ABA Presents: Marshall

Jenna Goldman '18
(she/her/hers)
Editor-in-Chief

What else could possibly be discovered about the nation’s most famous lawyer? Turns out, quite a lot.1

The American Bar Association and Open Road Films sponsored an exclusive pre-screening of Marshall for UVa Law students and faculty at the Regal Stonefield in Charlottesville last Thursday, September 14. The film, directed by Reginald Hudlin, writer of Marvel’s Who is the Black Panther? and producer of Django Unchained, the film has been dubbed a “biographical thriller” about Justice Thurgood Marshall’s early days as a criminal trial lawyer for the NAACP.   

Chadwick Boseman portrays Thurgood Marshall, the first African-American to sit on the U.S. Supreme Court.

Chadwick Boseman is tasked with playing a suave, energetic Marshall, by now well seasoned in portraying larger-than-life historical figures (he played Jackie Robinson in the 2013 film, 42, and James Brown in Get on Up in 2014). Boseman also played T’Challa/Black Panther in Captain America: Civil War and will reprise the role in the 2018 film The Black Panther.

The movie centers on one criminal case assigned to Marshall as a 32-year-old while working for the financially struggling NAACP, which is searching for a show-stopping win to attract high profile donors. 

In Connecticut v. Spell, Marshall is tasked with defending a black chauffeur named Joseph Spell (played by Sterling K. Brown, who gives a gut-wrenching testimony on the stand—so good I wished Brown was given more of a speaking role). Spell is accused of sexual assault and attempted murder by his white, socialite employer named Eleanor Strubing (the dark, “damsel in distress” played by Kate Hudson) in Greenwich, Connecticut. 

The 1941 case was one of the most scandalous of the time, and coverage of the case shared the front pages of The New York Times with the start of the Second World War. The notoriety of the case sent shockwaves through the white upper class in the North, and cost black domestic workers their jobs.

The NAACP sends Marshall to Bridgeport where fumbling Connecticut attorney Sam Friedman—played by Josh Gad—reluctantly agrees to sponsor him for special admittance to the Connecticut bar. In a dramatic, not entirely shocking turn of events, the judge merely allows Marshall to act as second seat, and bars him from speaking at trial. An exasperated Friedman, who now is on the hook to defend Spell, exclaims, “But Mr. Marshall just argued before the United States Supreme Court!” To which the judge responds, “I do not see how that is pertinent to this case.”

Predictably, the vicious, slick-haired prosecutor on the case—played manically by Dan Stevens—is preparing for a Senate run, and the judge—stoically played by James Cromwell—is an old law partner of the prosecutor’s father. Even outside the Jim Crow South, the buddy-buddy Connecticut bar and the alleged rape of a white woman make Bridgeport seem awfully like Birmingham. The racism is apparent, yet subverted, perhaps in a statement to viewers about the current state of this country. 

The choice to highlight this case, where one of the most famous orators of the century is not allowed to utter a single word at trial, was a surprising one. As the story unfolds it becomes clear that the film was meant to focus on the brilliance of Marshall’s trial strategy, a strategy that enthralled our audience of law students.

For those generally reluctant to watch courtroom dramas because of an obsession with searching for errors in criminal procedure, fear not. Prominent Connecticut trial lawyer Michael Koskoff wrote the screenplay with help from his son, Jacob Koskoff (screenwriter for the 2015 film adaptation of Macbeth). Koskoff has handled major race discrimination cases in Bridgeport and New Haven, and at age seventy-three, he decided to bring the story of this major Connecticut case to the world. 

Hudlin directed the film with all of the excitement and fervor of a classic superhero movie. The story had a sniveling villain, a plain-clothes savior (I wouldn’t have been surprised if Marshall tore open his dress shirt to reveal a giant “S” and cape),2 and a trusty sidekick3 out to right the injustices in a town that doesn’t see the impending storm forming around them. This courtroom thriller keeps viewers on the edge of their seats with a twisting plot, from voir dire to verdict.   

The film was more than just legalese; it pays homage beautifully to the era in which it was set (from the roaring music to the fabulous cars—one of which plays an important role in the trial). In a side scene, real-life friends Langston Hughes and Zora Neale Hurston make an appearance in a dazzling New York City jazz bar. The scene was not necessarily in furtherance of the greater plotline, but it provided a glimpse into Marshall’s exciting outside-the-courtroom life. 

Outside of mild flirtations and a couple of stiff drinks, Marshall’s personal life is cast in a decidedly angelic light, as the film focuses almost exclusively on his legal practice. And I’m glad it did: Marshall’s brilliant lawyering provided plenty of intrigue and drama.  

As far as critique, I was left wanting many of the actors to go just one step further in their portrayal of the striking figures. Boseman had some large, frankly impossible, shoes to fill. To his credit, during the major climactic moments Boseman unleashed Marshall’s power and presence, but at other points he seemed reluctant to fully step into the part. Similarly, the conflicted Hudson could have been even nastier on the stand, and the conniving prosecutor could have been . . . more conniving. 

Casting Gad, best known for voicing Olaf the snowman in Frozen, was an interesting choice. He stepped into the dramatic role and captured the essence of a bumbling new lawyer. I was convinced by his performance most of all. 

However, my complaints are as follows: First, after researching4 further, I am not sure Friedman was given enough credit as an attorney in his own right. If historical accuracy was not the point and his character was meant to be a foil to the impressively skilled Marshall, then I concede. But Samuel Friedman was a far more accomplished lawyer, and a more willing participant, than the tongue-tied and insecure Gad portrayed him to be.

Second, and no offense to Gad, but generally Hollywood casts actors who are better looking than the real-life character; the real Samuel Friedman was actually a very handsome and slender man (I wondered if the physical choice to cast Gad was to play up a certain stereotype—but I digress). 

The partnership between the Jewish immigrant Friedman and the black, self-made Marshall, both ostracized by their profession, is one that was critical both during the Civil Rights Era and now—as protesters marched through Charlottesville they chanted racist and anti-Semitic slurs interchangeably. Marshall evokes language from the Torah and compared their shared struggles to convince Friedman to take the case. The seemingly rag-tag duo drives home an important point. 

Despite my critiques, I not only enjoyed the movie for the entertainment (I cannot emphasize the excitement in the film enough), but I felt the story was adeptly told at just the right time. There were so many components and comparisons to chew on; the theater was abuzz with discussion after the curtain fell. I will likely see the movie again, and I look forward to hearing the interviews and analysis when the film is officially released on October 13, 2017. 

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jmg3db@virginia.edu

1 I won’t spoil the ending, but the statute of limitations on spoilers of a case decided in 1941 has probably passed. 

2 I am aware that Superman is a DC comic, thanks for asking.

3 Id. 

4 https://www.legalaffairs.org/issues/March-April-2005/feature_sharfstein_marapr05.msp

The Sad Decline of Nelson Mandela’s Party

Jansen VanderMeulen '19
(he/him/his)
Executive Editor

In April of this year, South African President Jacob Zuma survived a vote of no confidence in the National Assembly, the lower house of the Parliament of South Africa. Mr. Zuma is no stranger to votes of no confidence; he has now survived eight since his election to the presidency in 2009. Throughout his political career, Mr. Zuma has been dogged by an unceasing stream of allegations of impropriety and corruption. Claims including ones of rape, arms dealing, use of taxpayer money for home improvements, and illegal business collaboration with the shadowy Gupta brothers.1 A few weeks prior to his election in 2009, prosecutors dropped 786 counts of corruption against Mr. Zuma, though South African courts have since ordered that at least some of the counts should be reinstated.2

Photo courtesy of The United States Department of State.

How, in a period of less than twenty years’ time, did South Africa’s presidency go from being occupied by the late statesman and Nobel laureate Nelson Mandela to its degradation under Mr. Zuma? The answer lies with the state of the party Messrs. Zuma and Mandela share: the African National Congress (ANC), a left-wing, African nationalist party with support from South Africa’s Communist Party but a moderate governing record. The ANC, outlawed throughout much of the apartheid regime, negotiated an end to the state-sanctioned regime of segregation and black disenfranchisement with the government of State President F.W. de Klerk in the early ’90s, and went on to win South Africa’s first free elections in 1994 with nearly 63% of the vote. Freed from the embargoes and condemnation that haunted South Africa prior to desegregation, the nation’s economy boomed throughout the ’90s and the first decade of the 2000s.3 The South African people rewarded the ANC with increased parliamentary majorities every election until 2009. 

The ANC also benefited from a divided opposition. In the election of 1994, Mr. Mandela’s main opponent was Mr. de Klerk’s National Party, the main party of government during the apartheid era. After those elections, in which Mr. de Klerk took around 20% of the vote, the National Party’s vote share steadily declined until it disbanded in 2005. In its place rose an opposition split mostly between the centrist, liberal, primarily white Democratic Alliance (DA) and, in recent years, the firebrand leftist Economic Freedom Fighters (EFF), led by ex-ANC youth-wing leader Julius Malema, who was once convicted of inciting racial hatred for singing a song encouraging the killing of white South Africans.4 Earning just shy of 70% of the vote in the 2005 general election, the ANC reached the peak of its power, winning enough seats to unilaterally amend the Constitution.

The story since then has been one of graft and decline. A fight between Thabo Mbeki—Mr. Zuma’s predecessor—and Mr. Zuma, then Deputy President, led to Mr. Mbeki’s early resignation and triggered allegations that the South African government’s charges against Mr. Zuma were politically motivated. Mr. Zuma’s election in 2009 was the first time since the end of apartheid that the ANC’s percentage of the vote declined from the prior election. It declined further in 2014, as the ANC sunk from nearly 66% of the vote to just over 62%, and more dramatically in the municipal elections of 2016, in which the ANC received less than 54% of the vote. The DA, traditionally confined to Cape Town and its Western Cape province, gained municipal control of Johannesburg, Tshwane (which contains South Africa’s executive capital, Pretoria), and Nelson Mandela Bay, three of South Africa’s largest municipal areas. The EFF, meanwhile, made its debut with more than 8% of the vote, entering into municipal coalitions with the DA against the ANC across the country despite their ideological differences.

While the ANC has continued to bleed support, the opposition has to contend with a host of hurdles that will prevent it from dislodging Mr. Zuma’s party for the foreseeable future. First, the country’s history of racial divisions remains contentious and visceral. The DA is a primarily white party—though it is now led by a black man, Mmusi Maimane—and despite roots in the anti-apartheid movement,5 it has struggled to win the votes of black South Africans.6 After its 2016 municipal breakthrough, the party was mired in controversy when its former leader, Western Cape province Premier Helen Zille, was sharply criticized for arguing in a tweet that the legacy of colonialism was not “ONLY bad,” noting South Africa’s “independent judiciary, transport infrastructure, piped water, etc.,” comments for which she later apologized and was suspended from all party leadership positions.7

The EFF, meanwhile, is thought to have limited appeal under Mr. Malema’s bombastic leadership. Mr. Malema was once a close ally of Mr. Zuma; when Mr. Zuma was accused of rape, Mr. Malema brought up the alleged victim’s “breakfast and taxi money” to show that she had “a nice time,”8 comments which earned him a conviction under South African hate speech laws. But he turned against Mr. Zuma, and was expelled from the party after another hate crime conviction. The firebrand Marxist typically dons a red beret, and is known to engage in heated shouting on the floor of South Africa’s National Assembly. While he has been successful in peeling off support from the ANC’s left, and his alliance with the DA shows an unexpected pragmatism, it is difficult to conceive of a man who advocates for the nationalization of South African industry9 and the Zimbabwe-style expropriation of white-owned property10 being elected to the South African presidency.

As Mr. Zuma approaches the ten-year limit placed on South African presidents, the ANC faces a crossroads: the leadership of the ANC will likely come down to Mr. Zuma’s Deputy President, Cyril Ramaphosa, and Mr. Zuma’s ex-wife, Nkosazana Dlamini-Zuma (Mr. Zuma, a polygamist, is currently married to four women, with two additional ex-wives, including Ms. Dlamini-Zuma). If Ms. Dlamini-Zuma, an ally of her former husband, wins the leadership with Mr. Zuma’s backing, the party can expect to lose more ground on its right to the DA in the cities, and more to the EFF in its rural heartlands. Even short of losing power, the ANC presents western democracies with a cautionary tale about parties in power for too long. If the party of Mandela’s triumph can wither and slink into the party of Zuma’s shame, no political party is exempt from the one immutable rule in democratic politics: no party wins power forever.

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jmv5af@virginia.edu

1 http://www.aljazeera.com/news/2017/08/political-scandals-president-zuma-survived-170808082727236.html

2 http://www.bbc.com/news/world-africa-17450447

3 http://www.focus-economics.com/country-indicator/south-africa/gdp

4 http://www.nytimes.com/2011/09/13/world/africa/13southafrica.html?mcubz=0

5 http://www.sahistory.org.za/organisations/democratic-alliance-da

6 http://www.reuters.com/article/us-safrica-election-race-analysis/anc-shaken-to-core-as-south-african-voters-look-beyond-race-idUSKCN10G1BJ

7 http://www.bbc.com/news/world-africa-40258949

8  http://www.bbc.com/news/world-asia-pacific-14718226

9 https://mg.co.za/article/2010-02-19-malema-nationalisation-will-become-anc-policy

10 https://www.dailymaverick.co.za/article/2017-03-01-malema-if-you-see-a-beautiful-piece-of-land-take-it/#.WbYM_siGM2w

Hunkered Down for Irma

Hannah Fraher '19
Guest Columnist

Tampa, Florida is my hometown. My family still lives there, so when I saw the sudden westward shift of Hurricane Irma on the Friday before it made landfall in the U.S., I was afraid. Afraid for my family, afraid for my childhood home, and afraid for the city I love most. Late that night, I purchased a one-way ticket home for Saturday morning, to be with my family, help them prepare, and assist with the impending aftermath. I then ran down to the Wal-Mart in Charlottesville and bought supplies, as Tampa had effectively been cleared out since the Wednesday prior, including duct tape, walkie-talkies, a weather radio, and landline phones. 

Photo courtesy of Hannah Fraher. 

Upon flying in Saturday, I was immediately put to work covering all the windows of our home and moving valuables and breakables to inner hallways in case the windows didn’t hold and wind tore through the house. We cleared out the closet under our stairs and set it up to be as comfortable as possible in case we didn’t feel safe sleeping upstairs. We stocked the pantry with canned and boxed foods that didn’t need to be cooked before eating, and froze water-filled baggies in order to have as much ice as possible – fully expecting that we would lose power, and possibly for many days. I filled every jar and jug I could find with water, having been warned of the likelihood that we could lose sewer service and be put under a boil-water ban. 

After all of our preparing we sat back and watched and waited for Irma to arrive. By Saturday night the eye of the hurricane was projected to pass right over our house as a Category Three the following evening, which means sustained winds of up to 130 miles per hour. Reports also came flooding in around that time of the devastation in the eastern Caribbean, and we began to lose communication with the Florida Keys, as the hurricane was beginning its landfall in the US. We didn’t get much sleep that night.

The next day, we were glued to the television, watching the bi-hourly updates from the hurricane center on the latest projected path. As the day progressed, the hurricane swerved a bit east and began to unravel. By the time the hurricane got to Tampa, it was a Category One. We slept soundly through the night and awoke to mostly superficial damage in our neighborhood. Some large limbs fell from the tree next to my house and scraped the façade on the way down, but there was no major damage done. Within a day, landscapers had cleaned up all of the branches and leaves strewn about, and our neighborhood appeared to be back to normal. 

Photo courtesy of Hannah Fraher. 

We were lucky. Many people throughout Florida are still without power and water. Some of them live just a few minutes down the road from my family. Our house had never lived through a hurricane before, and stood up well on this occasion. Even though my family has lived in Florida for more than thirty years, none of them had ever lived through a hurricane before, and they also stood up well. 

People will complain that Hurricane Irma was over-hyped, since the actual outcome wasn’t nearly as bad as projected for Florida, but it’s better to be safe than sorry. This hurricane broke several records, and there are still several weeks left in hurricane season this year. The worst may still be yet to come.

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hef8ep@virginia.edu

The Bear Necessities

Jason Boyle '18
(he/him/his)
Guest Columnist

As humidity levels drop and the late summer days become cooler, this time of year is perfect for taking full advantage of all the natural environments that Virginia has to offer. Whether you choose to hike Old Rag Mountain in Shenandoah National Park or just go for a leisurely stroll on scenic Old Ivy Road, there is a lot of natural beauty all around us to enjoy. However, we must always be wary of the other natural inhabitants that share these areas. For example, Virginia is home to approximately 6,000 black bears and, according to the National Park Service (NPS), that number is increasing. Human encounters with bears in Virginia are rare, but they are becoming more common as the populations of both bears and humans rise, so I want to provide some tips from the National Park Service and the U.S. Fish and Wildlife Service to prepare everyone in case they encounter a black bear up close.

Photo courtesy of www.bearmageddonnews.com

Avoid bears: Bears tend to avoid humans, so if you are hiking and want to avoid a bear, you can try to make your presence known by making continuous noise, such as speaking aloud. You can try to carry a bear bell, but the actual effectiveness of bear bells is a questionable.

Avoid bear cubs: Mother bears are very protective of their cubs and will attack if they perceive you as a potential threat. Never stand between a cub and its mother.

Hike in groups, if possible: According to the NPS, bears are less likely to approach a group of people, so there is strength in numbers. 

Stay calm: If a bear is focused on you and not running away, it may simply be curious. Try talking to the bear in a low, calm voice to show that you are a human and not its usual prey. Remember that bears will sometimes bluff that they will attack by pretending to charge, then turning away to leave the area.

Make yourself look larger: You should make yourself look taller by standing up and spreading out your arms. Try standing on higher ground or a fallen tree.

Leave slowly: If the bear is stationary, move away sideways in a calm and slow manner so that you can keep an eye on the bear and reduce your chance of tripping. DO NOT RUN. Bears can run as fast as a horse and they have a natural instinct to chase a fleeing object. Also, keep in mind that black bears can climb trees.

Carry Bear Spray: The NPS advises hikers in bear country to purchase an EPA-approved bear spray and learn how to use it properly before hiking. According to the U.S. Fish and Wildlife Service, data has confirmed that bear spray is the most effective tool to deter a charging bear and has proven to be more effective than using a gun. Personally, I carry Frontiersman Bear Spray, but fortunately have not had to use it, so I can’t personally speak to the effectiveness of that brand.

If you are attacked by a bear, it is important to know if it is a black bear or a brown/grizzly bear because the NPS advises different reactions for attacks by each species. If you encounter a bear in Virginia, it will undoubtedly be a black bear since grizzlies do not live anywhere around here. Black bears may appear as a shade of brown, but can be identified by their tall ears as opposed to the smaller, flatter ears of grizzlies. Black bears also lack the distinctive shoulder hump of grizzly bears.

If attacked by a black bear: the NPS advises that you NOT play dead. Instead, try to escape and, as a last resort, fight back with anything you can find, including your fists and feet. Aim for the bear’s face and muzzle.

If attacked by a grizzly bear: DO play dead, by lying face down on the ground with your hands clasped over your neck. Try to keep your legs wide so the bear cannot turn you over. For grizzlies, fighting back can make them more aggressive. Remain still until the bear has left the area. If the attack persists, then fight back.

But as a reminder, bear encounters are rare and attacks are even rarer. Bears are really fascinating, well-adapted animals and they are fun to watch from a safe distance (at least 100 yards) in their natural habitat. With these tips in mind, you can enjoy the best nature that Virginia has to offer in safety. And remember to always carry that bear spray.

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jmb3ck@virginia.edu

Toward Resilience in the Face of Hate

Baruch Nutovic '19
(he/him/his)
Guest Columnist

When I was a growing up, I had a recurring nightmare. I was on a chaotic, cramped, frightening train ride to some unknown, yet terrifying destination. I always woke up, deeply distressed, before I got there. 

At first, my parents did not know what to make of the dreams. Then, it dawned on them: my grandmother’s stories. 

She had been deported to Auschwitz, the Nazis’ largest concentration camp, with her family in the spring of 1944. After days in a cramped cattle car without food or water, they arrived. One of her brothers was shot in front of her. Her younger brother, after whom my brother is named, was sent with her parents to the gas chambers. I grew up hearing her stories. 

I can only imagine what she’d say if she were alive to hear of white supremacists marching by the thousands through the streets where I live. 

That my wife and I were going downtown to join the counter-protests was never in question. It was a surreal scene. White supremacists in militia outfits with military gear.  David Duke, former head of the KKK, spewing hate. People wearing shirts quoting Hitler, calling for the subjugation of black people. Fights breaking out in the streets between the white supremacists and Antifa. It felt like we had been transported back in time, as though we were in the old Jim Crow South or 1930s Germany. Charlottesville was not the Charlottesville we know and love on that weekend. 

But it is precisely that which gives me solace. That weekend was the antithesis of what Charlottesville is about. We believe in equality for people of every race, creed, gender, and sexual orientation. We are tolerant of political differences and stand for reasoned debate in a spirit of goodwill. Charlottesville’s great coming-together after the Unite the Right rally, the candlelight vigil on the Lawn, demonstrated our unity in the face of hate. 

I’m also heartened by the size of the Unite the Right rally. I don’t want to be misunderstood; a few thousand white supremacists marching through Charlottesville’s streets is a few thousand too many. But when you compare the rally, billed as the largest hate rally in America for decades, to the estimated crowd of 1.8 million at Barack Obama’s inauguration, the contemptible weakness of the white supremacist movement comes into focus. This is a small movement at the fringes of society, almost universally despised, condemned by the leadership of both major political parties. Even our vacillator-in-chief, though he managed to create the perception of ambiguity with his bumbling response, condemned them. The media spotlight that the white supremacists garner may make them seem powerful, but in reality, their movement is politically diminutive.

Their aim is to terrorize us and create a false perception of strength. The best insult we can pay them is to refuse to be intimidated or change the way we do business, except insofar as we reaffirm our core values as a community. 

During the chaos that followed the dispersal of the rally, I was distraught to find Antifa extremists beating people up, as they have done at similar counter-protests across the country in recent months. We need to exorcise from our ranks those who would cede any part of the moral high ground and disregard the great Martin Luther King, Jr.’s example of nonviolence. Antifa extremism provides recruiting material for the alt-right and makes it much harder to persuade white supremacists of the error of their ways. 

We should also not allow the white supremacists to appropriate the debate over historic monuments. Before the white supremacists inserted themselves into the conversation, the debate was a respectful dialogue between people of good will on both sides, a model for the rest of the South to follow as it reckons with its tragic past. 

At its core, the divide on the monuments is one of perception. To some, the monuments are a statement of white supremacy, a relic of the South’s evil Jim Crow history. To others, the monuments are a tribute to those who fought with valor on behalf of their home, hearth, and state; a set of fixtures in the landscape that evoke a mystical sense of the region’s history, not the evils of racism. So it’s no surprise that the former group passionately believes the monuments must go, and the latter that they must stay. The white supremacists should be viewed as extraneous to this debate and should not be allowed to influence it. 

If we’re to be true to Charlottesville values, we must work to bridge this divide and reach a shared understanding on what the monuments mean, rather than bulldozing opposition. The main reason our country is so polarized, hateful, and divided is that people of good will have lost the capacity to understand and respect those with whom they disagree. Those seeking to take the monuments down are not on an Orwellian mission to destroy history, and most of those in opposition disagree for legitimate reasons. 

Irrespective of how one feels about historic monuments, I think all can agree that the South needs more monuments marking milestones in its history of integration. We should never forget that the University of Virginia was once a segregated institution. It’s high time the Law School reckoned with its Jim Crow past and honored the trailblazers who broke the color barrier here. Gregory Swanson, the first black UVa law student, and John F. Merchant, the first black UVa law graduate, merit large, prominent monuments on our campus. I can’t think of a better rebuke to the white supremacists. 

Ultimately, I don’t feel the same distress I did when I was having those nightmares. I take heart from the currents of history. As Martin Luther King, Jr. said, “the arc of the moral universe is long, but it bends towards justice.” The white supremacists will go the way of the dinosaurs if we fight the good fight, as I know we will. The future belongs to us.

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byn9bv@virginia.edu

DACA: A Perspective

Robbie Pomeroy '19
(he/him/his)
Guest Columnist

I am deeply saddened by the decision to end the Deferred Action for Childhood Arrivals (DACA) program. Eliminating this protection affects thousands of individuals of different colors, creeds and countries of origin living in the United States. The xenophobia of this administration are going to ruin lives and tear apart families. 

Legal and policy reasons aside, this decision is distasteful on the most basic human level. Many of the people I know who were DACA recipients know no other country. Their only language is English. They go to school and have friends and family in the States. They have dreams and aspirations as big and bold as the ones each of us have here at UVa. They are your neighbors and your classmates. They are just as American as you and I. This administration is creating dividing lines where none should exist. 

The only difference between a DACA recipient and me is the fact that they were born in a different country. They were brought to this country when they were too young to have a choice in the matter. Many of them had no idea what it even meant to have papers or not. Growing up, they were just like any other person in school. The people affected by this decision are human beings who are American at their core.

We also should not blame the parents of childhood immigrants to this country. The reasons people choose to relocate their families to the United States are abundant. In my experience, the reason has almost always been for the opportunity to pursue the American Dream. Parents do anything for their children, and I do not fault anyone for making the decision to immigrate to the United States as an undocumented person. It is a deeply personal decision and a tough one. You have to leave everything behind, potentially risking your life, to overcome the barriers (both physical and otherwise) of getting into the country. And once you make it to the U.S., the barriers to becoming a part of society are still there. It’s not a path for the faint of heart, and I respect those who make the decision for the betterment of their families.

My mother was born in Guadalajara, Mexico. When she immigrated to the United States with my uncle and grandmother as a young child, it was as an undocumented immigrant. Eventually she became a naturalized citizen, but she went to school for several years in California without documentation. My grandmother had a tax-paying job at a phone company and my mother and uncle went to school just like anyone else. Obviously, this was all decades before DACA was ever even contemplated, but imagining these circumstances under the present climate in America, I begin to wonder what would have made my mother so different than everyone around her or why someone would want to create a line barring her from going to school or participating in society.

Before DACA, people living as undocumented immigrants had to hide in the shadows. They couldn’t bring attention to themselves because they feared for the safety of their families. DACA was an Obama-era program that allowed recipients to participate in society without fear that harm would come to them or their families. It gave people hope and a way to achieve goals and dreams that did not exist before the program.

The decision to end the program means there are so many things we need to do. Thousands of people need to renew their DACA benefits by October 5th. We have a call to action to contact our representatives in Congress to create legislation that will save the lives of all of these people. But both of these measures are short-term solutions for a problem that is much larger. For those lucky enough to be able to renew, the reprieve is only two years long. And while legislation codifying a DACA-like program would be helpful, it does not solve the underlying problem—the necessity of immigration reform in this country. The barriers to entry are severe and targeted. While we can and should participate in attempts the rectify this decision, we also need to advocate for more comprehensive immigration reform. 

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rap3fa@virginia.edu

Reflections on August 12 Violence

Matt Johnson (he/him/his) '19
Guest Contributor

August 12, 2017: a day burned into the collective consciousness of every student, faculty, and alumni of UVa for reasons none of us wanted. Seeing hate and anger flow through the streets of Charlottesville as we saw places of intimate familiarity splashed across national news media felt like a sobering reminder of the worst in people in direct clash with what actually makes America great. Nothing will erase those images, those emotions, and those thoughts of helpless angst from our memories, and nor should they be erased. We need to carry the weight of those memories with somber attitudes, and more importantly, perseverant resolve to respond to the hate and anger with a stern message of love and rejection of the hateful rhetoric and violent extremism that overtook our quaint college town.

It is my natural inclination to try to derive from tragic events like this some sort of meaning and some sort of way to move forward and help effect change. In my best intentions, I want to help improve our community and on our society. I don’t want to do that in this aftermath. While I intend to take every action I see necessary to counter the hateful rhetoric of the alt-right and white nationalist movement, that’s not what I believe my society needs from me in this historical moment. So I won’t be standing up to shout at the top of my lungs with my thoughts on what needs to be done. I won’t be talking anyone’s ear off on my personal thoughts on the matter. Any voice championing love and respect is a welcome addition to the discourse, but there will be no shortage of those voices who can say it more eloquently, forcefully, and with greater effect than I ever could. I want to respect where I stand in this world and respect those being disparately affected by this movement and these times of fear and discord. So instead of providing my voice to a cause, I will go one step further and offer the most open of ear, heart, and mind to those who most deserve to have a voice against this hate. Those who have been marginalized and targeted in all of this political hate have something they’ve too often felt they have been deprived of: a willing audience to hear their thoughts, their emotions, and their pain. I am a sponge, please bring it on.

I always felt I had a pretty strong moral compass and that I generally offered measured, thoughtful responses to assaults on political and cultural ideologies, but now is no longer the time for me to retreat to my resolution or to contextualize my understanding of the state of racial and cultural divide in our country with my own experiences. I want to do everything in my power to personally contextualize understanding the structural issues at play with the experiences of those who understand it best: those being marginalized.

Nothing good happened on August 12, 2017 in Charlottesville when hate descended on our homes. But so much good can grow from the ashes of that travesty that reminds all of us about what it means to positively engage each other in ways such that we all learn from one another.

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msj2fb@virginia.edu

Summer Stories: Roger T. Dean

Roger T. Dean (he/him/his) '19
Guest Contributor

Guess what I did this summer?

I want to first start off by saying welcome to the new class of 1Ls. You have embarked on a worthwhile journey to become a legal advocate at a wonderful institution of higher learning. The University of Virginia School of Law and I both welcome you. Now, I will get straight to the point of this article. 

You will never guess what I did this past summer. Go on, guess. I will give you three guesses. If I told you already, you don’t get to guess. I mean you do, but you don’t win. All right, got your guesses? All wrong. All of them. I mean, you actually could have gotten it, but I’m going to tell you anyway. This summer, I stayed with some of my friends from undergrad (George Mason University) while I interned at the United States Attorney’s Office for the District of Columbia (USAO – DC). 

According to their website, 

The Office of the United States Attorney for the District of Columbia is a unique one among the 94 United States Attorney Offices across the nation and its territories by virtue of its size and its varied responsibilities. Shockingly, for an area so small, it is the largest United States Attorney’s Office. It has over 350 Assistant United States Attorneys and over 350 support staff. The size of this Office is the result of the breadth of the responsibility for criminal law enforcement and the ideal location in the nation’s capital. USAO – DC is responsible not only for the prosecution of all federal crimes in the District, but also for the prosecution of all serious local crime committed by adults in the District of Columbia. On the civil side, the USAO – DC represents the United States and its departments and agencies in civil proceedings filed in federal court in the District of Columbia. As the principal prosecutor for all criminal offenses in this jurisdiction, and as the principal litigator for the United States in the nation’s capital, the Office offers extensive litigation experience before over 100 judges in the federal and local courts and unique opportunities for important public service. 

I know—pretty fancy, right? During my time there, I was in the homicide division. In D.C., there are two courts in which this office works: the U.S. District Court for the District of Columbia (the federal trial court) and the Superior Court of the District of Columbia, (the local courthouse). It was also the courthouse my supervising attorneys practiced in every day. As an office, we were in court every day for something. There are a lot of murders that happen in the district. I was unaware of that. I had no clue. I did not know murder was so prevalent in such a small area. 

There were over 130 interns in the intern office and fifteen on my floor. There were a couple of UVa Law students in my division and in my office this summer. You can ask around and get different feedback, but my experience was once-in-a-lifetime. I loved my experience. I had the opportunity to do some solid legal research and writing. I researched and drafted a response to a defense motion for the government arguing that a drug addict’s identification of an illicit substance should be accepted as expert testimony. The question presented was: “Would it be appropriate for the court to accept the government’s request to qualify a drug user as an expert witness in a trial for identification purposes of crack cocaine?” The short answer was: “Yes. It is appropriate as it has been done in other jurisdictions. There is legal support for the decision, and it wouldn’t be overturned on appeal. It is clearly aligned with United States v. Bradley, 165 F.3d 594 (7th Cir. 1999) in which the court says “[t]his just makes common sense because those who smoke, buy, or sell this stuff are the real experts on what is crack.” 

 Long story short, there was some crack that was supposed to be found and field tested, but it couldn’t be tested or retrieved because it was consumed by the government’s witness. The witness was there for the purpose of identifying the substance. In the oral argument, the judge stated she was inclined to agree with the government’s. Similarly, I analyzed precedent and wrote a response opposing a motion to sever two homicide trials, arguing that joinder was appropriate given the overlapping involvement of the defendant, weapon, and witnesses. I did the normal and expected things like review, analyze, and synthesize witness interview tapes for trial attorney, and I also observed courtroom proceedings including trials, hearings, and appellate arguments. Last, but definitely not least, I went to a medical examiner’s office. The other interns and I were able to learn about the history of the Baltimore Office of the Chief Medical Examiner and the field of study. We got to see how they train examiners as well as the ins and outs of the office. More importantly, we got to see autopsies. They are not like what you see on TV. In Baltimore, at least, there is a giant room where they perform the examinations, but there are like five corpses and multiple medical examiners. One person does fingerprints. Another one may be doing the brains. It was a very eye- and mind-opening experience. No pun intended. Or is it? 

Either way, I did public service for my first summer and I loved it. For 2Ls and 3Ls, OGI is pretty much over, so we can finally relax. I hope we all get what we are looking for when it comes to offers. 1Ls soon you will have a choice to make as to what you want to do with your next summer. There are many options out there to choose from to spend your summer. I recommend the United States Attorney’s Office in D.C. or any other office for that matter. Maybe you will catch the public service bug. Maybe you will get to go on a police ride-along. Maybe you will realize you want to be a prosecutor. Maybe you will realize you want stay as far away from prosecution as possible. That’s unlikely, but either way, whatever you decide, I wish you all the best.

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rtd2vb@virginia.edu

Five UVa Law Traditions for the Incoming 1L

Eric Hall (he/him/his) '18
Managing Editor

Welcome to Charlottesville, and the happiest law school on earth. Despite the brief but ugly appearance of Neo-Nazis and white supremacists, this town remains as vibrant, multicultural, and tolerant as ever. Nowhere more so than the law school. Generations of Virginia Law students have fostered bonds of friendship that transcend race and political ideology thanks to a set of traditions, some of which date back to the days when Robert Mueller or Antonin Scalia walked the halls. These traditions promote collegiality and trust, core tenets of what Dean Faulk calls “the Virginia Way.” As political division reaches a fever pitch and the nation reels from the deplorable events in #Charlottesville, we need these traditions now more than ever. 

Peer Advisors

The first tradition you’ll encounter may be the most important to the Virginia Law culture. To my knowledge, no other top ten law school places as much emphasis on mentorship as UVa does with its Peer Advisor program. By now you will have met your six Peer Advisors, or PAs, and hopefully had the chance to spend some time with a few of them. Although I may be biased, being a Peer Advisor is a tremendous honor, for the law school entrusts them with tremendous responsibility. Each sextet of PAs is carefully curated to represent every facet of law school life and, as well as possible, reflect the section they serve. Whether you’re conservative or liberal, came straight through from undergrad or took time off, are from the East Coast or the West, you can find a PA to identify with. 

But the PAs do more than look the part. They’re also some of the law school’s most successful students. In academics, extra-curriculars, and (most important) personal well-being, the 60-odd PAs have figured out how to do law school right. It’s a competitive process to become a PA, which speaks not only to the eagerness of UVa students to mentor 1Ls, but also to the quality of the group that makes the cut. 

Think of the PAs as a first-line resource for all things law school. They’ve taken your professors and done well. They’ve secured 1L summer jobs in interesting places. They know the best haunts in town and will take you to them.  You need only ask. They can also help with more personal problems. Struggling in class? Problems with one of your class mates? Your PA can either help or help you find the resources you need.  

Dandelion

1996 Section G rides atop a "hand-made" E30 BMW float at the Dandelion Parade. Photo courtesy of archives.law.virginia.edu.

You probably heard it mentioned in passing before you heard it explained. Dandelion, which is happening September 1st at 5 PM in The Park, is nominally the official start of the softball season, although actual section-on-section softball games won’t happen until a few weeks later.  When it was invented 33 years ago, 1Ls made brightly-colored floats and paraded through Grounds handing out Tootsie Rolls to undergrads on their way to the softball fields . . . or something like that. The origins of Dandelion are admittedly hazy. Today it is still tied to softball, although no one thinks about softball when they recall Dandelion (if they recall anything at all). In place of floats and marching 1Ls, Dandelion is known more for its entertaining, occasionally outrageous musical “skits.” 

Here’s what happens: Drawing inspiration from its letter designation, each section and the LLMs devise their own skit, almost always set to music, which highlights the talents (or absence thereof) of members in the section. Successful past entries include the LLMs thoughtful (read: raunchy) depiction of the American presidential election, and 2016 Section F’s arcane, pun-on-a-pun Fairly Odd Patents routine. Indeed, some parts of the modern Dandelion tradition remain inexplicable. A panel of judges representing the North Grounds Softball League scrutinizes each section’s skit for technique, form, creativity, and “extra”-ness. The “winning” team will then play a ceremonial exhibition match against a team hastily assembled by NGSL. They will lose. 

Our advice: shoot for second. Seeding in the 1L tournament is determined by placement at Dandelion. So, while you don’t want to come in first and face NGSL’s best pitchers at their least coordinated, you also don’t want your first game of the tournament scheduled at 7 AM. One final word of wisdom: don’t throw food at the audience. It will be thrown back. 

Softball

2016 Section E, the Legal Eagles, smile after a devastating loss. Photo courtesy of Facebook.com.

Is it required? No. Should you play anyway? Absolutely. There are few of us at the Law Weekly who are any good at softball, and I am not among them. Notwithstanding, I maintain that softball is a valuable component of the “Virginia Way.” Even if you stand a snowball’s chance in hell at getting tapped for NGSL (i.e. you’re not a competent player), you should make softball a part of your 1L experience. Softball brings sections together over beer, walk-up songs, and light friendly competition against other 1L sections. No one will remember the time you struck out or broke both your arms the week before finals. Some professors even get in on the action. One year, Professor Hynes assigned cold calls to the losing half of his two-section class. 

Traditionally, 1L teams find a sponsor, (usually a local business or a law firm), to pay for and slap their logo on a set of jerseys. Softball captains, after assessing their section’s enthusiasm, will typically hold a few practices before and between games. They’ll also coordinate with other sections to schedule games and draft a gender balanced batting order. If you’re not your section’s softball captain, all you need to worry about is choosing a walk-up song and bringing a glove (we recommend inheriting one from a 3L PA or—worst case scenario—Play-it-Again Sports down 29).

Foxfield

Foxfield, or more accurately the Foxfield Family Day Races, happens every year on the last Sunday of September. To the rest of Charlottesville, Foxfield is a day to swathe your family in bowties and pastels for a day spent cheering on your favorite thoroughbred. But don’t be fooled. Most law school attendees never see a horse. And if you stumble into a family, you’ve likely strayed from the quarantine pen where they keep the law students (apologize, and then follow the noise coming from somewhere near the dumpsters). We do, however, obey the dress code. Splashy big hats, Vineyard Vines, and Lilly Pulitzer tie-dye the field. If it’s rainy, expect a stampede of Bean Boots. If you weren’t sure which of your sectionmates came from Southern privilege, an un-ironic Foxfield outfit should clue you in.

3Ls dress absurdly at Foxfield 2016. Photo courtesy of content Facebook.com.

Garish gussets aside, Foxfield is also one of the few early events at which 1Ls, and 2Ls, and 3Ls have cause to interact. 1L sections pair up, two per plot, inside the race track. Each pairing typically offers a food item (BBQ sandwiches and mac n’ cheese were favorites in past years) and a beverage, housed under a rented or borrowed shelter. Sections are also responsible for paying the fee for a Foxfield plot out of their section fund. Getting to Foxfield can be a bit tricky. Luckily, SBA runs a series of buses from the law school, but you’ll have to buy tickets at their table near ScoCo. Tickets to the race are separate and—even though this is 2017—can only be purchased in person at select local businesses. Most people go to Greenberry’s in Barracks Row. 

Carter Mountain Sunset Series

Revelers ogle a sunset at Carter Mountain. Hope you kept your eclipse glasses. Photo courtesy of content ChilesFamilyOrchard.com.

As UVa traditions go, this one’s just a newborn. Every Thursday from May to October, gaggles of 1Ls make the pilgrimage up Carter Mountain’s twisty roads to sit toe to toe on too-small picnic blankets, and watch the sun set to a townie band cover of Wagon Wheel. Neither the overcrowded mountainside nor the overpriced Bold Rock can sully the glorious view from atop Carter Mountain. Each week features a different local musical act, and every week features the Chiles family’s fabulous hot cider donuts. Our recommendation: go early, sample a flight at the Bold Rock (cider) or Prince Michel (wine) tasting room, then hike up the hill and bag a bushel of ripe peaches and apples before the crowds arrive. 

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ech8vm@virgina.edu

A Few Good People

Kimberly Hopkin (she/her/hers) '19
Columns Editor

Before I came to law school, I was told by one of my mentors that I would be the happiest person in my class. She wasn’t commenting on my actual personality and demeanor; she was trying to imagine going through law school without having to deal with the stress of trying to find internships or earn a GPA high enough to enter the job market. While those are certainly perks, I like to think that I’m extremely lucky not because I already have a job but because I already have my dream job. I’m an active duty Air Force officer who, with any luck, will be part of the Judge Advocate General Corps. In fact, this summer I got the opportunity to intern at a base-level legal office working on diverse issues common across Air Force bases. 

Photo courtesy Facebook.com

I think there are some common misconceptions about what JAGs do. While I can’t speak for the other branches, I can clear up some urban legends about what Air Force JAGs do – and, no, we aren’t pilots. At every base, there is a Staff Judge Advocate (SJA) who works directly for the Wing Commander (essentially the CEO of the base). The lawyers who work for the SJA are Assistant Staff Judge Advocates (ASJAs) and usually in charge of one or two categories of law. For instance, a new ASJA will typically start out learning civil or administrative law and practice employment law and deal with ethical questions from commanders. But they could also easily be placed in environmental or contract law for their first assignment reviewing contract solicitations, bids, task orders for IDIQ contracts, or overseeing the process when contractors fall short. While there is a Chief of Military Justice (usually a second or third assignment Captain), all the ASJAs will take turns prosecuting different cases. This is not only because of a heavy case load, but also because they need to earn their certification before they can go to trial without a senior officer. So, the rumor about being in a court room within six months of passing the bar is realistic although not guaranteed. 

All ASJAs will also spend between three-to-four hours per week doing Legal Assistance. This can range from drafting wills and powers of attorney to giving legal advice to tenants seeking to break their lease under the Servicemember’s Civil Relief Act (SCRA). They can give preliminary advice on starting a divorce or consumer protection rights, but they can’t represent members in court. This is because ASJAs work for the government first and foremost. Therefore, even though the Air Force encourages legal assistance appointments to save members millions of dollars in legal fees annually, ASJAs carefully consider whether taking on a client would in any way compromise their duty to the Air Force or the client. For instance, an ASJA would never give a service member advice on the Uniform Code of Military Justice (UCMJ) because they need to be able to prosecute without any conflicts of interest. 

Therefore, at each base there is also an Area Defense Counsel (ADC) who doesn’t answer to any authority on the base. These are usually third assignment Captains who have previously been a Chief of Military Justice. These lawyers represent service members who are accused of disciplinary or criminal infractions. They usually have a heavy case load and travel to other bases within their region frequently. For instance, if two service members are accused of smoking marijuana together, then the ADC can only represent one, and an ADC from another base in the region will represent the other. It’s not unusual to handle around 35 clients at a time – even at a small base. 

One unique role for lawyers in the Air Force is the Special Victim’s Counsel (SVC). Every time a case involves a crime about sexual assault or domestic violence, among other qualifiers, the victim is given the opportunity to be represented for free by an SVC. The SVC’s job is to specifically advocate for the victim’s rights during the process. For instance, it might be helpful to the prosecution to have a victim testify about the accused serving them alcohol, but they shouldn’t advise the victim to give that testimony if they are underage. Also, if the victim is military too, there can be disciplinary issues that arise out of working through the traumatic experience. In a world where you can lose your job based on how quickly you run a mile and a half, and where repeatedly coming to work late is a crime, the Air Force wants to give victims enough space to heal while still maintaining discipline. The SVC represents their client and their interests alone. 

While many are pulled to serve in the JAG Corps because of the unique way military lawyers practice several different types of law, I think the majority choose to join because they want to serve in the military. It’s a different way of life that’s hard to explain. Some of the civilian men I’ve talked to about the military seem to think the kind of discipline required is similar to playing high school or college sports. Both can be inspiring and rigid, but I don’t get to decide where I live, when I move, how to wear my hair every day, or how big my waistline can be. Sometimes I’m chest-deep in paperwork that seems irrelevant and all-consuming. Or, I’m spending my lunch hour clicking through mandatory online training about how to operate a fire extinguisher. (Yes, my entire lunch hour.) It can be really easy to feel like you don’t have any impact, like you are a cog in a huge machine. Someone “thanking me for my service” on those days makes me feel like a fraud. 

But then I look up from my paperwork, and I realize that I’m part of the best “company” in the world. I get to work for and with some of the best people you’ll ever meet. Where they truly care about your mental health and whether you spend enough time with your family. I’ll never have to worry about being paid less than my male counter-parts. Not deciding where to move next means I move out of my comfort zone and see the world. Focusing on fitness means I can get out of the office and go for a run as part of my job. Wearing my hair in a low bun means I can sleep in fifteen minutes because I don’t have to blow-dry my hair. Being in the military has taught me resilience and forces me to push through things that make me uncomfortable or frustrated. I may risk my life during a deployment, or be separated from my family over the holidays, but it’s worth it to me because I work somewhere that closes the office so that my co-workers can eat tacos with me because it’s the last day of my eight-week internship. Taking that lunch break means most of them stayed even later that night, but they didn’t mind. That’s what being in the military is like. 

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knh3zd@virginia.edu

Advice from a (Basically Functional) 2L

Katherine Mann (she/her/hers) '19
Columns Editor

Let me make it very clear that I was recruited by my (wise and talented) editor-in-chief to write this column, and while I’m not sure anyone with sense should follow my advice, I’m willing to interrupt my two weeks of callbacks, pool trips, novel-reading, eclipse-watching, and coffee on the back porch to shed some light on what’s coming for you. Your PAs are great and they’re going to tell you everything you need to know as this year progresses. I’m going to try to shed some light on the small things I found out during the year that I wish I’d known earlier. You’ll realize by the end of this column that I pretty much fumble through life, and it’s a miracle I got into UVa Law at all. 

There’s a lot of stuff you really need to worry about during your first few weeks, beyond classes and reading. You will be overwhelmed and feel crazed. There are tons of meetings during the first few weeks for affinity groups, career services, and financial aid. Be selective (but when the email says mandatory, they mean it). Get on some listservs for groups you’re interested in, but feel free to go to only the meetings for groups or issues you really care about. Seek out meetings with free food, especially if you’re still figuring out how to grocery shop and pack a lunch. As someone staring down forty with a third-grader, I’ve gotten pretty good at this, but I gather people in their twenties don’t always have this down. One of the benefits of joining the Law Weekly is free pizza on Monday nights while we edit, so I was glad to have found this group early last year.

There’s free coffee on the second floor of the library in MyLab, and it took me a long time to figure this out, because, early on, I stayed in my apartment to study. It turns out I’m much more focused in the library, and less tempted to binge-watch Bob’s Burgers or Suits. Also, since I hate disposable coffee cups, I’ll mention that you can in fact bring your own mug to the upstairs Keurigs, and the bottom of each lifts up so that your mug, likely taller than a ten-ounce paper cup, can fit. I only learned this by watching someone else do it while my phone was charging in MyLab, and it was spring. You’re welcome.

The law library's wasteful but free coffee option. Photo courtesy Keurig.com.

Unfortunately, free coffee is generally the worst kind, and I find Keurig to be only a mild exception, and still wasteful. It’ll do in a pinch, but I’m snobby enough about coffee that I usually go to ScoCo. I drink it black, so it’s not too much of an expense, and chatting with Mandy at the checkout counter is always a highlight of my day. If I’m feeling fancy and I have a lull in the day, I’ll walk over to Shark Mountain and indulge in a Dirty Chai. I suppose everyone has to develop their own coffee hierarchy independently, but mine’s a good start. And if you don’t drink coffee I have nothing to say to you, except good luck with finals.

The law school's hipster coffee option. Photo courtesy Yelp.com.

Small things add up in terms of staying sane. Get a locker and keep emergency items in it. Advil, a phone charger, tampons, granola bars for after five when student affairs is closed, whatever you might think you’ll need. Once I figured out that there was an electric kettle, refrigerators, and microwaves in ScoCo – again, rather late in the year – it opened vast horizons in terms of the food I brought with me each day. I keep green tea and Cup o’ Noodles-type soups in my locker, and they’ve gotten me through many a late night. 

Learn how to book study rooms through the library website for getting groups together during finals. It helps to talk about practice exam questions with other human beings. There’s a bin of earplugs next to the circulation desk in the library on the lower floor for those of you, who, like me, don’t have noise-cancelling headphones. Trust me, the library is louder than you think. And not that this is critical information, but if you walk all the way back through the first floor of the library, you can get back to the main hallway of Withers-Brown through that exit. I seriously figured that out this summer. 

And here’s the lightning round: Listen to your PAs. Ask lots of questions, especially of upper-level students. Read all emails from career services. Visit your professors during office hours. Don’t get so drunk at Bar Review that you stumble in to your 8:30 Friday class with a hangover. Don’t skip classes. Try to meet people outside of your section. Don’t forgo human contact to binge-study. Take care of your body. Above all, have fun. Make friends; explore Charlottesville. You’re in the last three years of school that you’ll likely ever experience, so take some time to enjoy it. 

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kmm2bb@virginia.edu

CARE Takes a Look at America’s Future

Michelle Chang '19
Guest Columnist

In this politically and ideologically divisive era, at least we can all agree that children are our future, right? Wrong. Here are some problems and misconceptions surrounding the education system and the juvenile justice system, and their undeniable connection to race, mental disabilities, and poverty. Systemic problems require systemic solutions. I ask that you put yourselves in someone else’s shoes and try to empathize with their struggles. 

The United States locks up more kids than any other developed country. All three branches of the government agree that, because children are different from adults, the motivation behind the juvenile justice system is to rehabilitate, not incarcerate. If putting kids in jail cells was effective, we should have the lowest juvenile crime rate. So, does it work? Absolutely not. CARE (Child Advocacy Research and Education) screened a documentary on April 6, 2017 titled Prison Kids: A Crime Against America’s Children, which exposes a wide array of issues within the juvenile justice system, ranging from excessive hours in solitary confinement, inability to treat mental disabilities, and the disproportionate number of African-American and mentally disabled children in the system.

The documentary begins with the tale of Zion, a 7-year-old Hispanic boy residing in Broward County, Florida. He has ADHD, anxiety, and occasional seizures. Just in the first grade, Zion earns twenty-five write ups. Think back to your elementary school self. How confused and discouraged would you have been, if you got sent to the office every time you threw a tantrum? Zion’s mom is anxious that the school will contact the police and Zion will be arrested.

Her worries are not unfounded. School incidents involving minorities, particularly African-Americans, Hispanics, and children with mental disabilities, are overwhelmingly more likely to be reported to the police. Incidents such as cursing in the school parking lot have led to police involvement. Furthermore, not only are minorities more likely to be reported to the police, they are also more likely to be charged as adults, accompanied by mandatory minimum sentences. 

The “no crimes are juvenile” movement began in the 90s when the media brought into the spotlight a series of violent crimes committed by juveniles. In thirty-three states, there was no minimum age by which the state could charge children as adults; in eleven states, sixteen and seventeen-year-olds were charged as adults. States enacted “zero tolerance” policies in schools that led to the rise of the “school to prison pipeline.” 

As Judge Elijah Williams, sponsor of the PROMISE program in Broward County, Florida, points out, there is a huge difference between “kids that scare you” and “kids that make you angry.” Most kids do stupid things that make people angry. The majority of delinquents are not charged with violent crimes. In fact, most of the offenses are not crimes for adults, such as missing curfews or skipping school. Some kids have severe mental disabilities that the communities (school and parents) do not have the resources to handle. Instead of trying to figure out why kids are misbehaving, calling the police is the easier and faster way for schools to get rid of the problems.

Imagine your middle or high school self, writing on the wall or skipping school because, well, why not? Next thing you know, you’re with the wrong people and the police shows up and you’re charged as an adult. Congratulations, you just earned yourself a 10-year minimum stay in jail. You will be in juvie and then adult jail until you’re 26 just because you made a mistake but people are worried you will become a violent predator. 

Many kids that end up in the juvenile justice system are living with PTSD. They have been shot at, bullets in their bodies, or have seen people die in their arms. Think back to the last car accident you drove by or the last funeral you attended; can you imagine seeing grave injury and even death right in front of you? I cannot imagine the pain, sorrow, and fear these kids experience in their own neighborhoods at a young age. Unfortunately, some kids resort to gangs for protection and a support system.

The problem persists inside the juvenile correctional facilities. The documentary follows Savannah as she recounts experiencing and witnessing severe depression, cutting, and suicide attempts in an Ohio juvenile facility since she was fourteen. Many facilities use solitary confinement as a disciplinary tool. In theory, solitary confinement functions like time-out. If you misbehave, they put you in time-out so you know not to repeat this behavior. However, recall that a disproportionate number of delinquents have mental disorders. These kids are put in a tiny cell with just four walls, alone with their thoughts for twenty-three hours per day. This can lead to hallucination, depression, and other problems that cause children to behave even more erratically when released, which puts them at a higher risk to return to solitary confinement. According to the Campaign for Youth Justice, juveniles are nineteen times more likely to commit suicide when in solitary confinement. 

Alternatively, programs such as the PROMISE program in Broward County refer students to counseling programs that address the underlying problems, instead of perpetuating the “school-to-prison” pipeline by contacting the police. Teachers and counselors in these programs help identify the causes of behavioral problems and create action plans to help students get back on track. Its success in Broward County has earned national recognition; no one doubts its success.

But why don’t we see more of these programs around? Money. Although the Supreme Court has identified education as an important right, there is no constitutional right to quality education. The Supreme Court leaves all education decisions up to the states. Like all issues deferred to the states, effective policies come from legislators with great incentives, but ineffective policies come from states in which many people see education as a zero-sum game. It’s my kids versus your kids. Why should I use my money to fund your child’s education? The more they give to your kids, the less they give to my kids. These assumptions ignore the social and economic benefits that could result from all kids having access to quality education. Every kid will be better off in the long run if all kids are given the same opportunities. 

One of the most frustrating misconception about poverty is that poor people are poor because they are not trying hard enough. That cannot be further from the truth. I highly encourage everyone to go on playspent.org and attempt to “live in poverty.” This game gives you a budget and you have to make life decisions accordingly. As Professor Coughlin’s Law and Public Service class discussion points out, poverty is about the lack of choices. The things you and I take for granted, such as shelter, food, parents, and access to medical attention, are the reasons we have choices. 

Our parents had the choice to attend our school functions so we were motivated to excel. Our parents could afford healthcare when we were sick so we didn’t have to suffer long-term medical conditions. Our parents were supportive of us attending college because our family wouldn’t starve if we didn’t work full-time. We grew up with choices and opportunities. Because we can choose to be lazy and unproductive, we label people on welfare or social benefits as second-class citizens without understanding why they can’t get out.

The game on playspent.org highlights the difficulty of maintaining a job, raising a family, and balancing one’s mental and physical health when one lacks the basic necessities. How do you acquire the skills for a better job when your family needs you to work full-time? How do you stay healthy when healthy choices are more expensive? How do you keep a job when the initial expenses of uniforms and transportation are more than you can afford?

When I was working in Miami, I mentored and tutored both inner-city high school students and nationally-ranked private school students. I saw many underrepresented students with potential and intelligence that surpassed their counterparts in private schools. This is in addition to facing starvation, violence, and sexual assault. However, many of them will not go to college because their parents need them to work. Some of us are lucky to have been born into families with more resources. While not discounting the effort and hard work we’ve all put in to get here, the very least we can do is to acknowledge that not everyone’s starting point is the same. As I stated in the beginning, it starts with understanding the struggles someone else is going through. The next step is to consider giving every child at least the opportunity to succeed. 

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mc3qu@virginia.edu

So Long to Professor Sayler

Caroline Catchpole '19
Editor Emeritus

Photo courtesy of content.law.virginia.edu

During my 1L year, a 2L named Christina Albertson (the former Editor-in-Chief of the Law Weekly) took me under her wing. One of the organizations she was involved in was this paper, another was the Lile Moot Court Competition. Having been invited to step into her role planning the Lile receptions as a 2L, I was invited to the Lile Final Round Reception during the spring of my 1L year. The reception is where the judges, competitors, board members, and UVa Law professors gather to mingle, celebrate the end of the competition, and network. It was at this event that I first met Professor Robert Sayler, and his wife, Marty. 

Professor Sayler graduated from Stanford University and Harvard Law School before going on to practice at Covington & Burling in 1965, where he was made partner in 1973. During his time at the firm, he oversaw successful multi-million-and billion-dollar insurance claims, litigating over topics such as asbestos, pollution, and defective breast implants, as well as corporate insurance cases. He began his career at UVa Law teaching insurance law as an Ewald Distinguished Visiting Professor with Professor Ken Abraham in 1995 and returned on a permanent basis in 2003 to teach oral advocacy.

Having had the chance to get to know Professor Sayler, I was eager to take an oral advocacy class with him if I had the chance. This past fall semester, I was able to take Hallmarks of Distinguished Advocacy with Professors Sayler and Molly Shadel, and as I reflect on my time at UVa (and mourn that my time as a staff member on this paper has come to an end1) I can say quite truthfully that Hallmarks was one of the most useful classes I have taken during my time at UVa. The improvement I have seen in my classmates and myself is truly impressive.2 

Professor Sayler developed his rhetoric and oral advocacy classes while training young lawyers at his firm. He was also instrumental in bringing Professor Shadel from Covington to develop the public speaking program. Professors Sayler and Shadel co-authored the book Tongue-Tied America and they continue to write about American rhetoric together, including a series about the rhetoric of the most recent election campaign. 

At the end of this semester, Professor Sayler is retiring from the UVa Law School Faculty, and he will be sorely missed. For those of you who have not had the opportunity to take a class with him, there is a chance he will return in a adjunct capacity, so keep your fingers crossed! Professor Sayler, thank you for your contributions to UVa Law and for helping to grow the oral advocacy skills of generations of young lawyers.

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 cnc5kf@virginia.edu

1 The paper staff is amazing and I couldn’t write my last ever article for the paper without saying that they have enriched my time at UVa more than I can ever say. Thank you, Law Weekly for being an amazing group of dedicated and talented people, and the best group I could imagine spending my Monday nights with for the last three years. 
2 Seriously, if you can take this class, do it. I also took Advanced Verbal Persuasion (which is essentially Hallmarks Part II) and it’s awesome. Rising 3Ls, I urge you to take both; you can pick them as skills classes during the first round sign ups!  

Clearing the Air on the Broadband Privacy Repeal

Greg Ranzini '18
News Editor

There's been a lot of fear, uncertainty, and doubt swirling around lately about Congress's repeal of last October's FCC broadband privacy rules. If you spent any time on Reddit in the last month, you probably read blaring headlines about how this spells the END OF PRIVACY ONLINE, because your ISP will now be legally permitted to sell your browsing history to the highest bidder. In the hours after the vote, crowdfunding campaigns cropped up, pledging to buy and publish the browsing histories of the bill’s sponsors, of FCC Commissioner Ajit Pai, and of various members of the Trump administration. Other pages appeared shortly thereafter, denouncing the crowdfunding campaigns as scams. Max Temkin, one of the co-creators of Cards Against Humanity, vowed to pony up and buy the data himself, although, for the moment, no ISP has yet come forward offering to sell customer data on an individual basis. At press time, the crisis has entered the Third Phase of Internet Grieving as smug pedants come forward to remind you that the rules never took effect in the first place, and so your ISP was always allowed to sell your data, and will now continue to be able to sell your data—sweet dreams, sheeple.

This is not to say that fear, uncertainty, or doubt are unwarranted under the circumstances, however. If anything, the situation as it stands is worse than most understand. Sure, it's not like Comcast is going to let Joe Schmoe PayPal them fifty bucks and find out about all the freaky things you search for on YouPorn—you sick bastard—but it's not because they can't. It's because that's chump change. The real money is in selling bulk data to advertisers. Moreover, the optics are better for them this way: when it's just your data getting sold off to the highest bidder, that's personal. When it's everybody's data, that might just be the new normal. Just ask Mark Zuckerberg.

Or, hell, ask former-Representative-turned-telco-lobbyist Henry Waxman (D-Calif.). In an astonishingly disingenuous editorial last October, he wrote what emerged as the definitive argument against the then-draft rules:

“What it means is that consumers’ private data collected online will be protected by one set of standards when collected by an ISP and different standard [sic] when collected online by other internet [sic] parties, such as Google, Amazon and Facebook.”  

Ah, yes, consistency. See, it’s just terribly unfair that Google, Amazon, and Facebook get to pry into every detail of your daily lives online, but ISPs can’t get in on that game too! I, for one, sleep better at night knowing that my privacy is being consistently violated. That said, Waxman is talking about a somewhat funny kind of “consistency” here. After all, it’s not like everything you look at online goes through a Google, Amazon, or Facebook server, as much as it sometimes seems that way. Your ISP, however, passes along every single bit, so even if they can’t read the bits protected by website encryption, they are uniquely situated to discover what servers you’re connecting to and, consequently, whom you’re associating with. And unless you’re Rep. F. James Sensenbrenner Jr. (R-Wis.), who admonished an angry constituent last Thursday that “Nobody’s got to use the Internet”  if they value their privacy, you probably can’t switch ISPs just for a sec the way you can go to DuckDuckGo to search for “early cirrhosis symptoms” instead of Bing. 

That’s not to say that there’s absolutely nothing to do, however. Savvy netizens still have a range of options available, which provide more or less effective protection against certain kinds of surveillance. Here are a few that, honestly, you should already be using:

Step 1: Encrypt everything

HTTPS Everywhere

https://www.eff.org/https-everywhere

This is the Electronic Frontier Foundation’s signature browser plugin. It accomplishes something very simple: whenever you would connect to an insecure HTTP page, it redirects you instead to the encrypted HTTPS version of that page, if available. This doesn’t do anything to keep your ISP from figuring out what sites you’re going to, of course, but it does have the effect of protecting whatever you actually do on those domains. Spend lots of time posting on /r/gonewild? This one’s for you.

Step 2: Hide from ad tracking

uBlock Origin

https://github.com/gorhill/uBlock

Adblockers. If you’re living without them, you’re missing out. This time two years ago, I would probably have recommended perennial favorite AdBlockPlus, but ABP decided that they’d rather make money letting ad networks pay to be unblocked. uBlock Origin is a significantly nicer piece of software, anyway. Don’t use “uBlock” (without the “Origin,”) by the way. One of the former developers hijacked the name, started soliciting donations, eventually lost interest, and left the software unmaintained. 

Adblocking is important for more than just cosmetic reasons. One of the many salutary effects of keeping ads from loading is that it makes it that much harder for ad networks to follow you from site to site. Moreover, online advertising is one of the main ways that viruses get spread these days. Block the ads, and you block the malvertising, too.

Step 3: Lock out your ISP

VPN services

https://www.privateinternetaccess.com

https://nordvpn.com

Etc.

These cost money, which is unfortunate, but they’re also the only practical way to make the broadband privacy repeal a moot point. Also, they’re generally super cheap, for what they are. A VPN service provides you with a sort of encrypted ‘tunnel,’ through which you access the broader Internet. At the other end of the tunnel is a VPN exit server, the IP address of which is shared with all the other VPN customers using the same node. The upshot is that your data is encrypted, and, provided that you’ve picked a reputable VPN provider, nobody can tell who is connecting where. From your ISP’s perspective, you’re spending a lot of time sending gibberish to a random server farm in New Jersey or wherever—not terribly much for them to glean from that. A pleasant side-effect of this is that you can make your computer appear to be anywhere in the world, thereby bypassing those stupid country-by-country region locks on YouTube. A not-so-pleasant side-effect of this is that Netflix won’t let you connect through a VPN, because they don’t want you bypassing their region locking. Good thing you can just turn off your VPN whenever you want to watch Netflix.

Picking a VPN can be pretty tricky, however, because you ultimately are placing a lot of trust in your particular provider. Luckily, a blog called TorrentFreak does the requisite due diligence and publishes their findings annually: https://torrentfreak.com/vpn-services-anonymous-review-2017-170304/. Who better to listen to than people who have a really good reason to be paranoid, right?

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gpr7qx@virginia.edu

An Earth Day Conversation with Professor Cannon

Jim Dennison '18
Guest Columnist

The first Earth Day in 1970 marked the beginning of the modern environmental movement. Horrified by environmental disasters like the 1969 Santa Barbara Oil Spill and the burning of the severely polluted Cuyahoga River, and inspired by the student anti-war movement, Senator Gaylord Nelson (D-Wisc.) launched Earth Day as a nationwide day of teach-ins, clean-ups, and demonstrations. Twenty million Americans joined together to demonstrate and volunteer for a healthy environment. Participation took many forms, including some rather colorful ones: “Oil-coated ducks were dumped on the doorstep of the Department of the Interior . . .  A student disguised as the Grim Reaper stalked a General Electric Company stockholders’ meeting . . . Demonstrators dragged a net filled with dead fish down Fifth Avenue, and shouted to passers-by, ‘This could be you!’”1

The event transformed thousands of localized efforts to curb pollution and environmental destruction into a unified movement made up of citizens with widely varying backgrounds, circumstances, and political views. For many of its participants, Earth Day was the first realization that so many others throughout the country and the world shared their concerns for public health and sustainable interactions with nature, which society inevitably depends on for food, resources, recreation, and inspiration. 

In 1990, Earth Day was expanded to include events in 141 countries worldwide, in recognition of our interdependence and the global nature of environmental issues. Earth Day 2017 events include the March for Science on April 22 and the People’s Climate Mobilization on April 29, both to be held in Washington, D.C. with solidarity demonstrations throughout the country.

The first Earth Day was a formative and galvanizing moment for the founding generation of modern environmentalists, who include influential activists, scientists, lawyers, and politicians like John “Planetwalker” Francis, Rachel Carson, Dr. Robert Bullard, and Rick Middleton. We are fortunate to have a pioneer of modern environmentalism here at UVA Law. Professor Jon Cannon served as general counsel to the Environmental Protection Agency during the Clinton Administration. He wrote a groundbreaking memorandum that led to the Supreme Court’s landmark decision in Massachusetts v. EPA that greenhouse gas emissions are regulable under the Clean Air Act. VELF interviewed Professor Cannon to learn how the spirit of Earth Day 1970 can continue to inspire the next generation of environmentalists.

Q: You participated in the first Earth Day in 1970. What was that experience like?

A: Well, I picked up trash on the Potomac River near where I lived at the time. We lived in Williamsport, Md., which is right on the Potomac, and I used to go running on the Potomac C&O towpath. There was a group that was going down to the river to pick up trash, and I was with them, and that’s what I did. Nothing dramatic.

Q: How did your experience at Earth Day influence your outlook on the environment and your career?

A: It had a huge impact on my career. I think prior to Earth Day I, like a lot of other people, had concerns about the environment, about pollution, about land use changes, about degradation of areas that I thought were important to protect. But those registered as private grievances. That is, they were things that concerned me, but I didn’t connect them with a broader movement or political response. And what Earth Day showed me, and I think it showed everybody who participated, was that there were a lot of people out there who had similar concerns and that a collective recognition of those concerns could lead to political action and positive change.

Q: How do you think the state of the environment, the environmental movement, and environmental law and policy have changed since the first Earth Day?

A: Well, all of those things have changed. I think after the first Earth Day there was an apparent consensus and support of relatively strong federal environmental legislation, which produced the Clean Air Act, the Clean Water Act, and most of the other laws that we have today. There was a sense then that the movement had changed the configuration of national politics. Those laws made a big difference. I think we have an environment that’s cleaner and higher quality than we would without them. But things have happened in the meantime that make our present situation difficult, I think. One is that the apparent consensus that existed in the early ’70s and extended really into the mid ’80s has eroded so that now we have polarized views on environmental policy that are roughly identifiable to major political parties. And we have also, while successfully dealing with some of the more conventional problems that we faced in the 1970s, encountered new problems that we have not yet come up with adequate solutions to, like climate change. In our present polarized political environment, it’s very difficult to do that.

Q: What direction do you see environmentalism heading in from here?

A: I think for a long time, environmentalists were identified with folks who thought we should do with less, that we needed to sacrifice in order to protect the environment. I think the conventional view of environmentalism also included a notion that there was some sort of pristine nature that needed to be protected, at least in substantial portions, from human development or influence. There was also an anti-technology component, I think, to some environmentalist thinking as well. The idea that large, industrial scale technology could be expected to have adverse effects on the environment. 

My own view, and this is shared by many other people, is that the movement needs to make, and is already making, some changes to meet the current challenge. I think it’s clear now that there’s probably not any such thing as pristine nature in the sense of nature not influenced by human activity. And so the question becomes less about preserving that ideal and more about managing effectively the environment that we have, and that in significant part have created or are creating. That changes the emphasis from protectionism to more of a management focus. And I think as part of that there’s a greater recognition that technology, while it’s the cause of a number of our environmental problems, also offers solutions to those problems, and that to deal with issues like climate change and the mitigation of greenhouse gas emissions we’ll need new technologies, deployed at an industrial scale, and taking full advantage of the power of markets to deploy. So in that sense, to be effective in the modern circumstance the movement has to be more accepting of technology and markets and active management of the environment.

Q: What do you think the value of Earth Day and similar events is, in terms of keeping the environmental movement strong and keeping folks educated and motivated?

A: I think Earth Day remains important, maybe because it happens every year. People aren’t as excited about it as they were on the first Earth Day, but I think as new problems come forward and new circumstances occur that make these issues fresh, that Earth Day has a potential to renew excitement and commitment about environmental issues, and to galvanize action. 

Q: Perhaps we saw some of that when 175 countries signed the landmark Paris Climate Agreement on Earth Day 2016.

A: Yes, there was sort of a symbolic portion of that. And, you know, there are going to be activities on or around Earth Day this April that I think will be important as collective expressions of ongoing concern. There’s a demonstration of scientists on April 22, and a climate change march in D.C. on the April 29.

Q: Do you have any advice for students or aspiring environmental lawyers on Earth Day 2017?

A: My advice is follow your star. If you’re interested in environmental issues and you want to make a difference, I think the law is a good instrument to do that. And the law doesn’t operate by itself—it needs lawyers to make it work, across the spectrum from private practice to government service to nongovernmental organizations. So people who have a sense for these issues and a basic engagement can find a very satisfying career doing environmental law.

Q: I talk to a lot of people who value the environment and are interested in issues like climate change, but who have other career aspirations or are unable to commit their careers to environmental law. Are there good ways for folks in this situation to make a difference?

A: Oh absolutely. We have lives as professionals, but we also have lives as citizens, and people can participate in all kinds of ways. They can join groups that advance positions on the environment or make concrete contributions to environmental protection. They can participate in local politics or state politics or politics at the national level on these issues. They can talk to their congresspeople. They can grow vegetables in their back yard without pesticides. There are all sorts of ways to express environmental concerns that don’t involve making a career in environmental law. So I would encourage anybody who is so inclined not to feel that they have to devote their lives to this. They can devote a portion of their lives to this and still make a big difference.

Earth Day is this Saturday, April 22. To celebrate and participate in Earth Day’s tradition of civic engagement, VELF has organized a volunteer trip to UVa’s Morven Kitchen Garden from 2 to 4 p.m. The Morven Kitchen Garden is a living laboratory in sustainable market farming that features a community supported agriculture program and a robust set of student-led research projects. All are welcome, and you can contact Courtney Koelbel at clk5nw@virginia.edu if you are interested.

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jad2zh@virginia.edu
1 Jack Lewis, The Birth of EPA, http://classic-web.archive.org/web/20060922192621/http://epa.gov/35thanniversary/topics/epa/15c.htm

Exams: A Survival Guide

Katherine Mann '19
Columns Editor

It’s that time of year again! Spring exams are upon us, and everyone is delighted to be balancing the desire to enjoy beautiful weather with the crippling burden of being graded against our peers. It was fine living in the gunner pit in December, when no one wanted to be outside anyway. But the ice-cap-melting warmth of this April has been particularly seductive. If you’re clever and current with your allergy meds, you might be able to kill two birds with one stone by studying outside. My son, for example, thinks I take him to the park so he can play with his friends. He only sort of gets that I can read Con Law in the sun while still appearing to be a passably decent parent.1

Supplements are flying off the bookstore shelves almost as fast as outlines are being emailed, and we are all starting to realize how much we don’t know compared to the smarties in the first row. Beloved Peer Advisors are giving us their best strategies, and those of us who know an A-plus isn’t in the cards are forming study groups. Depending on your strategies for dealing with stress, you’re either cutting back on alcohol in order to focus, or drinking daily to cope with your inadequacies.2

Do not mistake this column for anything involving study tips (unless you like living dangerously). I am writing only to communicate the wonders of exam time and how we cram in our different ways. Far be it from me to question the wonders of caffeination, but I am limited to one cup of tea and one cup of coffee a day before I get jittery, each precisely timed so that I can sleep at some point. While my position is potentially fatal to my GPA, I fall squarely in the camp of folks who think sleep is important. There’s the ambitious voice in my head telling me to stay in the library till midnight, and the lazy old-lady voice reminding how soft my pillow is. The latter always wins. 

But the seduction of the Keurig machines is real, and I tip my hat to the legions of students staying up all night in the library. I guess it’s good practice for the Big Law life, as is giving up your weekends. Law school parents generally have less time to study, though many of us wish we were studying instead of breaking up sibling fights or potty-training during exams. My son is eight, so my battle with him is convincing him to go outside instead of playing Minecraft, and my will crumbles during exams. It’s fair to say he gets a lot of screen time these days.

Finding a decent place to study can be a challenge, because it often seems like one’s home or bedroom is inadequate. I have given up on my own bedroom (the only home study space available to me), due to the extent of available distractions. I should be outlining for Property, but instead I’ve just wrapped up the fifth season of Buffy and I’m too emotionally wrecked to look at my notes. I study much better at the library, except when I find myself glaring at the couple3 two tables over “whispering.” Apparently, the notion that the library is supposed to be a quiet space is one mistakenly held over from my youth, kind of like democracy.

Music can drown out some of the noise, but it’s not really a substitute for silence. I find it too distracting, but I admire those of you who can slip on the Beats and totally focus. I’ve tried all the study stations on Spotify, but I get pretty distracted by the phrase “this is crap” constantly going through my head. And if I listen to what I actually like, I get distracted because I like it. Or I just spend twenty minutes picking an artist or station and I’ve lost the battle before I’ve begun. As a result, I tend to go with earplugs. I enjoy making a point of putting in my earplugs while staring at the noisy couple two tables over, my eyes narrowed judgmentally, taking my time, while thinking, “this is because of you.” I don’t think it registers.

At any rate, since we all know our entire futures totally depend on our grades,4  the panic is starting to creep in. It’s time to find your preferred space and noise-canceling apparatus and get to work. Block Facebook, ignore the news, neglect your family, pets, and significant others. You can be human again when it’s summertime, and that’s not too far away.

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kmm2bb@virginia.edu

1 Technically this is three birds: studying, parenting, and enjoying the weather. I win.
2 Come on now, youíre at UVa Law. Youíre at least adequate.
3 Not necessarily romantic. You donít have to be a romantic couple to be annoying.
4 Iím told this might not be entirely true. Source declined to be named.

Op-Ed: Democrats to Blame for Politicization of the Supreme Court

Max Wagner '19
Guest Columnist

Since November, there has been one refrain repeatedly heard from all Democrats and Mainstream Media Outlets (but I repeat myself): Gorsuch simply cannot be allowed a vote because the Republicans “stole” the seat from President Obama. Is this the case? Is there more to the story? What was really stolen: the SCOTUS seat, or the narrative?

The narrative that is being told, again and again, is that the seat was “stolen” and that nuking the filibuster is particularly destructive. 

This is a question that has no real definitive answer, since there have not been many Supreme Court vacancies that have occurred during an election year; but I would maintain that it has not. The last vacancy that opened in an election year (or was announced to be opening) was in 1968, when Chief Justice Burger announced his retirement from the bench, although he would not retire until the next summer, when the new president nominated a replacement. When the Chief Justice announced his retirement, then-President Johnson nominated Associate Justice Abe Fortas to the Chief Justice Seat, and nominated Judge Homer Thornberry to fill the seat which would be left by Justice Fortas. Both Republicans and Democrats had significant reservations about this move. Within a week of his nomination it seemed unlikely that Justice Fortas would receive the necessary votes to become Chief Justice, so President Johnson changed his plan; instead of trying to get Justice Fortas confirmed, he would try and get a majority of the Senate to vote for cloture. A task he barely managed to accomplish. While this was technically a Filibuster of a Supreme Court pick, it was both bipartisan, and several of the Senators voting no on cloture were adamant they were not permanently voting against cloture, they just wanted more time to debate the candidate. Shortly after this, President Johnson, at the request of Justice Fortas, withdrew the nomination to the Chief Justice seat. This led to the withdrawal of Judge Thornberry’s nomination since Justice Fortas’ seat would not be open. 

The next most recent vacancy during an election year occurred on October 15, 1956, when Justice Milton retired from the Court. The Senate was in recess, and President Truman exercised his authority to make a recess appointment. In January of the following year the nomination became official, and on March 19, 1957, Justice Brennan was confirmed by voice vote. 

Prior to Brennan’s confirmation, the last time a vacancy that arose in an election year was filled by the sitting president, was 1932. Justice Holmes retired in January of that year, and President Hoover nominated Benjamin N. Cardozo, confirmed – you guessed it – by a voice vote. 

While there are some examples of Supreme Court appointments in election years, they are nearly universally nominated late in the year preceding the election year or early in the election year, and usually result from a vacancy the year before. Because there hasn’t been a nominee confirmed for a vacancy that has occurred in an election year before the election since 1932, it is reasonable that conclude that such vacancies should be campaign issues, as was the case last year. 

Additionally, it is important to realize Supreme Court nominations were largely nonpartisan and were largely approved by voice vote… until Robert Bork.

Robert Bork’s confirmation hearings sparked what have become known as “The Judicial Wars” of action and retaliation when it comes to the Judiciary. Most nominees have not been present in front of the Senate; the Senate would convene and discuss the qualifications to the post and then vote (with the exceptions where the name was withdrawn). With Robert Bork and the subsequent nomination (and barely successful confirmation) of Clarence Thomas, there were two new terms that were introduced to the American political lexicon: “Borking” and “high-tech lynching.” These two new terms and the nominees who were being so targeted to create these terms showed that there was a new eagerness to politicize the Supreme Court. The days where qualifications were the main consideration were numbered, but not yet gone. 

Two and three years after the confirmation hearings of Justice Thomas, respectively, the Republicans tried to go back to business as usual, when President Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. These were two eminently qualified candidates for the court, with a specific philosophy, which was particularly disagreeable to the Republicans at the time and now. How did the Senate Republicans react in the wake of two of the worst personal attacks on Supreme Court nominees ever? They not only allowed the vote to get to the floor, the votes were nearly unanimous. It was an offer of a truce.

This was a short-lived truce, however. So short lived, the next President, George W. Bush, had to deal with a failed filibuster attempt of one of his two approved nominees. John Roberts was confirmed by a vote of 78-22, but then-Senator John Kerry, joined by then Senator-Barack Obama, attempted to filibuster the nomination of Samuel Alito. The filibuster failed, but its meaning was clear: the Republicans’ attempts to move past the nomination hearings of Bork and Thomas, and get back to the precedent of approving qualified candidates, even if their philosophy was different than the Senators voting, was being rejected. The Supreme Court was going to become even more politicized.

Finally, there is an argument that, while the Democrats nuked the filibuster for the “inferior” federal courts, this is particularly egregious because the Republicans nuked the filibuster for the Supreme Court, and that is just worse. This argument is wrong. If anything, there should be a filibuster on the lower federal judgeships and not for Supreme Court nominees. This is because a vast majority of the jurisprudence of the country is handled by the lower federal courts. The Supreme Court hears around eighty cases a year, whereas the lower federal courts hear tens of thousands of cases a year. While the Supreme Court is important, the entire country pays attention when a seat opens up, and we pay attention to the nominee, this is not the case with the lower federal court judges, who also sit on the bench for life. The filibuster for lower federal court judgeships is important because the inherent check on the majority party from the voters is non-existent, because the nomination and approval of lower judgeships is not a noteworthy event in most people’s lives.

The narrative being sold to the American public is not a narrative based in fact, and designed to try and keep their base fired up for the midterm elections. It is a narrative that ignores the fact it was eighty-five years ago when a vacancy that occurred in an election year was filled in the same election year. It is a narrative that sinisterly ignores the politicization of the Supreme Court by the Democrats since 1987. This was the first real response by the Republicans in the Judicial Wars, and it was less significant that any of the actions taken by the Democrats. 

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mjw5pt@virginia.edu

1 In the 90th Congress there 64 Democratic Senators and 36 Republican Senators. The Cloture vote was 45 Aye (10 Republican and 35 Democratic Senators) to 43 Nay (24 Republican and 19 Democratic Senators) with 12 Democratic Senators missing from the vote. 
2 Justice Kennedy was nominated November 30, 1987 and approved February 3, 1988. 
3 63.6% of approved nominations before Robert Bork were confirmed by voice vote.
4 Justice Ginsburg 96-3. Justice Breyer 87-9.
5 Not that it stopped the Republicans from allowing a vote on President Obama’s two nominees.

Not the Belle of the Ball

Alex Haden '17
EIC Emeritus

So I’ve seen people talking a lot about Beauty and the Beast, and I just have to get something off of my chest: Belle is actually really mean. I know, I know: “How can you say that? She’s the best! She’s so great! She is so sweet! She sees people for who they are! She has brown hair and reads books and I used to have brown hair and read books before law school caused premature graying and destroyed my free time!” But the truth of the matter is that Belle is probably not like you. Belle is not a nice person, and if you lived in Belle’s village, you would not like her. Don’t believe me? Let’s take a look at the opening number.

Open on a beautiful, big, gorgeous home outside of a French village. This house is very nice and clean; there is a well right in front of it; and there are at least two stories to this house. Out comes a girl in a PRISTINE white and blue dress and white apron. Like, not a speck of dirt on her. Nowhere. To live in a house this nice and have that clean of an outfit leads us to only one conclusion: Belle is rich. She’s the Kim Kardashian of this town.

And then, she begins to sing! About birds, or true love, or friendship, or about being grateful for your lot in life? Nope. About the people she lives around who she considers to be common peasants. “Little town, full of little people.” Seriously? You’re gonna walk into town singing about how you think you’re so much better than everyone else? If Kim Kardashian walked into Walmart and started telling people how basic they are, people would not like it. Yet for some reason, Belle gets a pass. Okay. I see. But this town is full of decent people. They still say hello to her, despite her lyrics, even the guy in the stockades who is being punished for adultery.

“There goes the baker with his tray like always.” Yeah, that’s his fucking job. It’s how he feeds his family. Sorry he doesn’t get to walk into your living room and yell at you about your crusty bread. And that is not “the same old bread and rolls.” Those are freshly baked. And people like them, okay? If he is making them every day, then people are clearly buying them. But sorry that the bread has been boring you since you came to this “poor provincial town.” BTW, “poor” is another reference to her being richer than them.

Then, she decides that her two-minute walk has tired her, so she jumps on the back of another person’s wagon to hitch a ride. Seriously? If some stranger jumped on the back of your car, you’d freak out. But for Belle, everyone is just there to get her from Point A to Point B. And they’re so boring about it!

Then, she heads to the bookstore. Let’s be real clear here: it’s a store. The sign out front says “Bookseller.” Not “book lender.” But of course, for Belle, everything is free. She returns a book that she has borrowed and asks for something new. The poor bookseller tries to drive her away by telling her that there have been no new deliveries, but Belle responds by recklessly playing with the ladder. Honey, that’s expensive, and you’re gonna break it, and we know you’re not gonna pay to fix it.

Then, she says, “That’s alright, I’ll borrow this one.” SHE DIDN’T EVEN ASK! SHE JUST INFORMED THE OWNER THAT SHE WAS TAKING A BOOK! THAT’S WRONG! And she’s already read it twice! There must be over 50 books in that shop, and she’s read all of them some of them twice, and hasn’t paid for a single one! And the bookseller knows exactly how many times she’s read each one, so he is clearly counting and is mad about it. To get rid of her, he lets her keep the book so she gets out of his shop and stops playing on the ladder.

Let’s be honest: if the town is as provincial as she says it is, a lot of people probably aren’t buying books. So that bookshop is probably in dire financial straits. AND SHE HAS MONEY! But she gets books for free because Belle apparently has some sort of godlike legal immunity.

Then she heads to the town square and sits on the fountain. A woman behind Belle is quietly doing her laundry, while Belle is singing loudly around her. The woman is clearly irritated with Belle, and storms off. But Belle doesn’t notice. Seriously, go watch that scene. There is no other explanation.

Belle continues to sing to sheep, and shows them pages of the book as if they can read. In her head, Belle is secretly thinking “There’s no difference between these horrible people I live around and these sheep, who probably smell really bad.” While she’s showing the book to the sheep, one of the sheep eats a page. Duh. Sheep cannot read, and they like to eat things. What did she think would happen? Good think the bookseller didn’t want that book back, because Belle does not take care of her personal belongings. I wonder how many of the bookseller’s other books have bite marks in them?

Then she walks onto a work site where men are loading goods onto a cart. She literally walks on the cart while they are working and doesn’t care if she is interrupting. No one just walks into an office and interrupts normal activity there, but, for Belle, exceptions must be made. As if that weren’t enough she balances badly on the cart and SMASHES one of the guys in the face with the cart. Teeth go flying, he spins around unconscious, and Belle doesn’t even notice or care. That dude will likely have severe medical consequences as a result of her careless intrusion into a loading zone, and she doesn’t even stop reading a book that she has already read twice.

One more refrain of “this provincial life” in the middle of the town square (where people notice that she’s being super rude to them). In fewer than five minutes, Belle has already been cast as a rich, snobby person who is rude to people around her for no reason, insulting their livelihoods and stealing from them despite her wealth.

I’m not trying to say that all Disney princesses have to be nice, sweet, kind, caring robots. I’m just interested in the truth. Belle may still be your favorite, but you have to acknowledge that if she is your favorite, it isn’t because she is overly sweet and kind and gentle and blah blah blah. Because she knocked a cart into a guy’s face and almost killed him. 

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ach7pa@virginia.edu

1 For tradition’s sake, I am looking at the 1991 version of the opening, but very few (if any) of these problems are any different in the remake.
2 You have to read between the lines, people.

Don’t Fall for “Leggings-Gate”

Kimberly Hopkin '19
Columns Editor

If you’re looking for a social controversy to throw your weight behind, the two leggings-clad girls who were not allowed on a United flight aren’t worth your time. Why on Earth would I not stand up for these girls, you ask? After all, they were ten years old, body shamed, and held to a non-publicized dress code. United Airlines doesn’t hold men to a dress code to fly, so it’s clearly sexist. For instance, the man they were flying with was allowed on wearing shorts. They are paying customers, why would United treat them this way? Simple. Because nothing in that narrative is true. If you want to know the real story, stick around.  

On Sunday, March 26, 2017, two teenaged girls were prevented from using their travel passes to board a flight from Denver to Minneapolis. The gate agent explained to them that the leggings they were wearing were not within the dress code required by United for free pass travel. The teen girls were not upset by this news. A family within earshot misunderstood the situation, thinking it applied to all passengers. Because their ten-year-old was in leggings, they became distressed. They didn’t ask the teenaged girls or the gate agent about this ‘rule.’ Instead, they retrieved a dress from her carry-on luggage and boarded the flight after throwing it over her leggings. The other two girls did not have any spare clothing in their carry-ons and stayed behind as the flight boarded. 

Shannon Watts, who witnessed the event, who had never met any of the girls before, misunderstood and thought the dress code applied to all customers. Reacting, Watts sent out three tweets over her popular social activism twitter account, @ShannonRWatts: 

“1) A @united gate agent isn’t letting girls in leggings get on flight from Denver to Minneapolis because spandex is not allowed?”

“2) She’s forcing them to change or put dresses on over leggings or they can’t board. Since when does @united police women’s clothing?”

“3) Gate agent for flt 215 at 7:55. Said she doesn’t make the rules, just follows them. I guess @united not letting women wear athletic wear?”

When United responded asking her if she was talking with the passenger, she responded, “@united They just boarded after being forced to change or put dresses on over the top of their clothing. Is this your policy?”

Shortly after, the tweets went viral and people began to voice their opinions. Celebrities like Chrissy Teigen, Patricia Arquette, and Moby, swiftly chimed in via Twitter, criticizing United Airlines for not letting customers wear leggings, blissfully unaware that these girls were not paying customers. Once United got the facts about the situation, they tried to explain the pass traveler situation via Twitter to no avail; the condemnation of United based on a narrative of an uninformed witness was swift. In fact, Shannon Watts reached out to The Washington Post while aboard the flight in question, bashing United for “sexualizing little girls.” 

On Monday, March 27, 2017, Shannon Watts admitted that she misconstrued the situation before tweeting, thinking the girls were normal paying customers. As for the man in khaki shorts that was reportedly let on the plane, well, he was a paying customer that was not related to the girls in any way. This is another mistake that has been attributed to Watts.

United Airlines, like most commercial airline companies, offers travel passes to dependents of United employees under a strict set of conditions. In exchange for dressing and behaving as representatives of the airline, friends and families can travel for free on any flight with an empty seat. To understand how important this entitlement can be, I’ll explain through my own personal experience. My father has been a Delta pilot since 1998, and my family has traveled using these passes. When he first started, the airlines had much more strict dress codes: no denim material of any kind, no shorts, no sandals, and no children in first class. Yes, sometimes my mom and dad would split up; one would take my older brother and the other would stay behind with me until seats in the economy class opened up. It took some flexibility, but because of the pass entitlements system, my family was able to take deeply discounted family vacations opening up my world to the excitement of travel. Why do they have rules for this system? Because they have customers paying for the services you are getting for free. That’s right, my mom and dad took a free trip to Sweden last summer flying in Delta One Business Class (where they have the fully reclining beds, Bose noise-reducing headphones, and gourmet meals). The customers around them paid between $4,500 and $7,000 for their tickets. 

United’s dress code is slightly more formal than Delta’s new “relaxed” dress code, but it specifically lists “form fitting Spandex/Lycra pants, tops, and dresses” as inappropriate clothing. Both sexes may wear longer shorts; neither sex may wear flip-flops or torn jeans. This is well known by the employees who use and administer the pass travel system. United has turned away a male dependent for wearing shorts and flip-flops. Other airlines go even further in forcing pass travelers to cover tattoos and take out piercings.

The teenaged girls were being held to a widely known, unambiguous employee dress code that applies equally to both sexes in exchange for completely free travel. No one even spoke to the ten-year-old about her leggings. Someone overheard the exchange, and, without asking a single question of anyone involved, decided to tweet and give press interviews on the subject alleging several wrong facts. It’s a less appealing narrative, but it has the advantage of being the truth.

Why am I taking the time to clarify this situation since it seems to have dried up in the news? Because, unfortunately, the people who have suffered because of Ms. Watt’s ignorance and bluster have done nothing wrong. United employees were reprimanded; the teenaged girls (who politely exited the gate to change and catch a later flight) no longer have pass privileges. And, even worse, girls who do suffer from overtly sexist public school dress codes for the benefit of “hormonal” teenaged boys are less likely to be taken seriously.  

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knh3zd@virginia.edu

1 http://www.cnbc.com/2017/03/28/how-two-teens-in-leggings-became-a-pr-mess-for-united-airlines.html (United spokesperson explained that the girls were aware of the rule).

2 http://onemileatatime.boardingarea.com/2017/03/27/united-leggings-false/.

3   While waiting for a different flight to Mexico City. (http://onemileatatime.boardingarea.com/2017/03/27/united-leggings-false/)

4   https://twitter.com/united/status/845999380024836097.

5 Id. 

6 http://www.nationalreview.com/article/446146/united-airlines-girls-wearing-leggings-banned-pass-travelers.

7 https://www.washingtonpost.com/news/dr-gridlock/wp/2017/03/26/two-girls-barred-from-united-flight-for-wearing-leggings/?utm_term=.f8d2a9b4954a.

8 http://www.cnbc.com/2017/03/28/how-two-teens-in-leggings-became-a-pr-mess-for-united-airlines.html.

9 http://nypost.com/2017/03/28/fliers-still-at-war-with-united-over-leggings-debacle/.

10 http://nypost.com/2017/03/26/united-doesnt-let-teens-on-flight-because-they-were-wearing-leggings/.

11 http://www.nationalreview.com/article/446146/united-airlines-girls-wearing-leggings-banned-pass-travelers.

12 http://nypost.com/2017/03/28/fliers-still-at-war-with-united-over-leggings-debacle/.

13 http://www.marketwatch.com/story/most-travelers-say-people-wearing-inappropriate-clothes-shouldnt-be-allowed-to-fly-2017-04-08?siteid=yhoof2&yptr=yahoo.

14 http://onemileatatime.boardingarea.com/2017/03/27/united-leggings-false/.

Women in Public Service

Daniel Bever '17
Guest Columnist

The second annual Women in Public Service event occurred last week. This year, the event included several features, most notably a panel, several roundtables, a reception, and an insightful keynote address by State Senator Jennifer McClellan (’97).

History and Purpose of Event

The annual event was founded last year by outgoing Virginia Law Women President Casey Trombley-Shapiro Jones (Law ’17), who wanted to create a public service counterpart for Virginia Law Women’s “Women in Big Law” event that would correspond with student ambitions relating to public service.  

The event enabled law students to interact and network with alumni in public service. It performed the function of disabusing law students of the notion that there is only one route into public service: entry directly after graduation.  Finally, it offered a valuable opportunity for law students to meet, interact, and network with alumni in public service.

Overall, the event left students invigorated and more knowledgeable about what it takes to enter a career in public service. They are several gateways of entry. If addressed correctly, attorneys can grow professionally and engage in a collegial bar. There are numerous ways to practice law, and, as the event demonstrated, numerous ways to practice in public service.  Public service attorneys expressed their support for events like Women in Public Service, which highlight career alternatives to the traditional law school-to-private firm pathway many students elect to take.

One Event, Two Parts

The components of the event came in two parts. The first component featured a panel and several roundtable discussions. The second included the keynote address and reception. 

While the event did not officially commence until 4:00 p.m., several panel speakers arrived earlier, interacting with other law students and practitioners over coffee and light refreshments. Building relationships and promoting interactions between law students and practitioners proved to be, as planned, one of the event’s greatest boons.

Panel and Round Tables

The panel, “Private Pathways into Public Service,” was well-attended. It was one of the event’s biggest draws in 2016, and the trend continued. The panel included five attorneys: Elisbeth Bennett (Clearly Gottlieb Steen & Hamilton); Sarah Hall (Securities and Exchange Commission, formerly Covington); Sarah Dearing Johns (Associate Counsel at Virginia Commonwealth University); Jennifer Klar (Partner at Relman, Dean & Colfax); and Lisa Lorish (Assistant Federal Defender, Federal Public Defender’s Office, formerly of McGuireWoods).  Trombley-Shapiro Jones, having launched the event in 2016, served as the panel’s moderator. Notably, the panel brought a broad swath of experiences from across the legal field: government, large-firm practice, and specialized private practice—in the immediate context, civil rights law. Particular areas addressed included the benefits and drawbacks of beginning with private practice and transitioning into public practice and strategies for overcoming obstacles from taking a private pathway into public service.

The roundtables are a new feature of the event that offered a relatively intimate environment for interaction. The groups included three or four attorneys and five to ten law students apiece. For their part, the law students certainly did not let the opportunity to engage in a frank discussion pass by, and collegially engaged attorneys with questions on each of the respective topics. Responding in kind, the practitioners did not miss the opportunity to offer valuable insight. Each roundtable had a distinct theme, “Getting Started in Public Service,” “Networking and Relationship-Building,” and “Professional Development.”  

Reception and Keynote Address

The second portion of the reception, beginning at approximately 5:30 p.m. included a networking reception and keynote address from State Senator Jennifer McClellan.

Dean Risa L. Golubuff offered an introduction to the keynote speaker, noting her ability to demonstrate that a private practice and public service need not be dichotomous. Sen. McClellan (Law ‘97) began her career in elected office in 2005, on election to the Virginia House of Delegates.  Some of her key legislative accomplishments include statutes addressing stalking and reforming underage marriage laws. She worked on several committees, including Courts of Justice and Education. In her keynote address, she noted the importance of pursuing a career in public service, when that is the earnest desire of the law student, rather than capitulating to a perceived obligation to pursue a career in private practice.  She went on to discuss the important role women play in leadership positions and lamented common-sense errors that can occur in policy-making when policy-makers are exclusively male.  She also noted the importance of claiming every issue as a woman’s issue, in particular noting the importance of women speaking out on matters such as energy rather than curtailing themselves to issues such as women’s health.

Contributors to Success

The event would not have been successful without generous efforts from several members of the Virginia Law community. Virginia Law Women organized the event with the help of its co-sponsor, the Public Interest Law Association. The Public Service Center and the Program in Law and Public Studies also significantly supported the efforts of the organizers. Finally, while not an official sponsor, Career Services offered valuable assistance by getting event coordinators and alumni together.

The Virginia Law Women’s Women in Public Service event was held at the Law School on April 6, 2017.

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dab8ru@virginia.edu