiorari the Supreme Court grants each year, it can be difficult to find cases in need of litigation, so students should expect to play a role in the case identification process as well. Professor Wang mentioned an upcoming case students will work on in the spring that involves a question of mistaken identity and a previous case he worked on with Northwestern law students about food labeling to give students a sense of the wide variety of cases they may contribute to.

For this academic year, the clinic will be offered in the spring only. Professor Wang said he anticipates it to have between twelve and sixteen students who will be split into four smaller groups to work on specific cases. The clinic will have a seminar component that meets once a week to allow time to talk about the rules and procedures of the Supreme Court and discuss the cases students are working on. The four-credit clinic will be graded on an H/P/F scale, though it typically is a yearlong, eight-credit commitment.

Students hoping to secure a spot in the clinic can also look forward to an array of accomplished guest speakers. Previous guests of clinics Professor Wang taught at Northwestern include the Director of the National Association of Attorneys General and the hosts of 5-4, a podcast that offers progressive insight into landmark Supreme Court cases.

3Ls who wish to participate in the clinic this spring should apply by sending Professor Wang a resume, unofficial transcript, and brief letter of interest to x.wang@law.virginia.edu by October 4 as well as ranking the clinic in the lottery system. In their application materials, they should highlight any areas of law or specific issues they are passionate about. The clinic has a limited number of seats, so students should rank the clinic as their first choice for the highest chance of being considered.

Yoojin Lee ’26, a 1L who attended the information session, was drawn to the Supreme Court Litigation Clinic because of the broad range of cases. She said she is interested in big tech and antitrust law but hasn’t seen these topics addressed in other current clinics. In fact, Professor Wang encouraged students to bring their own interests into the clinic because they may play an important role in finding relevant cases for which they could petition for certiorari.

Professor Wang offered a few pieces of advice for interested 1Ls hoping to maximize their chances of securing a highly-coveted spot in the clinic: “Do well in your classes and find opportunities to refine your writing abilities.” He assured the 1Ls in the room that it is okay not to know what exactly they want to do within the legal field—a much-needed reminder for any 1L, not only those hoping to dabble in Supreme Court litigation.

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ojd5xy@virginia.edu

Miller Center Hosts Panel on the Future of Affirmative Action

Virginia Law Weekly September 22, 2023

Garrett Coleman '25
Managing Editor

After Students for Fair Admissions v. President and Fellows of Harvard College,[1] race-conscious diversity-initiatives in undergraduate admissions were drastically curtailed. To explain the Supreme Court’s prior jurisprudence and the impact of SFFA, the Miller Center at the University of Virginia hosted a panel discussion titled, The evolution of affirmative action—and its uncertain future, on Friday, September 15. The panelists, introduced by Dean Christa Davis Acampora of the College of Arts and Sciences, included Professor Kevin Gaines, senior fellow at the Miller Center; Eugene Hickok, former Unites States Under Secretary of Education; Professor Barbara Perry, Co-chair of the Presidential Oral History Program; and the law school’s own Professor Kimberly Jenkins Robinson, also a senior fellow at the Miller Center.

Professor Perry, who served as moderator, began the discussion on a history of the term “affirmative action” itself. First introduced by President John F. Kennedy in an executive order, the early mission was well-presented by a commencement address President Lyndon B. Johnson gave to Howard University in 1956. In it, President Johnson gave the metaphor of chaining someone down for decades, only to free them and demand they compete with the rest of society.

Adding to that historical context, Professor Gaines explained the response to affirmative action in the various conservative movements since the civil rights era. It was President Richard Nixon who first successfully implemented affirmative action through the Philadelphia Plan, which was an executive order that addressed the exclusion of Blacks from the skilled labor unions in Philadelphia. But Professor Gaines also implied that President Nixon’s support for affirmative action waned as large swaths of the conservative base grew sour to the idea. This then takes us to the conservative revolution ushered in by President Ronald Reagan, which brought with it a distinctly colorblind approach to race in America. Accordingly, affirmative action becomes another form of impermissible discrimination, rather than a remedy. By the end of the panel, Professor Gaines made an interesting observation on a footnote within Chief Justice John Roberts’s majority opinion in SFFA, which said that the Court was not addressing admissions for the military academies. Professor Gaines found this interesting because the U.S. military has been “the showcase example for racial integration” and its benefits.

At this point, the conversation shifted to cover the legal landscape prior to SFFA. After providing background on Equal Protection for the audience, Professor Robinson dove into the two Fisher cases.[2] The unique aspect to these cases was that the school could provide clear evidence that there were no less restrictive means to achieve their goals. With the state of Texas having outlawed affirmative action several years earlier, the state universities were consistently unable to meet their diversity goals solely through race-neutral means. This allowed the school to provide “tangible evidence” that the diversity goals necessitated some consideration of race in their holistic review pathway, supporting their conclusion that the plan was narrowly tailored. But, while this iteration of affirmative action survived equal protection scrutiny, Professor Robinson said that the Court’s opinion was a “ratcheting up of the legal standard” that schools would have to meet in the future when compared to the Grutter standard.[3]

Professor Robinson also touched on Justice Sonia Sotomayor’s dissent in SFFA, which she called “a beautiful opinion that really challenges the majority’s description of what the Constitution means.” That majority reading of the Fourteenth Amendment, tying back to Professor Gaines’s comments on the Reagan Revolution, is a fundamentally colorblind one. On the other hand, jurists like Justice Sotomayor would achieve equality by first acknowledging race. And Professor Robinson argued that this is consistent with the intent of the Fourteenth Amendment, as evidenced by congressional action to create the Freedmen’s Bureau, which explicitly acknowledges race.

The last voice to chime in on this panel was that of Eugene Hickock, who worked to implement the No Child Left Behind Act of 2001 in the second Bush Administration. He characterized that act and movement as one that dealt with academic disparities across racial lines as early as possible in the developmental cycle, and opined that President George W. Bush does not get enough credit for that legislation’s impact. This is even more true given that the law was not going to fully take effect until the years after his administration had ended.

Absent from this discussion were hints about how the school would proceed in light of SFFA. Given the academic character of this discussion and absence of admissions officials, this did make sense and made for a more focused panel.

Professor Berry ended the event with a quote from Justice Charles Evans Hughes, which he gave when the first cornerstone[4] of the Supreme Court building was laid in 1932: “The Republic endures and this is the symbol of its faith.”

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jxu6ad@virginia.edu

[1] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (hereinafter SFFA).

[2] Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013); Fisher v. Univ. of Texas at Austin, 579 U.S. 365 (2016) (approving the two main admissions policies of the university, one of which was a top 10 percent plan specifically implemented to increase diversity, the other being a holistic review process that took race into consideration as one factor among many).

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

[4] https://supremecourthistory.org/homes-of-the-supreme-court/#:~:text=When%20the%20cornerstone%20was%20laid,the%20symbol%20of%20its%20faith.%E2%80%9D.

UVA Alumnae Inspire Future Public Defenders

Virginia Law Weekly September 22, 2023

Brooke Boyer '26
Staff Editor

On September 14, Maggie Birkel ’18, Lindsay McCaslin ’09, and Erin Seagears ’20 returned to the Law School for the second installment of the “Real Deal” panel series on public defense. Students joined the alumnae in the Purcell Reading Room to gain a glimpse into their lives as successful public defenders, including the highlights of their careers, the challenges of public defense, and the wisdom they have to offer.

After graduating from UVA Law, Birkel, McCaslin, and Seagears pursued their long-held passions for working in public defense. Birkel is now the Deputy Director at the Second Look Project, an organization founded to provide legal support for individuals who received extreme sentences as young people in Washington, D.C. Before becoming involved in the Second Look Project, Birkel was a George Kaiser Family Foundation Women’s Justice Fellow at Still She Rises, the first public defender office that exclusively represents women.

Pictured (left to right): Maggie Birkel '18, Erin Seagers '20, and Lindsay McCaslin '09.
Photo Credit: Brooke Boyer '26

McCaslin, on the other hand, is an Assistant Federal Public Defender in Norfolk, Virginia. Her work entails representing her clients on a variety of charges and advocating for them in suppression hearings, jury trials, and at sentencing. Prior to this position, McCaslin was a state public defender in Virginia.

Last but not least, Seagears is an Assistant Public Defender in the Juvenile Division for the Maryland Office of the Public Defender. She was set on juvenile work from the first day of her law school career. Previously, she clerked for the Honorable John Nugent on the Baltimore City Circuit Court. While each of these women followed different career paths, their experiences and advice share several similarities.

Being a public defender requires more than the skills one learns in law school. As McCaslin and Seagears expressed, there is a lot of social work on the side because they regularly work with children and families. Emotional intelligence, or the ability to understand others’ emotions and manage one’s own, is also a critical skill for those working in public defense. The work undoubtedly bears an emotional toll, but each of the women contend that it is important to remain strong and rational while representing their clients.

The reality of being a public defender can be frustrating due to what McCaslin called the “backward” nature of the justice system. For example, Birkel stated that it is challenging to interact with people who “do not treat her clients like humans.” Many of her clients have been incarcerated for years, and it is disheartening for her to see that the law is not always applied in a way that is balanced and just. Seagears expanded on this point, expressing that the judge she gets on a particular case is a matter of pure luck. McCaslin agreed that it can take extensive effort to show a judge that a “kid is just a kid” at the end of the day. Because of this, leaving the fate of their cases in the hands of a judge can feel hopeless at times.

Despite the challenges and frustrations that come with working in public defense, Birkel, McCaslin, and Seagears unanimously agreed that it is an incredibly rewarding and fulfilling career path. It is an opportunity to make an impact in the lives of individuals and in the justice system itself. According to Birkel, working on cases for one to two years has resulted in the creation of deep relationships with her clients: “I know about the worst times of their lives and the best times of their lives.” She additionally spoke of the sense of community that has developed among her coworkers because they possess the same core values and work together toward a common goal. McCaslin has gratefully witnessed progress spurred by public defense work, including the passage of major legislation expanding children’s rights. Finally, Seagears answered without hesitation that advocating and fighting for her clients is the best part of her job.

For students interested in public defense, the alumnae gave advice on how to best prepare for and ultimately secure a job after graduation. Seagears and McCaslin encouraged students to take advantage of any opportunity to pursue public defense work during summers, winter breaks, and other extra free time because it is essential to show employers your dedication to that line of work. Only having experience in Big Law, therefore, will not be particularly convincing on a resume. McCaslin recommends taking advantage of the clinical experience UVA Law has to offer, such as the Criminal Defense Clinic and the Child Advocacy Clinic, in order to start building crucial skills early.

Birkel noted that “cold emailing” alumni and others in the UVA support system is a highly useful tool for developing connections and learning from those who already work in the field. Although it can be nerve-wracking to send an email to a stranger, those involved in public defense are thrilled to help other UVA Law students become involved in it as well.

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ews6tm@virginia.edu

Lambda and ACS Host SCOTUS Panel Discussion

Virginia Law Weekly September 14, 2023

Caitlin Flanagan '24
Staff Editor

On Wednesday, September 5, Lambda Law Alliance and the American Constitution Society (ACS) kicked off the new school year with their co-sponsored “Supreme Court Roundup,” a lunch-time recap of several pivotal Supreme Court decisions handed down over the summer. The panelists were Professors Bertrall Ross, Craig Konnoth, and Cale Jaffe ’01.

Professor Ross, an expert in election law and the democratic responsiveness of political processes, described the Court’s holdings in both Moore v. Harper[1] and Allen v. Milligan.[2] Although these decisions have been heralded as victories for voting rights, Professor Ross cautioned against overstating the promising implications of both. On Moore, although the Supreme Court did endorse the justiciability of partisan gerrymandering claims, Professor Ross questioned whether the decision may have come down differently if the Court had been reviewing a state supreme court which had, in fact, struck down the legislature's maps for racial gerrymandering (as North Carolina’s Supreme Court did before the April 2023 reversal).

Professor Ross likewise doubted the likelihood of the Court’s continued willingness to apply Section 2 of the Voting Rights Act, despite its application to Alabama’s redistricting plan in Allen. Although the constitutionality of Section 2 was not expressly at issue in the case, Professor Ross focused on Justice Kavanaugh’s concurrence, which expressed curiosity as to whether Section 2 might in fact be susceptible to an Equal Protection challenge. Professor Ross likewise quoted Justice Thomas’ dissent, where the Justice notes the “uncommon clarity” with which the majority’s conclusion “lay[s] bare the gulf between our color-blind Constitution, and the consciously segregated districting system currently being constructed in the name of the Voting Rights Act” (internal quotes omitted).[3] Because Students for Fair Admissions, handed down just weeks after Allen, credited a color-blind theory of the Constitution, Professor Ross suggested that the current Court may, upon reconsideration, strike down the Voting Rights Act for violating the Fourteenth Amendment.[4]

303 Creative v. Elenis was covered by Professor Konnoth, who was personally involved in the underlying litigation and writes on LGBTQ+ civil rights law.[5] He emphasized that though Smith had not yet designed any wedding websites, the Supreme Court still granted the case certiorari and concluded that it would be unconstitutional under the free speech clause of the First Amendment for Colorado to hypothetically compel wedding website designers to create websites for same-sex weddings. Professor Konnoth explained that 303 Creative is the latest in a line of Supreme Court cases which have considered LGBTQ+ civil rights. Yet, while Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) and Boy Scouts of America v. Dale (2000) found that First Amendment expressive freedoms trump anti-discrimination law in the context of private associations, the two more recent decisions, Masterpiece Cakeshop and 303 Creative, seem to address public accommodations.[6]

Professor Konnoth posited that the Court’s application of its expansive definition of constitutionally protected speech has cast neutrality “out the window,” with reference to Rumsfeld v. Forum for Academic and Institutional Rights (2006). The Roberts Court in Rumsfeld held that colleges and universities could be compelled to allow military recruiters to access students in order to receive federal funding, even where such institutions were opposed on “free speech” grounds to endorsing the military’s official “don’t ask, don’t tell” policy of barring open members of the LGBTQ+ community from service.[7] Professor Konnoth finally cautioned that the 303 Creative outcome is an exemplary instance of the importance of coordination amongst co-litigants, as the Colorado Attorney-General’s Office and the American Civil Liberties Union did not mutually agree to some factual stipulations that were ultimately “fatal” to Colorado’s position.

Finally, Professor Jaffe, who researches environmental law, discussed Sackett v. EPA, with which he too was personally involved.[8] Professor Jaffe described the Court’s conclusion in Sackett as a “massive retrenchment” of the impact of the Clean Water Act, which will now only apply to wetlands which have a “continuous surface connection” to other waters of the United States. He emphasized the Court’s “remarkable” willingness to “toss” decades of regulations determining the scope of the Clean Water Act. Even the Court’s willingness to consider Sackett surprised Professor Jaffe. As many commented in response to West Virginia v. EPA (2022), Sackett seemed like it should have been an “easy case” under the extant regulations as they have been interpreted.[9] The two cases, he said, signal a turn in the Court’s attitude towards federal environmental and administrative law. Sackett is a defining case in its particular environmental law context, he said, but perhaps even more notable as an example of Justice Thomas’ and Justice Gorsuch’s broader mission to contract federal regulatory authority.

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cf3tf@virginia.edu

[1] 600 US _ (2023).

[2] 599 US _ (2023).

[3] Id., (Thomas, J., dissenting).

[4] Students for Fair Admissions v. President and Fellows of Harvard College, 600 US _ (2023).

[5] 600 US _ (2023).

[6] Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995); Boy Scouts of America v. Dale, 530 US 640 (2000); Masterpiece Cakeshop v. Colorado C.R. Comm’n, 584 US _ (2018).

[7] 547 US 47 (2006).

[8] 598 US _ (2023).

[9] 597 US _ (2022).

DICTA: Professor White Previews Upcoming Book on Justice Jackson

Virginia Law Weekly September 14, 2023

G.E. White
David and Mary Harrison Distin- guished Professor of Law

When I first broached the subject of a book on the Supreme Court Justice Robert Jackson to an editor with whom I have worked previously, she said I ought to consider why a book on Jackson would appeal to contemporary audiences. I found her response a bit disconcerting. Jackson was the primary architect and the chief Allied prosecutor in the Nuremberg trials, where the victors in World War II sought simultaneously to try Nazi leaders for war crimes and establish the legitimacy of Anglo-American procedural safeguards in criminal trials. He had written a dissent in Korematsu v. United States in which he maintained that the incarceration of Japanese-Americans on the West Coast for much of the Second World War, combined with the policy of not incarcerating German- and Italian-Americans, was a clear violation of the Equal Protection Clause. And he wrote opinions that have shaped modern constitutional law. His framework for evaluating the legality of executive actions laid out in Youngstown Sheet & Tube v. Sawyer is still a fixture of constitutional law classes and judicial opinions alike; and his conclusion in Johnson v. Eisentrager that enemies of the United States detained outside its borders in wartime lacked the power to challenge their confinement in civilian courts served as a justification for the post-9/11 policies in Guantanamo Bay.

But there was a good deal more to Jackson’s life and career. When he was appointed to the Court in 1941, he was the last Justice to serve who had primarily “read for the law” before being admitted to a state bar, having spent only one year in a special program at Albany Law School. Jackson had not attended college, either. He would spend the first twenty-one years of his career in general practice in Jamestown, New York, a relatively small community with a modest number of law firms. Yet by 1938, when Jackson was 46, he was Solicitor General of the United States; by 1940 was Attorney General in the Roosevelt administration; and by 1941 had been appointed to the Court.

So I thought there was a good deal in Jackson’s career that might interest audiences. The principal reason I wanted to do a book on Jackson, however, was that he was a compulsive writer, who recorded his experiences as he encountered them, and a packrat, who kept records of his communications with others over the course of his career. In the late 1980s, Jackson’s son and daughter donated most of his professional and personal papers to the Library of Congress. Those papers included two extensive documents detailing much of Jackson’s life, an “autobiography” he wrote in 1944, and an oral history memoir, consisting of a series of interviews with the Columbia University oral history project in 1952 and 1953, which Jackson completed editing just before his sudden death from a heart attack in October 1954. They also contained files of his Supreme Court cases and other cases with which he was involved in private practice or government service, correspondence with his son, daughter, and numerous public figures, and diaries from his time at Nuremberg.

I wanted to do a book in which I recounted Jackson’s reactions to experiences in his life and career he thought important, drawing on his Library of Congress papers, and then stepped back to suggest what those reactions said about Jackson as a lawyer, an intellect, and a person. The book was delayed for two years while the Library of Congress was closed because of the pandemic, but when it reopened, I was able to make use of the Jackson Papers through the help of student assistants and the law library. That enabled me to construct a narrative of Jackson’s life and career, featuring Jackson as commentator, that extended from his youth in western New York through his service at Nuremberg.

That narrative did not include, however, much of Jackson’s time on the Court, with one exception. After a falling out with Justice Hugo Black, he left an account of the incident that I found candid but also somewhat self-serving. There were, however, files of his cases, many of which contained successive drafts of Jackson’s opinions. I decided that I could piece together an account of Jackson’s service on the Court by employing a combination of descriptions of what the files contained and my analysis of Jackson’s opinions in the cases. I also decided that I should devote some time to Jackson as a writer: he is widely regarded as one of the most gifted writers to serve on the Court and during his career wrote six books, one when he was Solicitor General, two in connection with his service at Nuremberg, two as lectures he was asked to deliver by the Bar Association of the City of New York and Harvard University, and the last an incomplete biography of Franklin Roosevelt. Finally, I thought I should devote a concluding chapter to my assessments of Jackson as a lawyer, a judge, and a person. Jackson died in the apartment of his unmarried secretary, Elsie Douglas, and his relationship with Elsie and his wife, Irene Gerhardt Jackson, are clearly important elements in understanding him, although there is tantalizingly little evidence in the Jackson Papers.

I think of the book as a “portrait” of Jackson rather than a biography: one might be tempted to call it “Jackson on Jackson, with White looking on.” It has been an absolute pleasure to research and write. I don’t expect it to be out anytime soon: I’m just revising the latest draft after getting critical comments from colleagues, readers, and student assistants. I’m not all that sorry to have it around for a while yet.

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gewhite@law.virginia.edu

FedSoc Host Professors for Judicial Ethics Discussion

Virginia Law Weekly September 14, 2023

Nikolai Morse '24
Editor-in-Chief

On Thursday, September 7, 2023, the Federalist Society at UVA Law hosted a discussion titled “Perspectives on Judicial Ethics.” The discussion featured Professor Josh Blackman and UVA Law’s own Professor Amanda Frost.

Professor Blackman is the Centennial Chair of Constitutional Law at the South Texas College of Law Houston. He is also an adjunct scholar at the Cato Institute and a Nonresident Scholar at the Georgetown Center for the Constitution. He has authored three books, five dozen law review articles, and countless blog posts.

Professor Amanda Frost is the John A. Ewald Jr. Research Professor of Law at the University of Virginia School of Law. She focuses her scholarship on the fields of immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She has been cited by over a dozen federal and state courts, and she has been invited to testify on the topics of her articles before both the House and Senate Judiciary Committees. Before joining UVA, Professor Frost was at the American University Washington College of Law.

The professors discussed various topics, including whether Congress has the power to effectively regulate the Supreme Court, the merits of current legislative proposals, and the efficacy of the Supreme Court’s self-governance thus far. Given the past year’s focus on potential ethics violations by members of the Supreme Court (most notably Justice Clarence Thomas’ acceptance of private travel and other forms of hospitality), the event was timely and, understandably, well-attended.

The event’s moderator, Connor Fitzpatrick ’25, opened the discussion by prompting the professors for their views on whether Congress has the ability to impose a code of conduct on the Supreme Court.

Professor Blackman began by posing a thought experiment. He asked to imagine you were James Madison, tasked with drafting the Constitution. Would you design the courts the way they had? Would you give them life tenure, knowing people could work past 90? Would you give the Supreme Court power to effectively reshape policy, so long as five lawyers agree? Professor Blackman concluded, “probably not.” Professor Blackman also concluded, however, that although we might design the system differently knowing what we now do, any discussion of ethics reform must account for the relevant history.

Turning to the issue of Congress’ authority, Professor Blackman noted that there were two options before Congress. One option would be for Congress to write a set of rules and order the Supreme Court to abide by them. The other option would be for Congress to order the Court to adopt a more robust code of ethics. According to Professor Blackman, there is little precedent to support Congress taking the first path. Professor Blackman noted that the second option was the type of bill that had been floated by sponsors such as Senator Sheldon Whitehouse (D-RI), and was mirrored by the Supreme Court releasing its statement on ethics and principles a few months ago. In order to avoid both partisan dynamics and separation of powers concerns, Professor Blackman expressed a hope that the Court would release a code of ethics of its own volition, soon.

Professor Frost, in contrast, noted that she thought the text and history of the Constitution suggested that “Congress has a great deal of authority over the Supreme Court.” Professor Frost distinguished between Congress’ authority to oversee and regulate the court and its ability to influence the substance of the Supreme Court’s decisions, which the Constitution’s text and structure are designed to prohibit. Professor Frost noted that the Constitution only provides for a Supreme Court, leaving out lower courts entirely. This, Professor Frost explained, was a power given to Congress as part of a compromise crafted by James Madison. Questions such as how many Justices sit on the court, the requisite quorum to issue a decision, the budget of the court, and various other details were left to Congress. Pushing back on Professor Blackman’s statement that Congress cannot impose anything on the courts, Professor Frost pointed out that Congress has required every Justice to take an oath of office. Finally, Professor Frost agreed that she would far prefer to see the Supreme Court promulgate its own code of ethics, than for Congress to impose one.

The panelists discussed various other topics, including the efficacy of the current regulation of lower federal courts, the role of public perceptions of legitimacy in the proper functioning of the judicial system, the proposed independent Congressional commission to govern the judicial ethics rulemaking process, and whether a middle ground might be amending the existing disclosure acts.

After a lengthy and interesting question and answer session, each professor offered their closing thoughts in response to a question which asked them to assess the extent to which public perceptions of legitimacy were shaped by courts taking positions which were at odds with popular policy, regardless of the legal merits.

Professor Blackman agreed that for the public at large, these issues were personal and, similarly, that the public took reports like those from ProPublica seriously. However, Professor Blackman suggested that this was the very purpose of life tenure: to insulate judges from these external pressures. Professor Frost framed these issues within the broader context of legitimacy. However, she said that the Court at times committed what she views as self-inflicted injuries, which opens the Justices up to criticisms that they lack the legitimacy to decide very difficult, sensitive issues, when they themselves are not living to the highest ethical standards.

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cpg9jy@virginia.edu

Dean Goluboff Welcomes Students Back

Virginia Law Weekly September 8, 2023

This is my eighth year as dean, and my twenty-second (!) as a member of the UVA Law faculty. The excitement I feel as the new year begins never gets old. What a pleasure to meet so many of you over the past few weeks, to see familiar faces flooding our hallways again, and to feel the energy that permeates the Law School at the start of a new semester. There is so much discovery and growth ahead—I can’t wait to see all of the remarkable things you will do this year.

Chief among them is the transformation at the heart of your legal education. As I said during orientation, going to law school is always a good choice. In my view—and I may be a little bit biased—it may be the best and most important thing you can do right now. You are studying the law at a moment of intense and wide-ranging contestation, both in this country and globally. In a world that seems full of discord, you are entering a profession that is committed to resolving conflict through dialogue and persuasion. As you read your first cases and prep for your first cold calls, you are transforming how you think and preparing yourselves to transform the lives of your clients and the trajectories of institutions, companies, organizations, and governments. You are already learning how to make arguments and dismantle them, how to find the root of a problem, and how to test ideas—whether your own or those of others.

Law school will not always be easy, for the reasons made (in)famous in popular culture and mythology: required classes and cold calls, oral arguments and journal tryouts and job searches. Nor will it be easy intellectually. You will encounter new, and sometimes discomfiting, ideas and ways of thinking. But it will no doubt be rewarding, both in the short term and throughout the amazing, varied, as yet unknown careers on which you have each already embarked.

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

Second, take ownership of the education that lies before you—raise your hand, talk in class, and keep an open mind. Learn from, challenge, and collaborate with the professors and peers who surround you. What a gift to us all that the Law School is more diverse—in background, experience, identity, perspective, politics, and religious beliefs—than it has ever been before. I encourage you to see that diversity as a source of institutional strength and intellectual stimulation. Engage with and learn from each other in classrooms and across lunch tables, during office hours and in late-night study groups. That we are a big tent enables you to practice the skills that are so critical to lawyering: active listening, fostering productive and open exchange, and building relationships that bridge our differences.

Which leads me to my final encouragement: Invest in the relationships you will make here. Getting to know your classmates, professors, and staff will enrich your time at the Law School intellectually, professionally, and personally. Knowing each other as real people—as friends, mentors, and colleagues—will make possible the difficult conversations that are a key part of your education, carry you through the hard times, and provide no end of joy in the good ones. The relationships you make here, the community you build, will also sustain you in your life and career for decades to come.

I look forward to the year ahead, to all that we will learn and do together. Welcome to the Law School, and enjoy!

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goluboff@law.virginia.edu

In Memory of Tessa Wiseman '24

Virginia Law Weekly September 8, 2023

Message from the Wiseman Family:

Tessa pursued a law degree because she had an innate sense of justice that permeated her whole being. Her work in the immigration sector convinced her that a good lawyer could serve as a powerful advocate for the marginalized.

She chose UVA because she knew that the education she would receive and the people she would meet would set her up to become that advocate.

UVA undoubtedly set her up to accomplish those professional goals. But Tessa found much more at UVA, a family that cared for her well, challenged her appropriately, and created an environment for her to thrive as a scholar and person.

Tessa loved her UVA community so much, and she never missed a chance to talk about her UVA people, faculty, staff, and colleagues alike.

Tessa is no longer physically with us, but her fierce advocacy for deep, meaningful community, lasting justice, and just plain kindness echoes clearly in those she encountered at UVA.

A memorial service for Tessa will be held on September 9, 2023 in St. Petersburg, Florida.

In lieu of flowers, donations can be made to one of the organizations Tessa supported throughout her life. For more information, please visit www.tessawiseman.com/celebrating-tessa.

Virginia Law Weekly April 27, 2023

Andrew Allard '25
Executive Editor

Pictured: Professor Citron and Peter Strzok talk in Caplin Pavilion.
Photo Credit: Andrew Allard '25.

This past Tuesday, April 18, Peter Strzok visited the Law School for an interview with Professor Danielle Citron. The event was sponsored by the LawTech Center and Law, Innovation, Security & Technology.

Peter Strzok was formerly the Deputy Assistant Director of the FBI’s Counterintelligence Division. In that role, he led the investigation into Russian interference in the 2016 United States presidential elections.[1]He also worked on Robert Mueller’s special counsel investigation, and he was the lead agent on the investigation of Hillary Clinton’s private email server.[2]

A DOJ inspector-general investigation identified text messages Strzok sent to an FBI lawyer in 2016, in which Strzok wrote, “We’ll stop” then-candidate Donald Trump from becoming president.[3] These messages and Strzok’s role in high-profile investigations garnered attention from Republican critics.

In 2018, Strzok was fired by the then-Deputy Director of the FBI, David Bowdich.[4] Strzok sued the DOJ over his termination and the release of his text messages in a case that is still pending before the District Court for the District of Columbia.[5]

Against this dramatic backdrop, Strzok came to the Law School to talk about spy stories. Strzok recounted his work on the FBI investigation of the Illegals Program, a Russian network of sleeper agents. Strzok helped to uncover two Russian agents, Andrey Bezrukov and Elena Vavilova, who had assumed the identity of a Canadian couple living in Cambridge, Massachusetts.

Strzok compared the years-long investigation of undercover agents to seasons in sports. “You have players that return, and then eventually, they transfer out, and you get new players in. It’s a recurring process.” For that reason, counterintelligence is a job without an endpoint. And constant cross-competition between multiple state actors adds another layer of complexity. “It’s like two fields, where the offense is playing the defense, while simultaneously on the second field, the defense is playing the offense. And it’s not just two teams—it’s eighteen all playing each other.”

Strzok sees this ongoing fight as a serious risk for American democracy. “If we think democracy is not fragile in the United States, we do that at our own peril.” Citing George Washington’s farewell address in 1796, Strzok said that Americans have always been concerned about foreign interference in their government. Such concerns, Strzok suggested, have become especially problematic in our time. “I see some political figures willing to put their party over their nation, willing to team up and work with foreign powers to advance a political agenda at odds with protecting a sense of national security.”

Professor Citron recalled hearing Mr. Trump’s request that Russia “find” Hillary Clinton’s emails and wondering, “How is that not a crime?” Strzok agreed that the request was “unprecedented.” But Strzok said that the way courts have interpreted the knowledge requirement in campaign finance laws has made it very challenging for prosecutors to bring charges—even when a candidate accepts illegal foreign assistance.

Strzok also recalled Mr. Trump’s meeting with Putin in Helsinki, in which Mr. Trump expressed doubt about the U.S. intelligence community’s determination that Russia had interfered with the 2016 election. Strzok said that Trump showed “abject subordination to a hostile foreign power” unlike any he had seen during his time at the FBI. “Trump is a sort of sui generis counterintelligence threat.”

But the problem of foreign interference goes beyond individual political actors. Strzok also pointed to what he described as a “sea change” in how Americans used social media between 2012 and 2016. Russian operatives, Strzok argued, were prepared to “jump into” platforms like Twitter and Facebook, just as their reach into American politics was growing. Even so, Strzok said that Russia was not the primary driver of disinformation on American social media—domestic political actors were.

Strzok expressed optimism that the problem of disinformation is gaining due attention from young Americans. “Your generation has a built-in fascination with disinformation. When I contrast my kids talking with their grandparents, they’re polar opposites. The emails that come in from my parents have things that just make you say, ‘Oh come on. This is obviously not true, stop worrying about it.’”

Strzok also suggested that adopting laws that better define campaign contributions may help create guardrails for candidates’ behavior. “I would like to see laws that increase transparency for financial contributions and more disclosures on less tangible things of value.” Strzok said that increased transparency may help restore electoral norms that were lost in 2016.

Finishing his remarks, Strzok emphasized the need for the government to earn public trust and encouraged students to help build that trust. Strzok lamented that certain politicians, particularly members of the far right in Congress, “are not building that trust, they’re attacking it—and they’re doing it in a partisan way.” Strzok encouraged students to get involved in their communities, particularly on school boards, where there are “concerted efforts going on right now to influence” which elements of our history will be taught. “Be engaged in a thoughtful way, because there are people involved in a way that is not thoughtful.”

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tya2us@virginia.edu

[1] www.washingtonpost.com/world/national-security/fbi-agent-peter-strzok-fired-over-anti-trump-texts/2018/08/13/be98f84c-8e8b-11e8-b769-e3fff17f0689_story.html.

[2] Id.

[3] www.washingtonpost.com/world/national-security/trump-receiving-briefing-ahead-of-public-release-of-report-expected-to-criticize-fbi/2018/06/14/c08c6a5a-6fdf-11e8-bf86-a2351b5ece99_story.html.

[4] Id.

[5] www.courtlistener.com/docket/16020887/strzok-v-barr/.

Law School, or How to Spend the Three Most Formaltive Years of Your Life

Virginia Law Weekly April 27, 2023

Sai Kulkarni '23
Production Editor Emerita

I spent a lot of the last three years writing for this paper in a stream-of-consciousness format, and over the course of this last semester, I spent a lot of time writing in a contemplative manner—seeing the impending end of my time on this paper. But now that I am twenty-six days away from graduation, I have a complete perspective on my time in the Law School. The last time I wrote for the paper, I penned my goodbye as a member of the e-board and to my time behind the production desk. But I think I would be remiss if I didn’t take the chance to use the ultimate forum to express my goodbyes to law school as a whole. When I proposed this idea to our newly installed Editor-in-Chief, Niko Morse ’24, I presented it as a final way of getting some grievances off my chest. I was planning on leaving with some jokes about the administration and the concept of law school. And then I started getting emotional. Really emotional. Like, I started tearing up at random moments.[1] So, after that, I knew this piece had to go another direction. So here’s my take on the last three years of law school.

It seems like an eternity ago, but the 2020–21 academic year was shaped in the darkness of the pandemic. Classes were hybrid or entirely online. Events didn’t exist, students couldn’t be maskless, and we were restricted to gatherings of no more than five people at any one time. Weekly spit tests in a parking lot were a way of life, and students waited with bated breath to see if they would be isolated in their homes for fourteen or more days. All those precautions were necessary and important, certainly. But it created a class of law students that were deeply affected, with their mental health scarred. It created a class that formed cliques, became cynical about their relationships with one another, and altogether reverted to middle school behaviors.[2] But even in those dark times, org e-boards and PAs did their best to foster connections and try to create some sense of normalcy. Softball captains like Section A’s Jon Peterson ’23 and Jack Brown ’23 made sure to keep people active and together when they needed it most. Through late nights in a much more spread-out ScoCo, GroupMe-sourced cold call responses, camera-off Zoom LRW, and melodramatic behavior, the Class of 2023 found their own unique voices at a time when they needed them most.

After a summer of virtual work and recent graduates attempting to teach the newest class about UVA Law social traditions through Summer Series, we all returned to a fully in-person Law School for a final year. We graduated to high school drama, with parties every weekend, the return of school events, and a rejuvenated student body. Much of my 2L Fall is a fever dream to me, considering how much we all, myself included, overcompensated for the loss of precious time. I look fondly on those times when academics were still a high priority, but our bodies were pushed to the limit. The return of Bar Review kept people social, and the rise of free food brought comfort to the hearts and stomachs of students who missed out on it during their 1L year. We all got to experience Sunset Series at Carter Mountain, the return of FebClub, and our first taste of the Annual UVA Law Softball Invitational. So much of our 2L year was defined by the phrase “return to normalcy.” We all gave it our best shot, before the results of virtual OGI and PI interviews bore their fruit and we went off to our summer jobs.

This past year has been a blur to me. Maybe that’s proof that the “return to normalcy” was successful. Students in the Class of 2023 spent their time smoothing over their drama and working towards a stable final year. People relaxed and took “3LOL” to heart. This past semester really has felt like a wrapping-up of loose ends academically, professionally, and socially. I personally got the chance to attend some fun events and meet new people—a very large portion of my class. In all, I think this year has been the most “normal” that my class has managed.

So I bet you are asking yourself why I wrote this. It’s not as fun as my other articles. It’s not even reflective of everyone’s experience in the Class of 2023. But I wrote this because I think someone should immortalize at least one complete perspective of this unique class’s experience in law school. We came in at such a dark time and were still able to find our joy. Law school is a formative time for people, and the last three years have shown that to me. I hope everyone takes the time to do their own reflection on their time here before graduation. This can be a weird time. A drama-filled time. A bad time. A good time. It was certainly an interesting time. Law school gives you back what you put into it, and I put in a lot. But hey, what do I know? I’m just another student turning in a writing assignment in the middle of the night.

Goodbye UVA Law—even if I’m not here to write about it, stay wild, and stay social.

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omk6cg@virginia.edu

[1] This week hasn’t been pretty. Shoutout to Ragan Minor ’23 for helping me through feeling emotional. Graduating is hard, folks.

[2] I admit, I’m guilty of this.