“Empowered 55” runs contrary to constitutional purpose

"Empowered 55" is a proposed amendment to the Honor Committee Constitution that would lower the threshold required to make future amendments to the Honor Constitution from 60% to 55%. It has been billed as a means to accomplish previously unsuccessful change to a multi-sanction system, but we believe that this amendment is shortsighted and imperils the integrity of the Honor Constitution.

 

In 2005, the Consensus Clause[1] amendment to the Honor Constitution narrowly failed to pass ratification by the student body, garnering 59.5% of the popular vote. This result was even more successful than last year’s multi-sanction vote of 58.9%[2]. The Consensus Clause would have required a majority of the entire student body[3] to vote in favor of constitutional changes affecting sanctioning. This would have effectively locked the single sanction in stone, as the largest voter turnout in recent history[4] failed to even reach 41% (because not all authors uniformly support the single sanction, we will not comment on the merits of the Consensus Clause).

 

Why does a failed amendment in 2005 matter in 2017? If "Empowered 55" had been the status quo in 2005, a multi-sanction system would now be a practical impossibility, despite being increasingly popular within the student body. The "Empowered 55" amendment seeks to align the Constitution with the popular will of a small minority of students, but its nature is dangerously misguided in not accounting potential impact on the system in the long term. As law students, we know the purpose of designating a document a “Constitution” is so that it may serve as “a superior, paramount law, unchangeable by ordinary means.”[5] This amendment threatens to render our Constitution’s designation obsolete. From the viewpoint of constitutional construction, a Constitution is meant to preserve a small subset of fundamental rights and principles above other mere laws. While some constitutional scholars recognize the inherent tension between countermajoritarian constitutionalism and populist democracy (see, e.g., Richard Albert, Constitutional Handcuffs, 42 Az. St. L.J. 663, 664 (2010)), a balance must be struck to avoid “frequent reference[s] of constitutional questions to the decision of the whole society”[6] driven by populist passion over reason and understanding.[7]

 

While 5% may seem like a minimal change at first, it is a definitive step towards delegitimizing Honor. The current 60% threshold is already lower than comparative institutions on campus—UJC requires two-thirds supermajority to ratify an amendment—and lowering it further risks repeatedly disenfranchising ideological minorities in the face of a smaller majority, separated by a large swath of the indifferent. Our concept of democracy must not fail to recognize and protect minorities in decision-making. The sponsors cite “egalitarian[ism]” as a value and “injustice” as something to eschew, but isn’t it true that this amendment allows a smaller majority to impose their will?

 

In addition to stripping minority protections, “Empowered 55” will lead to destabilization. Inviting continual change to a Constitution raises grave issues of notice (both legal and conceptual) and reliance, eroding the function and value of Honor. Focusing on amendments, what is to stop future student bodies from resetting the minimum to a simple majority? A plurality? Removing the “10% of all students” floor? Every decision students make in reliance on a document that will become the “so-called Constitution” will be in question. Why would anyone trust the current consequences in the face of unending change? This does not result in a “health[y] and…robust” system. It erodes it away to nothing more than “cavalier language.”

 

Using the current supermajority to moderately entrench formal amendment procedures does not immunize Honor from change. The data do not support this contention. Out of the eight referenda proposed since 2010, six have been ratified by the student body (2010,[8] 2011,[9] 2013,[10] two in 2015,[11] and 2016[12]). The argument that one or more of these amendments were not controversial does nothing to delegitimize their passage.

 

A vote for “Empowered 55” signals that we no longer value the governance of our system. A vote for “Empowered 55” signals that we no longer value Honor.

 

No matter your opinion, we encourage law students to exercise their right to be heard by voting at www.uvavote.com no later than Thursday, February 23, at 4:00PM.

 

Austin Sim, LAW ‘17, MED ‘17, Vice Chair for Hearings, Honor Committee, 2016-Present

Maggie Rowe, LAW ‘18, Law Representative, Honor Committee, 2016-Present

Owen Gallogly, LAW ‘19, CLAS ’13, Honor Support Officer 2019-2013, 2016-Present

Lindsay Fisher, LAW ’19, Honor Support Officer, 2016-Present

Thomas Howard, LAW ‘19, EDUC ‘14, CLAS ’13, Honor Support Officer, 2009-2013, 2016-Present

Humza Salim, LAW ’17, Honor Support Officer, 2014-Present

James Billard, LAW ’17, Honor Support Officer, 2014-Present

 

[1] http://www.virginia.edu/honor/history/

[2] https://www.bigpulse.com/pollresults?code=5383cNu78ZKBwDVSWikBzcwC

[3] http://www.cavalierdaily.com/article/2005/02/a-wise-consensus

[4] https://issuu.com/cavalierdaily/docs/cavalierdaily_030413

[5] https://supreme.justia.com/cases/federal/us/5/137/case.html

[6] http://avalon.law.yale.edu/18th_century/fed49.asp

[7] http://historynewsnetwork.org/article/163223

[8] http://www.cavalierdaily.com/article/2010/03/university-elects-honor-representatives

[9] http://www.cavalierdaily.com/article/2011/03/referenda-gain-approval

[10] https://issuu.com/cavalierdaily/docs/cavalierdaily_030413

[11] https://www.bigpulse.com/pollresults?code=4547ryRNS9LgXZJfdJnhUKE2

[12] https://www.bigpulse.com/pollresults?code=5383cNu78ZKBwDVSWikBzcwC

Finances After Law School

Kimberly Hopkin ’19
Staff Columnist

It’s officially “that time” again. That time when you look at your bank account as the end of the month approaches and wonder, “Wait, I spent how much on grapefruit scented candles this month?!” If you know exactly what I’m talking about, you are not alone; however, you need to take advantage of our in-house UVa Law Financial Counseling Services. Even if you only want a little financial tune-up, this is your sign. Since we’re all busy, I thought I would save us some time by writing out the excuses in your head, and then explaining why they don’t make sense. 

“But I don’t accept financial aid from UVa Law, so I can’t receive counseling from the Office of Financial Aid.”

This is less of an excuse and more of a false statement. Every single student here at UVa Law can take advantage of the extensive group and one-on-one counseling opportunities offered regardless of who pays your tuition or how. Actually, even that statement isn’t broad enough because, after graduation, they offer lifetime counseling services for graduates of UVa Law, too. You don’t need loans, scholarships, or financial aid to qualify. 

“I’m not necessarily struggling; I just have issues predicting and controlling how much I spend.”

You need a budget, but that’s okay because everyone needs a budget. When you are gaining control over your resources, it may feel like you’re making big, sweeping changes. Usually, that’s because you are changing how you think about money and spending. Once you set a budget and learn to stick to it, it will feel as natural as your current spending habits. 

If you’ve never had a budget before, this transition period might feel uncomfortable. Many people feel like planning and executing a budget makes them feel anxious and worried. The truth is, they are anxious and worried because they don’t know about their financial health. When you do know the state of your finances, you don’t have to worry. Building a budget and sticking to it makes personal finances less stressful. 

 “I missed the last ‘Real World Finances’ series, and those topics seemed so broad that I don’t think I’ll benefit. I need help just budgeting week to week – forget about trying to buy a house or invest.” 

Well, there’s another ‘Real World Finances’ series coming up. And you’re in luck, because UVa Law offers one of the most extensive individualized, financial counseling services at any law school. They can teach you different budgeting techniques – including the acclaimed “envelope method” – and give you tips for how to stay on budget throughout the year. There are over 100 years of financial counseling service sitting at our fingertips – why would you not take advantage of that?

“Okay, I have a budget for the school year, so I don’t think I’ll need broad generalized help budgeting… but I do have a summer internship coming up, how do I pay for that?”

Our counselors have not only been working in personal finances for a long time, they have also been helping law students for a long time. For popular markets, they can tell you what to expect for rent and bills just by knowing the zip code you plan to work in. Do yourself a favor and book an appointment. At the very least, it’ll save you time looking it up yourself. 

“Look, between you and me, I’ve dug myself into a hole. It’s embarrassing how much debt I’m in and I think people who work in finance will judge me.”

Other people might judge you, but not this office. This team prides itself on advocating for each and every person sitting across the desk from them. The worst you’ll get is some tough love. Asking for help can be hard, but no one needs to know why you are meeting with the Financial Aid Team. Plus, all information is kept confidential. 

Ask yourself which is easier: struggling financially while constantly worrying or asking a paid, caring professional to guide you to financial security. That’s what I thought. 

“I don’t know how to reach out to the team to get help.” 

Email lawfinaid@virginia.edu with dates and times that work for you. It’s that easy. 

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knh3zd@virginia.edu

Farewell from the Editor

Alex Haden '17
Editor-in-Cheif

I am still a little shocked that I am writing this goodbye column. The Virginia Law Weekly has been a part of my life here at UVa Law practically since day 1, and it is crazy to me that this issue will be my last as Editor-In-Chief. One of the most important functions that the newspaper serves, in my opinion, is a historical record of UVa Law; to that end, I’d like to use this piece as a means of reflection on my small window of time in the length of this publication, and also as a way to say thank you to those who have made this paper a reality.

On September 17th, 2014, I received an email from Sarah Brown, the then-Editor-in-Chief of the Virginia Law Weekly. Apparently, the Law Weekly was one of the 500 clubs that I had signed up for at the Activities Fair. The email invited me to an open house event in the newspaper’s office, with pizza and soda. A friend of mine from my section got the same email, and together, we convinced ourselves to gather up the courage and hunt through Slaughter to try to find Room 279.

My undergraduate student newspaper was, as some people lovingly called it, “really fucking intense.” Walking up those steps to Slaughter, I pictured dozens of people running around a crowded office, frantically editing, writing, printing, reviewing, and goodness knows what else. I was a little surprised to open the door and find a room with four or five people eating pizza, listening to Katy Perry’s “Dark Horse,” and laughing at a Buzzfeed article.

This was the opposite of what I expected. The first month of law school is intense, rough, hard, and stressful, but these people were having fun. They were laughing and smiling, which I hadn’t done for the last month because Civil Procedure. They were warm and friendly and laid-back. I was instantly hooked. There were a couple of other 1Ls there, who had the same look on their faces that I did: a look that said “What is going on here?”

And thus, the Monday night ritual began. Every week, we’d head up to the office, grab a bunch of pizza, and edit article after article. Slowly and gradually, we absorbed knowledge from the 3Ls: which professors to take, what the job market was like, and which martini at Sedona is the best. In September, I wrote my first ever article. When the issue came out, I took four copies of the paper from the Library, shared it on Facebook, and sent it to my mom, who responded by asking, “Why did you write about throwing up?”

In October, I became the News Editor, which essentially meant that I sat in on SBA meetings and took notes on what happened. As evidence that I had literally no clue what was happening, I was unaware that you had to be elected to be able to vote on SBA; I therefore raised my hand to vote for some budget appropriation, causing then-President Alex Matthews to stare at me in confusion for a few seconds. Ironically, I don’t think I wrote a single news piece that entire semester, so I’d call my tenure as a News Editor a resounding success.

I would be remiss not to give thanks to the people who have made my time on this paper such a wonderful experience. At the outset, I want to thank all of the Law Weekly staff members who have worked tirelessly to produce a newspaper every week; similarly, anyone who has ever written an article or column has my thanks as well. I also wanted to give a few special shout-outs for some people who have guided me along the way.

I gained an appreciation for the meaning of teamwork when I became an Executive Editor in 2015. Week after week, I worked very closely with then-EIC, Christina Albertson, as she began a revitalization of the paper. Her dream for the paper was to make it a more reputable and interesting news source, while still maintaining its roots as a comedic, tongue-in-cheek publication. That dream, while easily stated, required an extraordinary amount of work on her part—and, of course, help from a dedicated staff—in revamping our columns, focusing our news stories, and reestablishing the paper’s reputation in our community. As I noted in my first column as Editor-in-Chief, much of what the paper is today comes from the changes and effort that Christina made to the paper, and I hope that we have properly enshrined that fact in our editions.

When I became Editor-in-Chief, the Executive Editor-EIC relationship stayed equally important, and I was lucky enough to be joined by Jenna Goldman as EE. While all members of the paper have worked exceedingly hard to make our publication a success, Jenna has gone above and beyond her call of duty. The pieces she solicited, the hard-hitting articles she crafted, and the long hours she put into editing the paper have all made producing a weekly paper a far easier task than I imagined. As our next Editor-in-Chief, I have no doubt that Jenna will continue to improve this paper and continue the success that it has achieved already.

I also want to thank a certain member of the faculty who has provided me with good advice and perspective about many things, including this paper. I remember telling this faculty member about a prospective controversial article, and vehemently defending my First Amendment right to publish it. I was wisely advised that there is a difference between “I can publish it” and “I should publish it.” For that and other pieces of advice, I am very grateful.

Last, but certainly not least, I have to thank the other five Law Weekly staff members in the Class of 2017: Ashley Angelotti, David Markoff, Caroline Catchpole, Ryan Caira, and Carly Coleman. From that first day in 2014 where we stepped into the office together, we became a wonderful little family. We have been through more crazy news stories, columns, journalistic judgment calls, and—of course—cartoons than any of us could have anticipated, but we made it through, and I am so lucky to have made it through with you. Not only did you all make publication of the Virginia Law Weekly possible, you made it a wonderful experience for me with your friendship.

And finally, thank you to all of the readers of the paper. Your readership gives our publication meaning, and I am so grateful to have been a part of that meaning for my time at UVa Law.

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ach7pa@virginia.edu

Response: Myths and Misdirections

David Markoff '17
Technology Editor

Last week John Kurtz wrote an article attempting to dispel some “myths” he perceived were being spread around social media regarding the new administration’s “Muslim Ban.” Mr. Kurtz holds himself to be above the obnoxious poster and misleading hashtaggers and hopes to help us overcome our polarization by addressing supposed fictions. Yet, Mr. Kurtz’s article appears less like mythbusting and more like the sharing of the latest Tomi Lahren video, filled with its own myths and misdirections.

Trump’s Executive Order is a Muslim Ban

A favorite argument of the ban’s defenders is that it can’t possibly be a Muslim ban because it only covers twelve percent of the global Muslim population. There is no disputing that the ban does not cover the majority of the Muslim world, but that is irrelevant! The focus should not be on the global Muslim population, but on the portion that is actively seeking to come to the United States. When we begin to look at the seven nations as a proportion of Muslims actually seeking to come to the United States, the numbers are drastically different. For example, in 2016 there were 38,901 Muslim refugees admitted to the United States. Out of those, more than half come from just two nations: Syria and Somalia, which are both on the list. Another twenty percent came from Iraq, also on the list. Add in the other countries on the list, and we are looking at a ban that applies to eighty to ninety percent of the Muslim population that seeks to come to America as refugees.  The numbers are not as drastic when it comes to other form of visits and immigration. However, the ban narrows in on the countries that have large numbers of people coming to the United States. There are about twice as many grants of lawful permanent resident status to Iraqis than to the citizens of Indonesia, Turkey, Saudi Arabia, and Lebanon combined. So, no Mr. Kurtz, if the President wanted to ban Muslims he would start with the seven countries listed, and not Indonesia. 

Mr. Kurtz asserts the ban is clearly motivated by national security concerns. Clear to whom? Not to Mr. Kurtz who says “[t]here is, however, good reason for many Americans to doubt the sincerity of the president’s motivations in signing this order,” nor to me. Both the executive order and Mr. Kurtz cite the tragic events of 9/11, carried out by Saudi, U.A.E., Egyptian, and Lebanese nationals (all not on the list) coordinated largely out of Afghanistan, (also not on the list). Perhaps, the ban is better justified by the Boston Bombings carried out by brothers of Chechen descent or the San Bernardino shooters with ties to Pakistan, also not on the list. Perhaps, justification could be found in Bowling Green or Atlanta, because why not make up the attacks as well? Even if there were an attack by a refugee from one of the listed nations (there hasn’t been), and we ignore how absurd it is to judge a whole group of people, including some of our classmates and their families, based on the action of individuals, it is still unclear whether this ban improves national security. In fact, this ban may do more harm to our national security than any benefit it may hypothetically provide. The ban is possibly one of the best recruitment tools the US has given ISIS since the invasion of Iraq. Further, the ban hinders our ability to prevent attacks because gathering intelligence from allies and people on the ground will become more difficult as the ban undermines what goodwill we have in the region, as well as one of the best promises we can make to allies: that they will be able to come to America.

When a ban, with what appears to be minimal at best security justifications, affects the majority of Muslim refugees seeking to enter our nation, when the President promised a ban on Muslims during his campaign, when the President’s advisors say they sought to find a legal way to have a ban, and when the President says in the order that the government will, in the future, favor religious minorities and then the next day says that he wants to favor Christians, let us call the ban what it is, a Muslim ban. The fact that it is temporary is no defense; we all know that temporary things can easily become permanent when it comes to the government. 

These restrictions on immigration are unprecedented.

I agree with Mr. Kurtz that the United States is no stranger to turning away refugees in need, like when it sent a ship full of Jewish refugees back to Europe where many would later perish at the death camps. However, Mr. Kurtz does not argue in such negative light but instead yells “But Bush; But Obama!” in hopes to distract us from the real issue, and in doing so, takes great liberty with the accuracy of his statements. 

Mr. Kurtz argues, “If the data show any one immigration policy to be a historical aberration, it is President Obama’s expansion of refugee admissions in 2016.” However, Mr. Kurtz’s own source, the Migration Policy Institute, states that the peak of refugee immigration was in 1993, when the U.S. allowed over 140,000 refugees into the nation. Further, Mr. Kurtz likens the new administration’s action with that of Obama. In doing so, Mr. Kurtz omits three key piece of information detrimental to his argument. First, Obama was responding to evidence of a direct threat, which the current government has admitted in court that it does not have.  Additionally, Obama’s actions were far more limited, neither voiding multiple types of visas already issued, preventing legal residents from returning home, nor actually banning anyone from filing and proceeding with the application process. Instead, as Mr. Kurtz correctly notes, Obama’s action only suspended visa waivers, meaning that people could no longer show up and expect to be rapidly admitted in the way an American citizen is when they visit Canada or the U.K. Additionally, and unlike the new administration, Obama’s action was a response to Congressional pressure and actions, not just a solo action of the executive branch.

So, while there is truth to the argument that these restrictions are not unprecedented, instead of using it to justify the ban or distract us from the issue by inaccurately focusing on past, we should learn from our nation’s mistakes and strive to make America greater than it already is.

Trump’s executive order is clearly unconstitutional.

There is one point on which I truly agree with Mr. Kurtz, the ban is not clearly unconstitutional. Constitutionality will not be clear until a final ruling is made and both sides either exhaust their appeals or simply concede. However, Mr. Kurtz’s argument as to why the order is not clearly unconstitutional seems to conveniently skim over a number of arguments and evidence that may weigh against the administration. Neither Mr. Kurtz nor I are constitutional law scholars, so I will be brief, as this discussion is much better had with any of the numerous experts that reside within the halls of our school. I will, however, note that Mr. Kurtz seems to completely ignore the possibility that a court may look at the motivations behind facially neutral actions (Yick Wo v. Hopkins 118 U.S. 356 (1886); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)). The statements of the President, his aides, and the orders surprisingly large effect on Muslim immigration, which I mentioned earlier, will give the courts plenty of reasons to look at the order through a religious lens. Even if the courts look only at national origin, there is plenty to separate this from Obama’s action. Mr. Kurtz would have you believe that “[e]ither the Obama and Trump administrations are both breaking the law, or the Obama-era statute, which President Trump’s order explicitly invokes, has amended the 1965 statute to allow the president to implement immigration restrictions that discriminate based on nationality in the interests of national security.” However, Obama’s order was in response to a direct and concrete threat, which would add to the strength of the government’s interest. Additionally, as both Mr. Kurtz and I have already mentioned, Obama’s action was far more narrowly tailored in the nations and people it affected. As a result, it is easily conceivable the Obama’s action is legal while the New Administration’s is not. All of this does not even begin to touch on the potential Due Process concerns that arise when visas and green cards are stripped away from people. Yet I admit that I am no expert in constitutional law and that Mr. Kurtz is right that it is unclear whether a court will find this order unconstitutional. 

I also agree with Mr. Kurtz that there is cause for concern about this executive order. However, it should not be limited to how green card holders were treated. It is concerning that our friends, colleagues, and classmates no longer feel comfortable visiting their families for fear that they may suddenly be banned from returning. It is concerning that this order may alienate our allies and embolden our enemies. It is concerning that the new administration seems so willing to turn its back on American values, despite little to no evidence of a threat. 

I am, however, glad that this great nation refuses to take this lying down. I was glad to see thousands rush to the defense of others and to see some of our alumni work tirelessly as pro bono lawyers for those affected. I am grateful that people with attitudes like those of the lawyers and protesters at the airports were in charge of this nation when my family came, and were welcomed here from a nation capable of annihilating the United States with the push of a button.  

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dam4zz@virginia.edu
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1Pew Research Center, U.S. admits record number of Muslim refugees in 2016 (Oct. 5, 2016), http://www.pewresearch.org/fact-tank/2016/10/05/u-s-admits-record-number-of-muslim-refugees-in-2016.
2Dept. of Homeland Sec., Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015 https://www.dhs.gov/immigration-statistics/yearbook/2015/table3
3CNN, Trump ban is boon for ISIS recruitment, former jihadists and experts say, (Jan. 31, 2017) http://www.cnn.com/2017/01/30/politics/trump-ban-boosts-isis-recruitment/.  
4New York Time, Immigration Ban Is Unlikely to Reduce Terrorist Threat, Experts Say, (Jan. 27 2017) https://www.nytimes.com/2017/01/28/us/politics/a-sweeping-order-unlikely-to-reduce-terrorist-threat.html. 
5Washington Post, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’ (Jan, 29, 2017) https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/; NPR, Christian Leaders Question Trump’s Promise To Favor Christian Refugees (Jan. 31, 2017) http://www.npr.org/2017/01/30/512451711/christian-leaders-question-trumps-promise-to-favor-christian-refugees. 
6USHMM, The Voyage of the St. Louis, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267
7Washington Post, Trump’s facile claim that his refugee policy is similar to Obama’s in 2011(Jan. 29, 2017)https://www.washingtonpost.com/news/fact-checker/wp/2017/01/29/trumps-facile-claim-that-his-refugee-policy-is-similar-to-obama-in-2011/ .

Three Fictions About Trump's Immigration Order

John Kurtz '19
Guest Columnist

Over the past two weeks, America has been buzzing with discussion about a controversial executive order signed by President Trump. The order, issued on January 27, places an indefinite ban on the admission of Syrian refugees into the United States and temporarily suspends entry by nationals of seven countries: Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. The travel ban imposed on citizens of these nations is to last for 90 days while the Trump administration develops protocols for heightened vetting.

Since the order was signed, the news media has dedicated a significant amount of time and energy to discussing the motivations, implications, and constitutionality of the order. Social media is no longer a safe space to look at videos of cute puppies and evil Kermit memes during a five-minute study break. Instead, everyone has seemingly become an expert in political science and constitutional law overnight, writing obnoxiously long political posts accompanied by misleading hashtags. But if one good thing has come from all of this, it is that America has been presented with a golden opportunity to learn a valuable lesson: you cannot believe everything you read on Facebook. 

While social media has its benefits, one significant drawback is that misinformation can spread much faster than it ever could when the news was broadcast exclusively by the big three television networks. The reaction to President Trump’s executive order has been no exception. The United States has become extremely polarized over the past several years, thanks in no small part to the divisive rhetoric of our current president. These wounds will never begin to heal, however, if we fall prey to the fictions being put forward about President Trump’s executive order. Presented below are three of the most prominent.

 

Trump’s executive order is a Muslim ban.

While the seven countries covered by the order have majority-Muslim populations, this order does not come even close to preventing all Muslims from entering the United States. According to the Pew Research Center, there are 49 countries in the world with majority-Muslim populations, and the seven countries listed in the executive order have only about twelve percent of the 1.6 billion Muslims in the world. Countries like Saudi Arabia, Pakistan, and Turkey are all excluded from the order. If President Trump truly wanted to keep Muslims from entering the United States, he should have started with Indonesia, which has as many Muslims as the seven countries covered by the order combined. Furthermore, this order prohibits people of all religions who are citizens of these seven countries from entering the United States, including Christians and Yazidis. The test for entry is not religious, but one of national origin.

The inclusion of these seven countries is quite clearly motivated by national security concerns. The seven countries listed have been designated as countries of concern by both the Obama and Trump administrations. Each of these nations has been war-torn or compromised by the threat of violent jihadism or has a national government hostile to the United States. Invoking the memory of 9/11, the executive order states that it seeks to prevent this threat from reaching the shores of the United States. ISIS is the largest and wealthiest terrorist organization the world has ever seen, and the gravity of the jihadist threat has already been felt in major Western cities like Brussels and Paris. It should come as no surprise that a Republican president who campaigned on a promise of protecting Americans from the jihadist threat would sign an executive order to do just that. 

There is, however, good reason for many Americans to doubt the sincerity of the president’s motivations in signing this order. During the campaign season, then-candidate Trump called for “a total and complete shutdown of Muslims entering the United States.” It is no surprise that many Americans view this executive order as a Muslim Ban, but the facts simply do not support that belief. President Trump’s executive order preventing immigration from these majority-Muslim countries is no more Islamophobic than President Obama’s routine drone strikes on majority-Muslim countries. Both policies were designed to prevent the spread of jihadist extremism, not to discriminate against all Muslims. If President Trump were to implement a policy that banned all Muslims from entering the United States, he should be opposed. But for now, that is not what has been implemented. 

 

These restrictions on immigration are unprecedented.

This accusation focuses primarily on three specific provisions of the executive order: the indefinite ban on admission of Syrian refugees, the 120-day halt on all refugee admissions followed by an annual 50,000-person cap on refugee admissions, and the use of national origin as a basis for discrimination in immigration policy.

Not only have these restrictions been used before, each of them was implemented to some degree under President Obama. Based on data compiled by the Migration Policy Institute, President Obama only admitted an average of 377 Syrian refugees per year from 2011 to 2015, with fewer than 100 of those refugees being admitted from 2011 to 2014, the height of the Syrian Civil War. In regards to the 50,000-person cap on refugee admissions, President Bush only admitted more than 50,000 refugees in four of his eight years in office, and President Obama capped refugee admissions at 70,000 from 2013 to 2015 with barely more than 50,000 being admitted in 2011 and 2012. It was not until 2016 that President Obama greatly increased the number of refugees. Finally, it was President Obama who enacted 8 U.S. Code § 1187(a)(12), which provides that no immigrant is eligible for the Visa Waiver Program if they have been present in Iraq or Syria after March 1, 2011, or if they have been present in any country that DHS has designated as a country “of concern.”

Like President Trump, Presidents Bush and Obama were concerned about immigration from countries where ISIS or other terrorist organizations have significant ties. If the data show any one immigration policy to be a historical aberration, it is President Obama’s expansion of refugee admissions in 2016.

 

Trump’s executive order is clearly unconstitutional.

This is perhaps the favorite fiction among aspiring lawyers. There is no doubt that there will be much litigation regarding President Trump’s executive order, but it is not so clear that the outcome will inevitably be against the administration. According to Andrew C. McCarthy, a former federal prosecutor who specialized in terrorism and national security cases, the Trump administration will have both constitutional authority and statutory law to support its position. 

First, he argues, our very own Thomas Jefferson wrote that, under the Constitution, “The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” The Supreme Court also recognized in United States v. Curtiss-Wright (1936) that the President has plenary and exclusive power in the field of international relations, a power which does not require an act of Congress to exercise. 

Critics of McCarthy’s position have pointed out that Trump’s order contravenes a 1965 immigration law, now 8 U.S. Code § 1152(a), which prohibits discrimination in granting immigrant visas based on nationality or place of residence. This statute is often invoked as evidence that § 1182(f), which authorizes the President to indefinitely suspend the entry of any immigrants he deems detrimental to the interests of the United States, has been amended to prevent the President from discriminating based on national origin. However, this argument gets complicated when considering the aforementioned Obama-era statute, § 1187(a)(12), which plainly discriminated against Syrian and Iraqi citizens attempting to immigrate to the United States. 

Either the Obama and Trump administrations are both breaking the law, or the Obama-era statute, which President Trump’s order explicitly invokes, has amended the 1965 statute to allow the president to implement immigration restrictions that discriminate based on nationality in the interests of national security. 

It is quite possible that the courts will rule against these arguments. But it is simply a fantasy to argue that the Trump administration is running afoul of such clear constitutional and statutory law and that the courts will find no grounds to rule that the executive order is legal.

While each of the above fictions may not be true, there is still cause for concern regarding this executive order. There was initially much confusion about whether this order applied to green card holders, and it took some time before the administration came to the sensible conclusion that it did not. As of this writing, CNN is reporting that the Trump administration is complying with a Seattle federal judge’s order suspending implantation of the executive order, but the administration is already preparing its legal case. Should he lose, President Trump must abide by the decision and respect the separation of powers enshrined in our Constitution. While we may disagree on the wisdom and legality of his executive order, we must stand united in our support of the rule of law. The stability of our government, and our nation depend on it.

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jck3dy@virginia.edu

Op-Ed: Gorsuch Nomination

Greg Ranzini '18
News Editor

Photo Credit: Slate.com

Photo Credit: Slate.com

Let us observe a moment of silence for Merrick Garland. He was a Supreme Court nominee that no right-thinking conservative could oppose; a Harvard valedictorian who in his youth clerked for two Eisenhower appointees, and a judge who has been consistently measured and moderate. He has infuriated progressives with his indulgent treatment of prosecutors and frustrated libertarians with his reluctance to reschedule marijuana, but on the whole he simply tacks straight down the middle of most issues. He rarely dissents, and he is rarely dissented against. Orrin Hatch once championed him as “a fine man.” He was the compromise option that no second-term Democrat would choose, the unmovable rock of the D.C. Circuit, Anthony Kennedy on decaf. And then, President Obama called Hatch’s bluff, and Judge Garland became unacceptable by association. Senate Republicans pretended that they had never praised him and acted as if Obama had never nominated him. Judge Garland waited in the wings for 293 days without a hearing.

This past Tuesday, President Trump nominated Neil Gorsuch in Garland’s place. He, too, is a Federal Appellate judge and an accomplished academic. In 2002, he even came to Judge Garland’s defense, bemoaning in an op-ed that Garland and his then-colleague on the U.S. Court of Appeals, John Roberts, “among the finest lawyers of their generation,” were being “grossly mistreated” by delays in the Senate. Nearly fifteen years later, he is strangely silent as he stands to benefit from those same, unjust delays. This selective amnesia is regrettable, but not unexpected, for beneath his veneer of respectability, Neil Gorsuch is nothing like Merrick Garland.

Neil Gorsuch is an ideologue. He favors “religious freedom” when it means denying women contraception, but he believes that city governments may make “content-based judgments” to place Christian symbols in public parks. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Summum v. Pleasant Grove City, 499 F.3d 1170, 1174-75 (10th Cir. 2007) (McConnell, J. and Gorsuch, J. dissenting). He rejects Chevron deference, the dormant commerce clause, and net neutrality. He campaigns against euthanasia and supports the death penalty. He is, in essence, a more prosecutor-friendly Scalia, with enough years left in him to skew the Court to the right for potentially the next half-century. 

Under normal circumstances, pushing Garland aside in favor of Gorsuch would be a headline-making scandal: a shameless partisan power-grab against the nation’s most storied nonpartisan body, coming as the culmination of an eight-year-long campaign to erase the legacy of our first Black president. But these are not normal times. Indeed, by the standards of the Trump administration, Gorsuch seems an outlier for his normalcy. He is not openly racist and no more vocally sexist or homophobic than any other member of the Christian Right. In the context of the last two weeks, he appears to be the ringmaster in a tent full of clowns. Democrats in the Senate seem eager to accept a Justice Gorsuch as the best they can hope for from President Trump. And so they lower their resistance to the most consequential of his nominees: a decades-long blot on the American judiciary.

Sure, Gorsuch has never, to our knowledge, branded the Council on American-Islamic Relations “cultural jihadists,” advocated America’s joining the “church militant” in a holy war, declared that he intends to destroy the state from the inside, or terrorized his ex-wife in an attempt to keep her from sending their children to a particular prep school because he objected to how many Jews attended. But if “he’s not as crazy as Steve Bannon” has become our litmus test for whether a nominee’s views are too extreme, we are in severe trouble as a country. The GOP spent the last eight years demonstrating that shameless obstructionism—shades of Harry Byrd’s “massive resistance”—carries much milder political repercussions than conventional wisdom suggested. Much of this success can be attributed to how the Democratic Party responded under Obama: always turning the other cheek, always extending an olive branch and a conciliatory compromise, in the vain hope that the Republicans would come to the table and bargain like adults. Instead, progressives have watched aghast as their representatives grovel and scrape down the high road like broken currs, as the mirage of “truth in the middle” recedes constantly in front of them.

Now, in Trump’s age of “American carnage,” we see this strategy of anchoring and adjustment in its crystallized, post-truth perfection. The Republicans have pulled the country so far to the right that they have taken all the slack out of objective reality. Now that even the most audacious spin is insufficient to support their agenda, they have launched an assault on truth itself: braiding in “alternative facts,” racist falsehoods, and imaginary massacres and demanding that the Left again meet them in the middle. Renouncing their past support of Merrick Garland and erasing his nomination is a comparatively easy deception. Perhaps, finally, they have overplayed their hand. Confronted more directly than ever with reality’s “well-known liberal bias,” to borrow Stephen Colbert’s indelible phrase, Americans may yet come to realize that the midpoint between a truth and a lie is still a lie. I do not hold out much hope, however.

When the street protests subside, and the fatigue of constant vigilance and simmering outrage sets in, the Republicans will have their stolen Supreme Court seat. The Democrats, seeing Judge Gorsuch’s conventional credentials and buttoned-up appearance, are on the verge of breaking already. Facing the unspoken threat that Trump might counter with a Justice Spencer or Thiel or Yiannopoulos, they will once again fold. But, whatever sliver of bargaining room they get out of this sacrifice will not begin to compensate the millions of Americans that Justice Gorsuch will harm in his decades on the bench. And even in the shorter term, as long as this strategy continues to work, Republicans will remain keen on keeping Trump around—no matter how uncomfortable they may find it to tie themselves in knots defending his behavior.

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gpr7qx@virginia.edu

Tom Periello: Gubernatorial Candidate

Campbell Haynes '19
Guest Contributor
 

Tom Perriello speaking to law students. Photo courtesywww.nbc29.com

Tom Perriello speaking to law students. Photo courtesywww.nbc29.com

Donald Trump’s ascension to the Presidency prompted visceral reactions across the country. His supporters felt jubilation and pride that their vision of America had been electorally endorsed. Hillary Clinton supporters woke up on November 9th angry, confused, and saddened by this new reality. Those same supporters have spent the months since the election marching in cities, big and small, across the country, fighting Trump’s executive order at our nation’s airports, and pressuring their legislators over Trump’s cabinet appointments. The election, for many of them, changed everything. 

The election changed everything for Tom Perriello, too. Perriello, a former Congressman from the Charlottesville area, spent 2016 working as a diplomat at the State Department. Politics at home appeared stable, with Hillary Clinton poised to win Virginia and the Presidency, and home state Senator Tim Kaine headed to the White House with her as the Vice President. A Clinton victory would have given Democratic Governor Terry McAuliffe the opportunity to appoint someone to replace Kaine in the Senate. All signs pointed to Rep. Bobby Scott as the likely pick. Scott’s appointment would begin to heal wounds from an ugly past (he would have been the first black Senator in the commonwealth’s history) and help steer Virginia toward a more progressive future. 

And then, against the odds, Trump won. For Tom Perriello, the future of Virginia suddenly looked more precarious. So he quickly—and belatedly—jumped into the Democratic primary for Governor. Perriello is the underdog in the race, as most of the establishment support has already gone to the current Lieutenant Governor, Ralph Northam. But Perriello is no stranger to long odds or difficult fights. In 2008, he upset long-time incumbent Congressman Virgil Goode in the deep-red Fifth District of Virginia. Perriello overcame a double-digit deficit by campaigning on a platform of pragmatic populism and conviction politics. He lost that same seat in the Tea Party wave of 2010, but he ran nearly ten points ahead of other Democrats nationally in part by honestly and painstakingly defending his record and his votes on health care reform, “cap-and-trade,” and the stimulus. 

    Last week, Perriello came to the Law School for an event hosted by the Law Democrats on the future of progressivism in the age of Trump (note: the Law Democrats do not endorse candidates before the conclusion of Democratic primaries). During the event, Perriello fielded an array of difficult, thorny questions from audience members with poise and progressive conviction. He defended a difficult vote he made on abortion as a Congressman and explained his learning process on the issue. He articulated a path forward for Virginia on education that gets the basics right (he pointed to rural schools with leaky roofs) while dreaming big on career and technical education and free community college. He stood up for political compromise, noting that while he is both a progressive and a populist, his career as a diplomat taught him that, sometimes, incremental progress is most achievable. 

     Perriello’s version of populism suggests that one common post-election talking point—that Democrats focused on identity politics too much, at the expense of bread-and-butter issues—is a myth. Perriello speaks the language of the young, diverse, progressive future of the Democratic Party (and of America): his talk featured discussion and dialogue on intersectionality, feminism, the important of the Black Lives Matter movement, and even a reference to the musical, Hamilton (although he’s much more of a fan of Madison). He acknowledged that race and racial politics drove much of Trump’s support, while refusing to give up, as some would have the Democratic Party do, on appealing to the white working class. He supports gun rights and background checks, and his faith motivates his political participation and shapes his worldview. In short, Perriello knows that all politics is identity politics, and will excel at appealing to voters of all identities. 

The Virginia Democratic gubernatorial primary election will be the first referendum of Trump’s presidency. It will also be the first test of whether a new brand of left populism like Perriello’s can compete with Trump’s xenophobic nationalism. Many believe that it cannot. That Medicare-for-All cannot possibly compete with “Build That Wall!” Others believe that, in order to compete going forward, Democrats must become (again) the party of people that hate Comcast, not those who live down the block from Comcast executives. Ultimately, it is refreshing to see a progressive of conviction like Perriello stand up for what many Americans believe in. Virginians—and many Americans—will be watching this primary election eagerly in the months to come. 

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wch4xs@virginia.edu
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1     https://www.washingtonian.com/2017/01/31/tom-perriello-running-governor-of-virginia-trump-changed-everything/
2     https://www.washingtonpost.com/local/virginia-politics/bobby-scott-the-congressman-who-could-make-history-again/2016/09/07/26822154-6bb6-11e6-ba32-5a4bf5aad4fa_story.html?utm_term=.35be997c06b0
3     http://prospect.org/article/how-tom-perriello-showed-virgil-goode-door
4     http://www.newyorker.com/news/george-packer/tom-perriellos-lonely-battle
5     https://medium.com/@rortybomb/would-progressive-economics-win-over-trumps-white-working-class-voters-43f78cc7f005
6     http://www.theatlantic.com/politics/archive/2016/10/how-democrats-killed-their-populist-soul/504710/

Putin's Pending Pet Project

Jansen Vander Meulen '19
taff Columnist

Since President Donald Trump’s surprise victory in November’s presidential election, commentators and politicians have sounded the alarm about Russia’s malicious involvement in American politics. Often abbreviated simply as “Russian hacking,” the Russian effort to undermine Americans’ confidence in the recent election was much more than that. It amounted to a sophisticated campaign of disinformation and strategic hacks, with the aim, according to a report compiled by the Director of National Intelligence, of electing President Trump and “undermin[ing] the US-led liberal democratic order.” Moreover, according to the same report, Russian involvement in the 2016 election was personally ordered by Russian President Vladimir Putin. Unfortunately for fans of the US-led liberal democratic order, Mr. Putin is just getting started. This year alone, several major American allies will hold national elections. Most importantly, France will elect a new president and German Chancellor Angela Merkel will seek a fourth term. In both of these countries, friends of Mr. Putin will seek office, and Mr. Putin’s propaganda machine promises to be active. 

Putin and nominee for French PM, Fillon. Photo courtesy ofwww.spectator.co.uk.

Putin and nominee for French PM, Fillon. Photo courtesy ofwww.spectator.co.uk.

In France, the main center-right party has nominated for president former Prime Minister François Fillon, a rock-ribbed conservative and friend of Mr. Putin’s from their concurrent terms as prime ministers of their respective countries. Mr. Fillon is thought likely to make it to the final round of France’s election. If polling is to be believed (a big “if” in the Age of Trump), it is quite possible he will face off against the leader of the far-right National Front, Marine Le Pen. Ms. Le Pen has effectively rehabilitated the image of her formerly Holocaust-denying, anti-Semitic party, but she remains on the fringe of European politics. Her party supports withdrawal from the European Union, stripping “extremist” Muslims of their French citizenship, and an end to multiculturalism.  In an election between Mr. Fillon and Ms. Le Pen, the once-dominant French center-left would face its Scylla and Charybdis, forced to choose between a Thatcherite budget-slasher and a nationalist demagogue. Worse, both are sympathetic to Mr. Putin, and may contribute to his main European project: the weakening of the European Union.

Germany’s prospects are not so dire, but trouble is brewing for the center-right Christian Democratic Union (CDU), the party of Chancellor Angela Merkel. Ms. Merkel has held power since 2005, and seeks a fourth term in this spring’s elections. As Germany’s first Chancellor born in the formerly-communist east, Ms. Merkel is the champion of Europe’s liberal order. When the Syrian migrant crisis began, she announced Germany would welcome refugees. Welcome them it has. In 2015 alone, Germany accepted more than one million Syrian refugees. While still widely popular with the German people, Ms. Merkel’s popularity has taken a serious hit since the beginning of the refugee crisis. On the electoral front, she faces a new challenge from the right-wing populist Alternative for Deutschland (AfD), which rose to prominence in the wake of Ms. Merkel’s decision to open Germany’s borders to Syrian refugees. In local elections in late-2016 in Ms. Merkel’s home state of Mecklenburg-Vorpommern, the AfD pushed the long-dominant Christian Democrats into third place. Worryingly for fans of the Merkel-led European liberal order, the AfD has made strong overtures of friendship to Mr. Putin. Marcus Pretzell, the party’s leader in North Rhine-Westphalia and a member of the European Parliament, recently traveled to Russian-annexed Crimea and sat on a panel with numerous Russian leaders under European and American sanctions for their role in the annexation of Crimea, widely-regarded as illegal by most American and European observers. There is talk that Mr. Putin’s Twitter trolls, most recently engaged in pro-Trump, anti-Clinton activity, have converted to anti-Merkel accounts, a sign that Mr. Putin’s disinformation machine will next target Europe’s Iron Chancellor. While the AfD lacks the electoral strength of America’s Republicans, opponents of Mr. Putin ought not to underestimate him. A year ago, very few thought Mr. Trump would become President of the United States. It is not absurd to think Putin could topple Ms. Merkel, too.

Having achieved his objectives in the United States and the British referendum on European Union membership, Mr. Putin has now set his sights on the core engines of the European project: France, Germany, and their alliance that brought Europe together. Should he succeed in electing an ally to head either or both states, Europe and the West should beware. An invasion of one of the Baltic states cannot be far over the horizon, and with it comes the great test of the Western alliance.

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jmv5af@virginia.edu

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1     https://www.dni.gov/files/documents/ICA_2017_01.pdf
2     http://www.bbc.com/news/world-europe-38321401
3     http://www.cnn.com/2016/11/15/politics/marine-le-pen-interview-donald-trump/
4     https://www.washingtonpost.com/news/worldviews/wp/2016/05/04/germany-welcomed-more-than-1-million-refugees-in-2015-now-the-country-is-searching-for-its-soul/?utm_term=.02a3a7364b68
5     http://www.dw.com/en/nationwide-german-poll-merkels-popularity-dips-to-five-year-low/a-19521704
6     http://www.reuters.com/article/us-germany-election-idUSKCN1190XG
7     http://www.spiegel.de/international/germany/german-populists-forge-deeper-ties-with-russia-a-1089562.html
8     http://observer.com/2016/12/angela-merkels-2017-re-election-kremlins-next-full-scale-assault/

Shaping Justice Conference

Alex Haden '17
Editor-in-Chief

This weekend, February 3rd-4th, the Shaping Justice conference will kick off at UVa Law. The conference is being held in honor of the Mortimer Caplin Public Service Center’s twentieth anniversary. The conference’s goal is to inspire both students and practitioners to take the formation and processes of the law into their own hands in order to provide justice to all people. Participants will be encouraged to collaborate and discuss the various means to use the legal system in order to fix the injustices that exist in the country and the world.

The Public Interest Law Association (PILA) has been very involved in the planning and creation of the event. PILA President Teresa Hepler noted that:

“The goal with the conference was to bring UVa more into the spotlight when it comes to public interest and to allow students in the region to collaborate on ways to provide equal access to justice to those who are still not receiving it in the 21st century.  We are honoring the Public Service Center’s 20th anniversary in the launch of the conference, because the office has done so much to expand public interest at the law school and put students in careers that allow them to “shape justice.”  The conference is nonpartisan, providing varying viewpoints about particular crises in justice (criminal, environmental, housing, etc.) and hopefully inspiring students to ask more questions about the legal system and generate ideas on how to improve it.  We also wanted to give students not just ideas but tools on how to implement those ideas, hence the workshops.”

The event kicks off on Friday, February 3rd with a welcome address from Dean Risa Goluboff. Following her address, participants may choose between a set of three concurrent panel sessions: (1) Building Wealth: Expanding Economic Opportunities through Land, Housing, and Development (sponsored by the Virginia Journal of Social Policy and the Law); (2) Before, During, and After: Issues Facing Women in the Criminal Justice System (sponsored by Women of Color, Feminist Legal Forum, and the Virginia Law in Prison Project); and (3) Environmental Justice and the Law: Attorneys’ Many Roles in Combatting Environmental Injustice (sponsored by Virginia Environmental Law Forum).

A second set of concurrent panel sessions will immediately follow: (1) Crime, Youth, and Justice: A Multidisciplinary Approach (sponsored by the National Lawyers Guild, UVA Chapter and Child Advocacy Research and Education); (2) Invisible Violence: Increasing Awareness and Improving Aid for Domestic Violence Victims in Underrepresented Communities (sponsored by the Domestic Violence Project, LAMBDA Law Alliance, and the Virginia Journal of Criminal Law); and (3) Fair Housing and Civil Rights in Virginia (sponsored by the Black Law Students Association, UVA Chapter and Center for the Study of Race and Law). A networking reception will follow immediately in the Karsh Student Center Atrium (right outside of Admissions).

The next day, the conference starts with a breakfast session where students interested in various practice areas can gather in groups to discuss various ideas and tips pertaining to that area of public interest law. The next event is a set of concurrent sessions of workshops designed to help students learn how to apply the tools they have to the issues that have been discussed throughout the conference. These workshops include client interviews, identifying human trafficking, handling trauma with clients and victims, community organizing, and lawyering in the field of civil rights. 

The main event of the day is a lunch with the Keynote speaker, Robin Steinberg. Hepler noted that Steinberg was selected as the keynote speaker because she embodies the goals of the conference, since she founded the Bronx Defenders in order to provide legal services to people who were in real need of those services. Steinberg’s list of accomplishments is lengthy and impressive, as shown on the program website:

“Robin Steinberg is a leader and a pioneer in the field of indigent defense. In 1997, Robin founded The Bronx Defenders, where she developed holistic defense – a client-centered model of public defense that uses interdisciplinary teams to address the underlying causes and collateral consequences of criminal justice involvement. She is the co-founder of The Bronx Freedom Fund, the first charitable bail organization in New York State, and the project lead for Still She Rises, Tulsa, the first public defender office in the country dedicated exclusively to the representation of women with children. Robin has been honored by the National Legal Aid & Defender Association for her “exceptional vision, devotion, and service in the quest for equal justice,” and by the New York Bar Association for her “outstanding contributions to the delivery of defense services.” She has taught trial skills at various law schools and travels nationally and internationally speaking about holistic defense.  Robin is the author of a number of articles, including: “Police Power and the Scaring of America: A Personal Journey” (Yale L. &; Pol’y Rev. 2016); “Shared Roots and Shared Commitments: The Centrality of Social Work to Holistic Defense” (Hamishpat  L. Rev., 2016); “Broken Windows Policing and Community Courts: An Unholy Alliance” (Cardozo L. Rev. 2016); “Heeding Gideon’s Call in the 21st Century: Holistic Defense and the New Public Defense Paradigm” (Wash. & Lee L. Rev., Summer 2013); and “Beyond Lawyering: How Holistic Lawyering Makes for Good Public Policy, Better Lawyers, and More Satisfied Clients” (N.Y.U. Rev. L. &; Soc. Change, 2006), among others.”

More information is available on PILA’s website, found here: http://pilaatuva.weebly.com/program.html. 

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ach7pa@virginia.edu

Safe Spaces and Why You Already Believe in Them

Rachel Gallagher '19
Guest Columnist

 

 I am writing this article in response to, but not debating, all the points made by the article “Don’t Give Me Shelter” by Betsy Hedges. 

I think a lot of people have some misconceptions about safe spaces, what they are, where they came from, and how long they’ve been around. To many people, they are a product of the millennial generation, associated with stereotypes regarding hurt feelings, political correctness, extreme feminism and the modern day “social justice warriors.”

    What is a safe space? To me, the first thing that comes to mind is not the cordoned off rooms the Law School provided in the wake of the presidential election, but perhaps one of the earliest so-called “safe spaces:” Alcoholics Anonymous. AA is the quintessential example of a safe space: a place where members can gather and share feelings or experiences without being criticized, judged, or told that the entirety of their problems lay at their feet; they may also share experiences and thoughts that will not follow them into their daily life. And while I’m painting with a rather broad brush here, I think we can agree that a safe space is a meeting place where people share their feelings and issues dealing with experiences the majority of us might never encountered—including substance abuse, PTSD, eating disorders, the aftermath of rape, or, dare I say it, experiences with racism and unfounded hatred.

As Ms. Hedges hits on, safe spaces do serve a need in the community – the need to discuss real and valid feelings and concerns without fear of them being dismissed, ignored, or held against that person’s character in their daily life. Where we disagree is whether or not it is appropriate for the Law School to provide a room for such a space. Is there really any harm in allowing temporary and limited spaces for people to discuss their concerns and fears following a long year of inflammatory and fear-inspiring rhetoric, even if there have not been any threats of violence on grounds? Especially if the man who has been elected president was endorsed by the KKK, has a history of decrying entire races and religions, and has advocated for war crimes and still had the approval of a large swath of the population? I have no problem with allowing a safe space in this situation, just as I would have no problem with the school letting a room to other group therapy or community healing events.

To be clear, I am not advocating for the entirety of the Law School, or of any school, to transform into a 24/7 expansive safe space where only like-minded people can yell into a liberal echo-chamber and disagreements are not allowed—merely for the allowance for temporally and spatially limited spaces for people to discuss concerns without fear of dismissal or misunderstandings. 

The founder of AA was a former student at my undergraduate university, Norwich University, which is a private military college in the state of Vermont. My second year, I lived in the dorm that bears his name. Today, my alma mater is filled with hopeful military officers who look upon safe spaces and the like in a derogatory and dismissive manner, even as I know several alums who partake in AA for their own problems. I would ask them the same I ask of you: if you are okay with safe spaces for some groups but not for all groups, take a moment of introspection and ask yourself why you believe that some people deserve to have their issues and experiences validated while many others just need to “act like grown-ups.”

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rad7ej@virginia.edu

MPRE-Weee!

Alex Haden '17
Editor-in-Chief

 

For those of you who aren’t 3Ls or super gunnery 2Ls, a few weeks ago was 2016’s final iteration of the much-beloved legal ethics test, the MPRE. The MPRE stands for Making People Really Ethical, which is ironic, because no one really prepares for this test for more than a day or two. For that one uncle in your family who always makes “crooked lawyer” jokes at Thanksgiving, you can show him this article to detail the excruciating and needless pain that the MPRE forces law school students to endure.

The first ridiculous thing about the MPRE is that it’s one of those multiple choice tests where you have to select the BEST answer. Not the correct answer. The best answer. Anyone who suffered through these miserable kinds of tests as a kid knows the absolute absurdity of these kinds of questions. For example: “Which of the following is a type of weather? A. games B. pain C. lead pencils D. chair.” The correct answer is B, pain, because it rhymes with “rain.” BEST ANSWER. Get out of here. 

The MPRE is supposed to test us on our ability to be ethical lawyers by posing various hypotheticals to us. The laughable part of these hypotheticals is that somehow we, as junior or less-than-junior attorneys, could ever be in such positions of power where we could be unethical. The only applicable question is the one where your supervising attorney tells you to do Action X, even though you think Action X violates the Rules of Professional Responsibility. The laughably “correct” answer is that you shouldn’t do Action X and tell your boss exactly why. I’d like to meet the first-year associate who informs the partner, “Your conduct might be running afoul of one of the Model Rules and I’d like you to reconsider your action.”

The MPRE is also somewhat useless because we are being tested on the Model Rules, which very few, if any, states actually have adopted in their entirety. It seems silly to learn about rules that may not actually be applicable for our jurisdiction, especially if the real rules are actually the opposite of the Model Rules. If only there were a test designed specifically for our jurisdiction that was designed to make sure we were competent for that specific jurisdiction. But since there isn’t any such test that we will have to take after law school, we are forced to take the MPRE to become ethical. 

The other substantive annoying aspect of the MPRE is that we have to learn about the judicial code of ethics. As in, the code of ethics for JUDGES. Why on earth would that be necessary for us to be proper lawyers? Most of us will never become judges, and for the few of us who will become judges, that career move won’t happen for at least three decades. We’ll be lucky enough if we remember torts when we’re that age, let alone remembering what campaign contributions are acceptable for us to receive from family members and political parties. 

Then there are the 500 crazy procedural hoops that you have to jump through just to get to test day. First, you have to pay a ridiculous sum of money – ninety-five dollars – just to be able to sit for the test. Heaven forbid that you miss the early registration deadline, or else you are subjected to the late registration fee: $190. Do you know how many drinks at the Bilt that is? Enough to make you more ethical than the MPRE will help you to be. Also, the test is only offered three times a year, at extremely inconvenient times: (1) right around spring break; (2) in August, during vacation time after working for the summer; and (3) in November. Usually we’re busy working on our no-shave November beards right now. So these times aren’t really great for our schedule.

Then, you have to carefully print out your exam ticket (don’t be fooled, it’s not a fun kind of ticket). You then have to secure a passport photo that you can attach to the ticket. You might be confused by this requirement. Wouldn’t a government-issued ID be much more simple to prove your identity? You’re right, but a government-issued ID is ALSO required to take the test. The passport photo is just gravy on top of your passport or driver’s license, which apparently isn’t all that official or valid for the MPRE administration. So you’ve gotta march down to CVS and get your passport photo taken, which costs a whopping $13. CAN YOU BELIEVE THIS MADNESS? IT’S LIKE CVS AND THE MPRE ARE IN CAHOOTS! FOLLOW THE MONEY. Plus, that guy at CVS who takes the photos is very chatty and asks a lot about your day and law school, and I’m really just trying to get home and talk to no one. 

Then, once you’ve secured said passport photo, you have to tape – NOT STAPLE – the photo to your admission ticket. However, the photo has to fit inside of the specified box, and the box is too small to fit a standard passport photo. So you have to cut your photo down to an acceptably small but not too small size, just to appease the MPRE Gods who will rip up your ticket and your future if you fail to follow their exact instructions. You are also forbidden from bringing a cellphone, which makes some amount of sense; however, the testers will suggest that those who accidentally brought a phone should hide it in the bushes outside for “safekeeping.” 

The rest of the requirements are also strict and draconian. The MPRE subscribes to the ridiculous requirement that we use number two lead. I don’t even know what that means. It has something to do with how soft the lead is, but what does that mean? Don’t answer questions with questions please. Also, it’s 2016. It’s time that we make a machine that can read pen like a freaking adult. You also aren’t allowed to bring a watch in, because knowing the time is unethical. Unless you’re billing for it. But you can’t bill for the MPRE. Or for being ethical. And apparently, at UVa, you’ll have to contend with screaming sorority girls outside of your testing room for half an hour. 

All in all, the MPRE is a series of nonsensical hurdles that require you to bend, twist, limbo, and contort yourself to attempt to pass. And if you don’t manage to pick enough of the “best” answers, you have to repeat the entire process. One day, someone in power will realize the folly of this test, or we’ll all get smart like Maryland and stop requiring it. But until that time, I wish you luck on the test, and remember, always pick the second-most ethical answer. Which is answer B. 

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ach7pa@virginia.edu

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1     Or you can just have some more Thanksgiving cheer, a.k.a. vodka and cranberry sauce.

 

Get into the Holiday Spirit

Jacqueline Malzone '19
Guest Columnist

It is finally Christmastime! (Like officially; not that day-after-Halloween crap that had Elf memes plastering my Facebook newsfeed.) It is undoubtedly the best time of the year– everything is lit up beautifully, the crisp air brings the scent of snow, the best cookies are made, the jolliest songs are played, Starbucks cups are red, and of course we cannot forget about the endless Secret Santa exchanges! I don’t know how more people are not already getting into the spirit.

    I walked into my apartment after coming back from Thanksgiving in New Jersey, and my roommate says to me, “Aren’t you a strange little Jewish girl with your box of Christmas decorations!” My only response was that I was shocked that she did not have her own box of holiday décor! Yes, I am proudly Jewish, but the evergreen back at home is not a Channukah bush, it is a Christmas tree. The fireplace is lined with stockings, Santas and reindeer are scattered throughout the house, and a wreath hangs outside our front door.

    Christmas has never been about Jesus for me. Christmas is a time to be with family. It is one of the rare times that my siblings and I bond when we trim the tree and decorate the house, reminiscing over old Christmases and stories of past snow days. My Catholic grandma comes home from church to teach me all her special holiday recipes. I get the chance to prove how well I really know my family and friends when I find them the perfect gift and get to see the look of pure joy when they open them. 

I’m not the only Jew who loves Christmastime. I will never forget the time I bonded with my very Jewish grandfather over the holiday. We picked him up for lunch one day, and my dad went to turn off the Christmas music in the car, so as not to offend him. To our surprise, though, he scolded my father and made him put the music back on! His reason for loving the music? “Jews wrote those songs,” he said, so nonchalantly, as he went on to hum along with the tunes. Christmas is a time for spreading joy to everyone, regardless of religious background or upbringing. Christians, Jews, Muslims, atheists, and agnostics alike – we can all benefit from spreading a little Christmas cheer.

When you walk into my apartment, you are all but assaulted by the holiday explosion; but it feels like a hug when you sit on the couch, all the lights glowing and the smell of our seasonal candles wafting in the air. We go to law school, and as much as we all want to be here because we want to be lawyers, we have to admit (especially the 1Ls) that this time of year sucks for us. We spend as much time as possible in the library, meticulously editing outlines, stumbling through practice problems, and wondering what the future will hold for us. And let’s not even delve into the mess of anxiety people are feeling after the elections year. With all this stress just piling on, we need a source of comfort!

You might be wondering what makes me so sure that Christmas is the kind of comfort we require. There is proof that Christmas is comforting to people generally. Not many people at this school, I would guess, are old enough to remember a time when holiday music was not played non-stop on the radio for weeks before Christmas day. However, it was not until 9/11 that this became regular practice. The reason? People were scared and depressed and entertainers felt that putting all of us in the Christmas spirit would help give the nation hope and relax for a short while. This is why we need Christmas spirit now. Call it a distraction, call it a security blanket, call it whatever you like. But no matter who you are, it is okay to feel that Kris Kringle mood and want to spread a little joy to your fellow Lawhoos. If you are anywhere near as stressed and anxious as I am, then you could definitely use some cheer in your day.

So head over to Michael’s or Bed Bath and Beyond down at Barracks and pick up some string lights, a wreath, or a tree. Stop at Harris Teeter or Kroger and buy some eggnog and gingerbread cookies. Hop into Yankee Candle and get a crackling candle that smells like cookies. Switch from your usual playlist to the Christmas stations on Pandora or Spotify or iHeartRadio – whatever you prefer. Sit down and soak in the Christmas. Share it with your friends and take that deep breath and relax.

It might not be snowing in Charlottesville, but we can do everything else to make it the perfect holiday season. It’s the most wonderful time of the year– embrace it!

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jem7my@virginia.edu

In Defense of Safe Spaces

Tex Pasley '17
Guest Columnist

 

In the barrage of post-election commentary, I was unsurprised to see that some students objected to (or mocked) the law school’s provision of “safe spaces” in light of the election results. While I grasp the spirit of these responses, the underlying reasoning belies a misunderstanding both of what safe spaces are for, and the very damaging hyper-political effects Trump’s campaign and election on has had on our society in general, and students at this Law School in particular.

This column makes three claims. First, we need an appropriate definition of what a “safe space” is, and the function it serves. Second, with this understanding, I think we can see that the Law School already provides “safe spaces” for all students. Finally, by recognizing that Donald Trump’s election already stands as an historical event that transcends politics, I think we will find that the administration’s response was entirely appropriate, and will probably not produce thin-skinned lawyers in the process.

When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.

—George Orwell, Politics and the English Language 

This to-and-fro over “safe spaces” has become tiresome. The debate really calcified around this very time last year when students at Yale and the University of Missouri successfully forced the resignation of campus officials for different incidents that a large population of students found offensive. From that point, we’ve retreated into two camps, working from two different lexicons. Terms like “trigger warning,” “micro-aggression,” “free speech,” and “safe space” have lost whatever original meaning they had, and are merely verbal grenades, lobbed into the opposing trench with the remote promise of scoring a direct hit.

My hope is that, if nowhere else, we can halt this trend here at UVa Law. So to begin, we need to understand that the term “safe space” is not unique to our political moment; it arose in the gay, lesbian, and feminist movements of the 1960’s and 70’s. As Moira Kenney writes in her book Mapping Gay L.A., safe spaces provided an important stepping stone for gays and lesbians seeking wider social acceptance:

Gays and lesbians live in cities they have mapped for their own purposes: neighborhoods discreetly appropriated in forgotten zones, street corners where kisses can be exchanged proudly, and community centers to provide safe space for coming-out or mobilizing activists. And then there are the places where none of these things can happen, where gay bashing and subtler forms of heterosexism are expected and feared. The experience of being part of, and subject to, the life of the city, combined with the search for specific spaces that permit and affirm one’s own way of being, are the key elements in such maps.

To be sure, the use of explicitly defined safe spaces is controversial within activist movements. Those critiques are not the point of this piece.

But we need to recognize, as a matter of first principle, we all make use of safe spaces. In the quote above, Kenney juxtaposes the “discreetly appropriated” neighborhoods against the city at-large. As humans, we fundamentally require “specific spaces that permit and affirm one’s own way of being,” and we use them all the time. Many of us went home or visited family for Thanksgiving, and I suspect most of us like to unwind from a long week by going to a bar or a friend’s house for drinks. While we don’t call our parents’ house or the local watering hole a “discreetly appropriated safe space,” we should recognize that what we are, in fact, deliberately entering a safe space. Beneath all of this is the simple recognition that, as human beings, we cannot fully participate in public life all the time.

Accepting this understanding, we should further recognize that Donald Trump’s election was not the Law School’s first attempt to create a safe space. Directly, the Office of Student Affairs and Student Bar Association have sponsored events covering issues such as mental health and privilege. One purpose of these events—I suspect—was to offer a safe space where students could communicate with each other in a permissive and affirmative manner on subjects they feel uncomfortable discussing with the wider student body. The upshot is that, afterward, students (myself included) feel more comfortable engaging with their peers. Such a state of affairs should lead to a more dynamic, welcoming, and “collegial” student body.

Indirectly, of course, the Law School Foundation bankrolls student organizations that provide comfortable spaces for all sorts of affinity groups, including but not limited to Democrats, Republicans, women, feminists, and Jewish, Christian, Catholic, and Mormon students (and many others). Universities, and law schools in particular, are designed to be places where ideas are exchanged freely and openly. The inevitable consequence is that everyone, at one point or another in the course of her education, struggles to reconcile her personal convictions with what she learns in class. We should recognize that whenever a student organization hosts a potluck, faculty dinner, or similar outing, it’s providing a safe space to its members. By providing this affirmative space, students can return to class more energized, refreshed, and willing to engage with the wider student body.

Once we attach the “safe space” label to these activities, an unfortunate and inevitable knee-jerk reaction occurs—we are now “coddling” its students. As Betsey Hedges puts it, “the Law School administration is not assisting us in developing the resilience we will need in the legal profession.”

I am not yet part of the legal profession, so I cannot speak to what sort of resilience is required. Yet Ms. Hedges fears that when the school provides us with safe spaces, it treats us like “juveniles”, which will in turn make us ineffectual, namby-pamby lawyers (or something). I find this response particularly troubling in this for two reasons.

For one, while we can all look forward to careers working long hours as we perform intellectually rigorous and morally demanding tasks, I would also expect our administration to recognize that lawyers are abnormally susceptible to depression, substance abuse, and divorce. Not unrelatedly, it is also a profession where people from disadvantaged or historically oppressed backgrounds feel unwelcome. I hope that—as a future training ground for lawyers—our Law School administration is attentive and responsive to these concerns. By unilaterally concluding that a safe space “defrocks us of our sense of responsibility,” all we do is retrench the very real and negative personal consequences we face for choosing this line of work without really giving any of us guidance in how to become (truly) socially responsible and resilient attorneys.

And second, in the context of the most recent election, this response displays a blissful unawareness of our political reality. The most recent Law Weekly contained plenty of able commentary on this point, and I’m not going to rehash it here; the world certainly does not need another Donald Trump think-piece. But we must acknowledge that Donald Trump is a disturbing president-elect.

No major party presidential candidate in my lifetime, and probably no candidate since Richard Nixon or Barry Goldwater, has appealed so directly to the racist and sexist id of our electorate. Either on Trump’s own, or through his surrogates, he has suggested policies or made remarks that goad others to act on their base impulses by—for example—suggesting we reinstate the Eisenhower administration’s “Operation Wetback” program, suggesting that all Muslims entering the United States sign up for a registry (citing the WWII use of Japanese internment camps as precedent), and doubling down when he was accused of sexual assault by multiple women during the campaign (suggesting they were not attractive enough for him to assault). 

Of course, that does not necessarily mean Donald Trump, the person, holds these views, or that he will implement these policies. But many people—including many students at this law school—are rightfully scared about the consequences and their own personal safety. The election of Barack Obama, Mitt Romney, Hillary Clinton, Marco Rubio, or whoever else is not the same; it’s a difference between being upset about the normal political consequences of an election, and being actually fearful for your safety. 

When the name of our next President is appearing next to swastikas and the Ku Klux Klan is again a public presence, we have a responsibility to push back and reach out, both in general and within our law school community. By acknowledging the potential effects of this election, and providing students space within our community to process those effects, the Administration took the appropriate steps. 

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crp5vw@virginia.edu

The Impermanence of Progress

Hunter Hampton '19
Guest Columnist

Still reeling from a loss we never saw coming, progressives are grasping for an explanation: Why? Here’s one answer: Progressives lost because our message was directed towards an America we wanted to exist, rather than the America that does exist. 

Although many great successes have been achieved over the last eight years, the march to full equality is never complete. It’s a sad fact of life that no victory is ever fully won, but it’s the truth, and there’s a grave danger in pretending that the promise of America has ever been fully achieved for anyone. Progress isn’t permanent. It can decay, which is exactly what is happening in America’s forgotten Heartland. 

Now, the present situation of blue-collar white Americans is not as dire as that of African-Americans in the time of the Jim Crow laws. It’s not as dire as that of Asian-Americans during the Chinese Exclusion Act or Japanese internment during World War II. It’s not as dire as that of the millions of law-abiding, but undocumented, Latino immigrants who came to this country because to them, America still embodies the promise of freedom and opportunity. No. Theirs was, and is, a worse lot. The problem is that, rightly or wrongly, blue-collar white Americans fear that they are headed in the same direction. Donald Trump won because he—crudely, coarsely, racist-ly—tapped into those fears. But this does not mean that his supporters are crude, coarse, racists. Rather, it means that they are scared of what the future holds for them, and it means that no one else was acknowledging that fear. This is precisely where we progressives dropped the ball. Our blindness to the impermanence of progress cost us this election.

November 8th made one thing clear: progressives can’t just stand up for those who are already the victims of oppression and disadvantage. We must also stand up for those who fear oppression and disadvantage, whether or not they have yet to be oppressed or disadvantaged. Don’t scoff. You might think that this is ridiculous, that progressives would obviously never oppress blue-collar white folks. But that thinking is not only wrong-headed, it’s dangerous. To ignore the fears and grievances of one group of Americans may not be active oppression, but it is passive oppression. It is condescending and patronizing to an entire group of people to say that we know better, and that they have nothing to worry about. This, despite the fact that cities, towns, and rural areas all across the Rust Belt and Appalachia are shedding jobs in the thousands while a drug epidemic sweeps in to fill the void left by a lack of opportunity, a future, and a voice for change. 

Here’s an oft-forgotten fact: it was not until 1856 that all white men could vote. Before this, many states required property ownership before you could cast a ballot. Rich white people have never been oppressed in the United States, but poor white people have. It was just a lot longer ago than we tend to remember. In this election, we operated under the assumption that the fullness of liberty and opportunity had already been extended to all white people, conclusively and permanently. But as it turns out, many of them felt the promise of America slipping away. 

In advocating our vision for the future, we can never take for granted the progress achieved long ago. Now, in the shambles of our defeat, we need to reach out beyond our liberal bastions, where the victory already seemed won, to the Americans who were rolling their eyes at our own smug blindness. Because in their towns, our victorious mindset seemed hopelessly out of touch.

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hah8ew@virginia.edu