The University of Virginia School of Law
Spring 2012
Citizens United
“If there be any among us who would wish to dissolve this Union or to change its republican form,
let them stand undisturbed as monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it.” —Thomas Jefferson
Upcoming Alumni Events
September 19
D.C. Young Alumni
W Hotel, Studio 1
September 27 Norfolk, Va., Reception
Towne Pointe Club
October 3 N.Y.C. Young Alumni
TBD
October 4
Philadelphia Alumni Luncheon
R2L
October 18
Chicago Alumni Reception
Westin Chicago River North
November 14
D.C. Alumni Reception
Metropolitan Club
For Latest on alumni events: www.law.virginia.edu/alumni
from the dean Paul G. Mahoney
…
Campaign Finance Debate
In November 1975, Ralph K. Winter, Jr. (who would later be
appointed to the 2nd Circuit and for whom I was privileged to clerk)
argued before the Supreme Court for the appellant, Senator James
Buckley, in Buckley v. Valeo. Winter began his First Amendment
challenge to the Federal Election Campaign Act’s expenditure
and contribution limits in what might seem an odd place. He
brought to the Court’s attention an obscure provision exempting
from the expenditure limits the cost of preparing materials sent
“under the frank.” The effect of the provision, he noted, was to give
incumbent members of Congress the right to spend funds without limit to communicate
with constituents on matters of public concern while limiting the ability of a challenger to
communicate with the same voters on the same issues.
By arguing that the statute facially discriminated against certain speakers, Winter
connected the question of the FECA’s constitutionality to that of its uneven treatment of
incumbents and challengers. He also identified ways in which the statute would advantage
candidates nominated by a party over those running as independents and advantage
established advocacy organizations over those created to advocate for a particular issue.
One strand of the intellectual (as opposed to the political) debate over the desirability of
campaign finance reform has largely followed the script set by that day’s argument. Opponents
of campaign finance regulation argue that because such regulation is enacted by incumbents,
it is inevitable that the drafters will take their own interests into account and put greater limits
on their challengers’ speech than on their own. Proponents argue that an unregulated system
creates still greater ills by discriminating in favor of the corrupt or opportunistic candidate
willing to privilege the interests of donors over those of the public.
The conversation with Bob Bauer ’76 and Trevor Potter ’82 in this issue fits into that
strand of the debate. Bauer and Potter, as readers of the UVA Lawyer know, are two of the
From the Dean
…
By arguing
that the
statute facially
discriminated
against certain
speakers, Winter
connected
most experienced and respected political law practitioners in the nation.
Many of their observations about the Citizens United case concern the
details of modern campaign finance and its regulation. They discuss
the likely impact of various forms of regulation on the marketplace in
political ideas. In that sense, the discussion is very much in the spirit of
the Buckley argument.
the question
of the FECA’s
constitutionality
A separate strand of the debate puts aside the practical effect
of campaign finance regulation and contends that an answer to its
constitutionality can be found in bedrock First Amendment principles.
Professor Lillian BeVier’s essay is a thoughtful example. As she notes,
to that of its
judges and scholars have long identified the prevention of government
uneven treatment
interference with political speech as the core of the First Amendment.
of incumbents
and challengers.
Proponents of regulating campaign finance argue that spending is not
speech. Professor BeVier and others would respond that any effective
form of speech is preceded by an expenditure, if only the purchase
of paper and pen, and a clever draftsman can therefore turn any ban
on speech into a ban on spending money to engage in that speech.
The rejoinder, according to Professor Deborah Hellman, who will join our faculty next year, is
that spending money is a vital component of many constitutional rights but we do not allow that
argument to void regulation generally. Proponents also draw a sharp line between individual and
corporate speech. Opponents note that much, if not most, political speech today comes from
organizations rather than individuals. Courts have usually looked askance at paternalistic arguments
that voters need to be shielded against particular types of speech. The point has particular relevance
for us as it stems directly from Jefferson’s argument that “errors of opinion may be tolerated where
reason is left free to combat it.”
I hope you enjoy reading about the campaign finance debate and the role our alumni and faculty
have played in it. n
2 UVA Lawyer / spring 2012
20
Departments
1
6
Arthur Rackham
From the Dean
Campaign Finance Debate
© Lebrecht Authors/Lebrecht Music and Arts/Corbis/AP Im
The University of Virginia School of Law | Spring 2012
24
35
38
Law School News
Features
40
Faculty News
& Briefs
49
Class Notes
70
In Memoriam
20
Citizens United:
First Amendment Protection or Pandora’s Box?
24
A Conversation with Bob Bauer ’76 and Trevor Potter ’82
71
33
In Print
Citizens United Vindicates Fundamental First Amendment Principles
79
35
Opinion
Lower the Licensing
Barriers So We May Serve
Is Citizens United an “historic” decision?
Some Answers from a Constitutional Perspective
38
Cover: On the eve of the second
anniversary of the Citizens United
ruling, activists with the Other 98%
and Backbone Campaign put
giant light projections on the
Supreme Court building.
Spring 2012 Vol. 36, No. 1 The Supreme Court’s Shift Away from Protecting Voters
to Promoting Free Expression
Editor Cullen Couch Associate Editor Denise Forster Contributing Writer Rebecca Barns Design Roseberries Photography Tom Cogill, warren craghead, brian mcNeill,
Eric Williamson, Mary Wood
Letter to the Editor
Editor’s Note: The following letter from Tim Heaphy ’91, Neil MacBride ’92, Joyce Vance ’85, and
Brendan Johnson ’01, U.S. Attorneys in Virginia, Alabama, and South Dakota, respectively, is in response to
UVA Lawyer’s coverage of criminal justice in the United States.
A
s United States Attorneys, we work to ensure that justice is done in federal courts
across the country. The work of our offices gives us a unique and informed
perspective on the effectiveness of the criminal justice system. We are concerned that alumni and
other readers of the Fall 2011 edition of UVA Lawyer will get the mistaken impression that the
system is afflicted with repeated instances of professional misconduct and unfair, one-sided rules of
procedure, all of which lead to unjust outcomes. We write with a contrary perspective—one much
more optimistic about the state of criminal justice in this country. The cover of the Fall 2011 magazine sets the tone for its contents, as it bears the title Criminal
“Justice.” The quotation marks surrounding the second word reflect the magazine’s central thesis—
the suggestion that true criminal justice in America does not exist. The four articles included in
the magazine’s contents reinforce the notion that our nation’s system of investigating crimes and
adjudicating criminal charges is fundamentally unjust.
The first article, “Criminal ‘Justice’: Demanding Certainty in an Uncertain World” is a survey
of various issues of current practice, from police procedures to eyewitness identification to plea
bargaining to rates of incarceration. The article consistently suggests that the system is populated
by unethical lawyers who produce unjust outcomes. It includes statements as baldly cynical as
“[a]nyone who spends a day in criminal court has to wonder how the system can work at all,” which
reflects the article’s central thesis of system dysfunction.
The next several articles in the magazine do little to counteract the suggestion that the system
is broken. We read about the unfortunate experience of a junior public defender who recounts
instances of lengthy pretrial delays and unduly harsh sentences imposed upon her clients. We also
read about the work of the Law School’s Innocence Project, which recently won a state habeas case in
the Eastern District of Virginia based on allegations of prosecutorial misconduct. The issue concludes
with an essay by a criminal law professor who suggests that police have unfettered discretion to abuse
people of color given the Supreme Court’s tolerance of detention for minor traffic offenses.
We don’t question the validity of the specific concerns expressed in these articles. As our boss
Attorney General Eric H. Holder, Jr. has observed, “[w]hile I believe this [criminal justice] system
is worthy of praise, I also recognize that it is not without problems.” Mistakes do occur within
the system, and its practices and rules are worthy of continual reexamination. Given the liberty
interests at stake in criminal cases, we must and do strive to improve its procedures and ensure its
effectiveness. Law schools have a role to play in that process of critical reevaluation.
Our objection to the magazine is the absence from its pages of any meaningful counterpoint
to the consistent skepticism about the current system. While the issue does include quotes from
several current prosecutors, their perspectives are barely audible in the cacophony of harsh criticism
of the criminal justice process. The single article about prosecutors is a short human interest piece
about the Law School’s Prosecution Clinic, which highlights the role that clinic experience played in
the job searches of the featured young alumni. There is no thoughtful narrative of the practice of a
4 UVA Lawyer / spring 2012
prosecutor to contrast the perspective of the young public defender, and there is no discussion of the
issues facing prosecutors and their important role in the pursuit of justice.
Where is the perspective of the victim? There is literally no reference at all to crime victims and
the voice they deserve within the process. What about the judges, who would be far more qualified
to opine on the current state of criminal justice in America? And what of agents and investigators,
who work to gather facts and bring forth actual evidence, rather than opinion and conjecture?
We hear none of those voices, which severely undercuts the reliability of what purports to be a
thoughtful survey of criminal justice in America.
Our view from the trenches of the criminal justice system is much more optimistic than that
presented by the magazine. The process by which we investigate criminal offenses and adjudicate
criminal charges in this country is far from
broken. It is characterized by procedural rules
that are scrupulously fair and consistently
enforced. It is perpetuated by a range of
hard-working, ethical professionals on all
sides who work hard every day to ensure that
justice is achieved in ways large and small. The
outcomes of the system are overwhelmingly
accurate and reliable. Indeed, we agree with
Professor Stuntz’s conclusion in his final book that prosecution strategies of the last few decades have
led to steeply declining urban crime rates, in turn making vulnerable communities safer.
To be sure, we need to learn from the aberrational mistakes and endeavor to make the system
more fair, humane, and just. We believe that process unfolds every day in American courtrooms, and
we will do our part to ensure that the evolutionary arc of criminal justice continues to tilt toward the
good. This obligation has been reinforced by Attorney General Holder, who has indicated that “we,
as stewards of our nation’s criminal justice system … all share a responsibility to ensure the fairness
and integrity of that system.”
The Fall 2011 magazine is dedicated to the memory of Professor William Stuntz, who died too
young earlier this year. Several of us were fortunate enough to learn from Professor Stuntz during
his tenure at the Law School. While Professor Stuntz was known for being a skeptic, his conclusions
were extremely deliberate and thoughtful. Indeed, all of us learned that every legal problem has two
sides, and that we are most effective as advocates when we understand and respect the arguments
of our adversaries. The magazine devoted to Professor Stuntz shrinks from his tradition of careful
deliberation and fails to provide any meaningful contrary perspective from that reflected in its
sarcastic title.
We hope alumni, faculty, students and others who care about criminal justice in this country
will consider our contrary views and skepticism of the perspective expressed in the UVA Lawyer
magazine. We look forward to working with the Law School and others interested in a serious
and productive discussion of system effectiveness. Like the Attorney General, we share the goal of
perfecting the criminal process and ensuring that it provides real justice for all.
Our view from the trenches of the criminal
justice system is much more optimistic than that
presented by the magazine.
Timothy J. Heaphy ’91
United States Attorney
Western District of Virginia
Brendan V. Johnson ’01
United States Attorney
District of South Dakota Neil H. MacBride ’92
United States Attorney
Eastern District of Virginia Joyce White Vance ’85
United States Attorney
Northern District of Alabama
UVA Lawyer / spring 2012 5
Law School News
Rare books | Brian McNeill
Library Hunts
for Books
Handpicked by
Thomas Jefferson
L
aw School librarians are working to
recreate a collection of rare law
books­—some dating back to the 1500s—
that Thomas Jefferson personally selected
for the university’s library.
The titles of the law books are listed in
the “Catalogue of the Library of the Univer-
“If you look at the titles he picked,
you see the classicist, lawyer,
philosopher, politician, and
historian that he was. These
books helped shape the man.”
sity of Virginia,” a list compiled in 1828 by
UVA’s second librarian, William Wertenbaker, who relied on a manuscript prepared
by Jefferson.
Taylor Fitchett, director of the Arthur J.
Morris Law Library, said the collection
of the books listed in the 1828 catalogue
provides scholars with valuable insight into
the mind of the university’s founder, whose
269th birthday was celebrated April 13.
“If you look at the titles he picked,
you see the classicist, lawyer, philosopher,
politician, and historian that he was,” she
said. “These books helped shape the man.
6 UVA Lawyer / spring 2012
Those doing research on Jefferson ask
to see the particular edition of a work
that he owned or that the writers of
the Constitution would have used, to
further their understanding of him and
his colleagues.”
To date, the library has acquired
317 of the books and is continuing to
hunt down the remaining 58.
“Some of these books are hard to find
or very expensive, but little by little, over a
period of 40 years, we have been trying to
acquire these books,” said Cecilia Brown,
a special collections archivist. “Jefferson
wanted to have everything from [books]
explaining canon law to English law to
maritime law and English reports. We try
to get the edition that he specified. When
something comes onto the market, we try
to buy it.”
The 1828 catalogue collection is stored
in the law library’s rare book room, located
on the third floor, just past a display case
filled with various Law students’ artifacts
from the 1800s and another containing U.S.
Supreme Court Chief Justice Earl Warren’s
custom-made 16-gauge shotgun.
Many of the law books originally in the
university’s library were lost in the 1895 fire
that consumed the Rotunda. “We would
love to have all the books that Jefferson
said we should have,” Brown said. “Many of
them were here until the fire.”
The law library’s most recent acquisition for the collection, the 1739 text “Jus
parliamentarium; or, The ancient power,
jurisdiction, rights and liberties, of the most
high court of Parliament, revived and asserted,” was purchased in October for $750 from
Meyer Boswell Books, a San Francisco-based
dealer specializing in antiquarian law books.
In addition to buying the books when
they come onto the market, the law library
also picked up a significant portion of its 1828
catalogue collection from a transfer from the
university’s Alderman Library in 1996.
Law School News
…
Also, Baltimore lawyer, E. Nicholson
Gault Jr. ’71, donated a number of the
books, including 11 titles in 2011. Gault,
who has been collecting early English law
books since his first year in law school, said
Professor Hardy Dillard’s common law class
sparked his fascination.
“It is an affliction that I have,” he said,
laughing. “To call it a hobby would be a
disservice. I spend literally thousands of
hours a year looking, researching, chasing,
tracing, and so on these books.” Gault said
the library’s effort to collect all of the books
in the 1828 catalogue could allow scholars
to one day “back-to-front, inside-out, glue
it all together and understand how Mr. Jefferson’s mind worked.”
“It’s a way of understanding the way his
brain operated, what he appreciated, what
he put stock in, in the writings of another
person,” he said. “Smarter people than I
could size up these works, their content,
their authors, their philosophy—everything
about them, everything they have to say—
and reconstruct the legal thought process
of Mr. Jefferson. Why did he single these
books out?”
Gault added that he would love to know
why Jefferson chose one specific volume
of a law book and not another. “A number
of these books, he specifies very early imprints, from the 1500s for example, where
there are literally scores of editions through
the 1600s and the 1700s,” he said. “In a lot
of these cases, he could have included much
more recent editions. In many others, he
could have had older editions. Why the
mish-mash? Why the potpourri of earlier
and later imprints?”
Jefferson might have seen something
notable in that specific edition, Gault said,
or maybe one particular volume over another was simply what was handy when
Jefferson drew up his list.
Gault praised the law library’s project,
likening it in a certain sense to the antiquities collections of J.P. Morgan or Andrew
Carnegie. “What a gift they’ve made to the
modern world by collecting what they collected when they did,” he said. n
judicial discretion | Eric Williamson
Judge Known
for Federal
Sentencing
Reforms Says
More Progress
Needed
U
.S. Judge Raymond A. Jackson ’73,
whose district court decision in a
drug case led to a U.S. Supreme Court ruling
clarifying how judges may impose sentences
for crimes involving crack cocaine, said that
statutory federal sentencing requirements
remain a problem for judges.
Jackson, who was appointed by President
Clinton to the U.S. District Court for the Eastern District of Virginia in 1993, explained the
Kimbrough decision, which affirmed district
judges’ right to exercise discretion in drug
cases beyond federal sentencing guidelines, as
well as some of the case history that preceded
that 2007 Supreme Court ruling.
He said anti-crime legislation that Congress passed in the 1980s robbed judges
of judicial discretion. Improvements only
came recently, Jackson said. In Kimbrough
and other decisions in the past decade, he
said, “the Supreme Court was attempting
to give federal judges the authority they
need to do one of the primary things they’re
responsible for doing, and that’s to sentence
people fairly. But the problem is this is still a
work in progress.”
But consecutive sentences and mandatory minimums continue to be a problem,
he said. “They circumscribe the court’s
authority in more cases than you will ever
suspect,” he said.
The Comprehensive Crime Control Act
of 1984 (and its related Sentencing Reform
Act) abolished the federal parole system,
established the U.S. Sentencing Commission and moved to increase consistency in
federal sentences. Two years later, the AntiDrug Abuse Act of 1986 enacted mandatory
minimum sentences for drug offenses.
“The purpose of mandatory minimums
is to control the judge,” Jackson said.
U.S. District Court Judge Raymond A. Jackson ’73
UVA Lawyer / spring 2012 7
Law School News
…
“It transfers discretion from a seasoned
judge to a prosecutor who has no, or little,
experience.” The Supreme Court’s 2005
decision in United States v. Booker was the
first major decision to restore some power
back to judges, Jackson said. In the original
sentencing, “the judge found he [Booker,
the defendant,] distributed 566 more grams
of cocaine than the jury found,” he said.
As a result, Booker received a dramatically increased sentence, which he appealed
on Sixth Amendment grounds that he
should only be punished based on what the
jury found beyond a reasonable doubt.
Booker won, and the Supreme Court
decision made the federal sentencing guidelines advisory, not mandatory, while still
instructing federal appeals courts to review
criminal sentences for “reasonableness.”
Jackson said federal prosecutors feared
district judges would “go nuts” following
the decision, a fear that turned out to be unfounded. “Every time you impose a sentence,
you’re always looking over your shoulder to
see that you’ve imposed a sentence that’s not
going to get reversed,” he said.
In Jackson’s own lower-court decision
for Kimbrough, which went to the Supreme
Court two years after Booker, the Supreme
Court confirmed specifically that district
judges have the right to impose sentences
outside of the federal sentencing guidelines
for cases related to the possession, distribution, and manufacture of crack cocaine.
Jackson had originally imposed the
minimum federal sentence of 15 years,
which was still more than what Kimbrough
would have received if he had only involved
himself with powder cocaine, rather than
both crack and powder cocaine.
The 4th U.S. Circuit Court of Appeals
vacated the sentence on the grounds that
it was unreasonable because it fell outside
of the guidelines range, but the Supreme
Court upheld the sentence.
“Kimbrough was facing, under the advisory guidelines, 19 to 22 years,” Jackson said.
“The same sentence, had you considered it
was powder cocaine, would have been 8 to
8.8 years, and so even with the mandatory
8 UVA Lawyer / spring 2012
minimum, we already had what I believed
was sufficient.”
Jackson said when a clerk brought him
the Supreme Court’s opinion in Kimbrough,
he “went old school.” “I went into my
chambers, I whipped out a cassette tape,
and I threw it in the boom box I had—and
I played a bar of the ‘Hallelujah’ chorus! n
Founder’s Day Medal | Brian McNeill
George Mitchell,
2012 Jefferson
Medal Recipient,
Praises Rule of
Law as Key to Free
Society
G
eorge J. Mitchell, a former U.S. Senate
majority leader and peace negotiator
in Northern Ireland and the Middle East,
received the 2012 Thomas Jefferson Foundation Medal in Law on April 13 as part of
the University of Virginia’s Founder’s Day
activities.
Mitchell, who spoke at the Law School,
described his views on the Middle East
peace process, the hyper-partisanship and
lack of collegiality among politicians in
Washington, and the importance of law and
lawyers in the United States.
“Lawyers play a special role in American
society in the preservation of liberty and
the protection of individual rights,” he said.
“So the education you’re receiving here is
important for you individually, but also for
the future of our society.”
Speaking on Jefferson’s 269th birthday,
Mitchell praised the efforts of the nation’s
founders in crafting the Declaration of Independence and the Bill of Rights, and for
achieving independence in self-governance.
“From the very beginning, our ideals
distinguished our nation,” he said. “And
they instantly, and to this day, continue to
appeal to people around the world. Our
economic strength and our military power,
which have now become overwhelming,
are necessary and important. But our ideals are, and always have been, the primary
basis of American influence in the world.
No American should ever forget that the
United States was a great nation long before
it was a great military or economic power.”
American ideals, he said, include sovereignty of the people; primacy of individual
liberty; opportunity for every member of
society; and an independent judiciary enforcing the rule of law, applied to all citizens
and the government.
“There is, of course, a never-ending tension between the preservation of order and
the rights of the individual,” he said. “That
is especially true in these dangerous times
when it can be difficult to find the right
balance between collective security and
individual liberty.”
Losing sight of ideals and the rule of law,
he said, led to the rise of Nazi Germany. “In
my lifetime, a great, civilized and cultured
nation descended suddenly into the abyss
of lawlessness, a lawlessness that resulted in
the Holocaust and the deaths of millions of
innocent people,” he said. An entire nation
was degraded, a whole continent stained.
So, in the final analysis in every society, including ours, it’s the rule of law that stands
against that fateful descent.”
Mitchell challenged the students in the
audience to work toward making the 21st
century an era in which the nation’s ideals
and the rule of law are upheld. “The 21st
century may be like so many in history—a
time of war, of injustice, of oppression, of
famine,” he said. “But it could also be a time
when the dominant power uses its strength
carefully and commits its people and its
prestige to a great and noble vision—a
world largely at peace, with the rule of law
and freedom, education, opportunity, and
hopefully prosperity, extending to more and
more people in our country and throughout
the world.”
A Democrat, Mitchell entered the Senate
in 1980 and served as Senate majority leader
from 1989 until 1995. He led the 1990 reauthorization of the Clean Air Act, wrote the
first national oil spill prevention and cleanup law, led the Senate in its passage of the
first child care bill, and was principal author
of the low-income housing tax credit program. He played a key role in the passage of
the Americans with Disabilities Act, as well
as the ratification of the North American
Free Trade Agreement and creation of the
World Trade Organization.
Prior to his appointment to the U.S.
Senate in 1980, Mitchell served as a federal
judge in Maine. That position, he said, was
the only job he ever held that had any actual
power. “The majority leader of the Senate
only has the opportunity to go around and
beg people to do things that they ought
to be doing without being asked,” he said.
“When I chaired the peace talks in Northern Ireland and the Middle East, I had no
power to tell anybody to do anything. But
when I was a federal judge, I had the au-
“There is, of course, a never-ending
tension between the
preservation of order and the
rights of the individual.”
thority to order people to do things, and I’m
pleased to tell you that, in every instance,
they followed it to the letter. I really loved
that part of the job.”
His favorite part of being a judge, he
said, was the opportunity to conduct naturalization ceremonies, at which he would
administer to immigrants the oath of allegiance to the United States and make them
American citizens. Mitchell’s mother was an
immigrant from Lebanon and his father was
the orphan son of Irish immigrants.
Courtesy UVA News Services/Dan Addison
Law School News
…
George Mitchell, recipient of the 2012 Thomas Jefferson Foundation Medal in Law, was
U.S. Senate majority leader from 1989 until 1995.
“It was always a very emotional ceremony for me,” he said. “[My
parents] had no education. My
mother couldn’t read or write. She
worked nights in a textile mill. My
father was a janitor. But because
of their efforts, and, more importantly, because of the openness of
American society, I, their son, was
able to get the education they never had and
was able to become the majority leader of
the United States Senate.”
After each ceremony, Mitchell said he
would always speak with the new citizens
and their families, asking them about their
fears, their hopes, their dreams and how
they came to America. “Most of us are
Americans by an accident of birth,” he said
“Every one of them is an American by an
act of free will, often at great risk and cost to
themselves and their families.”
Mitchell told the story of how he once
asked a young Asian man who had just
become a naturalized American citizen why
he came to the United States. “He replied
in slow and very halting English,” Mitchell
said. “’I came,’ he said, ‘because in America
everybody has a chance.’” This man, he said,
who could barely speak English, was able to
summarize the true meaning of the United
States in a single sentence.
“America is freedom and opportunity,”
he said. “Although we now face very serious
challenges at home and abroad, I’m confident that we’ll meet those challenges, as
we have before, and emerge a stronger and
better nation.” Despite its imperfections, he
said, the United States is the “most free, the
most open and the most just society in all
of history.”
Mitchell, who served as President
Barack Obama’s Special Envoy for Middle
UVA Lawyer / spring 2012 9
Law School News
…
East Peace from 2009 to 2011, expressed
optimism that an agreement will be eventually reached between the Israelis and
Palestinians. “While we were not successful
in getting a peace agreement in the Middle
East in the latest effort, I do believe that
it’s very much in the self-interest of both
Israelis and Palestinians to conclude their
conflict with an agreement and I think that
self-interest will be recognized and will
prevail, in large part because I think the
alternative is more painful.”
Mitchell was also asked if he believes
members of Congress will ever be able to
put aside their partisanship and start working together. “I don’t think the situation
will be improved any time soon, except if
some major scandal or unexpected problem
occurs that arouses the interest and commitment of the American people,” he said.
Contributing to the problem, he added,
is a media environment that pays attention to those politicians who are the most
ideological and negative. “Watch the news,
who gets on? The most extreme statement.
The most ideological statement. The most
negative statement,” he said. “If you’re not
extreme, you’re not negative, then it’s like a
tree falling in a forest with no one around.
No one hears anything.”
Sponsored jointly by the university and
the Thomas Jefferson Foundation, the nonprofit organization that owns and operates
Monticello, the annual Thomas Jefferson
Foundation awards are conferred during
the University’s Founder’s Day celebrations,
held around Jefferson’s birthday. In addition
to receiving a medal struck for the occasion,
recipients attend ceremonies in the Rotunda
and a dinner at Monticello.
Mitchell received his award at a ceremony alongside fellow recipients Rafael
Moneo (architecture) and Jessica Tuchman
Mathews (citizen leadership). n
10 UVA Lawyer / spring 2012
Close decisions | Mary Wood
Supreme Court
Recognizes Key
Role of Plea
Bargaining in
Criminal Justice
System
T
wo close decisions in the U.S. Supreme
Court this spring could shake up how
plea bargains work and secure more rights
for defendants, said Law Professor Darryl
Brown ’90.
The Court said in 5-to-4 rulings Lafler
v. Cooper and Missouri v. Frye that criminal
defendants have a constitutional right to
effective lawyers during the plea-bargaining
process. Justice Anthony M. Kennedy
wrote for the majority that that the Sixth
Amendment right to counsel extends to
plea negotiations because plea bargaining
has become so pervasive in the modern
criminal justice system.
Professor Darryl Brown ’90
Brown, the O.M. Vicars Professor of Law
and an expert in criminal law and criminal
procedure, explains the two decisions and
how they may change how plea bargaining
works: The Supreme Court held in Cooper,
in effect, that when a lawyer’s bad advice
leads a defendant to turn down a prosecutor’s plea bargain offer that he would have
taken if his lawyer had given him competent
advice, then the defendant is entitled to that
plea bargain. And in Frye, it said the same
thing is true if a defendant’s lawyer fails to
tell him about a prosecutor’s plea bargain
offer at all, so that he never has a chance to
accept it.
What’s significant about Frye and Cooper
is that the Court recognized for the first
time that defendants have a legitimate interest in plea bargain offers that they would
have accepted—and that courts would have
approved. Previously, all the rules have been
concerned with questions such as whether
the defendant entered his guilty plea voluntarily, or whether the parties both lived
up to the promises each made in the plea
agreement.
In recognizing defendants’ interest in
plea bargain offers, the Court is in a sense
acknowledging reality for the first time: The
reality is that defendants get very different
Law School News
…
convictions and sentences depending on
whether they plead guilty or go to trial,
independent of the facts of the case or their
moral guilt or anything else.
The dissenters in these cases, and the
prosecutors who argued the other side, said
that defendants who are convicted in a fair
trial have nothing to complain about: They
were guilty of the crime, the trial was fair,
the long sentence they got was completely
lawful. But the fact is that a plea bargain is
always going to result in a lesser sentence
than a sentence following a “guilty” verdict
at trial. There are in a sense two prices for
every crime—the plea price and the trial
price. Plea bargains are not just an alternative process to trials for reaching the same
correct outcome—convicting the guilty.
They are alternative practices that always
produce alternate outcomes.
Cooper and Frye state very clearly that
defendants do not have a constitutional
right to a plea bargain—prosecutors do
not have to make plea offers if they don’t
want to. Cooper and Frye say simply that,
when a prosecutor makes a plea offer, the
Constitution protects defendants from
losing the chance to accept that offer
because his lawyer failed to tell him about it,
and gave him incompetent advice that misled him to turn it down on the false hope of
winning at trial.
Still, the decisions could be significant.
About 95 percent of all criminal convictions
are the result of guilty pleas rather than trials, so prosecutors offer bargains in nearly
every case. So, as the majority in Cooper
says, plea bargains are not an exception to
the criminal justice system; they are the
system. Cooper and Frye take another step
in defining the minimal things that defense
lawyers have to do for the modern-day
criminal process to be fair. Criminal process
these days is all about pleas. After Cooper
and Frye, bad lawyers shouldn’t be the cause
of defendants who fail to plead guilty on
terms that are determined by prosecutors
and judges but still very much in their selfinterest. n
DeMaurice Smith ’89, executive director of the NFL Players Association, spoke at a
sports law symposium at the Law School on March 16.
Sports Law | Brian McNeill
NFL Players
Association Chief
Calls for Better
Treatment of
Athletes
A
thletes should be “good sports” in how
they act toward each other, but good
sportsmanship should also oblige professional sports organizations to treat their
athletes well, National Football League Players Association head DeMaurice Smith ’89
said at the Law School.
“Athlete to athlete, there’s an obligation
to be a good sport,” he said. “But I also believe there’s an obligation from, indeed, the
sport to the athlete.”
Smith—who led NFL players in 2011
through a 134-day lockout by the league,
culminating in a 10-year collective bargaining agreement—was the keynote speaker at a
Law School symposium, “The State of Sports
Law,” sponsored by the Virginia Sports and
Entertainment Law Journal and the Virginia
Sports Law Society.
Smith, who was elected the NFL Players Association executive director in 2009,
laid out a number of troubling signs that he
said indicate a sport is on the wrong track.
First among these, he said, is when athletes
are treated as athletes first, and human beings second. “If we start off as viewing the
participants in that sport as something less
UVA Lawyer / spring 2012 11
Law School News
…
Smith pointed to how NFL players have
been treated medically by people who are
not doctors. Plus, there are few requirements guaranteeing that players undergo
important medical testing on an ongoing
basis. “While we have moved tremendously
since 2009 on the issue [of] concussions,
when we are in a world where there are
people who are not medically qualified
[making] decisions about whether a player
can play, I know we have not arrived at that
world where we know that we are engaged
and perpetuating a good sport.”
An organization’s level of sportsmanship can be judged in part by how it treats
its athletes after they are no longer playing,
he said. “If we believe or if we accept any sport, any university, any
college, or any governing body
“When doctors prescribed Vicodin
like the NCAA, that believes it
like you would hand out Chiclets to a
no longer has an obligation to
that person after they are done
child, no one thought or wanted to
competing in that sport, I know
put themselves in a position to say
that we have not arrived or have
accepted an obligation of being a
that’s wrong.”
good sport,” he said.
Until last year’s collective bargaining agreement, NFL players
were not eligible for post-career health care
Prior to the agreement, he said, it was
until after they had played for three years,
commonly thought that a “football exhe said. Heading into negotiations last year,
ception” existed for the players’ medical
the league wanted to add two regular season
treatment, meaning that the players would
games to the current 16-game format. Most
be treated in such a way that would best help
discussion about the idea focused on what
the team, rather than what was best for each
the fans thought, he said, and ignored the
player. “So when doctors prescribed Vicodin
physical toll that the current schedule is
like you would hand out Chiclets to a child,
already taking on the players’ bodies.
no one thought or wanted to put themselves
“At every turn, the only discussion
in a position to say that’s wrong,” he said.
amongst the media, the only discussion
Another sign that a sport is on the path
amongst the owners, even the only discusto becoming “no longer a good sport” is
sion amongst the fans was, what? Well, you
when athletes are treated as disposable,
know, fans don’t like two preseason games,”
Smith said. “The one time that [my temper]
he said. “To me, the problem of an 18-game
is guaranteed to get kicked off is when they
schedule, and worse yet, the paradigm of
refer to our men as gladiators,” he said. “I
that discussion was that no one pulled back
will do my best to twist your head off like
to ask the question—except us—what’s
a top when you refer to our players as
happening to our men under a 16-game
gladiators. Because they are not. What is a
schedule as it is?”
gladiator? A reference to old Rome where
Smith said his talk was not motivated
people fought to the death for the amuseby the NFL’s ongoing “bounty” scandal, in
ment of people who weren’t fighting.”
than people, then we have failed in our obligation of ensuring that we are engaged in
being a good sport,” he said.
As an example, Smith noted that last year’s
collective bargaining agreement required all
NFL medical professionals to conform to
professional and ethical standards. “Certainly that was a good day for those players
who will all become former players,” he said.
“But if it is 2011 and that is the first time in
history that it has been codified that [NFL]
medical doctors have to obligate themselves
to the same federal, state, local, professional,
and ethical standards as every other doctor
in the country? I think we can all agree that
was about 100 years too late.”
12 UVA Lawyer / spring 2012
which players were allegedly rewarded for
injuring other players. Rather, he said, his
talk was intended to raise questions about
how professional athletes and sports in general are perceived.
“I don’t pretend to have any of the answers, but I do believe that our job, or our
role, obligates us to push people to ask the
right questions,” he said.
Also at the symposium, a panel
discussed the realignment of NCAA conferences. The panel featured Christian
Dennie, an attorney with Barlow Garsek
& Simon; Mark Levinstein, a partner in
Williams & Connolly; Michael McCann
’02, professor of law and director of the
Sports Law Institute, Vermont Law School;
Bernadette McGlade, commissioner, Atlantic 10 Conference; and was moderated by J.
Gordon Hylton ’77, a professor Marquette
University Law School. n Faculty Q&A | Brian McNeill
Schauer on
Whether There
Are (Enough)
Political Risks to
Breaking the Law
W
hether a policy is legal appears
to play only a minor role in the
decision-making process of the American
public officials who implement it, Law
Professor Frederick Schauer writes in a new
paper.
In the article, “The Political Risk (If
Any) of Breaking the Law,” Schauer suggests
that a number of recent examples show how
constituents, the media, and others reward
public officials for what they consider good
policy decisions and sanction them for poor
Law School News
…
Professor Frederick Schauer
ones. The policy’s legality, he argues, makes
little difference.
In your new paper, you consider whether
politicians will obey the law just because
it is the law. What did you find?
I have not yet conducted an extensive and
systematic study, but numerous examples
suggest the possibility that obeying the
law­—following the law just because it is
the law, and not because you think the
law happens to be right as a matter of substance—may be less important to officials
and to their constituents than a great deal of
popular “rule of law” rhetoric suggests.
In that context, what are some real-world
examples that show this pattern of
behavior?
The best recent example comes from the
bombing of Libya [in 2011]. Because the
War Powers Resolution places limits on the
ability of the president to involve the United
States in “hostilities” without congressional
approval, the administration, against the
legal advice of even its own Office
of Legal Counsel, claimed that no
hostilities were involved because
no American soldiers were in danger. This claim was widely mocked
as legally implausible by commentators and political figures across
the political spectrum, and got
some press attention for a day or
two. But in the end a bad regime
was overthrown and there were
no American casualties, and the
fact that American involvement
was unlawful under American law
turned out not to matter.
Things were similar with respect to the disregard by the Bush
administration of the constraints
of the Foreign Intelligence Surveillance Act, or with respect to
the mayors of San Francisco and
New Paltz, N.Y., several years ago
in performing same-sex marriages
in contravention of the law at the time.
People who agree with the substance of
an act do not care about its legality, and people who disagree note its illegality only to
underscore their substantive disagreement.
Are you really just describing Machiavellian politics?
I don’t think it’s about power for power’s
sake. It is about policy and political substance. But the illegality of a substantive
policy seems to matter less than many have
thought.
Do you think it is necessarily a bad
thing that public officials are not always
constrained by laws? Why?
Obviously there are times when civil disobedience is justified. But if all that matters
is the rightness or wrongness of a policy in
all cases, then we are losing some sense of
why law, as law, is important.
really matter for all citizens, or whether
we should do more to make them matter?
Do you think any reforms are needed?
Political figures react to the preferences
of their constituents, so official behavior
may say something about the inability or
unwillingness of the population to worry
about law for its own sake. And this suggests that sanctions and coercion may be
more important to law than some people
think, because when formal sanctions are
not available there may be less obedience to
law than is often assumed.
Why did you decide to look at this issue?
I’ve been thinking and writing about
this from a bunch of different directions for
a few years now, perhaps largely as a reaction to a number of public events, such as
the ones mentioned above.
How does this paper fit into your larger
body of research?
With respect to constitutional law, it is
noteworthy that the Constitution, which is
supposed to constrain officials, may not do
so when there are no penalties, as there are
not, typically, with legislators, prosecutors,
judges, and presidents. So this research
agenda is part of my larger concern with
constitutionalism and the conditions for its
effectiveness. And in thinking and writing
about jurisprudence and the nature of law,
I have been writing about the importance
to law of coercion, which, surprisingly, goes
against the grain of much contemporary
jurisprudential thought.
What will you be working on next?
A book titled The Force of Law, [that] will
explore exactly these issues, especially the
coercion part. n
In looking at this issue, do you draw any
larger conclusions about whether laws
UVA Lawyer / spring 2012 13
Law School News
…
FIND OTHER
FACULTY
Q&As
ONLINE
www.law.virginia.edu/html/
news/faculty_qa_archive
Alumni Q&A | Richard Crawford ‘74
Brad Handler on
eBay, Founding
a Travel Empire,
and Luck
George Yin on the State of
President Obama’s Tax Reform
Proposals
Interview with Brad Handler ’95, former
associate general counsel of eBay, co-founder
of Exclusive Resorts, LLC, and co-founder
and chairman of Inspirato, LLC. Handler
established the Law and Technology
Initiative Fund in 2000 to support research,
scholarship, and entrepreneurial activity at
the Law School.
George Cohen on the Financial
Meltdown and the ‘Forgotten’
Law of Contracts
How did you decide to go to UVA Law
and what attracted you to it?
Kerry Abrams examines Legal
Implications of Marriage Fraud
Thomas Nachbar on a New
Shift U.S. Detention Policy
Kenneth Abraham on How
BP Oil Spill Revealed Insurance
Gaps
Richard Schragger on Debt
Crises Facing States, Localities
Thomas Hafemeister
addresses Omission of Medical
Malpractice Reform in Health
Care Law
I was working at Apple Computer in Reston, Va., but I’d always wanted to go to law
school. I applied to Stanford, Yale, Chicago,
and Penn. I told the lawyer for Apple in the
Reston office that I hoped I could trust his
discretion but that I was thinking of leaving Apple and going to law school. He said,
“Oh, that’s great. Where’re you thinking
of going?” I gave him the list and he said,
“Well, what about Virginia?” He had gone
to Virginia himself. I said, “Virginia has a
law school?” And he said, “Absolutely. One
of the best in the country,” and I said, “Good
to know.” So I applied to Virginia and was
accepted. Because I’m paying for it myself,
once it became clear that I could go in-state,
pay a much lower rate, and get as good—or
better—an education, it was a very easy
decision.
What did you like about your Law School
experience and what did you not like
about it?
I had a great time at Virginia, and a very
different experience from my friends who
14 UVA Lawyer / spring 2012
went to Yale and Harvard and even Stanford. None of them talk about the great
time they had at law school. My friends who
went to Chicago had a miserable time. They
all talked about “surviving” law school. I enjoyed law school even more than I enjoyed
undergrad at Penn. Law school was much
more fun, much more social, and much
more interactive than college.
I liked the respect that the Law School
gives to the students in the single-sanction
[honor] system and having the ability to
take your exams whenever you want and
to set your own schedule. They know that
you’re going to do the right thing when you
take the exam and that for the people who
don’t, they’re going to get booted and not
get a second chance. I like them pushing
down [to the students] that responsibility
and personal accountability.
I also liked the approachability of the
professors, which is something that my
friends at other schools didn’t have. I liked
the fact that I could go and ask professors
questions and not have to worry about being
scheduled in between their five consulting
gigs and their appearance on Court TV. They
would make time for you and if you didn’t
understand, they would help you with it.
What I didn’t particularly like was that
technology was not something integrated
into the curriculum or embraced by the
faculty. I worked on the Newton project
at Apple. Newton was iPad Version 0. I
brought my Newton with me and I would
take notes on it. Nobody else took notes on
a computer then. I ended up as the managing editor of the Law Review. I ripped out its
computers because they were 10 years old
and put in brand-new computers and a network. We even had Internet access. In fact, I
remember downloading Mosaic 1.0 via FTP
from the Law Review office. The Law School
eventually integrated technology into the
curriculum and I think now has really embraced the technology.
I was frustrated that there weren’t more
classes on business. I took a corporations
class, a tax class, and a corporate governance class. But I wanted to learn about
Law School News
…
examples in the course. Now, as a consumer
of legal services at eBay, Exclusive Resorts,
and now at Inspirato, I get really irritated if
the law firm sends me someone, or if it’s my
own internal resource, who doesn’t know
the underlying business. I’m not going to
pay for them to learn that.
It’s pretty obvious you were heading in
the direction of technology law, but how
did you end up at Cooley?
Because Apple doesn’t hire lawyers out
of law school, I knew I needed to go to a
firm. Cooley, Fenwick, and Wilson Sonsini were among the California firms that
interviewed at UVA. Because I was on Law
Review, Cooley interviewed me. I had offers
from other firms in northern California but
ended up at Cooley for a variety of reasons.
Brad Handler ’95
the business world from a business side. It wasn’t easy to take
Darden classes, so nobody did
it. But I already had the Wharton background, so tax was a lot
easier for me than those without
an accounting background. I was
also very interested in intellectual
property, and eventually practiced
primarily in that area. Other than
Lillian BeVier, there was no one
who taught intellectual property. I
took all of Lillian’s classes.
“My hope was that we could create
a system for graduates who are
counsel at a company or associates
coming into a law firm and out
meeting with clients, that they
have a basic understanding of how
business works …”
Does the Law & Business Program
address those issues?
Yes, absolutely. I’ve been very happy since
we started the Law & Technology Program
Initiative in 2000. My hope was that we
could create a system for graduates who
are counsel at a company or associates
coming into a law firm and out meeting
with clients, that they have a basic understanding of how business works, what a
term sheet looks like and what it means,
what the difference is between a pre- and
a post-money valuation, and how a stock
option plan works.
The thing that really brought this to
the forefront for me was an antitrust class I
took. We were talking about the Hart-ScottRodino Act and its different documents. I
raised my hand and asked, “What kind of
documents?” And the professor said, “Here’s
the definition, here’s what the statute says.”
“Okay, I get what the statute says, but what
does that mean in a company’s existence,
what does it look like?” Nobody knew. Well,
it became important to know a year later
when I was an associate at Cooley, I was doing a merger between two companies, and
they got a Hart-Scott-Rodino review from
the FTC and I had to go pull documents.
It would’ve really helped if we had better
How did you go from Cooley to eBay?
Again, incredibly lucky. I was a second-year
associate at Cooley. Every other Friday I had
to be there at 8 am for an associates meeting. On one of those Fridays my private line
rang at 7:45 in the morning. I picked up the
phone, because the only person who has the
number is my wife. This woman says, “Hi,
are you Brad Handler?” She was a recruiter
for eBay. One of the other associates had
given her a list of everybody’s private number. She said, “They want to hire someone to
run their business development group and
they want that person to be a lawyer. Would
you be interested?”
I met with her and the eBay team, then
only about 20 people. Afterwards, they
said, “We want to make you a job offer.” I
said “Great. What is it?” They said “We
want you to run business development.” I
said “Thank you for the offer, but you don’t
need me to run business development. You
actually need a lawyer in house. You guys
are going to get crushed if you don’t have a
lawyer in house.” They said, “No, we don’t
need a lawyer. We have Heller Ehrman.” I
said, “That’s not going to cut it. You actually
need an in-house lawyer.” They said “No, we
UVA Lawyer / spring 2012 15
Law School News
…
don’t.” I said “Well, it was nice to meet you.
Thank you and good luck.” And we went
our separate ways.
A few months later, I get a call from
the same recruiter for eBay. She said
“Would you be interested in a job if you
were both the attorney and [ran] business
development?” I said, “As long as I had
the opportunity to make sure from a legal
standpoint everything was good, I could do
that. I’d need some resources on the business development side.” She told me that I
could hire for that and that I would have a
budget to keep Heller to do some of the stuff
I couldn’t otherwise do since legal wouldn’t
be full time. So I said, “Okay, great. So, when
do I start?”
“You can’t control whether or not
you will succeed because too many
other variables get in the way. But
you can control whether or not you
put yourself in a position where you
have a chance to succeed.”
I started in October 1997 and one of the
first things I learned was that the recruiter
had tried to recruit a number of other and
more senior associates at Cooley. When that
didn’t work she had gone to Wilson Sonsini.
She found a guy who was going to take the
job, but then his wife got pregnant and eBay
didn’t have health insurance. He told eBay
he couldn’t take the job. So they called me
back, and that’s how I got to eBay.
On my very first day there, Onsale [a
rival business-to-business auction site]
spammed the database of eBay users to
launch their own person-to-person auction site. So on day two, we had to pursue
legal action against them and as a result, I
never had to worry about splitting my time
between business development and law. I
was always law.
16 UVA Lawyer / spring 2012
How long were you at eBay?
I started in October of ’97 and I left in
December of ’01, and then stayed on as a
consultant for another 18 months to help
them transition.
You obviously worked through the whole
tech bubble. What did you find most
enjoyable in those eight years and what
was your nemesis on the dark side?
What I enjoyed most was that we got to create the law. Now eBay is probably the biggest
private law system in the world using rules
that govern the behavior of hundreds of
millions of people. I wrote that user agreement. I wrote the privacy policy,
which is still a very unique privacy
policy. I created a way of displaying privacy rights that’s visual as
opposed to having to read everything you’re doing. That was a lot
of fun; we didn’t have to worry
about what happened before because there was no “before.”
I also started a government relations group at eBay. Silicon Valley
companies didn’t have government
relations and I felt pretty strongly
that we needed to have a presence
with policymakers on issues regarding the
Internet and tax and liability and all that
kind of stuff, so we had a seat at the table for
things like the CDA and the DMCA.
In six years you had a lifetime of legal
experience. Then you decided to become
an entrepreneur. How did that happen?
I have three daughters. Our 11-year-old was
born in March of 2000. If you look at the
financial press in March of 2000, there was
one big story—the merger between Yahoo!
and eBay, which never happened. I missed a
lot of the first couple of weeks of my daughter Bailyn’s life because of that. So with my
second kid I was going to take six months
off and work half time. Two days before
we’re set to announce that arrangement, the
leadership of eBay says, “We can’t let you go
half time.” I said “I’ve made other commitments. I committed to teach at Virginia. I’m
going to teach at Stanford. I can’t do that.”
EBay was not prepared for me to actually
leave, so I had to consult for a period of
time.
I wasn’t really sure what I was going to
do. My brother and I took our families to
Hawaii on vacation. We stayed in the nicest
suites at the nicest place, and bitterly complained about the accommodations. Then it
hit us—why are we doing this? We can solve
this problem. My dad was an entrepreneur,
and we grew up in an environment of owning your own business. So my brother and
I spent May of 2002 in Maui mapping out
a business to fill a need that my brother
and I had within our own family—how to
vacation. That business became Exclusive
Resorts, where you have collaborative use
of a house with a real kitchen, you send
in a grocery list beforehand and get there
with all the groceries you need stocked in
the fridge. That was the breakthrough idea.
Exclusive Resorts and now Inspirato are the
answers to real problems that we had.
Having been a lawyer and being an
entrepreneur, what did you like and
not like about being a lawyer, what
do you like and not like about being
an entrepreneur, and how would you
distinguish the two?
What I liked about being a lawyer was that
every problem was different. Every company
had different issues. It’s like a little story and
each one is different. I didn’t particularly
like the law firm hierarchy, though Cooley
treats their associates very well. And I didn’t
like the fact that you couldn’t control your
own schedule.
On the entrepreneurial side, I like controlling whether or not you have a chance
to succeed. You can’t control whether or not
you will succeed because too many other
variables get in the way. But you can control
whether or not you put yourself in a position where you have a chance to succeed.
Law School News
…
I can’t think of any aspect of being an
entrepreneur that I don’t like. I don’t necessarily embrace every aspect of it—I don’t
like telling people that they don’t understand the vision and this might not be the
best fit for them, but I don’t hate it, either.
I like mentoring people. I’m a big believer in walk-around management. When I
started at eBay, I was the only lawyer. When
I left, there were 50 people in the department and every day I would walk around
and talk to every single person. How are
you doing? What are you working on?
What can I help you with? I’m doing the
same here at Inspirato. I always hire people
who know more than I do about whatever it
is we’re hiring for. You can learn a lot from
the people you hire. Always hire someone
better and smarter than you. No matter how
smart you are, you can’t know everything
and you certainly can’t know it in context.
We have students in the Law School who
are interested in entrepreneurial law as
well as some of whom think they would
like to be entrepreneurs. Any advice you
would give them?
I think that the best entrepreneurs are those
who’ve been through law school, not business school. Law school teaches students
how to evaluate critically lots of different
options, but they are not great risk-takers by
nature. It’s not what they were taught. But if
we could just teach them to be a little better at taking risks they would make much
better entrepreneurs. That said, law school
OTHER
students or lawyers thinking about
“The folks who start nonprofits and
becoming entrepreneurial need
charities are very entrepreneurial,
to really believe in what they’re
doing. If they don’t, the only
just as entrepreneurial as the
way they’ll succeed is through
guy who starts the next new
pure luck.
For example, I would be a
social network. All successful
terrible entrepreneur for, say, a
entrepreneurs have a passion about
new router. If someone asked me
to go and be a founding partner
what they’re building.”
on a new company that makes
routers, I would say I don’t know
that area and am not passionate
about it. But the companies that
pregnant. That’s how it happened for me.
I’ve started, Exclusive Resorts and Inspirato,
You can’t plan that. So the other thing I
are all about traveling with your family. I
always tell entrepreneurs is to put yourself
understand that.
in a position to get lucky, so that you can
It’s not enough just to want to be an
take advantage of it if it happens. And never
entrepreneur. The question is, what do you
believe that you did it based just on your
want to do? Whatever that is, is it someown skill, because it was as much luck and
thing you can make entrepreneurial? The
happenstance as anything else.
folks who start nonprofits and charities are
There were 10 other person-to-person
very entrepreneurial, just as entrepreneurial
auction companies that started before eBay.
as the guy who starts the next new social
Any one of them could have won the space,
network. All successful entrepreneurs have
but it happened to be eBay that did it. So the
a passion about what they’re building. The
other advice I give to entrepreneurs is when
people who are not successful entrepreit fails (and 90 percent of entrepreneurial
neurs are those who do it just because they
ventures do fail) it doesn’t mean you are a
think it’s the easiest way to get rich. One or
failure. A lot of entrepreneurs take it very
two of them might succeed, but as a group
personally when their project fails. They inthey are not going to be successful.
ternalize it and think that whatever they did
Look at my story. It’s lucky that I went
didn’t work. It may be that they made bad
to Virginia. It’s luckier that I got on the Law
decisions, but there is really no way to know,
Review, so it’s lucky that I got to Cooley. It’s
so you can’t blame yourself for the failure of
unbelievably lucky that I got a call from
the business. You can only blame yourself if
eBay and then it’s even luckier that the guy
you failed to put your all into it. n
who’s supposed to take the job gets his wife
Alumni Q&As ONLINE
http://www.law.virginia.edu/html/news/alumni_qa_archive.htm
Burcak Unsal LL.M. ’03 Leads Google’s Legal Team in Turkey
Jeffrey Kerr ’87 Fights on Behalf of Animal Rights as PETA General Counsel
Mary Rouvelas ’96 Uses Her J.D. to Take on ‘The Big C’
Mary Rouvelas ’96 is senior counsel for
the American Cancer Society Cancer
Action Network.
UVA Lawyer / spring 2012 17
Law School News
…
Find Multimedia News Offerings at
www.law.virginia.edu/news
A sample of videos and podcast offerings:
Lambda Deputy Legal Director
Hayley Gorenberg, deputy legal director
for Lambda Legal and lead counsel in
the civil rights organization’s New Jersey
marriage equality case, spoke to students
about her career in public service. Lambda
is the oldest and largest national legal
organization committed to achieving full
recognition of the civil rights of lesbians,
gay men, bisexuals, transgender people,
and people with HIV.
The Rhetoric of the 2012 Presidential
Primary
Oral advocacy Professor Robert Sayler
spoke about the public speaking blunders
politicians have made during the 2012
presidential primary season and how they
relate to Aristotle’s tools of ethos, pathos,
and logos.
Health Care Industry Exec Advises
Students to Avoid Silos
As law students enter their legal careers,
they should strive to understand, respect
and work with other “tribes,” health
care industry executive Earl M. “Duke”
Collier ’73 said.
Free Speech and Guilty Minds
Law Professor Leslie Kendrick ’06 explores
why a speaker’s state of mind matters in
First Amendment jurisprudence.
18 UVA Lawyer / spring 2012
Syria and the Arab League
With daily reports of attacks on civilians
and internal strife, Syria represents
the next phase in the Arab Spring. The
plight of the nation, as a crossroads of
international politics, has implications
for the greater Middle East and the globe.
Professor William B. Quandt, of the UVA
Department of Politics, and Professor John
Norton Moore discuss the current state of
upheaval against the Assad regime.
The Criminal Procedure Revolution
Law Professor Risa Goluboff, an expert on
the history of civil rights, discusses crime
control methods in the 1960s versus today
in a lecture titled “The Criminal Procedure
Revolution.”
Legislative Advocacy
Claire Guthrie Gastañaga ’74, the new
executive director of the American Civil
Liberties Union of Virginia, spoke about
her legislative advocacy work at the General
Assembly on behalf of Equality Virginia, the
Virginia Coalition of Latino Organizations,
and the Virginia Sexual and Domestic
Violence Action Alliance, among others.
Private Military Contractors and the
Fight for Accountability for Human
Rights Abuses
A panel discussion on the role and
responsibility of military contractors in
conflicts, including an examination of
specific cases brought against contractors
for human rights violations. Panelists
included Katherine Gallagher, senior staff
attorney at the Center for Constitutional
Rights, and Gabor Rona, the international
legal director of Human Rights First. Law
Professor Deena Hurwitz moderated.
Affirmative Action Revisited: Fisher v.
University of Texas
The Federalist Society presented a debate
between Ward Connerly, the founder
and president of the American Civil
Rights Institute, and Law Professor Kim
Forde-Mazrui on the legality of affirmative
action in higher education. Professor Alex
Johnson moderated the debate.
The President’s Contraception Mandate:
A Basic Necessity or a Violation of
Religious Liberty?
Professors Douglas Laycock, Micah
Schwartzman ’05, and Lois Shepherd
discussed the legal implications of the
President’s decision to require coverage
of contraception in all health insurance.
Professor Margaret Foster Riley
moderated the discussion.
LGBT Rights Are Human Rights: Securing
the Next Frontier in Human Rights
Mark Bromley ’95, chair of the Council for
Global Equality, spoke about advancing an
American foreign policy inclusive of sexual
orientation and gender identity.
Law School News
…
Retired Judge Discusses His Life and
Practice of Law
James Benton Jr. ’70, a former judge on
the Virginia Court of Appeals, spoke to
students about his life, his influences, and
his practice of law, particularly the litigation of civil rights and civil liberties cases.
Benton grew up in a segregated Virginia.
Religion and Public Reasons: Making
Laws and Evaluating Candidates
Kent Greenawalt, a Columbia University
law professor, delivered the Meador
Lecture on Law and Religion at the Law
School.
The Rule of Law
Federal appeals judge J. Harvie
Wilkinson III ’72 delivered the inaugural
Lillian BeVier Lecture on the Rule of Law.
Criminals Are New Priority for U.S.
Immigration Enforcement
The U.S. Immigration and Customs
Enforcement agency is “redefining”
its approach to enforcing the nation’s
immigration laws by targeting its efforts at
specific groups of illegal immigrants—most
notably those with a criminal record, ICE
Director John Morton ’94 said.
The Final Days of Martin Luther King, Jr.
Michael Cody ’61 and civil rights leader
and UVA history professor Julian Bond
shared their personal stories about Martin
Luther King, Jr.
Applied Problem Solving
Law Professor George Geis and McKinsey
& Co. management consultant John
Esterhay ’06 introduce students to “Applied
Problem Solving,” a January term short
course that offers a structured approach to
problem solving.
Greater Disclosure Would Boost
Political Speech
While conventional wisdom holds that
mandatory disclosure of political activities
chills political speech, Law Professor
Michael Gilbert argues that greater
disclosure could actually lead to an
increase in political speech.
A Debate on Citizens United
A Debate on Citizens United, featuring
Brad Smith, former FEC chairman, and
Joseph Birkenstock, former chief counsel
of the Democratic National Committee,
and moderated by Law Professor John
Harrison.
Pro Bono and Professionalism:
Keys to a Winning Career
Kim Keenan ’87, general counsel of the
NAACP, spoke as part of a conference on
increasing diversity in the legal profession.
The Value of Diversity on the Bench
Virginia Supreme Court Justice S. Bernard
Goodwyn ’86 spoke at the Law School as
part of a conference on increasing diversity
in the legal profession.
Justice? Unlikely!
Justice Cleo Powell ’82, the first AfricanAmerican woman to serve on Virginia’s
Supreme Court, spoke as part of a
conference on increasing diversity in the
legal profession.
What Every Lawyer Should Know About
Client Relationships
Goldman Sachs managing director
and Law School adjunct professor
Jim Donovan is a trusted advisor to
some of the world’s most sophisticated
organizations. He shared his insights into
the effective management and cultivation
of client relationships.
UVA Lawyer / spring 2012 19
On the eve of the second anniversary of the Citizens United ruling, activists with the Other 98% and
Backbone Campaign put giant light projections on the Supreme Court building.
20 UVA Lawyer / spring 2012
Citizens United
First Amendment Protection
or Pandora’s Box?
n Cullen Couch
S
ince the earliest days of the Republic, money has given voice to
politics, but it wasn’t until the Buckley decision in 1976 that the
Supreme Court acknowledged that limiting spending limits speech itself,
a fact that everyone this side of a voting booth already knew. Politics has
always been about raising money to get votes, whether through bribery,
providing “services” to politicians, or building powerful national campaigns. Andrew Jackson’s patronage system in the 1830s, political boss
Mark Hanna’s corporate assessments in the 1890s, and Richard Nixon’s
Committee to Reelect the President (with its ironic acronym, CREEP) all
shared the same goal: raising money. Lots of it.
With a restive public suspicious of corporate wealth, the 59th
Congress in 1907 began its first halting attempts to prevent the corrupt influence of money. It passed the Tillman Act, prohibiting direct
contributions to federal campaigns by corporate and banking interests.
In 1910 Congress passed the Federal Corrupt Practices Act (FCPA)
imposing campaign contribution limits and disclosure requirements. In
1925 Congress broadened contribution limits and increased disclosure
requirements. In 1947, the Taft-Hartley Act extended the corporate ban
on contributions to unions. But without effective enforcement mechanisms and defanged by loopholes, all these efforts (and others) were
largely symbolic.
Finally, in 1971, Congress took another stab at campaign finance
reform by repealing FCPA and passing the Federal Election Campaign
Act (FECA) designed to increase disclosure of contributions to federal
UVA Lawyer / spring 2012 21
campaigns. FECA also established public funding for presidential
primaries and elections.
Then came Watergate. The scandal’s lurid tale of bundled
cash and petty burglary caused a public uproar. In 1974 Congress
responded by adding amendments to FECA that created campaign
contribution limits and a new Federal Election Commission with
authority to enforce the Act. Almost three decades later, reacting to
the oversized roles of “soft money” and “issue ads” in campaigns,
Congress passed the Bipartisan Campaign Finance Reform Act
of 2002 (McCain-Feingold) that banned “soft money” to political parties, prohibited certain advertising within 60 days of an
election that mentioned a candidate for federal office by name, and
restricted the use of “sham issues ads” by political parties, corporations, and unions.
According to prize-winning legal historian Ted White, a
David and Mary Harrison Distinguished Professor, “the primary
constitutional rationale for Citizens United goes back to a line of
decisions beginning with Buckley v. Valeo (1976), in which the
Court determined that campaign contributions and expenditures
were a category of highly protected political speech and signaled
that it was becoming increasingly skeptical of rationales for
restricting them.” [see page 35] Starting with Buckley, the Court has
tread a fine line between permitted regulation and constitutionally
protected speech: *
• Buckley v. Valeo (1976, upheld the constitutionality
of individual contribution limits, but not the limits on
independent expenditures, 7-1),
• Austin v. Michigan Chamber of Commerce (1989, upheld a
prohibition on independent corporate expenditures, 6-3),
• McConnell v. Federal Election Commission (2003, upholding
McCain-Feingold, 5-4),
• Federal Election Commission v. Wisconsin Right to Life (2007,
striking down as applied a McCain-Feingold regulation on
political advertisements, 5-4)
Notice the trend? The majority supporting legislation regulating corporate speech has been slowly draining away. In Citizens
United, it finally went dry. A new 5-4 majority (in fact, the same
justices who decided Wisconsin Right to Life) gave full-throated
First Amendment protection to corporate and union “independent
expenditures” on behalf of political candidates.
Swatting away the anti-corruption rationale at the heart of their
earlier jurisprudence, Justice Kennedy, writing for the majority,
*Here’s a tip for understanding campaign finance law: keep clear the distinction between
contributions to a campaign and independent expenditures on behalf of a campaign.
Contributions have always been subject to statutory limits because of the real possibility
of and public interest in preventing quid pro quo corruption. In contrast, independent
expenditures have enjoyed broader First Amendment protection, especially since
Citizens United, because the anti-corruption rationale does not apply.
22 UVA Lawyer / spring 2012
overruled Austin and parts of McConnell and declared, “This
Court now concludes that independent expenditures, including
those made by corporations, do not give rise to corruption or the
appearance of corruption. That speakers may have influence over
or access to elected officials does not mean that those officials are
corrupt. And the appearance of influence or access will not cause
the public to lose faith in this democracy.”
In a stinging dissent, Justice Stevens pointedly disagreed with
Kennedy. “The majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences
does not accord with the theory or reality of politics. It certainly
does not accord with the record Congress developed in passing
BCRA [McCain-Feingold], a record that stands as a remarkable
testament to the energy and ingenuity with which corporations,
unions, lobbyists, and politicians may go about scratching each
other’s backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices.”
While Citizens United leaves intact certain disclosure requirements and limits on campaign contributions (where quid pro quo
corruption is a clear threat), it allows corporations and unions
independently to spend unlimited amounts from corporate or
union treasuries to support or attack candidates for federal office.
A few months after Citizens United, the D.C. Circuit Court
of Appeals, in Speechnow.Org, ruled that contribution limits to
independent expenditure groups were also unconstitutional, setting
up what came to be known as Super PACs. Whereas the PACs
originally permitted by FECA limited individual contributions,
the new Super PACs can accept unlimited contributions from
individuals and corporations, and spend as much as they want on
“uncoordinated” political advocacy.
What has actually changed? The Court concluded that there
was no logical basis for distinguishing “corporate” from “individual” independent expenditures since, by the Court’s definition,
neither kind can cause corruption (which, in turn, gave rise to the
generally inaccurate claim that the Court gave corporations the
same constitutional rights as individuals). Extending the Court’s
reasoning, the D.C. Circuit concluded that since individuals can
give advocacy groups unlimited amounts, so can corporations.
And since those advocacy groups themselves are non-profit corporations, they can spend unlimited amounts promoting their views.
No one can say if the Court anticipated the de facto coordination between Super PACs and their candidates that occurred in this
year’s Republican presidential primaries. The leading Republican
candidate did not deny it, and President Obama, with an eye toward
the general election, has not condemned it. But even if the Court
did foresee the role of Super PACs, it is unclear whether it would
have mattered.
Nor do the disclosure requirements that the Court upheld have
much bite. The FEC remains deadlocked; the three Republicans on
the six-member panel oppose enforcement. And individual donors
REUTERS/Jonathan Ernst
Election Commission and general counsel
of the McCain presidential campaign,
now heads Caplin & Drysdale’s political
law practice. He says, “There were five
justices who wanted to make this decision
and they were going to turn this case
into the one to do it. They had been four
in McConnell and gained a vote with
the retirement of Justice O’Connor and
the arrival of Justice Alito. One of the
distressing things was their rush to this
decision. There were many things in the
case that they didn’t understand, weren’t
briefed on, and didn’t have time to ask
questions about. Those are coming back
Police arrest demonstrators after they tore down a barricade and took to the steps of the U.S. Supreme
Court building, on the anniversary of the Citizens United decision, in Washington, January 20, 2012.
to bite us now.”
“I thought it was badly misguided,”
adds Bob Bauer ’76, former White House
Counsel and now general counsel of the Obama campaign. “As
can remain anonymous if they simply funnel their contribuconstitutional decision-making goes, it’s more aggressive than it
tions to a Super PAC through a 501(c)(4). Even if donors are
needed to be, and ultimately what we are left with isn’t satisfactory.”
disclosed, it often occurs after the election when it doesn’t really
No national campaigns have been waged since the Court
matter anymore.
decided Citizens United, so it is hard to predict the nature and
Supporters of Citizens United claim vindication after long
extent of its actual effect on an election, its historical importance in
arguing that campaign finance regulation is, on its face, an unconstithe Court’s jurisprudence, or whether the “unfettered discourse” so
tutional violation of free speech imposed by incumbents interested
treasured by the Court and made possible by a new flood of money
only in protecting their seats. They demanded a clear, uncomplibecomes an unbearable distraction, further reinforcing public
cated, bright line defending political speech, and they got it.
cynicism about the political process.
“I believe that the First Amendment guarantees freedom to
From a purely partisan perspective, most Republicans support
speak about politics and about candidates for office,” says Lillian
the decision. Most Democrats don’t. That’s not surprising given
BeVier, a First Amendment scholar and retired David and Mary
their different views on government regulation. But it remains to
Harrison Distinguished Professor of Law. “The Amendment stands
be seen whether Citizens United will favor or disadvantage either
as a substantial though not impenetrable barrier to legislation
side. If nothing else, the enormous individual contributions to
that limits political speech. Free political speech is valuable both
Super PACs in the Republican primaries have kept candidates
because freedom is good in itself and because permitting incumgoing long after they would have had to bow out before Citizens
bent legislators to regulate political speech—by regulating what can
United. That alone has changed the game.
be said and who can pay for speech about candidates—carries a
To place Citizens United in context, we asked White to discuss
genuine risk of shielding incumbent office-holders from the efforts
its historical importance to Supreme Court jurisprudence. We
of challengers to unseat them.”
also asked Potter and Bauer to talk about the Court’s possible
James Stern ’09, former clerk to Justice Kennedy and now at
response to the coordination issue that emerged in the Republican
the Law School as a research assistant professor and Olin Searle
primaries, as well as to drill down into the decision’s political and
Smith Fellow in Law, says the clarity of a straightforward First
practical implications. Finally, we invited Bevier, long a critic
Amendment analysis detracts from the more nuanced arguments
of campaign finance regulations, to argue why Citizens United
for regulation. “It’s fairly easy to articulate the principle that a
vindicates fundamental First Amendment principles.
democratic government shouldn’t be trying to re-engineer the
Money—who has it, who doesn’t, and whether government
market for political speech,” he says. “I think opponents have a
should even care—has become a national irritant. That won’t end
harder time because there’s no clear sense of where the lines should
with Citizens United, and perhaps that’s a good thing. There are,
be drawn.”
after all, worse things than money, which is exactly the point of
Critics call Citizens United an ideological assault on the public’s
the debate. n
right to prevent political corruption and maintain the integrity
of elections. Trevor Potter ’82, former chairman of the Federal
UVA Lawyer / spring 2012 23
In my view, there were five
justices who wanted to
make this decision and they
were going to turn this case
into the one to do it.
Trevor Potter ’82
24 UVA Lawyer / spring 2012
A Conversation with
n Cullen Couch
UVA Lawyer first profiled Bob Bauer ’76 and Trevor Potter ’82 in
a Spring ’09 story about their experiences as general counsel for the
Obama and McCain presidential campaigns, respectively. Today, both
remain heavily involved in the national political scene, Bauer again
I think they wanted
to take a blunderbuss
approach and that’s
exactly what they did.
as general counsel of the president’s re-election campaign, and Potter
as head of Caplin & Drysdale’s political law practice and the founding
president and general counsel of the Campaign Legal Center, a
Washington, D.C. based nonprofit focused on campaign finance issues
in the courts and before the Federal Election Commission.
With the Citizens United decision bringing election law back
into the news, we joined them in Bauer’s office at Perkins Coie in
Washington to discuss the decision. The following is the lightly-edited
transcript of that conversation.
Bob Bauer ’76
UVA Lawyer / spring 2012 25
What is your overall impression of Citizens United?
Trevor Potter: It’s a great case for law students. It is Supreme
Court civil procedure at its oddest in some ways. Both Bob
and I could easily spend an hour describing why the Court
shouldn’t have reached this issue, that there were other ways to
deal with it, how the majority overturned traditional notions
of stare decisis, and procedurally how they got to this series of
special briefings and arguments.
In my view, there were five justices who wanted to make
this decision and they were going to turn this case into the
one to do it. They had been four in McConnell and gained a
vote with the retirement of Justice O’Connor and the arrival
of Justice Alito. One of the distressing things was their rush to
this decision. There were many things in the case that they didn’t
understand, weren’t briefed on, and didn’t have time to ask questions about. Those are coming back to bite us now.
What actually is an “uncoordinated expenditure”? The Court
in Buckley says it’s something that, by definition, is “wholly
independent” of a candidate or a party committee. In Buckley,
there was no history of trying to figure out what’s coordinated and
uncoordinated. But by Citizens United a 30 year history of regulatory attempts to define coordination existed. If the majority had
focused on that record and the FEC rules and statutes, they might
have concluded that the line was not where they thought it was, or
was not easily drawn.
Then there’s the whole section of the opinion that talks about
how, for the first time, corporate spending will now be allowed
but it will be fully disclosed. I know they didn’t have any briefing
on that issue. They didn’t know what the FEC had done to foil
disclosure. They didn’t know about the regulatory battle over
the meaning of the existing disclosure provisions in McCainFeingold. There was no briefing about how their thinking didn’t
apply to some organizations. I think this rush to make a major
decision with very large consequences has backfired.
Bauer: In keeping with our long-standing rivalry, may I disagree
with Trevor? A majority had decided to very sharply trim Buckley,
26 UVA Lawyer / spring 2012
AP Photo/Eric Gay
Bob Bauer: I thought it was badly misguided. Had the Court
been inclined to reach the decision it did, it could have reached
it by a number of other routes. Instead it chose to take on this
long introduction explaining why it can’t avoid confronting the
Austin case, which it then proceeds to overrule. As constitutional
decision-making goes, it’s more aggressive than it needed to be,
and ultimately what we are left with isn’t satisfactory.
Supporter of Republican presidential candidate former Pennsylvania Senator
Rick Santorum, Foster Friess, during a meet and greet campaign stop at Pizza
Ranch, January 2, 2012, in Altoona, Iowa.
particularly the distinction between contributions and expenditures, to as sharp and narrow a set of lines as possible to give the
concept of independence the most robust form of protection.
There is a remarkable set of passages in the opinion itself in
which the Court talks about how complicated the law has become;
that to some degree the constitutional offense of our campaign
finance laws resides in the proliferation of very complicated rules
that are elaborated in pages and pages of FEC pronouncements. I
think they were so bent on delineating clear and simple boundaries
that they wouldn’t have been terribly interested in drawing complex
distinctions between types of coordination that candidates might
engage in with independent spending groups. I think they wanted
to take a blunderbuss approach and that’s exactly what they did.
If they had known of the de facto coordination that has
happened in the Republican primaries, you think they
would have come to that conclusion?
Bauer: That’s my view.
Potter: I’ll use the same caveat as Bob. It’s very hard to know
what’s in the justice’s minds on this stuff. It may be that they’re in a
different place now than they were then, meaning that at the time
they wouldn’t have much cared about it and were seeking bright
lines. It is possible that having seen this play out for the last two
years they may be in a position, some of them at least, of saying
this isn’t what we intended or expected would happen. We didn’t
think that an independent non-coordinated expenditure, which by
their definition had no possibility of corruption, was going to be
a $10 million contribution given to a Gingrich Super PAC run by
the candidate’s closest aides who say they get their instructions on
television from the candidate.
So I think Bob is absolutely right that there is in Citizens
United, and in the Wisconsin Right to Life opinion before it, a very
angry tone at the mention of regulation. To the majority, this is
First Amendment protected speech and you can’t have what they
were told was a cumbersome regulatory structure that is impossible for normal people to navigate. I think that Bob’s right; they
were trying to sweep all that away.
Do you think they believe First Amendment protection
trumps corruption concerns?
is less access-driven than it is ideological in character. Consider
the casino magnate underwriting Gingrich’s PAC and the Texas
businessman underwriting the Santorum PAC. They’re the largest
donors, the ones without whom those PACs would have probably
faded away. These are people who are very vocal about their views
and why they’re supporting these particular candidates, but it is
said that they don’t fit into the classic model of donors providing
money to candidates for the purpose of buying government policy.
So the Court, faced with the suggestion that this is all leading to
corrupt conduct, may say, “Well, it’s really not presenting a risk
of corruption. What we see are individuals with ideological views
supporting candidates who share those views, not corruption
aimed at the heart of government. This looks like the crux of
the kind of ideologically motivated speech that demands First
Amendment protection.” We’ll see how this develops. Others, like
Rick Hasen at UC Irvine, argues that this is very much activity that
threatens corruption.
Potter: And I would differ on a portion of that. For instance, I
think the Gingrich PAC has had a different fundraising model
from some of the other PACs. The Romney PAC, instead of
Bauer: I think they disagreed with some of the arguments made
having one billionaire who says he cares about a foreign policy
by the reform community and by people who support the more
issue, is a more traditional collection of donors, many corporate
robust level of protection. They disagree about what constitutes
interests. They may be giving because they think Romney’s the
the kind of corruption that is sufficient to trump First Amendment
only candidate who understands the economy, or Romney is the
concerns.
only person who understands capitalism. The reality is if you’re
Here’s one question that has arisen and remains highly conin the hedge fund community and you’re giving to Romney, you
tested. Some argue that much high-profile giving in this campaign
may well also hope that he’s going to share your
views on the controversial carried interest tax
In this September 2009, file artist rendering, U.S. Solicitor General Elena Kagan, right, argues
provision. If you and your company have given
her first case before the Supreme Court, Citizens United v. Federal Election Commission in
Washington.
him a million dollars, that may give you some
opportunity to interact with him in the campaign
and down the line. That is what Buckley said was
the appearance of corruption and therefore could
be limited.
AP Photo/Dana Verkouteran
Under Buckley that would have been a
violation?
Potter: This is one of the interesting things to
me about it and we’ll see what Bob thinks. One
of the developments post-Citizens United—and
there’s a whole controversy over whether it’s
really a Citizens United development or whether
it’s in some ways separate in the SpeechNow
case—but one of the things that’s happened
is that we’ve gone from talking about an
independent expenditure, to a contribution to
an independent expenditure committee. If you
UVA Lawyer / spring 2012 27
Or signaling Montana how to proceed? In
effect saying, don’t skirt around Citizens
United in claiming it really didn’t apply?
Bauer: That’s essentially what Justice Ginsburg
REUTERS/Jonathan Ernst
says. Ginsburg essentially suggests that the issue
is really about whether it was rightly or wrongly
decided, not whether Montana is a special case
that they need to distinguish.
A demonstrator dressed as Uncle Sam wears a ‘For Sale’ sign during a protest on the grounds
of the U.S. Capitol, on the anniversary of the Citizens United decision, in Washington,
January 20, 2012.
go back to Watergate and Buckley, the issue was giving money
to Richard Nixon which, of course, meant giving money to his
committee. If we’re now in a position where you’re giving a million
dollars or more and it’s indeed corporate money to what Romney
calls ‘my’ PAC, which is closely associated with his campaign, is
that more like a contribution, or is that more like the independent
expenditure that they were talking about in Buckley and presumably in Citizens United? To me, it’s a little murky and I don’t think
falls squarely within the Citizens United jurisprudence.
If the Montana case [Western Tradition Partnership
v. Bullock, upholding regulations that Citizens United
expressly disallowed] actually gets plenary review,
how do you think the Court will respond?
Bauer: I strongly suspect that if this is litigated the Court will be
briefed on the threat that many see in the current environment,
and they’ll be briefed on the realities that have developed since
Citizens United was decided. If the Court were to take the case, it
would not address an issue at the margins, like what coordination
really is taking place, but more a fundamental question based on
Montana’s claims of whether Citizens United was simply incorrectly
decided as a matter of constitutional law.
In fact, that’s what Ginsburg and Breyer have suggested: That we
got it wrong the first time around, that the Court should return to
and confront the decision that it originally made, either validating
it or reversing it based on the core constitutional question at issue.
Potter: To me, the Ginsburg-Breyer statement* was a surprise.
It’s a very public statement. Are they doing this to nudge their
colleagues? Are they doing it because they’re sure they are going to
reverse anyway and they’re laying down a marker? I have no idea.
28 UVA Lawyer / spring 2012
If they take the case and uphold Citizens
United, what’s next? Will legislatures
try to come at it from another direction
with tighter disclosure requirements,
or some other method that would not
invoke a First Amendment challenge?
Potter: Sure. I think that what we are already seeing across the
board are responses to this, or put more accurately, attempts to
respond. You’re seeing legislatures trying to require the disclosure
that Citizens United praises but isn’t really there. You’re seeing a
discussion about whether legislatures should change their rules
for corporations, because corporations are largely chartered by
states, to prohibit them from spending money in politics or to
require shareholder approval; all those issues. You have the SEC
being asked to change its rules. You have the battles in corporate
stockholder meetings over whether shareholders will be notified
and what will they be notified of and so forth, and that’s just on the
corporate side.
What about the non-profit corporate ideological
groups?
Potter: That’s a whole different world. There I think you’re
talking about disclosure. That’s where you get to this big fight at
the FEC over whether non-profits that engage in electioneering
communications under the McCain-Feingold statute should be
disclosing who gave them the money to do that. You could also
see a whole battle on the definition of coordination for the Super
*“Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant
of the application for stay: Montana’s experience, and experience elsewhere since
this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___
(2010), make it exceedingly difficult to maintain that independent expenditures by
corporations ‘do not give rise to corruption or the appearance of corruption.’ Id.,
at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity
to consider whether, in light of the huge sums currently deployed to buy candidates’
allegiance, Citizens United should continue to hold sway. Because lower courts
are bound to follow this Court’s decisions until they are withdrawn or modified,
however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484
(1989), I vote to grant the stay.”
don’t know, but until now, almost all the money in the Super PACs
has all been spent for Republicans. Maybe that’s because that’s
where the passion was from the mid-term election, but there have
been no Democratic equivalents to the big Republican groups like
American Crossroads in raising that much money in this cycle.
So not surprisingly, Republicans are saying if we’re going to have
reform, let’s have it after we’ve spent all this money.
PACs. Congress can change the statute. The FEC can change the
regulatory language. The courts could, again, tell the FEC they
have to rewrite their regs. So even if Montana comes to nothing, I
think there is a battlefield there in all of these areas.
Why is this a partisan issue? It seems more of a
Pandora’s Box than it is some sort of bright line about
a First Amendment issue. Republicans in this primary
campaign are seeing some of the darker side of what
might happen, aren’t they?
Bob, if Citizens United stays with us what long term effect
will that have on the American political system, and
how might that change your role as GC for the Obama
campaign?
Bauer: Well, it’s partisan in this sense. Trevor is Republican and
John McCain’s a Republican and so there are clearly differences
over this issue within the Republican Party, but by and large the
Republican Party institutionally has long been highly skeptical
of campaign finance regulation. It has viewed it as a questionable
undertaking by the majority to limit the political rights of the
minority, or alternatively, just as a flat-out offense against the First
Amendment.
I remember when I first started practicing, the Republican
National Committee published a newsletter called First Monday,
shortly after the Watergate reform was passed, in which they
were thundering away against campaign finance regulation. This
view was reflected in the statements of the leading Republican
legislators and politicians; it was reflected in the character of a
number of Republican-supported nominees to the Federal Election
Commission, Trevor being a notable exception. So there has always
been this divide between the two parties on what it means for
the government to step in and regulate the flow of political
money.
Bauer: Well, you raise an important question, by the way, which
is the difficulty of taking stock of what all this means while it’s
happening. There will be a lot of data collected about this experience. It’s going to take some time to gather and assess, and so the
judgment about how much sway Super PACs did have on this
election is very hard to make conclusively in the heat of the battle.
For years people have been studying questions like the effect of
PAC contributions and expenditures, or forms of corporate “issue
advertising”—sham issue advertising as it continues to be called—
and there’s going to be new, intensive attention paid to Super PACs.
The experience is so limited, though, that I think some of the
conclusions to be drawn have to be highly tentative.
I do believe that many are prepared to say that it has had a real
effect on the winnowing of primary fields. If a candidate’s camp
Citizens United President David Bossie meets with reporters outside the
Supreme Court in Washington, January 21, 2010.
streak in the Republican party at all levels. Beyond that,
there is maybe a division between Washington Republicans,
meaning the party leadership, and the core of the party out
in the country. One of the interesting things going on out
there is if you look at polling, Tea Party Republicans have a
more populist bent. They may not like government regulation but they don’t like corporations or labor unions buying
elections either, and if you look at some of the polling, they’re
also not happy with Citizens United. The party leadership is
reflecting both the libertarian streak and the practical reality
that Citizens United enabled groups who wanted to spend
money to elect Republicans to do so directly and openly and
with larger sums then they could do before. We’ll see how the
partisan world plays out this year now that it looks as if the
Democratic-leaning Super PACs are going to be more active
and have encouragement from the president and the party
leadership. Will that even the playing field? Will it change it? I
AP Photo/Lauren Victoria Burke
Potter: I think there has always been a strong libertarian
UVA Lawyer / spring 2012 29
has enough substantial support from the Super PACs, then defeat
after defeat in circumstances that would normally dry all their
money does not necessarily end things, if a Super PAC is prepared
to stay the course. Perhaps that is one impact—on the primary
selection process.
Potter: Right. And I think we’re still having trouble grappling
psychologically with the reality that one outside person, or more
or less an outside person, is able to keep an entire presidential
candidacy going. The normal cycle is you win some primaries,
your fundraising spikes, and you have money for the future.
You start losing primaries, you run out of money, no one will
give you more because you’re not winning primaries, and you’re
not winning primaries because you don’t have money, and then
you’re gone. That’s been true for 30 years. If anything, that cycle
accelerated over the last couple of elections and now suddenly
it’s ancient history. If somebody is willing to give the Super PAC
money to keep you going, the primary candidates end up thinking
about things very differently. If you had a budget that required a lot
of money for TV advertising, and now the Super PAC is going to
do it, you don’t have to spend as much.
It also changes the dynamics. Fundraising for Republican
candidates is down this cycle compared to last time; in fact,
shockingly down in January where you would’ve thought it would
be up as people are getting energized. Well, yes, that makes great
sense because all their fundraisers who four years ago would’ve
been working their tails off getting 50 donors in a room to raise
money have left the campaign. They’ve gone to work for the Super
PAC and they’re raising million-dollar contributions with a couple
of phone calls.
Bauer: The difference in our party affiliation probably counts for
something, but Trevor sees the decline in Republican giving as a
migration of fundraisers away from the party to the Super PACs
whereas I see this diminished giving as more a reflection of the
lack of enthusiasm for the Republican field. [Laughter]
Potter: I understand, but the answer to that, Bob, is that many
Republican donors are keeping their powder dry. They’re not
deeply invested in any of these candidates, yet when they know
who the nominee is in June, then we’ll produce our money. The
point I’m making, of course, is that the money goes down if the
pressure is off, and the pressure is off. If instead of raising $2,500
increments and having to work really hard at it, you can make a
couple of phone calls and raise it for the outside group. So instead
of saying they’ve raised less money, why not just combine what
the Super PACs have raised with what the campaigns they support
have raised? Then you’ll have a better sense of what they’re actually
able to raise and spend. It’ll be interesting to see how this election
turns out, but since the story last time was the power of the small
30 UVA Lawyer / spring 2012
donor, particularly in the Obama campaign, suddenly this year
the story so far seems to be the power of the billionaires on the
Republican side.
It seems also that disclosure isn’t preventing anybody
from making huge donations, $5 million, $10 million.
The disclosure isn’t really limiting anything.
Potter: Bob’s right. There’s a distinction here to be made. It’s a
really important one between the issues spenders who are proud
of their issue, like their candidate, and have no stake in this except
to make a point or want someone to win an election. That’s very
different than the sort of lobbyist money that is more likely to be
given through LLC structures where the press is rooting around
because they can’t figure out who this is.
Bauer: As I suggested, when the Court must address the question of the link to corruption in independent spending, it may
hear argument that the most visible of the Super PAC donors are
people who are associated with ideological commitments. And
conservative critics of campaign finance regulation will argue that
ideological speech is ultimately what the Court should be protecting with decisions like Citizens United. Now I happen to believe
that is incorrect, and an oversimplification of what is at issue here.
Yet we will see what results from the Court’s striking impatience
with any sort of a balanced regulatory regime and its belief that
what’s required here for regulatory controls is too complicated, and
therefore in and of itself constitutionally offensive.
Trevor and I have had disagreements about this in the past
about how well the balance between speech and association, on
the one hand, and regulation, on the other, has been struck, but
now a majority on the Court seems close to dismissing the entire
balancing exercise.
Are you struck by the rancorous tone between the
dissent and the majority in these cases?
Bauer: The 5-4s on major issues can become quite testy in the
Court. This area isn’t unusual in that respect. At the same time,
the majority opinion by Roberts and the dissent by Kagan in
the Arizona public financing case was remarkably illuminating,
featured some biting prose, and really showed where the philosophical fault lines lay.
Potter: The other issue that comes to mind is the abortion issue;
Planned Parenthood v. Casey, the O’Connor role, etc., where
Justices who were getting frustrated in not getting their way, or
who think the other side is doing a sleight of hand, can get pretty
direct at saying so. I think some of the
dissents here remind me of the passions in
those cases where, again, you had a 5-4 and
a dispute over the legitimacy of the views of
the other side.
employ this angry tone because they’re
absolutely convinced of their position.
Remember the phrase from the Wisconsin
Right to Life case, in the opinion authored
by the Chief Justice, where Roberts says
of further expansion of the regulatory
regime, “Enough is enough.” This seems to
just about capture the level of impatience
Roberts and others on the Court have
with the statutory regime that they seem
prepared to dismantle in many respects.
AP Photo/The Oklahoman, Steve Sisney
Bauer: To use Trevor’s term, Justices
Protestors at the Federal Courthouse on January 20, 2012, in Oklahoma City. The group gathered to
mark the second anniversary of the Citizens United v. Federal Election Commission decision and hope to
overturn it through a constitutional amendment and campaign finance reform.
Potter: On that point I’m curious. There are two cases that have
come up recently, which the Court has essentially ducked, that
flowed from this whole area of jurisprudence. One is the foreign
national contribution, the Bluman case, and the other is the case
last week where the Court denied cert and thus let stand the First
Circuit decision on disclosure of funders of issue advocacy in an
issue referendum. I wasn’t surprised by that, but I’m wondering
if you think that either of those summary affirmances or refusals
to grant cert indicate that the Court would just as soon not have
campaign finance cases again, given the uproar of Citizens United.
Bauer: Well, that’s probably true although I wasn’t terribly
surprised by their decision in the foreign national case. And
there is certainly not the same majority in the Court for stepping
away from disclosure issues as there is for dismantling the more
substantive issue on speech. So it could be the Justices would like
a break from more high-profile campaign finance cases. It could
also be that the foreign national bans and disclosure requirements
represent two directions that the Court is not prepared to turn
away from.
father of the candidate is the major donor, the principal donor
and fundraiser travels with the candidate and appears on stage, or
another candidate meets with “his” $10 million donor to discuss
policy, and one can go on and on with these examples—but if it
all ends up looking like it’s really giving to another pocket of the
candidate’s garb, haven’t we then obliterated the distinction in
Buckley and turned this into a contribution? Haven’t we created
exactly what the majority says we can regulate, which is potentially
corrupt behavior? And I don’t know where that leads.
Where do the parties’ national committees stand on this?
Potter: Well, their role is to be irrelevant. Their view is we don’t
take sides in primaries. We’re not going to say anything that
helps or hurts a candidate, and they wouldn’t take sides between
Super PACs either. However, that doesn’t mean they’d be silent on
Citizens United. I think the national committee, maybe much more
so than the party at large, has very strong deregulatory, libertarian
views. One of the senior officials on the national committee is
James Bopp who brought the Citizens United case originally.
Bauer: That’s right, but Bopp has tried to bring the parties more
Potter: I agree, but let’s look through the other end of that
telescope. Assuming they basically send the signal that they’re not
going to allow independent speech to be regulated out of existence,
then it seems to me we end up in a position where corruption and
the appearance of corruption does become front and center again.
What you will have is a lot of activity that to the average reader of
the dictionary is coordinated but which, for federal election law
purposes only, is considered constitutionally protected independent
expenditure speech. If that involves what we’re seeing—the
business partner of the campaign manager runs a Super PAC, the
into a deregulated zone. Their great fear is that the power of
third party independent groups has ascended significantly at the
expense of the parties. Bopp has already filed one case, unsuccessfully, in which he tried to carve out for the parties soft money
now prohibited to them so they can engage in activities like issue
advertising. He lost because it just simply couldn’t be squared with
the McConnell case, but my guess is that they’re going to continue
to look for more opportunities to make the case for parties because
we are now seeing a significant imbalance between the parties and
the vast and increasing influence of third party groups.
UVA Lawyer / spring 2012 31
Bauer: One problem, which Justice Scalia has made
much of, is that members on the floor of the Senate have
said things about purpose and motivation. In McConnell,
Scalia pointed to the statements that members of
Congress made about negative advertising run against
them. These were floor statements. On other occasions,
Scalia has found such legislative history to be completely
unpersuasive, but he was quite strongly persuaded by this
particular set of floor statements!
Trevor, how much fun are you having with
Stephen Colbert’s PAC?
Potter: I’m having a blast.
You really are his lawyer?
AP Photo/Alex Brandon
Potter: Yes. It’s the only time I’ve ever had to give a
client advice in front of several million people.
Stephen Colbert, followed by Trevor Potter ‘82 (left), enters the FEC to file a Super
PAC, May 13, 2011.
Is campaign finance regulation about incumbents
protecting themselves to make it harder for
challengers to take them on?
Potter: That’s certainly the opinion of some of the justices. In the
Arizona case, Justice Scalia starts talking about how this is incumbent protection as usual and just another example of incumbents
trying to keep people out. It seemed to me that one of the missed
opportunities in that argument was to point out that this was
passed by a referendum of the voters—I think over the opposition of
incumbents—but this was not incumbent legislation. We heard the
same thing in McCain-Feingold from what was then the minority.
I thought that was a silly argument because I’d been watching the
sausage get made and to me, this was not incumbents protecting
themselves. You might make the argument that the “millionaires”
amendment was, but most of that legislation was a much more
complicated question of how campaigns should be conducted. It
was insurgents versus the leadership. It was Republicans versus
Democrats. It was not the incumbents in the Congress making it
difficult for their challengers.
32 UVA Lawyer / spring 2012
Are you’re giving him advice in the green room
before you go on stage?
Potter: No. And unless I’m supposed to have a particular role, like with the Jon Stewart handoff, he doesn’t
tip his hat about the questions in advance. He wants his
viewers to hear what he can and can’t do with his Super PAC. It’s a
little like taking a campaign finance final exam when you have no
idea what the questions are going to be and the clock is running.
On nationwide television no less. He’s brilliant.
Potter: He is. I think he’s done an amazing job of taking, as we’ve
just had, a complicated hour of discussion about these issues and
distilling it into 4½ minutes where people who are not lawyers say,
‘Oh, I get it.’
The beauty of satire …
Potter: Yes. I keep telling him he’d make a great Supreme Court
advocate because of his ability to take all of this information and
convey it in an engaging and clear way. n
Citizens United Vindicates Fundamental
First Amendment Principles
n Lillian BeVier
M
ainstream critics of Citizens United—of which there
are many and they are fierce—almost uniformly
fail to respond to the most significant aspect of the
case, namely the majority’s rationale and Justice Kennedy’s First
Amendment analysis in particular. This failure is unfortunate
because the case actually vindicates deeply embedded and wellestablished First Amendment principles. It is true that Citizens
United overruled a 20-year old precedent, Austin v. Michigan
Chamber of Commerce, so to claim that Citizens United vindicates
well-established First Amendment principles may seem like a
stretch. But a couple of facts about Austin suggest that it’s not.
First, Austin itself was the first case in which the Supreme Court
had ever sustained a prohibition of independent corporate spending on speech about political candidates. Confronted with such
prohibitions in the past, the Court avoided the First Amendment
issue—to the dismay of the liberal Justices, who chided the Court
for its failure to reach and to vindicate the First Amendment
claim that “reaches the very vitals of our system of government.”
Second, and more telling, is the Government’s brief and oral
argument in Citizens United, which asked the Court to affirm
Austin’s holding but to scrap its rationale. Indeed, by deploying
in Citizens United an entirely different line of reasoning from
that upon which the Austin Court relied, the Government itself
disavowed whatever principle Austin purported to vindicate. The
conclusion is inescapable: in overruling Austin, Citizens United
reaffirmed the deeply-embedded principles that Austin had
repudiated.
Citizens United rests on a secure First Amendment foundation. What bears repeated and unequivocal emphasis is that
the case affirms a particularly valuable species of free speech,
namely the freedom to discuss public issues and to debate the
qualifications of candidates during campaigns for public office.
This freedom is widely acknowledged—except by the case’s
critics—to be at the very core of the First Amendment. If the First
Lillian BeVier
Agreat deal of furor has been expended
over Citizens United ’s affirmation that
corporations have First Amendment rights.
But corporations have always had First
Amendment rights. Indeed, some of our
most significant First Amendment cases have
vindicated corporate rights …
UVA Lawyer / spring 2012 33
Amendment protects anything, it protects freedom to engage
in political speech. And when speech is protected by the First
Amendment, so is spending money to speak.
From what critics have to say, it would be easy to get the
impression that there is something dishonorable in corporations’
participation in debate about candidates, or that the case isn’t
about speech because it’s only about money. But the Court didn’t
protect corporate and union spending on speech about candidates
for office because “money is speech.” It protected it because
political speech about candidates before an election is a core
constitutional value. To prohibit people and organizations from
spending money to engage in such speech is the same—indeed, is
designed to have precisely the same effects—as prohibiting them
from speaking.
A second aspect of Citizens United that bears emphasis is that
it reaffirmed the Court’s long-standing distrust of speech restrictions based on the identity of the speaker or the content of the
communication. As Justice Powell observed regarding the former
kind of restriction: “The inherent worth of … speech in terms of
its capacity for informing the public does not depend upon the
identity of its source, whether corporation, association, union, or
individual.” And as Justice Marshall affirmed regarding restrictions
based on content: “Above all else, the First Amendment means that
government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Critics of corporate
advocacy claim that it will “distort” elections, presumably because
corporate advocacy may persuade citizens to come to different
conclusions than they would if corporations were prevented from
having their say. In other words, critics endorse restrictions not
despite their being based on the identity of the speaker, or the
possibility that their speech will persuade citizens, or the content
of the speech but rather because the restrictions are so based.
That Citizens United will lead to more corporate and union
political speech is a good thing and not a bad one, because robust
debate about candidates is a good thing. Corporations are not the
monolithic evil enterprises that critics make them out to be, nor do
they speak with one voice. Moreover, corporations with the dreaded
“vast amounts of money” in their treasuries are, relatively speaking,
few and far between, as Justice Kennedy’s opinion documented.
Citizens United permits all of them—large and small, for profit and
not-for-profit—to present their views of the facts and their opinions
about candidates. Apparently the case’s critics do not believe that
voters are capable of discerning the wheat of persuasive argument
from the chaff of partisan hot air.
34 UVA Lawyer / spring 2012
A great deal of furor has been expended over Citizens United’s
affirmation that corporations have First Amendment rights. But
corporations have always had First Amendment rights. Indeed,
some of our most significant First Amendment cases have
vindicated corporate rights—and not just the rights of media
corporations, because the amendment’s shield has never been
limited to them. And it would have been a mistake to limit the
Constitution’s protections to natural persons: a principal function
of the Constitution is to constrain arbitrary government power.
The First Amendment prohibits government from suppressing
dissent, the Fourth limits government’s ability unfairly to arrest
and try alleged wrongdoers, and the Fifth stops government from
taking private property for public use without paying compensation. If these amendments did not apply to corporations, the ability
of government to act arbitrarily—to suppress dissent, to unfairly
arrest and try wrongdoers, to seize private property—would be
vastly increased. Tyranny is far more likely to come from the
public sector than from the private and the federal government is
far more powerful than even the largest private corporation. The
corporate form facilitates an endless diversity of productive and
charitable activities, and corporations serve as important centers of
power separate from government. It would surely be misguided to
yield more power to the government by taking from corporations
the protection against government arbitrariness and overreaching
that the Constitution provides. n
Some Answers from a Constitutional Perspective
n G. Edward White, David and Mary Harrison Distinguished Professor of Law
Is Citizens United an “Historic” Decision?
S
… The Court determined
that campaign
contributions and
expenditures were
a category of highly
protected political
speech and signaled
that it was becoming
increasingly skeptical of
rationales for restricting
them …
upreme Court decisions come to be thought of as “historic” for
different reasons, but typically such decisions combine significant
legal, political, and social consequences with rationales that are capable
of being generalized over time (as opposed to rationales that seem
driven by the particular factual or historical context of the case). Some
such decisions end up being deeply entrenched (Marbury v. Madison
being the classic example), others (Dred Scott, Plessy v. Ferguson) end
up being labeled “notorious” and repudiated. Whatever their ultimate
status, “historic” decisions have large consequences (judicial review, the
unconstitutionality of Congress’s abolishing slavery in federal territories,
the effect of the Equal Protection Clause on legally mandated racial
segregation) and rest on interpretations of constitutional provisions
(Article III’s ‘cases and controversies’ provision, the 5th Amendment’s
Due Process Clause, the 14th Amendment’s Equal Protection Clause)
that were designed to apply long past the time the interpretations were
formulated. Using those criteria, one can think of Brown, Griswold,
and the majority decision in Lochner as “’historic,” even if some of the
doctrinal baggage associated with those decisions (‘penumbral rights’ in
Griswold and ‘liberty of contract’ in Lochner) has been abandoned.
Applying these criteria to Citizens United, the decision clearly has
significant short-run and potentially longer-run political consequences,
especially in a presidential election year. The question, however, is
whether the doctrinal basis of the majority opinion in Citizens United is
one designed to transform the constitutional jurisprudence of campaign
finance cases and thus to apply widely over time.
Is Citizens United a legal argument or an ideological statement? Does
it take First Amendment jurisprudence in a new direction?
Part of this question involves something of a detour. I don’t think the
line between legal arguments and ideological statements is a bright
UVA Lawyer / spring 2012 35
Ted White
One might be confident—I am not—in
labeling the majority outcome in Citizens
United “conservative” or “liberal …”
36 UVA Lawyer / spring 2012
one. Since social and political issues are routinely translated into
constitutional arguments in American culture, the Supreme Court
consistently entertains cases raising contested questions in society
at large. Those questions are contested in part because people
approach them from competing ideological perspectives.
So of course the outcome in Citizens United has ideological
ramifications, although I am not sure they are easy to categorize in
conventional ideological labels. Some people believe that allowing wealthy corporate institutions a virtually unlimited ability to
contribute to political campaigns distorts the market for political
speech because distributing campaign messages costs money,
resulting in the views of wealthier speakers allegedly having more
influence. Others believe that the market for political speech works
like other markets, with the impact of the speech being determined
more by consumers than producers of its content. One might be
confident—I am not—in labeling the majority outcome in Citizens
United “conservative” or “liberal” (that would seem to depend on
a baseline for such terms as applied to free speech cases, and in my
view that baseline tends to shift regularly over time).
But surely there is more to the Citizens United decision than its
outcome, which gets me to the question about First Amendment
jurisprudence. Although Citizens United overruled the Court’s
1990 decision in Austin v. Michigan Chamber of Commerce, which
allowed a state to prohibit corporations from using their corporate
treasury funds to support or oppose candidates for political office,
the primary constitutional rationale for Citizens United goes back
to a line of decisions beginning with Buckley v. Valeo (1976), in
which the Court determined that campaign contributions and
expenditures were a category of highly protected political speech
and signaled that it was becoming increasingly skeptical of rationales for restricting them; in particular, the rationale of “equalizing
the market” for speech about politics by imposing limits on
expenditures had been disapproved by a majority of the Court. The
only state interest in restricting the amounts expended for political
campaigns given weight by Court majorities in the last decade has
been that of eliminating the reality or appearance of corruption.
Once shifting majorities in the recent Court reached a consensus that the First Amendment does not permit a restriction on
the campaign speech of some individuals to enhance the speech
of others, it was necessary to find some link between particular
restrictions and the anti-corruption rationale. The problem with
applying that rationale to corporate speakers is that it rests on an
assumption that there is a meaningful difference between a candidate’s being supported by wealthy individuals and being supported
by corporations. Since many wealthy individuals and corporations
have expended money on the campaigns of both of the major
candidates in visible political elections in the last decade, one may
assume that their contributions are a “bid for influence” with those
candidates without assuming that there is something sinister in
those bids for influence when they are made by corporations as
opposed to individuals. So Citizens United, rather than being a
novel doctrinal innovation, might be seen as the culmination of
doctrinal developments in the Court’s constitutional jurisprudence
of campaign finance since the 1970s.
Will election law scholars and political strategists decades hence
see Citizens United as a turning point in American political
history, or just another case that fine-tuned how the country
manages its elections?
The short-term practical effect of Citizens United has been
perceived to be possibly more significant than any of the Court’s
campaign finance decisions since Buckley v. Valeo. This is because
eliminating restrictions on corporate as well as individual spending
in elections has freed up candidates to create the “SuperPACs” that
can amass large amounts of money for campaigns without having
to attend to previous rules limiting campaign expenditures. That
effect of Citizens United has clearly been characterized by some
as distorting, anti-egalitarian, and having a tendency to support
special interests in political campaigns at the expense of the interest of the individual voter.
Here is where perceptions of the political consequences of the
decision appear to run squarely up against its jurisprudential basis.
The majority in Citizens United is saying, in effect, “The greater
influence of some speakers in the market cannot be a reason for
treating those speakers differently from other speakers [unless that
influence is connected to the reality or appearance of corruption].”
That suggests that any efforts to privilege some speakers in political
campaigns, even if those efforts are speech-enhancing (such as
public funding designed to support less wealthy candidates), run
afoul of the First Amendment. If that reading of the majority
opinion in Citizens United is accurate, the decision would appear
to be based on a constitutional principle of campaign finance
jurisprudence designed to have lasting effect.
There would thus seem to be a qualitative difference between
Citizens United and the Court’s previous campaign finance
decisions since Buckley v. Valeo. Alongside Citizens United, those
cases look like a judicial response to piecemeal efforts on the
part of Congress to restrict campaign finance contributions or
expenditures, resulting in various judicial formulas interpreting the
First Amendment to preclude some efforts and permit others. It is
as if in Citizens United the majority said “enough—any regulation
that privileges some speakers in political campaigns at the expense
of other speakers, whoever those speakers are, is unconstitutional.”
Of course it’s clear the Court didn’t mean that literally: bribery
laws remain in effect after Citizens United, even if bribery is surely
a form of “speech.” But it’s also clear that the majority wanted to
categorically eliminate the “equalizing the market for campaign
speech” rationale from its campaign finance jurisprudence.
E
ven if the above understanding of Citizens United is accurate, it may nonetheless be premature to label the decision
“historic,” for two reasons.
First, the Court’s First Amendment jurisprudence has never
been absolutist, despite the views of some individual justices.
First Amendment cases involve a weighing of state interests
in restricting speech, and even when the speech is in a highly
protected category, sometimes the government can demonstrate
a compelling interest in restricting it. So categorical propositions
in First Amendment jurisprudence have typically not had a long
shelf-life (consider the Court’s twentieth-century “wall of separation” formulation in establishment clause cases, which has been
repeatedly breached in twenty-first century decisions to permit
various types of state support for religious schools).
Second, the political valence of efforts to prevent “unfairness”
in the distribution of political campaign messages remains high.
It is no accident that President Obama has publicly criticized the
Citizens United decision. The ideal of a “level playing field” for
political candidates and messages connected to campaigning is
deeply entrenched in American culture (despite repeatedly being
departed from). This suggests that elected officials may continue
to try to find ways to circumvent or neutralize the Citizens United
majority’s proposition that the First Amendment does not tolerate
efforts to equalize the market for speech about campaigns. I think
it is far too early to say that Citizens United “ends” those efforts.
Stevens’s dissent says that the decision makes a mockery of stare
decisis. Does he have a point, or is that a common dissent when
the Court invalidates prior case law?
As I noted previously, although in one sense Citizens United
involves a more categorical statement of the First Amendment’s
effect on efforts to impose limitations on campaign contributions
and expenditures, in another sense it can be seen as the culmination of the Court’s characterization of “money as speech, and
campaign money as political speech” that dates back to the 1970s.
I would therefore disagree with Stevens’s characterization of the
decision as making a “mockery” of the practice of stare decisis.
Moreover, with some rare exceptions, the doctrinal shelf-life of the
Court’s constitutional law decisions tends to average about twenty
years, so in that respect the Citizens United majority’s overruling of
Austin, decided in 1990, seems right on schedule. n
UVA Lawyer / spring 2012 37
The Supreme Court’s Shift Away from
Protecting Voters to Promoting Free Expression
n Brian McNeill P
rofessor Dan Ortiz says the U.S. Supreme
Court has largely abandoned the idea of
protecting individual voters’ rights in favor of
creating a structure that promotes free expression.
Citizens United v. FEC did more than
change the funding model of U.S. elections, says
University of Virginia Law Professor Ortiz.
The case offered yet another indicator that
the Court has largely abandoned the idea of
protecting individual voters’ rights in favor of
creating a structure that promotes free expression in the marketplace of ideas. Ortiz explores
the implications of that shift in his new article,
“Recovering the Individual in Politics,” which
will appear in New York University’s Journal of
Legislation and Public Policy early this summer.
Ortiz, an expert on constitutional law and
electoral law, discussed his forthcoming paper
with the Law School.
38 UVA Lawyer / spring 2012
You write that in a number of recent election law decisions,
the Supreme Court’s interpretation of the First Amendment
has overlooked the importance of individual participation and
instead emphasized the protection of social processes. Can you
elaborate on this?
In its recent campaign finance decisions, the Court has not judged
campaign finance regulations by how they affect an individual’s
or entity’s right to participate in the political process but rather by
how they affect the marketplace of ideas. It has focused attention
away from questions like whether certain people or entities have
participation rights that are burdened to whether a particular
regulation impairs people’s ability to hear ideas.
What are a few recent Supreme Court decisions that best
illustrate your argument?
The most notable—to some, most notorious—is Citizens United,
the case in which the Supreme Court struck down regulations that
prohibited business corporations and unions from spending from
their general treasury funds to run broadcast, cable, and satellite
advertisements featuring candidates for federal office within a
certain window of the general and primary elections. The Court
didn’t ask whether corporations and unions have the same right to
participate in electoral activities as natural people or whether their
participation might affect others’ ability to participate. Instead, it
said that the identity of the speaker didn’t matter. Since it believed
that corporate advertising, just like advertising paid for by natural
people, helped the marketplace of ideas function more robustly, the
Court held that corporate spending in elections should enjoy the
same basic First Amendment protection that spending by natural
people does.
much they’re spending, and on what. Required
disclosure is still constitutionally permissible
and should be adopted. Unfortunately, robust
disclosure rules help only so much and politically it can be hard to have them adopted. Many
in Congress don’t want heightened disclosure
requirements right now because it would make
it more difficult for outsiders to spend on their
behalves.
How did you become interested in this topic?
Election law and campaign finance, in particular, are long-standing interests of mine. My first
academic legal paper, my law school note, was
on an election law topic and I’ve worked this
corner of the law ever since.
Dan Ortiz
How does this article fit in with your overall
scholarship?
Can you point to a few practical effects of this shift? What does
this mean for the average American voter?
First, it means that there will be lots of advertising from sources
that there wasn’t so much from before. And, to those who fear that
politicians are beholden to those whose efforts and money help
elect them, it means that government will pay even more attention
to a powerful set of special interests than before.
Why do you believe the Supreme Court should be doing more
to protect individual participation in politics?
Maybe I have a romanticized view of how politics can function,
but, to me, the individual voter should stand at the center of
things. The voter’s consent, after all, is what ultimately legitimates
government. The more active the citizenry participates, to my
mind, the better.
In light of the controversy surrounding the Supreme Court’s
decisions in cases like Citizens United, are there any particular
reforms that you would recommend?
The present Court has made it hard to regulate many forms
of campaign spending except through disclosure, a regulatory
technique under which spenders have to identify themselves, how
It presses further several ideas I’ve suggested in earlier papers
on campaign finance, particularly the idea that our views on the
constitutionality of campaign finance regulation turns largely on
how we believe individuals actually make political decisions.
How do you believe voters make political decisions?
Different people make them differently. Study after study shows
that most of us are fairly uninformed. We don’t know much about
the candidates and issues that we’re voting on and, to the extent we
know anything at all, most of it comes from so-called “shortcuts,”
like party identification. And that ignorance is rational. We don’t
know much not because we’re stupid but because the chance
that our vote will make a difference is so small that it doesn’t
make sense for us to invest much time and energy in gathering
information. Some of us, by contrast, know a lot about politics,
but for most in this group it’s because they view politics like a
hobby. In other words, they derive pleasure from following the
ups and downs of races and want a part of that excitement. Many
of us are somewhere in between. And our knowledge about the
issues probably varies from election to election. The trick of any
well-functioning political system is to interest as many people as
possible as deeply as possible in elections. But we all have other,
central parts of our lives to attend to and most of us can devote
only so much time to politics. n
UVA Lawyer / spring 2012 39
Faculty News & Briefs
In March Kenneth Abraham
won the 2012 Liberty Mutual
Prize from Boston College Law
School for his paper, “Four Conceptions of Insurance” awarded
for an exceptional work on
property and casualty insurance.
The paper will be published in the
University of Pennsylvania Law
Review. In addition, Abraham
gave the keynote address at
a Conference on the Law of
Insurance Claim Practices at the
Rutgers-Camden Law School.
to present it at the International
Society of Family Law conference
at the University of Iowa in June.
In March Abrams did a panel
presentation at the Law School
with Dr. Charlotte Patterson
of the University’s Department
of Psychology on the use of
social science studies of gay and
lesbian parents in legal cases;
presented a new paper “A Legal
Home: Derivative Domicile and
Women’s Citizenship” at the NYU
Law School Golieb Colloquium;
presented, with her co-author,
Kent Piacenti ’12, a new paper
called “Immigration, Citizenship,
and Parentage,” at the Association
for the Study of Law, Culture, and
Humanities annual conference in
Fort Worth, Texas; and presented
a new essay, “Citizen Spouse,” at
the University of North Carolina
Law School faculty workshop. Kerry Abrams’s recently published article “Marriage Fraud” in
the California Law Review was the
subject of a faculty Q&A for the
Law School website.
Abrams presented an essay
that she is co-authoring with
Anne Coughlin, “Recognizing
Polygamy,” at the Feminist Legal
Network conference at George
Washington Law School in
January, and the two also plan
40 UVA Lawyer / spring 2012
In November Margo Bagley
presented “America Invents Act:
Prior Art” at the University of
Minnesota School of Law’s Patent
Strategy After The America
Invents Act Workshop.
In February she presented
“Issues in Plant Patent Litigation
in the U.S. and Abroad” at Drake
University School of Law in Des
Moines; “Changing Tides or a
Drop in the Bucket? Issues in
Plant Patent Litigation in the U.S.
and Abroad” at the Iowa State
University Bioethics Symposium,
Who Owns Life?; and “The
Wheat and the (GMO) Tares: Lessons for Plant Patent Litigation
from the Parables of Jesus Christ”
at the University of Minnesota
MacLaurin Center Annual Faith
and Law Lecture.
Michal Barzuza made a presentation to the Illinois College
of Law’s Program on Business
Law and Policy, Corporate
Colloquium in September and
in November to the Law School’s
alumni board and council
meeting and to a Law & Finance
Workshop at the Swiss Institute of
Technology in Zurich.
Faculty News and Briefs
…
During the past year,
Richard Bonnie ’69 undertook
several policy initiatives on
mental health law.
He brought to a close his service as chair of the Commission
on Mental Health Law Reform
established by the chief justice
of Virginia’s Supreme Court in
the fall of 2006 and shepherded
the Commission’s final legislative
proposals through the General
Assembly in 2012. In addition,
in November he presented the
Virginia College Mental Health
Study, addressing the capacities
of the commonwealth’s colleges
and universities to respond to
student mental health needs,
to the General Assembly’s Joint
Commission on Health Care
(JCHC). The JCHC commissioned the study in October 2009.
Chaired by Bonnie, the study
featured a survey of Virginia’s 64
private and public colleges and
universities regarding students’
access to and utilization of
counseling center services as
well as the colleges’ policies and
practices regarding response to
mental health crises. Key results
of this survey were published
in an article, “Interventions
Used by Colleges to Respond to
Student Mental Health Crises,”
co-authored by Bonnie, John
Monahan, and other colleagues
and published in the November
2011 issue of Psychiatric Services.
Based on the survey and the
deliberations of two task forces,
the study team recommended
better coordination between the
colleges and mental health system
and strengthening the capacity of
community colleges to prevent
and respond to mental health
crises. Legislation recommended
by the study was enacted by the
General Assembly in 2012.
Bonnie is directing several
grants designed to promote use
of advance directives to guide
health care outside the context
of end-of-life decision-making,
especially by people with serious
mental illness and by individuals concerned about cognitive
impairment as they age or who
have been diagnosed with early
stage Alzheimer’s Disease. These
activities arise out of a major
revision of the Health Care Decisions Act enacted by the Virginia
General Assembly in 2009 and
2010 based on recommendations
of Bonnie’s Commission on
Mental Health Law Reform. He
made presentations on this topic
at Duke in April 2011, and at two
colloquia sponsored by the UVA
Psychology Department in April
2011 and this past January. Also
in 2012, he published “A Survey
of Stakeholder Knowledge,
Experience, and Opinions of
Advance Directives for Mental
Health in Virginia” with colleagues in Administration and
Policy in Mental Health Services
and Research.
Bonnie also initiated a new
project relating to criteria and
procedures for revoking and
restoring the right to purchase,
possess, and carry a firearm
based on mental health conditions, a body of law that has
come under scrutiny in the wake
of the Supreme Court’s recent
decisions recognizing individual
firearm rights under the Second
Amendment. He convened a task
force and held a public forum
in November at the University’s Frank S. Batten School of
Leadership and Public Policy.
He will also present a paper on
this topic at the annual meeting
of the American Public Health
Association in October.
Bonnie made several additional
presentations on health law and
ethics. He spoke on legal and
ethical aspects of preparing for
death at the program sponsored
by the Hospice of the Piedmont,
“Consider the Conversation,”
at the Paramount Theater in
Charlottesville in November. He
also presented a paper entitled
“Conscience and Duty: Reflections on Wearing White Coats
and Other Uniforms,” at the
University of Wisconsin School
of Medicine and Public Health
in April. In May he discussed the
theoretical foundations of the
rules governing intoxication in
the penal law at Columbia Law
School and the use of mandated
outpatient treatment in Europe
and the United States at the
anual meeting of the American
Psychiatric Association.
He made presentations on U.S.
drug policy for the committee on
science, technology and law of the
National Academy of Sciences in
October, the Contemporary Club
of Albemarle in November, and
Fordham Law School in March.
In March Bonnie chaired and
participated in a panel of public
health leaders taking stock of
whether progress has been made
in reducing tobacco use in the
five years since publication of the
Institute of Medicine’s landmark
study, Ending the Tobacco
Problem: Blueprint for the Nation,
which Bonnie chaired.
Bonnie is also serving on new
MacArthur Research Network on
Law and Neuroscience established in July 2011. Among the
Network’s projects in which he is
participating are several relating
to the capacity of various brain
imaging technologies to identity
mental states (such as awareness,
recognition, or deception) of
interest to the legal system.
In addition to the publications
mentioned above, Bonnie also
published during this period
a paper with Gil Siegal in the
summer 2012 issue of the Journal
of Law, Medicine and Ethics
entitled “Personalized Disclosure
by Information on Demand,” and
a paper in Psychiatric Services
entitled “Reducing Mental Health
Civil Commitments through
Longer Temporary Detention
Periods,” as well as several
op-ed columns arguing that the
individual mandate is within the
reach of Congress’ power under
the commerce clause.
UVA Lawyer / spring 2012 41
Faculty News and Briefs
…
In December Tomiko Brown-Nagin
was a commentator on a book
panel about Reasoning from
Race by Serena Mayeri at the
University of Pennsylvania School
of Law.
In January Brown-Nagin
gave the keynote address at the
University of Iowa College of
Law on the Martin Luther King
Jr. Day Observance. She also gave
the Rosenfield Lecture at Grinnell
College.
In February she was a commentator on Law in American
History, Vol. 1 by G. Edward
White at the Law School, and
in March gave the Hutchins
Lecture at the University of North
Carolina.
In April Brown-Nagin presented “Lawyers, the Grassroots,
and Social Change: Constance
Baker Motley at the Bar and on
the Bench” at the Modern History
Workshop at Princeton University, and the Lawyering & Social
Change Lecture at the University
of Pittsburgh School of Law.
42 UVA Lawyer / spring 2012
Jon Cannon was elected a
fellow of the American College
of Environmental Lawyers. In
February he spoke on “The Clean
Water Act at Forty” at the plenary
session of the 18th Annual
Public Interest Environmental
Conference at the University of
Florida Fredric G. Levin College
of Law.
Cannon spoke on the legal and
political challenges of climate
change at Williams College in
January and the William & Mary
Law School in March.
In April he spoke to the
Virginia League of Conservation
Voters on state and federal
environmental legislation and
the U.S. Constitution. Cannon
continues to work on a book on
the environmental decisions of
the Supreme Court of the United
States.
In March George Cohen
presented his paper, “The
Financial Crisis and the Forgotten
Law of Contracts” at the 7th
International Conference on
Contracts at the Thomas Jefferson
School of Law in San Diego. In
addition, he will become the chair
of the University of Virginia
Faculty Senate in June and will
give a CLE ethics presentation,
“Beyond the No-Contact Rule: Ex
Parte Contact with Non-Clients,”
at the Law School’s Alumni
Weekend.
In June Cohen will participate
in a panel discussion sponsored
by the Virginia Supreme Court
on Ethics and Professional
Responsibility Issues for Special
Justices, which is part of their
2012 conference and mental
health law update for special
justices handling adult and
juvenile civil commitment
hearings.
Brandon Garrett’s article
“Habeas Corpus and Due
Process” will be published by
Cornell Law Review in the fall.
A second piece, “Aggregation
and Constitutional Rights” is
forthcoming in the Notre Dame
Law Review. Greg Mitchell and
Garrett have also written a draft
under submission, titled “Lay
Interpretation of Fingerprint
Examiner Testimony: The
Effect of Match Language,
Method Information and Error
Acknowledgement.” Garrett’s
“The Grit Writ,” a book review
of Justin J. Wert’s Habeas Corpus
in America, was published in The
Review of Politics.
In January Garrett gave a talk
on Convicting the Innocent at
Arizona State University’s Sandra
Day O’Connor School of Law,
and gave training on eyewitness
identification procedures
to the Charlottesville Police
Department.
In February he gave a talk
titled “Eyewitnesses and the
Court,” as the keynote address
at the Catholic University Law
Review annual symposium; and
presented a talk on “Eyewitness
Faculty News and Briefs
…
Misidentifications,” at the annual
Guggenheim Symposium at John
Jay College.
In March Garrett spoke at the
Innocence Network National
Conference in Kansas City and at
a symposium being held by New
England Law Review about his
book Convicting the Innocent. He
also contributed the introductory
essay on the symposium in the
Law Review.
Garrett taught two Osher Lifelong Learning Institute (OLLI)
continuing education classes at
UVA on eyewitness misidentifications and false confessions.
The OLLI was designed to
bring together people from
various backgrounds who share a
common interest in learning and
intellectual stimulation.
In May Garrett will present at
the Criminal Justice Roundtable
at Columbia Law School, and will
also present a talk on Convicting
the Innocent to the West Virginia
Judicial Conference.
Garrett wrote short pieces of
commentary including, “Learning
What we Can from DNA” written
as the lead essay for an online
discussion on DNA and the
Death Penalty in Cato Unbound;
“Expanding DNA Databases is
Problematic” for Jurist on February 29, 2012; “See No Evil,” Slate,
January 12, 2011; “The Single
Witness and the Single Eyewitness,” ACS Blog, January 12, 2011,
and “Trial and Error: Learning
from Patterns of Mistakes,” ABA
Criminal Justice, Winter 2012.
JD/MA in Legal History program
as Charles McCurdy retires.
Goluboff appeared in the
PBS documentary, Slavery by
Another Name, which debuted in
February. Finally, she was recently
appointed a faculty associate
for the Governing America in a
Global Era (GAGE) Program of
the University’s Miller Center for
Public Affairs.
In October Michael Gilbert
presented a paper titled “Disclosure, Credibility, and Speech” at
the Disclosure, Anonymity, and
the First Amendment Conference
at UVA. His paper from the
conference is forthcoming in
the Journal of Law and Politics.
Gilbert is completing a paper
titled “Disclosure and the Information Tradeoff ” that addresses
the effects of campaign finance
disclosure on voter information. Risa Goluboff received a Jacob
Burkhardt Residential Fellowship
from the American Council of
Learned Societies for the 2012–13
academic year to support the
writing of her book, People out
of Place: The Sixties, the Supreme
Court, and Vagrancy Law. Goluboff was appointed to serve as
director of the University’s joint
Tom Hafemeister has several
offers pending from various law
reviews for a manuscript entitled
“The Ninth Circle of Hell: An
Eighth Amendment Analysis of
Imposing Prolonged Supermax
Solitary Confinement on Inmates
with Mental Illness,” (with Jeff
George ’13). This paper targets
a barbaric practice that is the
subject of increasing national
and international condemnation.
He is also completing work on
another manuscript entitled “The
Door Shouldn’t Be Hitting You
on the Way Out: Recognizing
Hospitals’ Fiduciary Duties to
Their Discharged Patients,” which
addresses a topic that has been
a key component of efforts to
reform health care delivery in this
country, namely, hospital readmissions (with Joshua Hinckley
Porter ’10 and Salima Ali ’11).
Hafemeister also recently completed (with Shelly L. Jackson)
a pair of articles published in
peer-reviewed journals. The first,
“Pure Financial Exploitation vs.
Hybrid Financial Exploitation
Co-Occurring with Physical
Abuse and/or Neglect of Elderly
Persons,” is being published in
Psychology of Violence. The
second, “APS Investigation Across
Four Types of Elder Maltreatment,” will be published in the
Journal of Adult Protection. In
addition, he is about to finish a
paper written at the request of
the National Institute of Justice
that seeks to articulate a better
foundation in theory for future
research and interventions
pertaining to elder abuse.
In February Rachel Harmon
gave a talk entitled, “What the
Federal Government Can Best
Do to Reduce Misconduct” at
Saint Louis University School
of Law’s Public Law Review
2012 Symposium, “Control of
Police Misconduct in a PostExclusionary Rule World: Can it
Be Done?”
In March her article, “The
Problem of Policing,” appeared
in the Michigan Law Review. It
also received honorable mention
in the Association of American
Law Schools Scholarly Papers
Competition, announced at the
AALS annual meeting in January. UVA Lawyer / spring 2012 43
Faculty News and Briefs
…
A. E. Dick Howard ’61 gave the
keynote address at a symposium
on the role of government
organized in Charleston by
the Charleston Law Review
and Furman University’s Riley
Institute of Government. Using
the Warren Court’s activism as
his point of departure, Howard
discussed developments since the
1960s, such as the emergence of
conservative public interest law
firms and the birth of the Tea
Party, that affect debates over the
Constitution and government’s
role. An article based on the
keynote address will appear in the
Charleston Law Review.
At the National Archives
in Washington, D.C., Howard
lectured on Magna Carta and its
legacy in American constitutional
law. The occasion recognized the
display at the Archives of a copy
of the charter owned by philanthropist David Rubenstein.
In Williamsburg, at the annual meeting of the Virginia Bar
Association, Howard organized
a program marking the 40th
anniversary of Virginia’s present
Constitution. Howard spoke
on the several revisions of the
Constitution and their intersection with great social and political
44 UVA Lawyer / spring 2012
moments in the Commonwealth’s
history. He then moderated a
discussion featuring former
Governor Gerald Baliles ’67,
Virginia Supreme Court Justice
Elizabeth Lacey, and onetime
VBA president Philip Stone.
At James Madison’s Montpelier,
Howard was one of the speakers at a conference, “Founding
Conversations: James Madison
and Nelson Mandela,” organized
by Montpelier and the South
African Embassy in Washington.
In Charlottesville, Howard gave
the keynote address at the Model
United Nations sponsored by
the University of Virginia. His
subject was “Revolutions and
Constitutions.”
In January 2011 Jason Johnston
presented “The Law and Economics of Regulatory Science” at the
George Mason University Law
and Economics Center Program
on Judicial Education in Tucson;
in February at the European
Law and Economics and Geneva
Association Joint Workshop on
Climate Change and Insurance
at the University of Innsbruck;
in November at the University of
Pennsylvania Conference on the
Dodd-Frank Act; and will again
in June at the annual meeting of
the International Society for New
Institutional Economics at the
University of Southern California
Law Center.
Johnston has published “Fire
Suppression Policy, Weather, and
Western Wildland Fire Trends: An
Empirical Analysis,” (with Jonathan Klick) in Karen M. Bradshaw
& Dean Lueck eds., Wildfire Policy:
Law and Economics Perspectives
(RFF Press, 2012); Institutions
and Incentives in Regulatory
Science; (editor and contributor);
Lexington Publishers, 2012; and
Disasters and Decentralization,
Geneva Papers on Risk and
Insurance (Special Issue: Climate
Change and Insurance).
In January Douglas Laycock
learned that he and his team had
won a 9-0 victory in the Supreme
Court, in Hosanna-Tabor
Evangelical Lutheran Church and
School v. Equal Employment Opportunity Commission. He spoke
about the case in January at the
annual meeting of the American
Association of Law Schools, in
February to the Yale Federalist
Society and the Virginia Law
Review banquet, and in May
to the National Association of
Diocesan Attorneys and the Law
School’s Alumni Council.
Also in January, Laycock spoke
on the Religious Land Use and
Institutionalized Persons Act
at the Association of American
Law Schools. In March he spoke
at UVA on “President Obama’s
Contraception Mandate.”
He recently published Modern
American Remedies: Cases and
Materials (concise 4th ed.), “Sex,
Atheism, and the Free Exercise
of Religion” in the University
of Detroit Mercy Law Review,
and “The Neglected Defense
of Undue Hardship (and the
Doctrinal Train Wreck in Boomer
v. Atlantic Cement)” in the Journal
of Tort Law. In October he filed
an amicus brief in support of
respondent in First American
Financial Corp. v. Edwards, a
pending Supreme Court case
about a statutory claim modeled
on the law of restitution.
In December Elizabeth Magill ’95
participated in a conference at
Harvard Law School. The topic
was “Political Risks in Public
Law.” For the past year Magill
has been chair of the American
Association of Law Schools
(AALS) section on administrative
law. At the annual meeting of
the AALS in January, the section
put on a panel discussion that
she had organized and moderated, “Presidential Review in the
Obama Administration.”
Faculty News and Briefs
…
Jeffrey Klein, in the Employee
Relations Law Journal. This spring Mitchell presented a paper co-authored with
Brandon Garrett on fingerprint
evidence at the University of
Illinois College of Law and presented research on EEOC consent
decrees at the annual conference
of the Society for IndustrialOrganizational Psychology. In
May he published an essay titled
“The Importance of Replication
in the Field” in the Psychologist.
I. Singh, W. Sinnott-Armstrong,
and J. Savulescu (Eds.)New York:
Oxford University Press; “The
individual risk assessment of
terrorism” in Psychology, Public
Policy, and Law; and “Innumeracy
and unpacking: Bridging the
nomothetic/idiographic divide in
violence risk assessment” (with
Scurich, N. and John, R.) in Law
and Human Behavior.
In March Dan Meador presented
a portrait of Woodrow Wilson,
Class of 1880, to the Law School
(an earlier Wilson Portrait having
mysteriously vanished to the
Miller Center) and delivered a
talk on Wilson, focusing mainly
on his time as a student at the
Law School.
John Monahan co-wrote
Greg Mitchell published a
paper titled “Revisiting Truth or
Triviality: The External Validity
of Research in the Psychological Laboratory” in Perspectives
on Psychological Science and
published a paper titled “Effective
Use and Presentation of Social
Science Evidence,” which was
co-authored with Allan King and
(with Steadman, H.) “Extending
violence reduction principles to
justice-involved persons with
mental illness in Applying Social
Science to Reduce Violent Offending, Oxford University Press, J.
Dvoskin, J. Skeem, R. Novaco,
and K. Douglas, K. (Eds).
He has in press “Dangerousness” (with Gray, N., Gunn, J.,
James, D., Snowden, R., Taylor,
P., Walker, J., and Warren, L.)
in Forensic Psychiatry: Clinical,
Legal, and Ethical Issues (2nd
ed) (Taylor, P., and Gunn, J);
“Violence risk assessment” in
Handbook of Psychology (2d ed)
R. Otto (Ed.); “The inclusion of
biological risk factors in violence
risk assessments” in BioPrediction of Bad Behavior: Scientific,
Legal and Ethical Implications,
In December John Norton
Moore participated in the panel
“Use of Force Decisions of the
International Court of Justice:
Triumph or Tragedy?” at the
ABA’s 21st Annual Review of the
Field of National Security Law in
Washington, D.C. His paper on
this topic, entitled “Jus ad Bellum
Before the International Court
of Justice” is forthcoming this
year in the Virginia Journal of
International Law.
In February, at the request of
former Vietnam POW Orson
Swindle, Moore took part in a
program at the Virginia Veterans
War Memorial.
In March Moore led the international law curricular sessions
for the admitted students open
house. Also in March, Moore
hosted Ambassador Arif Havas
Oegroseno of Indonesia who
spoke on Contemporary Issues
of the South China Sea Dispute.
This lecture was a component
of Moore’s class on Oceans Law
and Policy but was open to the
University community.
In April Moore and Professor
William B. Quandt spoke on Syria
and the Arab League at the J.B.
Moore Society of International
Law faculty lecture series.
Moore, chairman of the Sokol
Colloquium committee, along
with professors John Setear and
Pierre-Hughes Verdier hosted
the 25th Annual Sokol Colloquium on April 19. This year’s topic
was “Foreign Affairs Litigation
in United States Courts.” Moore
announced that papers from the
colloquium, published years ago
under the guidance of the late
Professor Richard Lillich, will
once again be published. The first
of these volumes in the new series
will contain the papers from last
year’s Colloquium on International Arbitration: Prospects and
Problems. Edited by Moore, it is
forthcoming this fall. The papers
from this year’s colloquium,
also edited by Moore, will be
published this winter.
Moore, who is director of the
Center for National Security Law
(CNSL), will give several lectures
at the 20th National Security Law
Institute sponsored by the center,
at UVA. This annual program
takes place the first two weeks
of June and draws law professors, military personnel, and
government attorneys seeking to
UVA Lawyer / spring 2012 45
Faculty News and Briefs
…
better familiarize themselves with
national security law.
Also in June Moore will speak
at the international conference,
“Regulation of Continental
Shelf Development: Rethinking
International Standards” held in
Halifax, Nova Scotia. The primary
sponsor of this conference is
UVA’s Center for Oceans Law
and Policy (COLP) which Moore
directs.
In July Moore will lecture at
the 17th Rhodes Academy of
Oceans Law and Policy. Sponsored by COLP, this two-week
annual program features experts
on oceans law, policy, and science.
It takes place in Rhodes, Greece,
and always draws highly-qualified
students, primarily lawyers, from
numerous countries.
John Morley published an
article called “Collective Branding
and the Origins of Investment
Fund Regulation” in the Virginia
Law & Business Review; presented
an article called “The Separation
of Investments and Management”
at the Yale Law School Weil,
Gotshal Corporate Law Roundtable and the Columbia Law
School Blue Sky Workshop; and
presented an article called “An
Empirical Study of Mutual Fund
Excessive Fee Liability: Do the
Merits Matter?” at the Harvard
Law School Law and Economics
Colloquium.
46 UVA Lawyer / spring 2012
In addition to his teaching and
writing in antitrust and communications law, Tom Nachbar
continues to serve as both an U.S.
Army Reserve judge advocate and
a civilian senior advisor to the
U.S. Department of Defense, Office of Rule of Law and Detainee
Policy. In the former capacity,
he attended the Judge Advocate
Officer Advanced Course at
the U.S. Army Judge Advocate
General’s Legal Center and School
in Charlottesville this January. In
the latter capacity, he served on
the U.S. delegation to the Ninth
Meeting of the High Contracting Parties to the 1954 Hague
Convention for the Protection of
Cultural Property in the Event of
Armed Conflict.
This spring Nachbar’s
paper, “Counterinsurgency, Legitimacy, and the Rule of Law” will be
published in Parameters, the
professional journal of the U.S.
Army War College. He was recently
named a senior fellow of the Center
for National Security Law.
This spring Jeffrey O’Connell and
his brother Thomas E. O’Connell
published a book Five 20th
Century College Presidents: from
Butler to Bok (plus Summers)
which uniquely focuses on the
five roles of college presidents:
leader, manager, energizer, envoy,
and intellectual. The book takes
up long-serving presidents
running the gamut of the 20th
century: Nicholas Murray Butler
of Columbia (served 1900–45),
Robert Hutchins of the University
of Chicago (1930–51), James
Bryant Conant of Harvard
(1933–55), John Sloan Dickey of
Dartmouth (1946–71) and Derek
Bok of Harvard (1971–91, 2006).
At the book’s end, it examines the
implosion of Lawrence Summers’s
presidency at Harvard (2003–06).
In January Bob O’Neil received
the First Freedom Council’s
Virginia Award for commitment
to religious liberty. Recently
retired Episcopal Bishop Peter Lee
and American Jewish Committee
(AJC) Executive Director Marc
Stern were his fellow recipients.
On James Madison’s birthday
in March, O’Neil gave the keynote
speech at the annual National
Freedom of Information Conference at the Freedom Forum. He
was also the keynote speaker
at the University of MissouriColumbia on the Liberty Tree
Initiative, sponsored by the
Reynolds Journalism Institute
along with the American Society
of Newspaper Editors and the
Knight Foundation.
Finally, the University of
Virginia Press just published In
Chambers, by Professor Todd
Peppers ’93 of Roanoke College, including two chapters on
Supreme Court Justices and their
law clerks. O’Neil’s chapter was on
Justice Brennan and his clerks.
Faculty News and Briefs
…
Dan Ortiz has a forthcoming
article appearing in the Election
Law Journal titled “A Charter for
a Vibrant Democracy.”
appeared on a panel at George
Washington University with
Supreme Court Justices Kennedy
and Alito, and judges of the European Court of Human Rights on
comparative constitutional law,
giving a talk on “The Exceptional
First Amendment”; gave a lecture
on “The Force of Law: The Role
of Coercion in Legal Theory” at
Queen’s University, Kingston,
Ontario, Canada, at University of
Naples (Italy), and at Pontifical
University, Rio de Janeiro (Brazil).
The lecture is about a current
book in progress. He also spoke
on “Stare Decisis on the Supreme
Court” at University of Baltimore
School of Law; and delivered
paper at Royal Academy,
Copenhagen, Denmark, on “Legal
Realism and the Selection Effect.”
organized by the State Department and with the participation
of Justices of the U.S. Supreme
Court and members of the
European Court of Justice.
Chris Sprigman finished an
article, “Valuing Attribution and
Publication in Intellectual Property,” which is the third in a series
of papers reporting on laboratory
experiments investigating how
people value, price, and trade
things that they have created.
He has also finished a book, The
Knockoff Economy: How Imitation
Sparks Innovation, that will be
published by Oxford University
Press in late summer.
Siva Vaidhyanathan published
“Conversations with Renowned
Professors and Practitioners
on the Future of Copyright “
(with Jane Ginsburg, Jule Sigall,
Kenneth D. Crews, Nina Paley,
and David Carson) in the Tulane
Journal of Technology and Intellectual Property.
Fred Schauer delivered a paper
in December on “The Political
Risks (If Any) of Violating the
Law” at conference at Harvard
Law School on Political Risks and
Public Law and to the University
of Richmond Program on Philosophy, Politics, Economics, and
Law. The paper will be published
in the Journal of Legal Analysis. In
January Schauer delivered a paper
on “The Ubiquity of Prevention” at a conference at Oxford
University on preventive justice,
which will be published by the
Oxford University Press.
He also gave lectures on “Precedent” and “Constitutionalism”
at University of Genoa (Italy)
Master Course on Legal Theory;
delivered a University-wide
lecture at Marshall University on
“Does the Constitution Matter?”;
The book that Molly Shadel
co-authored with Bob
Sayler, Tongue-Tied America:
Reviving the Art of Verbal
Persuasion, was featured as
part of the Virginia Festival
of the Book in March. Their
appearance was sponsored by the
Thomas Jefferson Center for the
Protection of Free Expression. Shadel also wrote “Make
Jobs More Family Friendly” for
the National Law Journal and
“Mother-in-Law: Juggling a Legal
Career and a Personal Life” for
WorkStew.
In March Paul Stephan ’77 was
elected to the executive council of
the American Society of International Law, and in April he spoke
at the Sokol Colloquium with
respect to the recent International
Court of Justice judgment on
foreign sovereign immunity,
and gave a lecture at Houston
Law School on the Yukos affair.
Stephan also presented a paper
on court-on-court encounters
at workshops at Northwestern,
Virginia, and George Washington
law schools.
In May Stephan will take part
in a seminar in Luxembourg
Walter Wadlington and Father
Raymond O’Brien ’69, professor
of law at The Catholic University
of America and the Georgetown
School of Law, have published
Wadlington and O’Brien, Family
Law Statutes, 4th edition 2011;
and Wadlington & O’Brien,
Family Law in Perspective, 3rd
edition 2012. n
UVA Lawyer / spring 2012 47
Class Notes
We welcome submissions for inclusion in Class Notes.
Online, submit them at www.law.virginia.edu/alumni; E-mail them to lawalum@virginia.edu;
mail them to UVA Lawyer, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903; or
fax them to 434/296-4838. Please send your submissions by September 1 for inclusion in the next issue.
1940
Region for his courageous
contributions to the war
He has ventured into
Mortimer Caplin was
effort. After completing his
the world of e-books with
honored for his World
tour of duty, he returned to
the publication of the
War II service at the
practice law in New York.
second edition of Who
Murdered Mom? along with
Fellows of the American
Bar Foundation 56th
Annual Awards Banquet
1945
his full-length two-act
play, Arbitrating Murder.
The play is based on the
on February 4 at the
National World War II
Betty Blair Stewart died
new edition of his book,
Museum in New Orleans.
at home in Marion, Va.,
which was re-edited by
at the age of 89. After
Darla Blaha, best known
ABF board of directors,
graduating from the Law
for writing about the
received a special honor
School, where she was
chicken ranch that was
for his courageous service
editor of the Virginia Law
basis of the Broadway play
in World War II. Following
Review, she served as a
The Best Little Whorehouse
graduation from the Law
civilian with the U.S. Army.
in Texas. Another book by
School in 1940, he clerked
Later she worked with
Swacker, Boardroom Con-
Caplin, a member of the
1936
president (1983–84).
for U.S. Circuit Judge
the State Department in
spiracies, has been paired
George C. Seward passed away on February 15
Armistead Dobie, then
Germany following World
with his play, the court-
at his home in Scarsdale, N.Y., at the age of 101.
joined Cohen, Cole, Weiss
War II and as law clerk to
room drama entitled Who
He practiced law for over 70 years and contin-
& Wharton in New York.
the chief justice of the
Murdered the Chairman? “I
ued to work at Seward & Kissel, a Manhattan
Soon after beginning his
occupation court system.
think producers, publish-
firm focused on corporate and litigation work
legal career he enlisted
In the 1960s she and her
ers, and playwrights will
for clients in matters involving corporate
in the U.S. Navy and was
husband, also an attorney,
consider this new avenue
finance, financial services, and capital markets,
assigned to naval intel-
took assignments with
of e-commerce productive
three or four days a week in his hundredth year.
ligence, then volunteered
the diplomatic corps in
and an aid to casting
He was a partner from 1953 until 1983 and
for shipboard duty
Uruguay, Thailand, and
directors,” Swacker notes.
served as senior counsel since that time.
overseas. As beachmaster
Columbia. From 1978 until
His e-books are available
Seward founded the business law section
of the 7th Navy beach bat-
retirement in 1989 she
from Amazon, Barnes
of the International Bar Association and was
talion, Caplin participated
was an attorney for the
and Noble, and other
made honorary life president. In a lecture series
in the initial landing force
housing authority.
publishers.
named after him, world leaders deliver talks
on Omaha Beach during
on global issues of timely interest. He became
the invasion of Normandy.
involved with the IBA in the 1960s when it was
He was named “Chevalier”
1949
1957
a federation of bar associations and played
of the Legion of Honor by
a major role in developing the IBA into a
the President of the French
Frank Warren Swacker
Benjamin A. Moore, Jr.’s
worldwide organization of business lawyers as
Republic, one of France’s
served as a member of the
firm, Buist Moore Smythe
well as a world organization of bar associations.
highest honors. He also
board of directors of the
McGee merged in May
received the Medal of the
University of Virginia Club
2011 with the North
Jubilee of Liberty from the
of Washington, and was
Carolina firm Womble
Governor of the Normandy
elected and served as its
UVA Lawyer / spring 2012 49
Class notes
…
Carlyle Sandridge & Rice. “I
president, said, “Schloss-
have gone from the senior
berg has always agitated
lawyer in a 45-lawyer
for social justice,” adding
firm to a non-entity in a
that, “he preaches the truth
550-lawyer firm,” he writes.
“I like it!”
Stephen Schlossberg died
1958
add to the collections at
recounts Bill’s successful
Yale’s British Art Center
efforts to get the Texas leg-
The notes for the Class of
and Art Gallery. Fred has
islature to declare barratry
1958 have been compiled
an extensive collection
a crime, and to provide for
that the labor movement
by Ted Torrance in
of his own, which he is
civil remedies for victims.
is absolutely essential in a
cooperation with the staff of
presently cataloguing.
(Confession: Charlie Woltz
democratic society.”
UVA Lawyer and pursuant
Schlossberg grew up in
may have covered this in
to information solicited
Jim Atkin practiced in
detail, but I had to scurry to
at his home in Sarasota,
Roanoke, Va. He enrolled
from and furnished to him
San Francisco and, later,
the dictionary find out just
Fla. on December 10,
at UVA after high school,
by members of the class.
Washington, D.C., with
what barratry is. Do you
at 90. He was involved
but left to enlist in the
We hope that the obvious
the firm now known as
know?)
in the labor movement
Army Air Force after the
increase in the volume of
Pillsbury Winthrop Shaw
for nearly 50 years as
attack on Pearl Harbor.
news for the Class of 1958
Pittman, handling primar-
I had a very nice telephone
an organizer, lobbyist,
After serving in the Army
will encourage other classes
ily matters relating to the
chat with Joe Hilton, who
political strategist, media-
he worked in a family
to adopt a similar approach
oil industry. Along the
remains extremely busy,
tor, author, and advisor to
retail business, then took a
to gathering and reporting
way he served as deputy
arranging for investments
legendary United Auto
job as an organizer in the
news of their alumni(ae).
director of the transition
in Manhattan office
Workers president,
South with the Interna-
team at the Department
buildings by Chinese
Walter Reuther. As the
tional Ladies’ Garment
today we are 97 strong.
of Energy prior to Ronald
investment funds—a
union’s general counsel,
Workers Union for less
The following is some
Reagan’s inauguration,
concept apparently novel
Schlossberg played a
than a quarter of the
news about those hardy
and purchased a farm in
to the Chinese, which calls
leading role in bargaining
pay. He was familiar with
survivors.
Rappahannock County,
for Joe’s very frequent trips
with Detroit’s Big Three
injustices he’d seen and
where he raised apples
to the Far East.
automakers and helped
experienced in the South,
negotiate the Chrysler
rescue deal in the 1970s.
In 1958 we numbered 161;
Over the years, Fred
and hunted foxes (a
where “Jews, blacks,
Goldstein has probably
reprise of Pierson v. Post?).
If you are ever in trouble
Catholics, and foreigners
done more than anyone to
Sadly, this past January
in Lexington, Ky., the man
He was known as a good
were hated with a passion.”
maintain the tie between
Jim’s wife, Dottie, died, and
dealmaker who could
(His father was a Jewish
our class and the Law
Jim expects to return to
to see is clearly Foster
Pettit, who has practiced
make his points with wit.
immigrant from Russia.)
School, both as an effec-
the Bay Area later this year.
there since our graduation,
After nearly 20 years with
After graduating from
tive fundraiser for the Law
interrupted by three terms
the UAW he practiced with
the Law School in 1957,
School Foundation and
Another westerner is Bob
in the Kentucky House
Zwerdling, Schlossberg,
Schlossberg worked at
as an active participant
Dorsey, who lives in Las
of Representatives and
Leibig and Kahn for 2 years
Van Arkel & Kaiser, a labor
in Virginia affairs. As a
Vegas, where he has been
two terms as mayor of
until he was appointed
law firm in Washington,
member of the Virginia
a member of the Nevada
Lexington, plus a stint as
Deputy Under Secretary
D.C. In the 1960s he was
Tax Study Group, he gets
bar for over 50 years.
a cabinet secretary for the
for Labor-Management
made special assistant to
to Charlottesville a couple
Bob practiced alone until
Kentucky governor. A busy
relations in President
the director of the Federal
of times a year, and it
bypass surgery some ten
man, indeed.
Reagan’s administration,
Mediation and Concili-
was Fred who ultimately
years ago, but reports
an appointment that
ation Service, where he
obtained the permission
that he is still happily
Among the retired jurists
conservatives decried.
worked on trying to head
of the School to report the
married “to my childhood
in our ranks are Barbara
Following his ap-
off, then end, a months’-
news of our class in this
sweetheart.”
Coppeto (serving on the
pointment to the Labor
long newspaper strike in
rather informal format.
Department, Schlossberg
New York.
Fred practiced in Boston
became director of the
Though he was attacked
Connecticut Superior
Down in Texas, Bill
Edwards (who by the way
Court until a few years
for many years but is now
ago, and now wintering in
Washington office of the
throughout his career, he
learning the fine points
was the first responder to
Siesta Key, Fla., and sum-
International Labor Orga-
never shied away from
of golf (Fred: see the entry
my plea for news) has been
mering in Milford, Conn.);
nization. At his retirement
identifying himself as a
for John Merchant). Fred
named Corpus Christi’s
Stuart “Blue” Jay (serving
from this position in 1994,
liberal in favor of orga-
is also collecting British
outstanding plaintiff’s
on a domestic relations
Doug Fraser, a former UAW
nized labor, free speech,
18th and 19th Century
lawyer for 2012. A recent
court in Louisville, Ky.);
and humanism.
caricatures and prints to
issue of Texas Lawyer
and Swan Yerger, with
50 UVA Lawyer / spring 2012
Class notes
…
12 years on the Hinds
daughter, Susan, became
his name as “Greaser.” Bill
civic activities, Larry is a
where his wife’s relatives
County (Miss.) Circuit
the first child of a black
corrected him, saying his
published author, having
live, but the prospect of
Court. Swan is also busy
graduate to receive a
name was pronounced
helped write a history of
selling his home in today’s
repopulating the South
J.D. degree from the Law
“Grizer.” Gregory objected,
the Bucks County (Pa.)
market is, to say the least,
with two daughters and
School, and her classmates
saying the “ie” spelling
courts and bar from
daunting. Reciting some
six grandchildren.
invited John to deliver that
called for his pronuncia-
William Penn to 2003. His
of the physical problems
year’s commencement
tion. Bill responded that
partners will be pleased
so many of us face with
Jim Thornton managed
address. He has been
it was his name, and that
to learn that a number
advancing years, Brad
to bypass the practice of
persuaded to write his
he could pronounce it
of years ago Larry and I
wryly recites a statement
law entirely by parlaying
autobiography, which is
“Brown” if he wanted to.
were fellow passengers
attributed to Terence
his experience as night
expected to be published
Gregory just smiled, but
on a cruise to various golf
(you know, 185-159 B.C.):
clerk at Keswick C.C. into
shortly under the title A
for the rest of the term Bill
courses in the U.K. and
“Senectus ipsa morbus
an MBA from New York
Journey Worth Taking. For
was “Mr. Brown.”
Ireland, and that I have an
est.” Come on; you all
University and a career as
obvious reasons, I have
extensive video of Larry
know Latin.
an investment manager
placed an order for one
From the Palisade in Ft.
haranguing an unfortu-
in New York City, where
of the first (and hopefully
Lee, N.J. (with a beautiful
nate barmaid in a pub on
I see John Oram on a more
he can be found at the
autographed) copies.
view of New York) Michael
the shores of the Shannon
or less regular basis, as
Kaplan writes that he
River.
his lovely home outside
firm of Tocqueville Asset
Management. Your scribe
Alan Diamonstein reports
retired on a Friday as
Googled the firm and
from Newport News that
vice president and chief
Our closest physical tie to
convenient and enjoyable
found a picture of Jim; I’d
over the years he has
counsel of Mutual Life
the Law School is probably
over-night on the drive
know him anywhere.
been involved in asbestos
Insurance (MONY) and
Fred Landess, who spent
down here. John retired in
Savannah makes for a
litigation and commercial
on Monday began a
39 happy years with the
1995 from a very success-
The golf afficionados in
and real estate law. He was
13-year career as counsel
McGuireWoods firm in
ful New York practice, left
our ranks will find a true
a member of the Virginia
and deputy secretary of
Charlottesville. The sad
his home in Chappaqua,
icon in John Merchant.
General Assembly for 35
Horizon Blue Cross and
news is that after about
N.Y., headed south, and
John took up the game
years and is currently sup-
Blue Shield of New Jersey.
five years of retirement
never looked back. He has
when he was in the Navy
porting Virginia by serving
His wife, Harriet, served
Fred’s wife, whom he
had one wife, Sonia, and
after Law School, carried
on the Board of Visitors of
until 2005 as chairman
married while in Law
has two daughters, two
a handicap of from 4 to 8
the University. I suggest
of the Department of
School, contracted Pick’s
granddaughters, and two
for 38 years, was twice his
his appointment to the
Dentistry at Morristown
Disease, to which she
dogs. English literature
club’s champion, but most
Board is by itself a singular
Memorial Hospital,
eventually succumbed
(both the reading and
notably was elected to the
honor and a tribute to his
which Bill says “kept me
this past January. On the
writing thereof ) remains of
USGA executive commit-
years in the legislature.
dependently wealthy.” He
brighter side, Fred has
great interest, and he has
and his wife both enjoy
dusted off his high school
taken both courses locally
four years John officiated
I had an amusing note
travelling abroad: “She
trumpet, and now plays in
and, over five summers,
at the Masters, U.S. Open,
from Bill Griesar. He
puts on my flea collar
three bands, including the
at Cambridge University.
U.S. Amateur and Senior
spent 25 years practicing
and leash and takes me
Charlottesville Municipal
He continues with the
Open tournaments, and
corporate law in New York
places … When we get
Band.
game of golf, but “with
was Tiger Woods’ first
City, and another 20 years
back she’ll tell me if I had a
lawyer. Finally, in 2010
as vice president and gen-
good time. The problem is
I had a nice handwritten
John was elected to the
eral counsel of Rockefeller
that after we get back the
note from Brad Miller,
National Black Golf Hall
University. He now divides
visited country usually has
who lives in Tampa. Brad’s
Tom Otis stopped by with
of Fame. Unfortunately,
his time between Dobbs
a revolution.”
wife died in 1993, but
his wife, Mina, for lunch
a minor stroke plus a
Ferry, N.Y., and the Maine
prior to then she and Brad
the other day, on his way
torn rotator cuff ef-
coast near Damariscotta.
Larry Grim still appears
travelled extensively, often
to Boca Grande, Fla., for
fectively ended John’s
Bill recounted an incident
to be The Man in Perkasie,
to Mexico City, where
a stay. Tom retired in
golfing career, but he still
in one of Charlie Gregory’s
Pa., as the senior in a
his wife grew up. Brad’s
2000 after decades with
remains active in national
labor law classes: Gregory
17-lawyer firm. Along with
stepson is trying to get
a Boston investment
golf affairs. In 1994 John’s
called on Bill, pronouncing
numerous corporate and
him to move to Dallas,
management firm, and
tee in 1992. For the next
decreasing proficiency.” So
say we all.
UVA Lawyer / spring 2012 51
Class notes
…
he is now a director of
Hobart McWhorter, a
wife, Phyllis, just recently
During the winters they
I extend my thanks to all
a family firm that is the
venerated litigator in the
celebrated their 50th
have made a habit of
those who made the forego-
largest Ocean Spray
venerable Bradley Arant
wedding anniversary.
escaping to Anguilla.
ing news possible.
cranberry grower and
firm in Birmingham, where
stockholder. He and Mina
he spent his entire career,
From further south, in
Here in Vero Beach for all
Corresponding Secretary,
have a winterized beach
speaks of now doing as
Pompano Beach, Dick Roth
or part of the winter are
1955 Windward Way
house in S. Dartmouth,
much or as little as he
reports that he has finally
wishes (“which includes
retired after 54 years of
Stuart Brunet, Verne
Hampton, Bob Emmons
Vero Beach, FL 32963
Mass., where he pursues
his hobbies: “supporting
doing nothing”), and it is
practicing in the areas of
and your scribe. Verne is
the children, educating
clear that his consuming
trusts, wills, probate, and
still practicing in Detroit.
the grandchildren” and
interest is saltwater fly
real estate. He was also
Stu is retired from trust
generally cavorting on
fishing, at which he has
city attorney for the City
administration, most
the shores of, and on,
grown quite adept. In fact,
of Lighthouse Point for
recently with Irving Trust
George Grattan now
Buzzard’s Bay.
if you will visit a certain
27 years. Now “I play golf
in New York. And Bob is
lives in University Village.
(Contact Edwin G. Torrance,
e-mail: etorr@cox.net)
1960
bar in Deep Water Cay in
three times a week and
“semi-retired” from the
“I’m moving closer to
From Huntsville, Ala.,
the Bahamas, you will find
raise 400 orchids. Having a
former Palmer, Dodge firm
Charlottesville all the time,”
Bob Smith writes that he
a photo of Hobart with
great time.”
in Boston.
he writes.
recently completed the
the 11-½ pound bonefish
manuscript for a book
he caught there. Very
I received a very newsy
I retired from my Rhode
entitled Law and Lawyers
impressive.
note from Allan Johnson.
Island firm in 1997 and have
Allan and Nancy (who
been on the dole ever since.
in the United States,
1964
which will be published
Bill Bunting called from
were one of the married
Connie and I both enjoy
this year by a member
Princeton, N.J., to report
couples in our Law School
travelling and the game of
of the Amazon group. I
that he is still extremely
years and often my dinner
golf, which have married
will be looking for it; the
busy in private practice
hosts) now live in Virginia
together nicely. We’ve had
mere scope of the title is
(estate planning and
Beach, but until 1988,
numerous golfing trips
mind-boggling.
administration), but on
when Allan retired, they
to the U.K. and Ireland,
the side he is active in
lived in Southport, Conn.,
and to Europe, and last
Henry Williams has
Cranbury, N.J., civic affairs
where Allan was much
May we had the pleasure
Richard “Randy” Bigger
checked in from upstate
and charity work, and
involved in civic affairs,
of introducing one of our
has been selected for
Scottsville, N.Y. He spent
is writing a history of
not the least of which was
sons to the St. Andrews and
inclusion in North Carolina
about 20 years with the
Cranbury. The weekends
his serving as founder and
other courses in Scotland.
Super Lawyers 2012 in
Harris, Beach firm in
find him doing “farm work.”
first head of the Southport
Non-golf travel has involved
estate planning and
Rochester, then left to
I wonder what he does
Conservancy. His practice
some interesting crossings:
probate. He is a senior
found The Williams Law
in his spare time. By the
was in civil litigation,
the United States 3-½
attorney with Wishart
Firm, which is still going
way, Bill is the fellow you
in Bridgeport and later
times on our Gold Wing
Norris Henninger &
strong as a solo venture.
will hear from annually for
Westport. Both a daughter
motorcycle, and Russia
Pittman in Charlotte,
Henry’s extra-curricular
contributions to the Law
and her husband are Law
via the Trans-Siberian line,
where he focuses his
activities are numerous
School Foundation, but I
School graduates, appar-
from Beijing to Moscow. All
practice on estate
and eclectic, ranging
am assured his approach is
ently with distinguished
in all, the fates have been
planning and
from the presidency of
with a glove of velvet.
records. During the sum-
extremely kind to us, giving
administration.
mer months the Johnsons
us the health to enjoy our
favorite pursuits.
the Landmark Society of
Western New York to
From the northern part
have been sailing on
commodore of the Lake
of Florida, in Tallahassee,
increasingly large boats,
It has been fun putting
Yacht Racing Association
Ben Phipps writes that he
ranging from Sunfish to a
this column together. I urge
Chair’s Award, given by the
to ski patrol director. And
is still practicing, dealing
30-foot Alberg, and Allan
all to contribute what they
trusts and estates section
he adds his bass voice to
strictly with state and local
also plays tennis competi-
can for the next edition of
of the New York State Bar
the local church choir.
tax issues throughout
tively, participating in six
UVA Lawyer. Simply write
Association. He is a senior
the state. He and his
national tournaments.
or e-mail me at the address
counsel to Nixon Peabody
below. In the meantime
in Rochester, where he
52 UVA Lawyer / spring 2012
Jon L. Schumacher has
been honored with the
Class notes
…
concentrates his practice
1968
on estate planning and
arbitrations, and union
an advisor to law firms on
organizing campaigns,
insurance
and risk
1970
administration, as well as
David D. Biklen has been
and has litigated cases
management matters in a
Paul C. Giannelli ’70,
federal and state income,
appointed chair of the
involving discrimination,
recent Wall Street Journal
LL.M. ’75 is a distin-
estate, generation skip-
Uniform Law Commission
wrongful discharge, sexual
article
about litigation
guished university
ping, and gift taxation.
study committee on
harassment, and related
against law firms.
professor and the Albert
Greenberg serves on
eyewitness identification
claims in state and federal
David O. Whittemore
procedures. The ULC is a
courts across the U.S. He is
the board of directors of
Richard W. Weatherhead
writes that his law partner
group of lawyers includ-
the co-office managing
Impact Makers, an infor-
Professor of Law at Case
of 27 years, Dave Wallace,
ing practicing attorneys,
partner with Saul Ewing in
mation technology and
Western Law School.
retired June 30. His new
professors, judges, and
Washington, D.C.
management consulting
He has written exten-
partner, Robert W. Carlson,
legislators from every state
firm
based in Richmond
sively about evidence
came on board July 1.
who draft and promote
that is a for-profit com-
and criminal procedure,
“Rob’s practice in probate
laws to solve problems
pany with no shareholders
with a particular focus on
litigation complements
common to all states. The
that contributes its profits
scientific evidence.
mine in probate and estate
study committee will focus
Jerry Coughlan has been
to charitable community
planning,” he writes. “We
on improving procedures
selected as San Diego’s
partners
and is a founding
are looking for one more
used in eyewitness
Professional Malpractice
benefit corporation.
attorney, a UVA Law gradu-
identifications; mistaken
Law Lawyer of the Year in
ate in the Metro-west area”
eyewitness identifications
Best Lawyers 2012. He is
Gordon D. Schreck
of Framingham, Mass.
are the single most fre-
with Coughlan, Semmer,
continues as leader of the
quent cause of wrongful
Fitch & Pott, and focuses
admiralty and maritime
convictions.
his practice on trying and
practice group of Womble
litigating civil and white-
Carlyle Sandridge & Rice,
collar criminal cases.
1966
1969
J. Weatherhead III and
following that firm’s
Kenneth M. Greene has
Judge Donald M. Haddock
chairman of the board
recent merger with the
been honored as a top
reports that he “mandato-
of trustees at Millsaps
Charleston firm of Buist
vote-getter among
rily retired by virtue of old
College in Jackson, Miss.
Moore Smythe McGee,
Business North Carolina
age” and intends to perfect
He previously served as
of which Schreck had
magazine’s 2012 legal elite
his farming, hunting, and
treasurer of the board and
been a member since
for bankruptcy law, a
fishing.
as chair of the presidential
his graduation from the
distinction that will put
search committee. He
Law School. Schreck was
him in the magazine’s legal
graduated from Millsaps
named to South Carolina
elite hall of fame. He was
in 1965.
Super Lawyers 2012 in
recognized in the category
J. Thomas Fowlkes is
1967
transportation/maritime
of business law as well,
After stepping
down as
law, and has been listed
making him the only
general counsel of
in Best Lawyers in the area
attorney to be recognized
LeClairRyan, David I.
of maritime law for some
in both practice areas.
Greenberg opened his
20 years. He was recently
Greene was also selected
own office in Richmond,
re-elected to the board
for inclusion in the Top 100
Va., where he provides
of trustees of Hampden-
list in North Carolina Super
general counsel services,
Sydney College.
Lawyers 2012 for banking.
including risk mitigation
He is with Carruthers &
among the 2011 Virginia
Edward R. Levin was
advice, to law firms and
Roth in Greensboro, where
Legal Elite by Virginia
named to SmartCEO
other businesses,
he is a member of the
Business magazine in the
magazine’s list of the legal
including benefit
banking and finance team,
area of construction. He is
elite for 2011. He
corporations that do not
focusing his practice on
a partner with Gentry
represents employers in
have their
own general
commercial finance,
Locke Rakes & Moore in
labor negotiations,
counsel. He was quoted as
banking, and bankruptcy.
J. Rudy Austin was named
Roanoke.
UVA Lawyer / spring 2012 53
Class notes
…
1972
Asher Grunis LL.M., a
been visited. He flew to
the firm he founded
Hawaii for Christmas to
in 1988, Robertson &
complete all 50.
1976
out more about the law
school application process
Hollingsworth, in
Frederick N. Gleaton
and financial aid options.”
member of the Israeli
Charleston, S.C., and
was named in Best
Priscilla is an attorney
Supreme Court since 2003,
began, as of January 1,
Lawyers 2012 for medical
with the Metropolitan
a private consulting and
malpractice law and was
Transportation Authority
was appointed chief justice
1975
dispute resolution practice
named in Georgia Super
(MTA) and Long Island Rail
in ceremony took place at
Thomas R. Bagby
focusing on complex
Lawyers 2012 for the
Road (LIRR), specializing in
the president’s residence,
currently serves as
construction, engineer-
fifth consecutive year.
employment law.
with President Shimon
president-elect of the
ing, architecture, and
He is a founding partner
Peres and Prime Minister
Virginia Bar Association.
environmental matters,
with Owen, Gleaton,
which emphasized the
Benjamin Netanyahu
He is president of Woods
with emphasis on medical,
Egan, Jones & Sweeney
options offered by careers
present.
Rogers in Roanoke,
aviation and transporta-
in Atlanta. The firm was
in public service, I had
chairman of the labor and
tion, and other large
named to U.S. News &
the pleasure of being
tion called the Grunis
employment law section,
public and private proj-
World Report’s list of best
introduced by one of the
Law permitted Justice
and principal of the firm.
ects. He may be reached at
law firms for 2011-12
students to fellow Law
Grunis to be named Chief
His practice focuses on
Claron A. Robertson, d/b/a,
and to Fortune’s list of
School alum Shawn Grant
Justice. Previously, judges
representing management
a division of Robertson
top-ranked law firms in
‘02; Shawn is now VP and
were not allowed to serve
in a broad range of labor
& Company, LLC, 177
America for 2012.
Director of Law School
as the president of the
and employment law
Meeting Street, Suite 320,
court if they were within
issues. He was named
Charleston, S.C. 29201,
Daniel J. Hoffheimer has
three years of their 70th
Lawyer of the Year in Best
843-723-6470, and car@
been selected as a leading
birthday.
Lawyers 2012 in employ-
roblaw.net. Beginning
lawyer for 2012 in the area
ment law-management.
January 1, 2012, Robertson
of trusts & estates by Cincy
Stephen C. Neff ’76,
LL.M. ’77, S.J.D. ’88 was
& Hollingsworth will
magazine. Hoffheimer
awarded the David J.
W. Stuart Dornette has
continue its practice,
was also named in Ohio
Langum, Sr. Prize for
in February. The swearing-
A new piece of legisla-
1974
“At this year’s program,
Admissions Counseling for
Nelson Test Prep.”
been selected as a Leading
with no other changes, as
Super Lawyers 2012 in
American Legal History for
Monroe Kelly III has been
Lawyer for 2012 in the
Robertson Hollingsworth
estate planning & probate
2010 for his book, Justice
named Norfolk Banking
area of sports by Cincy
& Flynn.
and Best Lawyers 2012 in
in Blue and Gray: A Legal
and Finance Law Lawyer
magazine. He was selected
trusts and estates. He is a
History of the Civil War
of the Year in Best Lawyers
for inclusion in Ohio Super
Tina Swent Byrd, ap-
partner with Taft Stettinius
(Harvard University Press,
2012. He is a partner with
Lawyers 2012 in the area
pointed to the California
& Hollister.
2010). The book was cited
Williams Mullen in Virginia
of business litigation and
Superior Court in 2010,
Beach.
named Best Lawyers 2012
is serving in family law
Priscilla Lundin writes
for scholars” while also
as an “excellent resource
Cincinnati Litigation-
in the main courthouse.
that she recently enjoyed
being “highly accessible to
Frank Riggs was named
Municipal Lawyer of
“The most challenging
going to the Law Day
general readers.”
the Atlanta Construction
the Year. He was also
part of the job,” she writes,
event sponsored by the
Law Lawyer of the Year
recognized in Chambers
“is grappling with child
Pre-Law Institute at John
Donald Shuller was
in Best Lawyers 2012. He
2011 as a leader in the field
abuse issues and trying
Jay College of Criminal
named in Ohio Super
is partner and co-chair of
in the area of litigation-
to decide if the claims
Justice in NYC, which
Lawyers 2012 and Best
the construction practice
general commercial. He is
are true or made up for
she’s attended for the
Lawyers 2012 in real estate
group with Troutman
partner and co-chair of the
strategic reasons. The
past several years. “This
law. He is a partner with
Sanders in Atlanta, Ga.
litigation department of
financial issues are not
annual event gives the
Vorys, Sater, Seymour and
Taft Stettinius & Hollister.
difficult emotionally, but
students, the majority of
Pease in Cincinnati, where
Charles A. Young III is
can be very interesting
whom are from under-
he is a member of the
enjoying retirement. Last
Claron “Rob” Robertson
and complicated.”
represented groups in
commercial and real estate
summer he drove to Little
retired from the full-time
the legal profession, the
group.
Big Horn, Mont., to visit
practice of law effec-
opportunity to talk to
the last three of the Lower
tive December 31. He
lawyers in different areas
48 states he had not yet
remains of counsel to
of practice, and to find
54 UVA Lawyer / spring 2012
Class notes
…
1977
Stephen V. Cheatham has
joined Buckley King in
Cleveland, Ohio, as of
counsel. He was previously vice president and
associate general counsel
to New York Community
Bank in its contracts and
corporate governance
division.
Richard F. Engel
reports that his son,
John Engel ’08, was
married in September
to Megan Fanale ’11
Gifts with a Big Impact
in Leesburg, Va. John
changed firms and is
With a continuing interest in Vietnam, where focused charitable contributions within my
now with Ballard Spahr in
means can make a visible difference (unlike in some other contexts), I most recently funded two
Baltimore, Md.
improvements for a small primary school in the province of Dong Thap in the northwest part of the
Mekong Delta. Assisted by a Vietnamese friend in the critical matter of dealing with the local and
district Peoples’ Committees, I gave the school a proper set of bathroom facilities, complete with water
1978
tank and pump, which cost less than a long ski weekend in Vermont.
My financial bona fides having thus been established, the authorities proceeded as agreed to
replace the rickety wooden bridge over a canal beside the school with a solid and durable concrete
and rebar structure. All of the children must cross the bridge in order to reach the school, and the
wooden predecessor, in effect a large xylophone missing many notes, produced such apprehension
in the littlest ones, aged five or six, that in crossing they would form a human chain with hands on the
shoulders of the child in front.
Last November my friend and I attended the very colorful opening ceremony for the bridge
arranged by the local officials. There were many speeches in Vietnamese, a bit of which I understood,
Ed Baxa ’78, LL.M ’80
as well as one by me (also in Vietnamese) which my friend said was indeed understood, and I handed
received the 2012 Florida
over the promised funds in a fat envelope of hundred-dollar bills that paid most of the cost. The
Bar President’s Pro Bono
amount would perhaps have funded a week’s vacation at Stowe.
Services Award for the 9th
Some of the posturing by the more important officials grew a bit wearisome, but it was very gratify-
Judicial Circuit. Baxa has
ing to see the children scampering back and forth over the “Starfish Bridge,” the name I prescribed it
served as guardian ad
should bear. (In Vietnam all bridges, even the smallest, are named.)
litem for more than 100
Perhaps the best moment was when, after the ceremony, two elderly ladies from the local village
children in juvenile
came up to my friend and me to thank us, since the bridge not only serves the school but is also in
dependency court and has
daily use by villagers working in the surrounding rice paddies. The ladies were touchingly apprecia-
made a collective
tive and expressed themselves with the grace and politeness characteristic of older people in that
contribution of nearly
fast-changing country.
1,000 hours of pro bono
—Thomas L. Higginson, Jr. ’76
work throughout his
career. He is a partner with
Foley & Lardner in Orlando,
UVA Lawyer / spring 2012 55
Class notes
…
where he is chair of Foley’s
1979
law-management,
1980
litigation-labor &
national pro bono
committee. He maintains a
John “Jack” Berry has
employment. He is a
John F. Brenner was
complex commercial
joined the personal injury
partner with Quarles &
named in New York Super
litigation practice focused
firm of Allen, Allen, Allen &
Brady in Milwaukee.
Lawyers 2011 and in New
on construction law.
Allen as managing partner
Jersey Super Lawyers
of the Charlottesville
John Maddrey was named
2012 in class action/mass
office. Berry served as chief
solicitor general of North
torts, personal injury
judge on the Circuit Court
Carolina in November.
defense-products, and
W. David Paxton was
bench of Virginia’s 16th
Maddrey is responsible for
civil litigation defense. He
named among the 2011
circuit from 2010–12.
coordinating the handling
is a partner in the health
Virginia legal elite by
of civil appeals before
effects litigation practice
Virginia Business magazine
H. Aubrey Ford III was
state and federal appel-
group with Pepper
in the area of labor/
designated among the
late courts and will also
Hamilton in Princeton,
employment. He is a
top 10 Virginia Lawyers
coordinate the state’s
N.J., and New York, where
partner with Gentry Locke
in Super Lawyers 2011. His
Department of Justice’s
he focuses his practice on
Rakes & Moore in Roanoke.
Mary Bland Love was
son, Aubrey, is living in
participation in amicus
the defense of complex
recently honored as
Denver, and his son, Billy,
briefs. He has served as
product liability and mass
Jonathan J. Rusch, a
Lawyer of the Year at the
just returned from a one-
an attorney with the
tort cases against phar-
deputy chief in the
annual Jacksonville
year Fulbright program in
Department for 31 years,
maceutical and medical
fraud section of the U.S.
(Florida) chapter of the
Malaysia.
most recently handling
device manufacturers.
Department of Justice,
cases challenging the
American Board of Trial
has received the Director-
Advocates. She is of
Michael K. Kuhn was
constitutionality of State
Leonard C. Martin has
General’s Commendation
counsel to Marks Gray,
named in Best Lawyers
statutes. His career with
been selected to serve as
from the United Kingdom
where she practices in
2012. He is a partner in
the Department also
state chair for Mississippi
Serious Organised Crime
medical and products
the real estate group with
includes seven years in
for the American College
Agency (SOCA). The
liability. Her primary focus
Jackson Walker in Houston,
the consumerprotection
of Trust & Estate Counsel
commendation, which is
is in the defense of
Tex., where he focuses on
division and 15 years in
(ACTEC) for a five-year
SOCA’s highest award and
hospital and physical
commercial real estate
the transportation section.
term. He was named
one rarely given to non-
liability cases.
with an emphasis on office
among the 2011 Mid-South
Britons, is in recognition of
Cuyler Overholt has
Super Lawyers and was
his service as co-chair of
Michael P. Haggerty
published her debut novel,
selected for inclusion
the international mass-
has been named in Best
A Deadly Affection, a his-
in Best Lawyers 2012 in
marketing fraud working
Lawyers 2012 in real estate
torical mystery set in 1907
trusts and estates and
group, a multinational
law and was named in
New York about a young
nonprofit/charities law.
law enforcement body
Texas Super Lawyers
psychiatrist who fears she
He is a shareholder with
dedicated to improving
2011 in banking and real
may have unwittingly pro-
Baker Donelson in Jackson,
international coopera-
estate. He is a partner
voked a patient to commit
where he concentrates his
tion and coordination in
with Jackson Walker in
murder. Overholt worked
practice in taxation, trusts
combating all types of
Dallas, where he leads the
as a litigation attorney and
and probate, planned
mass-marketing fraud.
finance practice group. He
freelance business writer
giving, and nonprofit
organizations.
and retail leasing.
represents banks, credit
Ely A. Leichtling was
before turning to fiction.
companies, insurance
named in Wisconsin Super
To read more about the
companies, and other
Lawyers 2011 in employ-
book, (see In Print), visit
financial institutions in
ment and labor. He was
www.cuyleroverholt.com.
real estate, commercial,
also named in Best Lawyers
recently elected to the
and corporate lending
2012 in employment
board of directors of the
transactions.
law-management, labor
northeast chapter of the
1981
Christine Hughes was
Association of Corporate
Counsel. The ACC is an
56 UVA Lawyer / spring 2012
Class notes
…
association of in-house
contributed articles to
estate department. Truitt
Blake A. Bell, senior coun-
in Best Lawyers 2012 in
counsel that offers legal
Kingdom Magazine (Arnold
was selected for inclusion
sel with Simpson Thacher
commercial litigation
education programs,
Palmer’s publication) and
in Best Lawyers 2012 in real
& Bartlett in New York City,
and bet-the-company
pro bono opportunities,
Arnold Palmer’s Guide to the
estate law.
was elected to a four-year
litigation, named among
advocacy, women’s
Majors. Ross is co-author
term as town councilman
the 2011 Virginia Business
and diversity initiatives,
of a golf book that has just
J. Vann Vogel is working as
in Pelham, N.Y., where he
magazine’s list of legal
and networking to its
been released: Mastering
a deputy general counsel
served as town clerk for
elite in civil litigation,
members. Hughes is gen-
Golf’s Toughest Shots. This
at Verizon Wireless. His
the last four years and as
and in Virginia Super
eral counsel at Emerson
is the second book pub-
son, Peter, is a freshman
town historian for the last
Lawyers 2011 in the areas
College in Boston, Mass.
lished by the Professional
at University of North
nine.
of business litigation,
Caddies Association, and
Carolina and his daughter,
Chris Roux has joined
contains hands-on advice
Susanna, is a freshman
Janice Ingram, have been
and intellectual property
Alston & Bird in
from some of the top
at Davidson. He and his
raising their son, Brett (15),
litigation.
Washington, D.C. He prac-
professional caddies. Ross
wife, Jennifer, enjoy fall
and daughter, Jennifer
ticed in Los Angeles for
contributed a chapter
weekends in the Carolinas
(10) in Pelham, Blake has
Lisa M. Friel has left
30 years, serving the last
about how players can use
and their vacation/retire-
published two books on
the Manhattan District
three as co-chair of Alston
the rules to their advan-
ment house in Asheville.
the history of the region
Attorney’s office after
& Bird’s construction &
tage in problem situations.
(and is working on a
28 years in public service
government contracts
(See In Print.)
third). He has published
to join T&M Protection
more than 80 articles on
Resources, a security, con-
group. He was selected
1983
While he and his wife,
employment & labor,
for inclusion in Best
Dennis Ryan has joined
related topics that have
sulting, and investigations
Lawyers 2012 in the area
Health Diagnostic
appeared in a host of
firm in Manhattan, where
of construction law. “The
Laboratory, a medical test-
newspapers and history
she is vice president in
move was made princi-
ing company established
journals and has presented
charge of the sexual mis-
pally for family reasons,” he
in Richmond, Va., in 2009,
academic papers on the
conduct consulting and
writes, “but I am looking
as executive vice presi-
same subject at conferenc-
investigations division.
forward to transitioning
dent. Ryan will help plan
es throughout New York
my practice to the East
the company’s expansion
State. He sits on the boards
Coast and reconnecting
of facilities in the United
of numerous not-for-profit
with UVA classmates.” He
States and in Europe. He
Robert Barnes is of
philanthropic and historic
can be reached at Chris.
was a founding partner of
counsel in the real estate
preservation organizations
Roux@alston.com.
LeClairRyan.
and finance practice with
and is a member of the
Carlton Fields in Atlanta,
program committee for
Ga. He has experience in
the Conference on New
CMBS lending and matters
York State History. Far
involving mezzanine loans,
more importantly, he
Jack Ross left the practice
equity investments,
notes, for much of the
Elizabeth G. Hester has
of law in Washington, D.C.
borrowing entity
last decade he has been a
been named a BTI Client
some years ago to pursue
structures, defeasance,
Little League, softball, and
Service All-Star, a
writing interests. Ross is a
asset management, loan
soccer coach.
recognition (from BTI
1982
freelance sports journalist,
Raymond Truitt has been
workouts, and real estate
currently writing mostly
appointed to the board of
leasing and sales. He
Hugh M. Fain III has been
attorneys who deliver
about golf. Among other
advisors of Loyola College,
previously served as
installed as the 124th
superior service to Fortune
endeavors, he writes a
Loyola University
general counsel and in
president of the Virginia
1000 companies and other
monthly golf rules
Maryland’s school of arts
senior management for
Bar Association. He is
large organizations. She is
column for New England
and sciences. He is
two nationally recognized
a shareholder in the
a partner in the commer-
Golf Monthly—“putting
managing partner for
commercial mortgage
litigation section at Spotts
cial section with Kaufman
my legal training to
finance and operations for
lenders.
Fain in Richmond and
& Canoles in Richmond,
work in a different
Ballard Spahr in Baltimore
is the firm’s managing
Va., where her practice
capacity!” Ross has also
and is a partner in the real
director. He was named
includes mergers and
Consulting Group) of
UVA Lawyer / spring 2012 57
Class notes
…
acquisitions and assisting
commercial litigation, land
clients in the formation of
use & zoning law, and real
Catherine Currin Hammond ’84, chief
limited partnerships and
estate. He was named as
judge of the 14th Judicial Circuit in
limited liability companies.
Kansas Litigation-Real
Henrico County, Va., received the 2011
She also handles general
Estate Lawyer of the Year
Women of Achievement Award from the
contract and corporate
for 2012. In 2011 he was
Metropolitan Richmond Women’s Bar
matters. Hester was
elected to the board
Association for her pro bono work and
selected for inclusion in
of trustees of Johnson
decades of public service. Judge
Best Lawyers 2012 in the
County Community
Hammond has taken a leadership role in
area of corporate law. She
College, a 42-year-old
efforts to help the homeless, in
is a fellow with the Virginia
institution with more than
advocacy for inmates on death row, and in bringing about statewide mental health
Law Foundation.
21,000 credit students.
reform. She has also volunteered as an intake lawyer at Central Virginia Legal Aid. The
bar also recognized Hammond’s initiative in creating the first drug court in Henrico, a
1984
collaborative project including law enforcement and health care providers. Hammond’s
husband, Paul, and elder son, Matthew, were with her to receive the award.
Mary Steele has recently
1985
Bell, was released in
become CEO of New
paperback and on Kindle.
Horizons Ministries, a
He also published A
non-profit serving Seattle
Century of Eugenics in
elected to the
Judge Russell Carparelli
street kids. Mary served on
America: From the Indiana
International Rugby Board
LL.M. of the Colorado
the board of New Horizons
Experiment to the Human
executive committee. He is
Court of Appeals has
during her career as a
Genome Era. (See In Print.)
the first American to be a
received the 2012
litigator at Davis Wright
voting member of the
Honorable William J.
Tremaine. She took over
In 2011 Paul A. Lombardo
as an expert by the media,
board in its 125-year
Brennan, Jr., Award given
leadership of the organiza-
was elected as a member
and in the past year has
history.
by the National Trial
tion after retiring from her
of the American Law
been interviewed by the
Advocacy College at the
law practice.
Institute and named the
Associated Press, the BBC,
Bobby Lee Cook Professor
USA Today, National Public
Robert P. Latham was
He is regularly contacted
John “Gib” Mullan became
Law School. The award is
chief counsel of the House
given in recognition of
Gretchen Wylegala has
of Law at Georgia State
Radio, the CBS Evening
Energy and Commerce
outstanding skills and
been elected vice chair of
University in Atlanta. He
News, and Anderson
Committee’s subcom-
contributions to the
the Hilbert College board
was appointed as a senior
Cooper 360 on CNN.
mittee on commerce,
National Trial Advocacy
of trustees. She is also
advisor to the Presidential
manufacturing, and trade
College and the legal
currently a member of
Commission for the Study
Steve M. Pharr has named
in 2011.
profession. Judge
the University of Virginia
of Bioethical Issues in
in North Carolina Super
Carparelli has served on
Jefferson Scholarship
Washington D.C., and
Lawyers 2012 in construc-
Greg Musil continues
the faculty of the National
regional selection
traveled to Guatemala to
tion litigation. He is with
to practice commercial
Trial Advocacy College
committee. Wylegala is
investigate U.S. govern-
Pharr Law in Winston-
litigation and real estate
since 1984.
an assistant U.S. attorney
ment funded research
Salem, where he focuses
in the U.S. Attorney’s
there as reported by the
on general commercial
Shughart in Kansas City,
John K. Hutson has been
office, Western New York
Commission in: Ethically
litigation, construction
Mo. Musil was selected for
selected as educator of
District. Her work in law
Impossible: STD Research in
law, real estate litigation,
Missouri & Kansas Super
the year at Army Logistics
enforcement has been
Guatemala from 1946-1948.
professional liability, and
Lawyers for 2011 and Best
University in Fort Lee, Va.
products liability.
law with Polsinelli
recognized by the U.S.
His award winning book,
Lawyers 2012 in bet-the
Justice Department with
Three Generations, No
company litigation,
a 2011 National Crime
Imbeciles: Eugenics, the
Victim Service Award.
Supreme Court and Buck v.
58 UVA Lawyer / spring 2012
Class notes
…
Michael Platt has
and divestitures, and
Kenneth Williams is
recovery of deep-ocean
had been involved in two
been appointed chief
general corporate law. He
professor of law at South
shipwrecks. He was
previous deaths. OSHA
executive officer of Lease
is partner in the securities
Texas College of Law in
counsel of record in 52
cited SeaWorld Orlando
Corporation International,
and capital markets group
Houston. He is a nation-
cases in the U.S. Court
for willfully exposing em-
an aircraft leasing
with Calfee, Halter &
ally recognized expert on
of Appeals and argued
ployees to life-threatening
company that is a wholly
Griswold.
the death penalty and
four cases before the U.S.
hazards in interacting with
orcas.
criminal law. His book,
Supreme Court. He was a
LIBRA Group. He is based
Susan W. Murley was
Most Deserving of Death?
visiting professor at the
in New York City.
named to the Top
An Analysis of the Supreme
Law School.
Women in Law for
Court’s Death Penalty
2011 by Massachusetts
Jurisprudence, was recently
Ron Haron resides in
cooperatively, form
Lawyers Weekly. She is
published by Ashgate
Arlington, Va., with his
complex relationships,
co-managing partner of
Publishing Company. (See
wife, Judy, daughter, Rose
communicate with distinct
Andy Abrams LL.M., who
Wilmer Hale and a partner
In Print.)
(6), and son, Anthony (4).
dialects, and swim long
was named dean of the
in the corporate practice
Charleston School of
group in Boston, where
Law in 2008, reports that
she concentrates her
the law school received
practice mainly in the
accreditation from the
areas of corporate finance,
American Bar Association
mergers and acquisitions,
in August.
and corporate governance.
owned subsidiary of the
1986
Kerr argues that orcas
are intelligent animals
that, in nature, work
distances every day. In
In October Jeffrey Kerr,
captivity at SeaWorld in
general counsel to People
California and Florida, they
for the Ethical Treatment
are forced to swim in tight
David J. Bederman passed
of Animals (PETA), filed a
circles in concrete tanks.
away on December 4 at
lawsuit asking a federal
They are deprived of their
the age of 50. He was
court to declare that five
freedom, the use of their
K.H. Gyr Professor of
wild-caught orcas forced
sonar, and are forced to
1987
Joseph G. Grasso co-
James F. Ritter has
Private International Law
to perform at SeaWorld
perform tricks for human
edited the American
joined Sheppard, Mullin,
at Emory Law School
are being held as slaves in
entertainment.
Bar Association’s The
Richter & Hampton in
and a noted authority
violation of the Thirteenth
Handbook on Additional
Washington, D.C., where
on public international
Amendment to the
Insureds. (See In Print.) The
he is special counsel in the
law, admiralty, and legal
Constitution. The filing,
Alfred “Ran” Randolph,
Jr., serves on the Virginia
book comprehensively ad-
corporate practice group.
history.
the first in history seeking
Bar Association’s board
dresses issues that relate
He represents businesses
Prior to his 20 years at
to apply the Thirteenth
of governors. He was se-
to additional insureds that
seeking and providing ac-
Emory Law, Bederman was
Amendment to nonhuman
lected for inclusion in Best
concern both insurers and
cess to capital in a number
with Covington & Burling
animals, named the orcas
Lawyers 2012 in banking
policyholders. Grasso is
of industries, and has
and served as a legal ad-
as plaintiffs and sought
and finance law, corporate
a partner in the litigation
extensive experience in
viser at the Iran/U.S. Claims
their release. In February
law, and financial services
department and co-chair
the aerospace, defense,
Tribunal at The Hague.
U.S. District Judge Jeffrey
regulation law. Ran is a
of the insurance practice
communications, health
He was a prolific author
Miller of San Diego, Cal.,
partner with Kaufman &
group with Wiggin and
care, and energy indus-
of books and articles on
ruled that the Thirteenth
Canoles in Norfolk, where
Dana in Philadelphia and
tries. He was previously
public international law,
Amendment applies only
he is a member of the
New York.
with Latham & Watkins.
legal history, admiralty,
to humans.
lender representation
John J. Jenkins has been
Jennifer Weiss is in her
and constitutional law. He
formal complaint to the
creditors’ rights and busi-
named by Best Lawyers
seventh term in the
litigated cases involving
Florida State Attorney
ness restructuring practice
2012 as the Lawyer of
North Carolina House of
shipwreck finds on the
asking that involuntary
groups. He coaches youth
the Year in Cleveland in
Representatives. She has
ocean floor and repre-
manslaughter charges be
lacrosse with Jeff Stedfast
the area of securities/
represented her district
sented the company that
brought against SeaWorld
’86. Ran has three boys
capital markets. He advises
since 1999.
held the salvage rights to
and its executives follow-
(9, 12, and 16) and is
publicly and closely held
the Titanic. Last year he
ing the February 2010
approaching his 23rd
corporate clients on mat-
became chair of the board
death of orca trainer Dawn
wedding anniversary with
ters involving securities
of directors of Odyssey
Brancheau. She drowned
his wife, Kristen.
and capital market issues,
Marine Exploration Inc.,
after being pulled into
mergers, acquisitions
which leads search and
the water by an orca that
legislation and regulation,
Kerr brought an earlier
and bankruptcy and the
UVA Lawyer / spring 2012 59
Class notes
…
’87 Fantasy Baseball: Another Winning Season Rolls Around
1988
It was spring, 27 years ago, when Joe Prochaska
gathered a group of fellow law students in a classroom
for their first season of rotisserie (aka fantasy) baseball.
That first season was so engaging that he and eight
other team owners from Law School are still in the
game, including Greg Cross (Smokin’ Buses), Mike
Dean and George Schwab (Gungan Crue), De O’Roark
(Lounge Lizards), Paul Parmele and Tom Schorr (Schorr
Kim Bonuomo has been
Things), Greg Ross (Dancing Bears), and John Tawa
elected shareholder with
(Tawa O’Powa, 2011 champion). Not to be outdone, the
founder’s team is dubbed Prochaska’s Possums.
With a few other friends and colleagues, they form the
L to R:Joe Prochaska ’87, Mike Dean ’87, John Tawa
’87, Greg Cross ’87, George Schwab ’86 (red shirt),
Greg Ross ’87, Tom Schorr ’87, De O’Roark ’87, Paul
Parmele ’87
Moss & Barnett in
Minneapolis, Minn., where
she is a member of the
Henry Mathewson Memorial Rotisserie Baseball League,
family law practice group.
named for a player whose statistics and persona were overshadowed by those of his famous brother, Christy.
She focuses her practice
Since Law School the annual draft has expanded to a three-day event in April, usually occurring soon after the
on complex asset
opening of the major league season. One day is set aside for the draft, and wives, children, and girlfriends are
valuation and distribution,
invited to all other events. The owners have rotated the annual draft-hosting duties in their hometowns and
business valuations,
have been to each at least once, including Austin, Atlanta, Cincinnati, Portland, Ore., Los Angeles, Nashville,
custody and parental
Charlotte, D.C., Baltimore, Princeton, and New York City. They’ve also ventured to New Orleans, Seattle, and
rights, financial support,
Louisville. They’ve seen a no-hitter at Dodger Stadium, toured the Louisville Slugger bat factory, and watched
premarital agreements,
thousands of bats (of the mammalian variety) fly out from under a bridge at dusk in Austin.
and settlement
Despite their demanding schedules, owners are expected to show up on draft day. The dynamics of the
negotiations.
fiercely competitive event could never be fully conveyed by a Webcam. After sifting through stats and countless other variables to come up with a list of players for their dream team, they bid for them in $1 increments.
Owners have a total of $260 with which they must acquire 23 American League players, including 9 pitchers,
14 hitters, and so on.
More often than not the draft is held in a law firm conference room, but once in a while they break the
pattern in great style—as in the memorable 1992 draft that took place in the Tennessee State Senate Chamber,
thanks to Prochaska. The event begins with the owners singing the national anthem, and they’ve had some
notable accompanists: an Elvis impersonator in Las Vegas, a Kenny G-style saxophone played by a Venable
lawyer in Baltimore, an authentic Churchill Downs bugler performing Stars and Stripes and a “call to the rail” in
John M. Cooper and a
Louisville.
partner announced their
Then they get down to business. In the heat of an auction things can get pretty tense: an owner’s funds run
new personal injury law
low in the thick of bidding and the pitcher with the overpowering fastball is out of reach, or someone’s stuck
firm, Cooper Hurley, in
with too much money and no decent players to bid on. At this point, things can get loud, but mostly it’s a
Norfolk, Va. Cooper was
good-natured battle of wit and witticisms.
previously a partner with
As they follow their teams throughout the 162-game season, there are the inevitable ups and downs. “One
Shapiro, Cooper, Lewis &
week a hitter’s performing better than hoped, the next he’s in a slump,” notes O’Roark. “Or a player comes out
Appleton and devotes
of nowhere to have the season of his life.” How do they handle these unpredictable swings? “I like to keep a
himself to helping
ball-peen hammer in my desk drawer,” quips Dean, also known as the Commish. It’s his job to keep things
individuals hurt in car,
moving and apply the rules when things get out of hand.
truck, motorcycle, and
There are plenty of rules in the league’s constitution, drawn up in 1985 and amended as deemed necessary
train accidents. Cooper is a
in the years since. Perhaps not surprisingly, the rules are often challenged. “Lawyers are always playing around
district governor for the
the edges,” says Dean. “We’re good at it. It’s what we do for a living.”
Virginia Trial Lawyers
This year everyone met in Chicago, the city of Big Shoulders, deep-dish pizza, and the start of one team’s
championship year.
— Rebecca Barns
60 UVA Lawyer / spring 2012
Class notes
…
Association, the statewide
including initiatives, ref-
Super Lawyers 2011 in
plaintiffs’ bar, and serves as
erenda, and recalls, and is
intellectual property
chair of the FELA (railroad
one of the country’s lead-
litigation and business
worker claims) Litigation
ing experts on statutory
litigation. He was also
Group for the American
interpretation and the role
named one of Virginia’s
Association for Justice. He
of institutions—judicial,
Legal Elite in Virginia
was named to the Top 100
legislative and administra-
Business 2011 in intellectual
Trial Lawyer list for 2011 by
tive—in shaping the
property law. Riopelle is
the National Trial Lawyers
interpretive process.
partner and chair of the IP
1991
Alexander M. Macaulay
litigation/patent depart-
organization. In January
has been named in Best
he was reelected as 2nd
Patrick Hyder Patterson
ment with McGuireWoods
Sarah Davies has been
Lawyers 2012 for govern-
district governor for the
recently published Bought
in Richmond.
appointed member of the
ment relations law. He is a
Virginia Trial Lawyers
and Sold: Living and Losing
Girard College board of
founding partner with
Association.
the Good Life in Socialist
managers.
Macaulay & Burtch in
Yugoslavia with Cornell
1990
Girard is a boarding
Richmond, Va.
school for academically
Elizabeth Garrett has
University Press. In the
been elected to the
book he examines the
Michael Milgraum has
capable students, grades
Jeffrey L. Stredler has
American Academy
unique mix of socialist
published his first novel,
1–12, who are from fami-
been elected to serve
of Political and Social
and consumerist life in the
Never Forget My Soul. The
lies with limited financial
on the Virginia State Bar
Science (AAPSS) and will
former Yugoslavia. (See
book tells the story of
resources headed by a
litigation section board of
be inducted as a Harold
In Print.) He is assistant
two children of Holocaust
single parent or guardian.
governors. He also serves
Lasswell Fellow. She was
professor of history at the
survivors and their journey
The 43-acre campus is
on the VSB corporate
selected in recognition
University of California,
to psychological and
located in Philadelphia, Pa.
counsel section board of
of contributions she has
San Diego.
spiritual healing. (See
Davies is a member
governors. Stredler is se-
made to social sciences
In Print.) Milgraum is an
with Cozen O’Connor
nior litigation counsel with
and for communicating
attorney and psychologist
in Philadelphia. She is
Amerigroup Corporation
practicing in Silver Spring,
administrative partner for
in Virginia Beach.
Md.
the commercial litigation
her understanding beyond
1989
her own discipline.
group, concentrating
Garrett is the Frances
Russell S. Sayre has been
her practice in complex
Andrew “Mac” Warner
LL.M. is currently posted
selected as a leading
commercial litigation,
in Bamyan, Afghanistan,
litical Science and Public
lawyer for 2012 in the area
including cases involving
where the Taliban blew
Policy at the University of
of business litigation by
class actions, securities
up two large statues of
Southern California Gould
Cincy magazine. He was
fraud, Uniform Com-
Buddha carved in a moun-
School of Law. She holds
also named a future star in
mercial Code transactions,
tain in March 2001. Warner
joint appointments at the
Benchmark Litigation 2012.
business torts, breach of
writes he is using his
R. and John J. Duggan
Professor of Law, Po-
USC Dornsife College of
Brian C. Riopelle has been
He was named in Best
contract, construction
LL.M. instruction to teach
Letters, Arts and Sciences,
recognized in Benchmark
Lawyers 2012 in appellate
litigation, health care, and
judges, mullahs, prosecu-
and the USC School of
Litigation as the 2012
practice, commercial
environmental contamina-
tors, defense counsel, and
Policy, Planning, and
Virginia Litigator of the
litigation, and litigation-
tion. She also handles
police the rule of law and
Development, as well as
Year. American Lawyer
banking and finance, and
appellate matters in state
other justice basics. “As we
a courtesy appointment
selected him as its Litigator
included in Ohio Super
and federal courts.
transition the responsibil-
at the USC Annenberg
in the Spotlight in 2011,
Lawyers 2012 in business
ity for security from
School for Communication
and he was named in
litigation. He is a partner
military to civilian control,”
& Journalism.
She is an
Chambers USA 2011 as a
with Taft Stettinius &
he writes, “the rule of law
authority on the study
leading lawyer for
Hollister in Cincinnati.
emerges as the primary
of direct democracy,
intellectual property.
need to maintain order
Riopelle was also named in
and to generate trust in
Best Lawyers 2012 in patent
society at large.”
litigation and in Virginia
UVA Lawyer / spring 2012 61
Class notes
…
1992
Timothy J. Moran has
Richard C. Gross ’93 was nomi-
joined Sidley Austin as
nated for promotion to the rank of
Sean Paul Brankin LL.M.
partner in the project
Brigadier General by President
has been elected partner
finance practice in
Obama and was confirmed by the
in the antitrust group
Washington, D.C., where
U.S. Senate on February 17. He
with Crowell & Moring in
he focuses his practice
now serves as Legal Counsel to the
Brussels. He focuses his
on infrastructure project
Chairman of the Joint Chiefs of
practice on matters involv-
development and finance.
Staff at the Pentagon.
ing EU and UK antitrust
He was previously with
law, including merger
Dewey & LeBoeuf.
General Gross is a 1985
graduate of the U.S. Military
Academy at West Point and a 2009 graduate of the United States Army War
control and counseling.
Lowell Sachs was
College. He has served in a number of leadership roles, including Chief Legal
Julie Lynn, who formed
recently promoted to
Advisor, International Security Assistance Force and Staff Judge Advocate (SJA),
Mockingbird Pictures
deputy vice president
U.S. Forces-Afghanistan; SJA, Joint Special Operations Command, Fort Bragg,
in 1999, was one of the
for BCS Incorporated, a
N.C.; and Deputy SJA, V Corps, Heidelberg, Germany. He has served in multiple
producers of the 2011
management consulting
deployments to Iraq and Afghanistan. His most recent assignment was SJA for
release, Albert Nobbs. The
firm specializing in work
U.S. Central Command at MacDill Air Force Base, Tampa, Fla.
film stars Glenn Close, who
on energy, environment,
plays the lead character,
and national security mat-
a woman who disguises
ters. His work for the U.S.
herself as a man to work
Department of Energy’s
and survive in 19th
Office of Energy Efficiency
and tort disputes. He was
David Haddock was named
Nash’s recent launch, with
century Ireland. The film
and Renewable Energy
previously with K&L Gates.
general counsel and
partners, of The Green
was nominated for three
supports breakthrough
secretary of Sunrise Senior
Room, a performance
Golden Globes and three
research and development
Living in October 2010.
space and theatrical
Academy Awards.
and federal initiatives
He lives in Alexandria,
bookstore in Atlanta, Ga.,
1993
designed to advance the
Va., with his wife, Klara,
that provides a supportive
Sean M. Mahoney
nation’s energy security,
Lisa E. Jones joined Sidley
and children, Alex (3) and
community for actors.
continues to work at
economic vitality, and
Austin in Washington,
Adam (1½).
the Conservation Law
environmental health. His
D.C., as counsel in the
Foundation in Portland,
previous work in the tech
environmental group. She
Todd C. Peppers has co-
Group, a business and
Maine. He will miss the
sector managing federal
was previously assistant
edited In Chambers: Stories
entertainment manage-
20th reunion to canoe
government affairs for Sun
section chief in the
of Supreme Court Law
ment company, which
the length of the Allagash
Microsystems prepared
appellate section of the
Clerks and Their Justices,
specializes in helping
River, but notes that he
him with more than a
Environment and Natural
a collection of essays
clients with accounting,
looks forward to Sean
decade of experience as a
Resources Division, U.S.
about Supreme Court law
bookkeeping, taxes,
Maloney’s return to
public policy expert and
Department of Justice.
clerks and the justices
contracting, business
Washington, D.C., in 2013.
technology ambassador.
they worked for. Peppers
due diligence audits, and
contributed two original
overall business manage-
essays to the book. (See
ment. The company also
In Print.)
offers nonprofit consulting
Lowell lives in Falls Church,
Sean Maloney is running
Va., with his wife, Christine,
for a seat in the U.S. House
and daughter, Autumn.
of Representatives in the
1994
services. Last winter Nash
Maj. Michael K. Gould,
brand new NY-18 district.
Paul Stockman has joined
U.S. Army Reserve, is
He is a partner with Orrick
McGuireWoods’ commer-
deployed for a year to
in New York, N.Y., where he
cial litigation department
serve as a judge advocate
is a member of the energy
in Pittsburgh, Pa., as part-
with the Combined Joint
Shannon King Nash was
and infrastructure group.
ner. He focuses his practice
Interagency Task Force
the subject of a feature
In 2006 he ran for attorney
on the litigation, trial,
435, which handles
in the October issue of
general of New York.
and appeal of insurance
detainee operations in
Atlanta Tribune magazine.
coverage, environmental,
Afghanistan.
The Q&A piece focused on
62 UVA Lawyer / spring 2012
Nash’s primary business
is the Nash Management
1995
was named a “Woman of
Influence” by the Women’s
Economic Development
Agency in Atlanta.
Class notes
…
1996
Mark Knueve was named
practices primarily in the
Charter Communications
in Ohio Super Lawyers 2012
real estate development
in St. Louis, Mo. Deredyn
Nominated by President
in employment and labor
and finance area,
joined the company in
Barack Obama to the
law and in Best Lawyers
representing developers,
2008 as vice president,
District of Columbia
2012 in employment
lenders, and operating
corporate finance to head
U.S. Court of Appeals
law-management and
companies in connection
Charter’s corporate
in August, Catharine
litigation-labor & employ-
with real estate matters.
finance, M&A, and
Easterly was formally
ment. He is a partner with
long-term financial
James “Buddy” Robinson
sworn in February. The cer-
Vorys, Sater, Seymour and
planning efforts. Charter
was named vice president-
emony marked her formal
Pease in Columbus.
Communications is the
general counsel and
entry to the court; she has
corporate secretary of
been serving on the bench
Jennifer Parham
operator in the United
Kohler Co. in Kohler, Wisc.
since November, when she
was selected as the
States and provides
He will have full global
was confirmed by the U.S.
recipient of the 2012
advanced communica-
responsibility of the legal
Senate. Easterly previously
YWCA Outstanding
tions services to customers
department. Previously,
served in the special litiga-
Women Award in the area
Robinson was senior vice
tion division of D.C. Public
of human relations and
Jennifer M. DelMonico
president and general
Defender Service.
faith in action, presented
received the Alumnus of
Amit P. Mehta was named
counsel for Milwaukee-
by the YWCA of Greater
the Leadership Center
to National Law Journal’s
based Bucyrus
Richmond. She was
Award at the Greater New
Minority 40 Under 40
International.
honored for her leader-
Haven Chamber of
list for 2011. Mehta was
ship and service in the
Commerce 2011 annual
recognized for his key role
fourth-largest cable
in 25 states.
Indiana Chief Justice
community, including her
awards luncheon in
in defending several high-
Randall T. Shepard LL.M.
work with the Richmond
October. The award is
profile cases, including
stepped down from
Christian Leadership
given to an alumnus of the
the ultimately dismissed
the bench in March. He
Institute and the Needle’s
chamber’s leadership
charges against former
Eye Ministries, which
programs who has made
International Monetary
Governor of Indiana in
Leezie Kim has rejoined
connects professional men
outstanding contributions
Fund President Dominique
1985 and became chief
Quarles & Brady as partner
and women to improve
to the region. DelMonico is
Strauss-Kahn. Mehta’s suc-
justice two years later,
in the Phoenix, Ariz., office,
their community through
a partner with Murtha
cessful representation of
making him the longest
where she focuses her
Christian values, ethics,
Cullina in New Haven,
former Congressman Tom
serving state court chief
practice on corporate
and love.
Conn., where she is a trial
Feeney in connection with
justice in the nation.
transactions involving
lawyer for parties in
a grand jury investigation
Shepard oversaw reforms
international business
complex commercial
concerning a privately
in the way the court does
transactions and national
litigation disputes and
funded trip to Scotland
business, including the
security, health care,
defendants in tort and
in 2003 was also noted.
Webcasting of oral argu-
restaurant business
product liability actions.
Mehta was the primary
ments and issuing jury
transactions, and
author of the brief for Rep.
instructions in straight-
immigration benefits and
Feeney in the U.S. Court of
forward English to make
enforcement matters
Appeals for the D.C. Circuit
the law easier for jurors to
affecting businesses. She
in 2009. The court ruled
understand. He has several
left the firm in 2007 to
that Feeney’s statements
things planned, including
serve as general counsel to
serving as a senior judge
then-Arizona Governor
Brian W. Byrd has been
Constitution’s speech or
in the state court of
Janet Napolitano ’83, and
listed among Business
debate clause, a decision
appeals and as a visiting
in 2009 she became
North Carolina’s 2012 legal
that allows members
scholar at the University of
deputy general counsel in
elite in real estate law. Byrd
Matthew Derdeyn was
of Congress to speak
Cincinnati College of Law.
the U.S. Department of
is with Smith Moore
recently promoted to
freely during ethics probes
Homeland Security.
Leatherwood in
senior vice president for
Greensboro, where he
corporate finance at
was appointed by the
1997
were protected by the
UVA Lawyer / spring 2012 63
Class notes
…
regarding legislative
Lacey) and reports that his
that govern those plans.
matters.
children, AJ (5) and Justin
Hadley previously served
Mehta was named a
(4), continue to enjoy the
as associate counsel for
future star in Benchmark
perks of his working for a
pension regulation at the
Litigation’s 2011 ranking
chocolate company.
Investment Company
Institute, the national
of U.S. litigation firms and
lawyers as well. He is a
1999
association of U.S.
Stephanie L. Chandler was
investment companies.
listed among Business
named to San Antonio
Among his many
D.C., where he focuses his
North Carolina’s 2012 legal
Marc P. Berger has been
Business Journal’s
responsibilities he
practice on white-collar
elite in construction law.
named the new chief
outstanding lawyers list as
advocated for the
criminal defense, complex
He is with Smith Moore
of the securities and
a rising star. She was also
Institute’s membership
civil litigation, and appel-
Leatherwood in
commodities fraud task
named a 2012 rising star in
before Congress, the
late litigation.
Greensboro, where his
force in the U.S. Attorney’s
Texas Monthly. Chandler is
Department of Labor, the
partner with Zuckerman
Neale T. Johnson has been
Spaeder in Washington,
practice focuses on
Office criminal division
a partner with Jackson
Department of the
Daniel J. Smith has
commercial litigation with
in Manhattan. Berger will
Walker in San Antonio,
Treasury, and the
joined TidalTV as vice
a focus on construction,
supervise a team that
where she focuses her
Securities Commission on
president and chief
contract, real estate, title
has brought a series of
practice on securities
retirement security issues.
counsel. Headquartered
insurance, and landlord-
high-profile insider trading
transactions, reporting,
in Baltimore, Md., TidalTV
tenant matters.
prosecutions against
and compliance; mergers
Barry S. Persh and Sherri
provides advertisers and
hedge fund traders and
and acquisitions; technol-
Persh welcomed their son,
agencies with a technol-
Robert J. Shelby has been
other corporate insiders.
ogy licensing and
Ryan Colby, on January 4.
ogy solution to allow them
nominated by President
He has been with the U.S.
commercialization, and
Barry is a senior counsel
to manage their video ad-
Barack Obama to serve as
Attorney’s Office for the
general corporate work.
with Dow Lohnes in
vertising campaigns across
U.S. District Court judge for
Southern District of New
She also leads Jackson
Washington, D.C.
all types of media—online,
the District of Utah. Shelby
York since 2002 and served
Walker’s technology
mobile, and addressable
is a shareholder at Snow,
as deputy chief of the task
section.
television.
Christensen & Martineau,
force since 2010.
Michael and Sali Rakower
had their third baby girl,
where his practice focuses
Hannah Abigail, in March
on complex commercial
of 2011. Michael reports
litigation and catastrophic
that they have a “happy
personal injury cases on
and frenetic” household.
Amy E. Davis joined Rose
behalf of both plaintiffs
He was recently selected
Walker as partner in Dallas,
and defendants in state,
for inclusion in New York
Tex. “I could not have
federal, and administrative
Michael L. Hadley joined
found a more perfect fit,”
courts throughout the
Davis & Harman in
she writes. Rose Walker
country.
Washington D.C., as a
Fredrick Stein, at-
Joseph S. Brown was
partner, where his practice
torney advisor with the
1998
is a nationwide trial firm
Super Lawyers rising stars.
for business people that
James H. Wilson attended
recently elected president
focuses on employee
Transportation Security
shares her philosophy
the September wedding of
of the executive board for
benefits, advising clients
Administration, com-
about cases: understand
David Chung to Grace Oh
the Minority Bar
on the full range of tax,
pleted a master of arts
your client’s goals; focus
in Washington, D.C., where
Association of Western
ERISA, and other laws
in security studies at the
on what’s important; avoid
he was able to reunite
New York. He is a senior
affecting benefits plans.
Naval Postgraduate School
unnecessary cost and
with other UVA alums
associate with Hodgson
His particular focus is on
Center for Homeland
delay. Davis’s areas of prac-
as well. He and his wife,
Russ in Buffalo, where he
helping financial institu-
Defense and Security. In
tice include employment
Michele, continue to live
concentrates his practice
tions that sell products to
the 18-month program,
and commercial disputes,
in York, Pa. Jim is currently
in the business litigation
defined contribution and
Stein collaborated on
representing professionals
counsel at The Hershey
and employment litigation
defined benefits plans,
current policy, strategy,
and businesses “on both
Company (where he works
practice groups.
IRAs, and 529 plans
sides of the versus.”
with Lauren Connolly
64 UVA Lawyer / spring 2012
navigate the special rules
Class notes
…
and organizational design
to bring significant tax
firm’s Washington, D.C.,
legal protections for
Atlanta, Ga., where he
challenges with the lead-
savings. He was named in
and Abu Dhabi offices. He
whistleblowers. He lives in
focuses his practice on real
ing experts from all fields
Best Lawyers 2012s.
advises corporate and gov-
Maryland with his wife and
estate and other commer-
ernment clients on a wide
two daughters.
cial transactions.
of Homeland Security to
including: intelligence,
Tracey C. Allen was re-
range of international
counter terrorism, Islamic
cently promoted to special
trade and trade policy
scholars, psychologists,
counsel with Wilmer Hale
issues, including defense
academics, domestic
in Washington, D.C. She
trade/export controls,
and international law
practices in the litigation/
anticorruption laws,
enforcement, and
controversy department
first responders. His
thesis on the homeland
and national security
2001
Gunes Hopson and her
husband, Kevin, are
pleased to announce the
birth of their second son,
economic sanctions, and
Matthew Bosher and
Tess Autrey Bosher
and is a member of the
customs/security-related
welcomed their third
born in October. Their first
intellectual property
issues.
daughter, Mary Louise,
son, Aydin Kendell, was
litigation practice group.
on February 22, 2011.
born in August of 2010,
implications of America’s
She has represented
Andy Wright continues
Matthew and Tess live
and is Skyler’s guardian
dependence on foreign oil
clients in patent infringe-
to serve as associate
in Richmond, Va., where
angel, looking down on
establishes that with the
ment cases involving an
counsel to the President
Matthew is a partner at
him from heaven. Hopson
right policy choices and
array of technologies,
in the Office of the White
Hunton & Williams.
continues to work for
current technology, the
including pharmaceuticals,
House Counsel. He and
Capital One in Richmond,
United States can become
genetic screening, and
his wife, Caprice Roberts,
Va., as director, assistant
energy independent in
flash memory.
are having a ball with their
general counsel in the
a few short years. Stein’s
infant son, Garrett Robert
legal department. In
thesis was nominated for
Brian Murray has been
Wright.
addition, she has her own
the CHDS Outstanding
made partner with Latham &
Thesis Award.
Watkins in Washington, D.C.
Skyler Blue. Skyler was
part-time photography
Jacqueline Yount Ferrell
business, called “fotogenic”
has joined K&L Gates as
(www.fotogenicrichmond.
lawyer whose practice
counsel in Charlotte, N.C.,
com).
focuses on the regulatory
where she practices in the
L. Dwight Floyd has been
treatment of voice-over-
labor and employment
appointed to the board of
Scott E. Adams has been
Internet protocol services
group.
directors of the South
elected to the prestigious
and broadband-based
American College of Trust
services. In addition to
Jason Zuckerman joined
Commerce, where he will
and Estate Counsel, a
assisting clients with mat-
the U.S. Office of Special
serve a one-year term. He
nonprofit association of
ters relating to emerging
Counsel as senior legal
also serves on the board of
lawyers who have made
technologies, Murray has
advisor to the special
trustees of the South
substantial contributions
significant experience
counsel. He was previ-
Carolina Governor’s School
to the field of trusts and
with more traditional
ously a principal at The
for Science and
estates law through
telecommunications and
Employment Law Group,
Mathematics. Floyd is a
writing, teaching, and
media issues, including
where he litigated
partner with Parker Poe
bar leadership activities.
inter-carrier compensa-
whistleblower retaliation
Adams & Bernstein in
Devin C. Dolive has been
Adams is a partner with
tion, universal service, and
and False Claims Act
Columbia, where he
named partner with Burr
Bradley Arant Boult
the regulation of cable
qui tam actions. He has
concentrates his practice
Forman in Birmingham,
Cummings in Birmingham,
companies.
been included twice in
on commercial litigation
Ala., where he practices in
He is a communications
2000
2002
Carolina Chamber of
Washingtonian magazine’s
with emphasis on science
the commercial litigation
of the trusts and estates
Tamer A. Soliman has
list of top whistleblower
and technology issues.
group. He litigates
and tax practice groups.
been promoted to partner
lawyers and in Best Lawyers
He focuses his practice
with Akin Gump Strauss
in the area of employment
Anthony D. Greene married
ranging from contract
on advising clients on
Hauer & Feld, where he is
law, and has written and
Heidi Brink-Herling in
disputes and business
estate planning strate-
a member of the interna-
lectured extensively on
Asheville, N.C., on October
torts, to pricing and
gies, including drafting
tional trade practice in the
1. He is an associate with
antitrust matters, and also
Troutman Sanders in
represents employers,
Ala., where he is a member
wills and trusts designed
commercial matters
UVA Lawyer / spring 2012 65
Class notes
…
2003
focusing on labor and
intellectual property
employment litigation and
litigation. She counsels
advice, collective
clients on intellectual
Justin Chiarodo is a
with Finnegan, Henderson,
bargaining matters,
property issues, including
partner at Dickstein
Farabow, Garrett & Dunner
employee benefits
infringement, licensing,
Shapiro in Washington,
in Washington, D.C. He
litigation, and ERISA
and branding, and on
D.C., where he practices in
focuses his practice on
Justin J. Hasford has been
elected to partnership
marketing and advertising
the government contracts
complex patent litigation
Afi Johnson-Parris was
issues, and assists clients
group. He represents
at the trial and appellate
listed as a rising star in
in the acquisition and
government contractors
levels on behalf of pioneer
North Carolina Super
protection of their
and health care companies
pharmaceutical compa-
Lawyers 2012 in family law
intellectual property
in all aspects of federal,
nies, and has particular
and collaborative law. She
around the world.
state, and local procure-
experience with cases aris-
is a divorce and family law
ment matters, with a focus
ing from abbreviated new
attorney in Greensboro in
Bill Sinclair recently
on the False Claims Act
drug applications under
her own practice,
joined Silverman,
and other government
the Hatch-Waxman Act.
Johnson-Parris Law.
Thompson, Slutkin &
contracts litigation, inves-
promoted to counsel in
White in Baltimore, Md.,
tigations, and compliance
Burcak Unsal LL.M.
the intellectual property,
where his practice focuses
matters.
joined Google as head
media, and technology
exclusively on litigation.
group of Hogan Lovells.
He also has been selected
J. Dalton Courson has
in January. He was
She also was recently
to the leadership academy
been made a member of
previously with DLA Piper
named to the Virginia
of the Maryland State
Stone Pigman Walther
Istanbul, where he led the
Business legal elite. Tarah
Bar Association, where
Wittmann in New Orleans,
corporate/M&A group.
and her husband, John
he is on the nominating
La. He is in the litigation
Delacourt, welcomed their
committee. He continues
section, where he has a
Eric Volkman has been
second child, Gabrielle
Jonathan E. Moore has
as an adjunct professor at
litigation and trial practice
made partner with
Marie, in September.
been named partner with
the University of Maryland
with a focus on insurance
Latham & Watkins in
Gabrielle joins two-year-
Warner Norcross & Judd in
Carey School of Law. Kate
coverage, creditors’ rights
Washington, D.C.
old sister, Victoria
Grand Rapids, Mich. He
has just begun a part-time
and bankruptcy, and
He practices primarily
Genevieve. The family
focuses his practice in
litigation practice doing
commercial litigation.
in the areas of white-collar
resides in Dunn Loring.
litigation with an emphasis
legal research and writing
on commercial litigation,
for various attorneys
Kelley Edwards has been
complex civil litigation.
Kelly Howard has been
complex litigation, and
throughout Baltimore,
promoted to shareholder
He has worked on a wide
elected partner in the
electronic discovery.
and she continues to care
with Littler Mendelson
variety of matters in
corporate group with
for their son, Teddy, while
in Houston, Tex. She
federal and state court,
Crowell & Moring in
maintaining an active
represents management
where he has repre-
Washington, D.C. She
volunteer schedule.
in charges and litigation
sented foreign countries,
matters related to employ-
municipalities, companies,
litigation.
Tarah Grant has been
focuses her practice on
legal counsel in Turkey
criminal defense and
securities transactions,
Bryan F. Stroh is vice
ment discrimination,
elected officials, and
securities reporting, and
president and general
harassment, retaliation,
other individuals in civil
compliance, mergers and
counsel of the Pittsburgh
and wage and hour
litigation and government
acquisitions, corporate
Pirates, one of Major
disputes. She also advises
investigations. He also
League Baseball’s oldest
employers on a variety of
has notable experience in
Nicole M. Murray has been
franchises. Previously
labor and employment
export control matters and
elected partner with
with Katten Muchin
matters, including employ-
data privacy compliance
Quarles & Brady in
Rosenmann, Stroh worked
ment and severance
in the context of interna-
Chicago, Ill. She is a
with the Cleveland Indians
agreements, reductions in
tional investigations.
member of the intellectual
and the White Sox on
force, Fair Labor Standards
property group and
player salary arbitration
Act compliance, and unfair
focuses her practice on
cases.
competition issues.
governance, and general
corporate counseling.
66 UVA Lawyer / spring 2012
Class notes
…
David Zetoony has been
Kathleen Carignan was
finance practice group,
involve complex civil
universal compliance and
elected partner with Bryan
a featured panelist at the
where he represents lend-
litigation.
whistleblower programs.
Cave in Washington, D.C.
University of Miami School
ers in finance transactions,
He practices mainly with
of Law Entertainment &
including real estate loan
Thomas H. Kim has been
Billy Wynne and his wife,
the antitrust, franchise
Sports Law Society annual
originations, mezzanine
elected partner in the
Christy, are grateful to
& consumer law client
symposium in April. The
financing, loan workouts,
litigation department
announce that Harrison
service group, and leads
event, co-hosted by the
restructurings, whole loan
of Jenner & Block in
Lei Jun Wynne joined
the firm’s data privacy and
Miami Marlins, was held
sales, and related matters.
Washington, D.C., where
their family on February
data security practice.
in the new Marlins Park.
he focuses his practice
7 in Zhengzhou, China.
Kathleen provides legal as-
Claudia Gee Vassar and
on complex commercial
Lei is 18 months old and
sistance and professional
her husband, David, are
litigation in the hospitality
has quickly enriched the
education for artists and
pleased to announce the
and energy industries.
Wynne household with
works with communities
births of Sylvia Mar Vassar
Michael Autuoro has been
to create cooperatives
and Rafael Gee Vassar,
Gordon F. Rainey has
Billy and family are in
named principal in the
and residencies to attract
born September 6.
recently put his legal skills
Denver, Colo., where Billy
IP litigation group with
creatives to revitalize
to use in the commercial
is senior vice president
Fish & Richardson in New
unused industrial or city
intelligence field, taking
and principal with Health
York City. He focuses his
spaces.
on a position at Hakluyt,
Policy Source, a federal
2004
his love and good cheer.
a London-based strategic
health care consulting
property litigation as well
Heather L. Carlton is
intelligence and advisory
firm focused on policy and
as intellectual property
Assistant U.S. Attorney
firm.
advocacy.
strategy counseling in a
in the homicide section
variety of technologies,
of the superior court
including computer
division, United States
hardware and software,
Attorney’s Office for the
semiconductor methods
District of Columbia. She
Dara (Zelnick) Kesselheim
Scott P. Horton has been
and devices, vehicle sys-
joined the office in 2008
and her husband, Jared
named partner with
tems, business methods,
and has served in the
Kesselheim, welcomed
Jaeckle Fleischmann &
telematics, gaming, and
appellate division and the
their second son, Eli
Mugel in Buffalo, N.Y.,
financial services.
misdemeanor, felony trial,
George Kesselheim, on
where he is a member of
practice on intellectual
2005
and felony major crimes
July 13. Eli is doing great
A-J Secrist has been elected
the labor and employment
Courtney Caprio is an
sections of the superior
and he adores his big
partner with Parker Poe
and E-discovery and
associate with Stroock
court division.
brother Zachary (now 2½).
Adams & Bernstein in
records management
in Miami, Fla., where she
Dara was recently named
Charlotte, N.C., where she
practice groups. He was
focuses her practice on
partner in the government
represents public and
named to the Business
commercial litigation, par-
enforcement & compliance
private entities in securities,
First of Buffalo “Who’s Who
ticularly in entertainment,
and major commercial
merger and acquisition,
in Law” list in 2011.
intellectual property,
litigation practice groups
and general corporate
contract disputes, class
with Choate, Hall &
matters. Her practice also
actions, and torts. In 2011
Stewart in Boston, Mass.
involves giving general
she was recognized by
She focuses her practice
corporate and securities
The Daily Business Review
on representation of
advice to private invest-
as South Florida’s Most
John Domby has been
individuals and corpora-
ment companies. Secrist
Effective Lawyer in the
named a rising star in
tions in both government
advises senior manage-
area of complex business
North Carolina Super
and internal investigations
ment and boards of
civil litigation. She was
Lawyers 2012. He is an
involving health care
directors of multi-national
previously with Kasowitz
associate with Winstead in
fraud, securities fraud, and
companies regarding
Toni J. Hoverkamp has
Benson Torres & Friedman.
Charlotte, in the real estate
government contracting,
enterprise risk manage-
joined Farrell Fritz as an
as well as matters that
ment, including the design
associate in the real estate,
and implementation of
land use, and municipal
UVA Lawyer / spring 2012 67
Class notes
…
departments.
Brent Olson has been
the Shenandoah Valley
Adam B. Schwartz is
Hoverkamp works out
promoted to senior
Battlefields Foundation.
Assistant U.S. Attorney
of both Hauppauge and
counsel with Dow Lohnes
He is a member of the
in the homicide section
Bridgehampton, N.Y. She
in Washington, D.C. He
John Marshall American
of the superior court
focuses her practice on
represents clients in civil
Inn of Court, the Thomas
division in the U.S.
representing buyers and
litigation matters before
Jefferson Intellectual
Attorney’s Office for the
sellers in residential and
federal and state courts
Property American Inn
Eben C. Hansel has been
District of Columbia. He
commercial real estate
at both the trial and
of Court, and a member
elected to the board of
joined the office in 2008
transactions, institu-
appellate level and also in
of the Lawyer Referral
directors of Live
and has served in the
tional lenders in providing
arbitration proceedings.
Committee of the Virginia
Baltimore, a nonprofit
appellate division and the
State Bar. He is also the
organization that markets
misdemeanor, felony trial,
and private developers in
Brooke Purcell was
outgoing chairman of
the City of Baltimore as a
and felony major crimes
obtaining financing for
honored at the Sanctuary
the staff parish relations
great place to live. He is
sections of the superior
development projects. She
for Families 2011 Above
committee at River Road
an associate with Ballard
court division.
also works with private
& Beyond Pro Bono
United Methodist Church,
Spahr, where his practice
developers and investors
Achievement Awards and
where he has served on
is focused mainly on
Albert B. Stieglitz, Jr.,
in joint venture negotia-
benefit in New York City
the church council.
commercial real estate
and his wife, Amanda,
tions and with landlords
in November for her work
law and transactions.
announce the birth of
and tenants in leasing
on behalf of a traumatized
N. Malick in Hot Springs,
transactions. She was
victim of domestic vio-
Va. on November 1, 2008.
John Sherman and his
Kingston Stieglitz, on
previously with Herrick,
lence and her two young
She practices corporate
wife, Hobby, welcomed a
October 29. Stieglitz is
Feinstein.
daughters. Sanctuary for
law with McCandlish
baby girl, Lucy Stoddard
a trial attorney in the
Families is a nonprofit
Holton. They met at the
Sherman, into the family
fraud section of the
agency dedicated to serv-
Law School during the bar
on January 21. “Hobby and
criminal division of the U.S.
ing victims of domestic
review course, and Rhodes
Lucy are healthy and are
Department of Justice. The
violence and sex traffick-
proposed at the Law
doing great,” writes John.
family lives in Arlington, Va.
ing and their children.
School in the fall of 2007.
“We couldn’t be more
financing to borrowers,
Rhodes married Alana
their daughter, Caroline
excited.”
Rhodes B. Ritenour
has been promoted to
2006
partner at LeClairRyan in
Robert Weissert was
selected as a “Must-Know
2007
Floridian” by Florida
Trend magazine, and was
featured in the March
Joshua C. Johnson has
Richmond, Va. His practice
Sean Cameron and his
been named partner with
focuses on litigating intel-
wife, Rita, welcomed their
Alexandra Marzelli
2011 issue. He is the vice
Gentry Locke Rakes &
lectual property matters,
second child, Beatrice
joined Patton Boggs in
president for research and
Moore in Roanoke, Va. He
representing interests in
Christine, to the family last
Washington, D.C. Marzelli
general counsel for Florida
focuses his practice on
the hospitality industry,
October. Sean is in-house
advises pharmaceutical,
TaxWatch, a nonpartisan,
construction litigation,
and appearing before
counsel in the Internet
medical device, dietary
nonprofit public policy
criminal defense, and
state agencies and elected
services and market-
supplement and food
research institute based in
government regulatory
bodies. Rhodes chairs the
ing communications
clients on the full range of
Tallahassee.
matters, representing
LeClairRyan hospitality and
department at Apple.
regulatory and compliance
individuals and corpora-
tourism industry team.
The family, including
matters involving the Food
article describes an effort
Callum (3), recently moved
and Drug Administration
that Weissert led to find
to Willow Glen, Calif.
(FDA), the Consumer
savings within the Florida
Product Safety
state budget. According to
tions in a wide variety of
Rhodes is chairman of
The Florida Trend
complex civil matters as
the American Diabetes
well as in government
Association Board
investigations in federal
for Central Virginia, a
John H. Doyle, his wife,
Commission (CPSC)
Florida Trend, the volunteer
and state courts.
co-founder of the Diabetes
Joan, and their four
and the Federal Trade
members of the group
Support Group for Greater
children, Aaron, Mikayla,
Commission (FTC).
looking for the savings
Richmond, and a trustee
Colleen, and Juliet, moved
included “a who’s who of
of the Virginia Museum
to Maine in the summer
state business leaders, plus
of Frontier Culture and
of 2011.
the two party nominees
68 UVA Lawyer / spring 2012
Class notes
…
for governor, Democrat
Jonathan S. Tannen ’09 was a
Eighth Circuit Court of
and then-state CFO Alex
foreign law research assistant to
Appeals and organized
Sink and Republican Rick
Asher Grunis LL.M. ’72 (center) in
the Federalist Society’s
Scott” (now Florida’s 45th
Jerusalem in the summer of 2007.
2011 National Student
governor), as well as other
Grunis was recently named Chief
Symposium with Justice
prominent elected officials
Justice of the Supreme Court of
Clarence Thomas as the
and community leaders.
Israel. His father, Edward
keynote speaker.
The effort yielded more
Tannen ’73, shared at least one
than 125 cost-savings
class with Grunis at the Law
recommendations worth
School— Charlie Whitebread’s criminal procedure class. Edward visited Jonathan
approximately $4 billion,
and Grunis the summer Jonathan was working for the Supreme Court of Israel.
more than one-third of
Jonathan is currently a law clerk to Justice Peggy A. Quince of the Florida
which were implemented
Supreme Court.
by the Florida legislature.
2008
in September, running
of law and policy. She
Erin N. Thompson has
Joe L. Fore, Jr., has joined
101.90 miles in a 24-hour
advocates for low-income,
joined Goldberg Kohn as
Baker Hostetler in Orlando,
James R. Billings-Kang
period. Choi is an attorney
elderly, and disabled
an associate in the com-
Fla., where he focuses his
has joined Blank Rome
with the Bergen County
clients and lobbies state
mercial finance group in
practice on complex
as an associate in the
Mental Health Project and
and federal agencies. She
Chicago, Ill. She represents
business litigation.
corporate litigation group
resides in Leonia, N.J.
is a staff attorney with
financial institutions in
Community Legal Services
documenting, negotiat-
Megan A. Peloquin has
in Philadelphia, Pa.
ing, and performing due
joined Weil, Gotshal and
diligence for asset-based
Manges in Washington,
and cash-flow commercial
D.C., as a litigation
finance transactions.
associate.
in Washington, D.C., where
he focuses his practice on
complex civil litigation
Elisabeth Falaleev
Miranowski writes that
at both state and federal
her daughter, Sasha
levels. As a member of
Helene Miranowski, was
the consumer financial
born on October 29, in the
services team he works
middle of the snowstorm
Michael Menssen
on a variety of consumer
that hit the East Coast.
announces that his
finance litigation matters.
2009
2010
2011
second child, Daniel James
Paul Mysliwiec enjoys
Menssen, was born on
prosecuting misdemean-
July 31.
ors in Brooklyn’s Red
Zone, consisting of tough
Natalia Oehninger is
Karin Agness was named
neighborhoods such
an associate with Jones
among Forbes’ 30 Under
as East New York and
Day in Dallas, Tex., where
Karla J. Soloria has joined
30 in the area of law and
Canarsie. He especially
she practices labor and
Kaufman & Canoles in
policy. She founded a
enjoys facing off against
employment law.
group for conservative
fellow UVA grads such as
college women called
Adam Heyman ’03 and
Network of Enlightened
Women while at UVA.
Austin A. Averitt has
Norfolk, Va., where she
joined Burr & Forman in
practices in the litigation
Whitney B. Price has
Birmingham, Ala. He
group.
Jessica Goldthwaite ’04
joined Butler Rubin
practices in the commer-
in the Legal Aid Society,
Saltarelli & Boyd in
cial litigation group, where
Caroline W. Stanton is an
and looks forward to
Chicago, Ill., as an as-
he focuses on financial
associate with Williams
Jacqueline Choi came
his time in the felony
sociate. She concentrates
services litigation.
Mullen in Richmond, Va., in
in tenth among female
grand jury.
her practice in complex
commercial litigation.
the corporate law section,
Alex Cox was named
where she focuses her
Track and Field 24-Hour
Rebecca Vallas has been
among Forbes’ 30 Under
practice on mergers and
National Championships
named among Forbes’
30 in the area of law and
acquisitions and general
held in Cleveland, Ohio,
30 Under 30 in the area
policy. He clerks in the
business matters. n
runners in the 2011 USA
UVA Lawyer / spring 2012 69
In Memoriam
George C. Seward ’36
Scarsdale, N.Y.
February 15, 2012
Thomas W. Bartram, Jr. ’51
Spartanburg, S.C.
November 22, 2011
Jeb Howard ’57
New Bern, N.C.
October 10, 2011
Thomas H. Truitt ’64
Lexington, Va.
December 27, 2011
Llewellyn C. Thomas ’38
Eugene, Ore.
October 26, 2011
Aita Jogi ’51
Washington, D.C.
January 9, 2012
Stephen I. Schlossberg ’57
Sarasota, Fla.
December 10, 2011
Richard C. Lowery ’67
Arlington, Va.
October 20, 2011
David R. Owen ’39
Lutherville, Md.
November 4, 2011
Eugene F. Roberts ’51
Pittsburgh, Pa.
November 21, 2011
John C. Cooper III ’60
Baltimore, Md.
March 7, 2012
Stuart M. Lewis ’70
McLean, Va.
February 13, 2012
Julian O. von Kalinowski ’40
Los Angeles, Calif.
February 11, 2012
Robert M. Moore ’52
Washington, D.C.
January 17, 2012
James R. Bresee ’61
Lebanon, N.H.
November 3, 2011
Joe Gray Lawrence, Jr. ’73
Virginia Beach, Va.
January 16, 2012
Betty Blair Stewart ’45
Marion, Va.
January 8, 2012
R. Daniel Saxe, Jr. ’52
White Plains, N.Y.
November 23, 2011
Clark G. Redick ’61
Shawnee Mission, Kans.
October 19, 2011
William M. Martin III ’73
Carrollton, Va.
February 17, 2012
George W. Rauch ’47
Nantucket, Mass.
November 10, 2011
Calvin H. Childress ’54
Norfolk, Va.
December 16, 2011
Rex H. Sater ’62
Santa Rosa, Calif.
January 20, 2012
Thomas C. Givens, Jr. ’75
Tazwell, Va.
February 1, 2012
Francis N. Crenshaw ’48
Norfolk, Va.
January 26, 2012
Kenneth Schoenberg ’54
Mountainside, N.J.
December 23, 2011
Kenneth C. Allen ’63
Adelphi, Md.
October 18, 2011
Robert Allen Armstrong II ’76
Annandale, Va.
July 12, 2011
Norborne Berkeley, Jr. ’49
New York, N.Y.
December 29, 2011
Billie M. Millner ’56
Newport News, Va.
December 1, 2011
John W. F. Haner ’64
Raleigh, N.C.
February 13, 2012
David Jeremy Bederman ’87
Atlanta, Ga.
December 4, 2011
John C. Kinder ’50
Saint Clairsville, Ohio
March 8, 2012
Daniel B. Burns ’57
Winchester, Mass.
June 10, 2011
Glenn B. McClanan ’64
Virginia Beach, Va.
January 26, 2012
Michael Kozakewich, Jr. ’89
Clarksburg, W.Va.
February 5, 2012
Sam F. Musser ’50
Key Largo, Fla.
February 9, 2012
Richard Flender ’57
Southampton, N.Y.
October 26, 2011
M. Clifton McClure ’64
Charlottesville, Va.
October 30, 2011
Elena L. Lawrence ’95
Fort Collins, Colo.
December 15, 2011
70 UVA Lawyer / spring 2012
In Print
Non-Fiction
Fat Kid Got Fit: And So Can You!
Bill Baroni ’98 and Damon DiMarco
Lyons Press
Like its title, this book is frank, refreshing,
and direct. Fat Kid Got Fit: And So Can
You! reveals the way the author turned
his unhealthy, 320-pound self around to
become trim, healthy, and happy.
Anyone trying to
manage his or her weight
will find a helpful guide in
Bill Baroni. He knows what
it’s like to slog through
multiple attempts at losing
weight and how it feels to
give up hope of ever doing
so. After a frightening episode of chest pain, he set
about taking control of his
life and his weight, and he
was able to do so without
costly exercise equipment,
bariatric surgery, drugs, or
bizarre diets.
In 1994 Baroni spent one month at
the Duke University Diet & Fitness Center,
where he started on a path toward health
and fitness. Within a year he lost over
120 pounds and he has kept it off for over
15 years. He knows what it takes to turn
unhealthy habits around—nothing less
than a change of lifestyle.
“You don’t have to spend a small
fortune,” he writes. “You don’t have to
starve yourself.” You have to start thinking
differently and create healthy habits. This
is the book he wishes he had when he
started his journey on the way to health.
Dr. Howard Eisenson, executive director of
the esteemed Duke Center, describes Fat
Kid Got Fit as a gift to people who cannot
afford to participate in a program like the
one at Duke.
In the spring of 1995, as Baroni was
making progress at Duke, he applied to law
schools. He decided on Law School at UVA
in part because he was impressed with how
physically active people were on grounds
and how physical fitness seemed in balance
with academic rigor.
The author’s solid, reasonable approach to weight loss and fitness provides
an excellent alternative
to the unsettling ups and
downs of dieting and
sketchy attempts at exercise.
Changing habits is hard
work, Baroni admits, but
the rewards are amazing.
If you’re on the right path,
a little progress is a great
motivator, and before long
you’re on your way.
Baroni explains the
basics of nutrition and how
healthier eating can bring
our bodies into balance. He
describes how an exercise program can be
enjoyable if it’s based on realistic goals, and
how such a program can, in addition to
weight loss, bring flexibility,
balance, and strength. Fat
Kid Got Fit is an excellent
guide to making healthy
lifestyle changes that will
keep readers fit for life.
Bill Baroni is the
deputy executive director of
the Port Authority of new
York and New Jersey. He is
also an adjunct law professor at Seton Hall University
Law School.
Heart of the Nation: 9/11 &
America’s Civic Spirit
John M. Bridgeland ’87
CreateSpace
On September 11, 2001, John Bridgeland
was serving as director of the Domestic
Policy Council under George W. Bush. In
the aftermath of the attacks on America
that day, he realized that while terrorists
were attacking our democratic ideals, one
of the foundations of those very ideals—
commitment to public service—had been
weakening for decades.
A strong tradition of civic service
produces the kind of leaders and volunteers
who can pull the country through times of
crisis and make sure the nation holds the
promise of equal opportunity for all of its
citizens. The “pursuit of happiness” mentioned in the Declaration of Independence
refers to a kind of happiness that comes
from self determination combined with
public service. “We are happiest in deep
and fundamental ways when serving
others,” Bridgeland notes.
Times of crisis can jar us into reassessing priorities, and that’s what happened in
the wake of 9/11. Americans responded in
a new spirit of civic action and discovered,
in a sense, the real meaning
of the pursuit of happiness.
“Even Adam Smith, often
identified as the icon of
capitalism and the profit
motive, believed that true
happiness was found in
the virtue of considering
and serving others,” notes
Bridgeland. He traces the
roots of American volunteerism, from inspiring
quotes from the Founders
to programs including the
UVA Lawyer / spring 2012 71
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…
Civilian Conservation Corps, the Peace
Corps, and AmeriCorps.
President Bush asked Bridgeland to
lead a renewed call to civic leadership and
volunteering that would last long after
9/11. The goal was nothing less than a true
culture shift. Soon the newly established
USA Freedom Corps led the way.
In Heart of the Nation Bridgeland
shows how he reached across party lines
and pushed aside cynicism and bureaucracy to promote a new spirit of civic
service that brings self-fulfillment and a
stronger democracy. Supreme Court Justice
Anthony Kennedy and the ABA began a
“Dialogue on Freedom,” and Mortimer
Caplin ’40, founder of the Public Service
Center at the Law School sought ways to
inspire lawyers to do more to serve the
public interest.
John Bridgeland is president and CEO
of Civic Enterprises, a public policy development firm. He is a current member of
the White House Council for Community
Solutions under President Obama.
The Handbook on Additional
Insureds
Joseph Grasso ’86, Timothy A. Diemand, Michael
Menapace, and Charles Platto co‑editors
American Bar Association
The main purpose of
additional insured
coverage is to protect
the additional insureds
from claims of vicarious
liability—liability based
entirely on the relationship between two
insureds. The various
approaches taken across
the United States and in other countries
have created the need for a comprehensive
resource on the subject. The Handbook on
Additional Insureds, written for attorneys
and other insurance professionals, addresses
issues that relate to additional insureds that
concern both insurers and policyholders.
72 UVA Lawyer / spring 2012
This book addresses the full range of
topics related to this complex coverage,
including: definitions and comparisons of
commonly used titles; common provisions; hold harmless and indemnification
agreements; limits issues; laws of various
jurisdictions, including Canada and the
U.K.; and the concerns associated with
specific lines of insurance, including D&O
construction, marine, and aviation.
Joseph Grasso is a partner with
Wiggin and Dana in Philadelphia and
New York.
in the 21st century. “A groundbreaking
achievement in the historiography of
American eugenics,” notes one reviewer.
Paul A. Lombardo is a professor of law
at Georgia State University College of Law.
He is the author of Three Generations, No
Imbeciles: Eugenics, the Supreme Court, and
Buck v. Bell.
Bought and Sold: Living and
Losing the Good Life in Socialist
Yugoslavia
Patrick Hyder Patterson ’88
Cornell University Press
A Century of Eugenics in America:
From the Indiana Experiment to
the Human Genome Era
Edited by Paul A. Lombardo ’85
Indiana University Press
In 1907 the state of
Indiana passed the
world’s first involuntary
sterilization law based on
the theory of eugenics.
In the decades to follow,
more than 60,000 people
deemed feebleminded
or socially deficient
were forcibly sterilized
in the United States. A
Century of Eugenics
in America presents
the history of the
eugenics movement in the U.S.,
including legal repercussions of the
role of government in controlling
reproduction and the possibility of a
renewed eugenics movement in the
age of the Human Genome Project.
A noted historian of the eugenics movement, Paul Lombardo
assembled ten essays, including one of his
own, entitled “From Better Babies to the
Bunglers: Eugenics on Tobacco Road.”
These compelling essays detail the origins
of eugenic sterilization in Indiana, the
eugenics movement in popular culture,
state studies of sterilization, and eugenics
During the time of the Cold War,
Yugoslavia was unique among communist
countries in its blend of socialism and
cultural aspects of capitalism. From
the mid-1950s on, the political climate
in Yugoslavia allowed an
openness to a consumer
lifestyle of acquisition stoked
by advertising and persuasive
sales pitches for the latest
in fashion, entertainment,
appliances, and services.
In Bought and Sold, Patrick
Hyder Patterson explores the
role of consumerism in the
country’s collapse into civil
war in 1991.
The author details
the growth of consumer
culture in Yugoslavia, including examples
of ads, and how consumerism became
an important part of individual and
group identity. Meanwhile, the country’s
communist leadership sent mixed signals
to citizens, sometimes encouraging, but at
other times limiting, consumer behavior.
The trend toward consumerism sparked
public debate between those who were
troubled by the conflict between Marxist
ideology and Western capitalism and those
who welcomed what they saw as “The
Good Life.”
Patterson explains how consumerism
was one thing that held Yugoslavia’s
In print
…
multiethnic society together in the 1960s
and ’70s, and how the economic downturn
in the ’80s led to disillusionment, ethnic
conflict, and war. He also reflects on what
the turmoil in Yugoslavia means in terms
of the relationship between socialist and
capitalist systems and about consumer
society and lifestyle in general.
“Whether one wants to wallow
joyously in Yugo-nostalgia or flee
the unending distortions of wartime
propaganda, read this book,” writes Susan
Woodward of the Graduate Center, City
University of New York. “Patrick Hyder
Patterson’s deeply researched and insightful
study of the consumerist core of market
socialism is a compelling demonstration
of why we need historians and why one
does not need ethnonationalism to explain
Yugoslavia’s collapse.”
Patrick Hyder Patterson is assistant
professor of history at the University of
California, San Diego.
In Chambers: Stories of Supreme
Court Law Clerks and Their Justices
Edited by Todd C. Peppers ’94 and Artemus Ward
University of Virginia Press
In Chambers is a collection of essays
written by former law clerks, legal
scholars, historians, biographers, and
political scientists that gives a behind-thescenes view of clerking at the Supreme
Court. The essays reveal how clerks are
selected, the range of tasks they perform,
and how the job has evolved from the late
1800s to today.
Some of the most prominent lawyers,
law professors (such as Alan Dershowitz
and Deborah Rhode), and judges (J. Harvie
Wilkinson III ’72) describe their own
relationships with the Justices, while other
essayists describe a Justice’s practice in a
broader context. Peppers contributed two original essays to
the project, including an essay
on Justice Ruth Bader Ginsburg
and her law clerks that is based
in large part on an interview he
had with the Justice.
“Filled with telling
anecdotes illuminating the
personalities of Supreme
Court Justices, these essays
also show how the institution
of the Supreme Court law
clerk has developed,” writes
Mark Tushnet of Harvard Law
School. “Law clerks—and their
employers—come through in these essays
as human beings working in an extraordinary environment.”
Todd Peppers is Henry H. and Trudye
H. Fowler Associate Professor of Public
Affairs at Roanoke College and a visiting
professor of law at Washington and Lee
University School of Law. He is the author
of Courtiers of the Marble Palace: The
Rise and Influence of the Supreme Court
Law Clerk.
The Collapse of American
Criminal Justice
William J. Stuntz ’84
Harvard University Press
“Among the great untold stories of our time
is this one: the last half of the twentieth
century saw America’s criminal justice
system unravel.”
This is the opening
sentence of the book
William Stuntz
finished writing in
the last months of
his life. He died of
colon cancer last
year at the age of 52.
The Collapse of
American Criminal
Justice is a sweeping
criticism of the
criminal justice
system Stuntz had
studied for 25
years. He argues how in recent decades
the system has become a bureaucracy
that strays from even the basic idea of
justice. Stuntz explains how the U.S.
incarceration rate became the highest in
the industrialized world, how jury trials
become exceedingly rare, and how black
males suffer the most from increasingly
harsh penal codes. He describes the irony
of how this happened; that Supreme
Court rulings that were meant to protect
defendants from unfair discrimination in
the hands of police combined with harsh
laws passed to curtail crime have led to a
system without either justice or mercy.
The author traces the history of crime
and punishment practices in the United
States, beginning with the founding
of the nation, through key Supreme
Court rulings in the twentieth century.
In the final chapter, Stuntz suggests
strategies for repairing the broken system,
including more trials, fewer plea bargains,
more transparency, and more local
accountability.
UVA Lawyer / spring 2012 73
In print
…
Sasha’s Sweet
16 Secrets to
Long Life
Tina Ravitz ’81
Animate Photography
Not everyone is
a cat lover, but
it’s certain more
people will be after turning the pages of
this book. The subject is Sasha, the
author’s companion, a white cat
with smoky blue eyes and a beguiling personality. This warmhearted
tribute, illustrated throughout with
beautiful, full-color photographs,
defies anyone’s notion that cats are
remote, indifferent creatures.
Sasha is not only elegant but humorous; she is playful and seemingly
insightful. At 16 she seems to defy
her age, and she has some advice
for anyone seeking a long and contented
life. Sasha’s Sweet 16 Secrets to a Long Life
is a beautiful “meow-to” book from one
remarkable feline.
Tina Ravitz combines her photography
skills and love of animals in her portrait
studio, Animate Photography, in New York
City. She specializes in photographs of cats,
dogs, other pets, and the people in their
lives. Sasha’s Sweet 16 Secrets to a Long Life
is available through her Web site at www.
animatephotography.com.
Mastering Golf’s Toughest Shots
The World’s Best Caddies Share
Their Secrets of Success
Chapter by Jack Ross ’82; book by James Y. Bartlett & the
Professional Caddies Association
Sellers Publishing
Even the world’s best players and their caddies know that scoring in golf is all about
controlling the extent of one’s mistakes. In
Mastering Golf ’s Toughest Shots, awardwinning caddies like Alfred “Rabbit” Dyer,
Tim “Smiley” Thalmueller, and Steve
Williams offer their insights and secrets to
74 UVA Lawyer / spring 2012
conquering tricky lies, gnarly rough, deep
bunkers, rough greens, and challenging
conditions.
After reading this book, golfers
will gain insight into analyzing every
troublesome situation, avoid making bad
decisions, and making every shot a “Green
Light” special. Other tips and tricks from
game’s best caddies include: how to use
five fingers to quickly size up your shot;
how to select the
easiest shot out of
any tough situation;
how to avoid making
a situation worse;
and how to use the
Rules of Golf to your
advantage in challenging situations.
Jack Ross
authored the chapter
“Rules to Live By:
Knowing Your Options Can Save You
Strokes.” He left the practice of law in
Washington, D.C., to pursue writing. He
is a freelance sports journalist. Among his
endeavors he writes a monthly golf rules
column for New England Golf Monthly.
He’s also contributed articles to Kingdom
magazine (an Arnold Palmer publication)
and Arnold Palmer’s Guide to the Majors.
The Prayer We Offer: A Catholic
Guide to Communion with God
Peter J. Vaghi ’74
Ave Maria Press
The Prayer We Offer is Monsignor Peter
Vaghi’s fourth and final book in the Pillars
of Faith Series. The series provides a
concise, clear, and thorough introduction
to the foundations of the Catholic faith for
discerning readers on a journey of faith. In
this volume he focuses on the Catechism,
scripture, and the writings of Benedict XVI
to show the way to a more meaningful life
of prayer.
Vaghi guides readers in their understanding of the practice of Christian
prayer, tracing the roots of prayer in the
Old Testament, revealing how Jesus was
the master teacher of prayer, and describes
Jesus’ own way of praying, particularly
during Holy Thursday and Good Friday.
Vaghi provides insight into how prayer is
God’s gift to people and how to overcome
the daily distractions that get in the way
of meaningful conversations with God.
Each chapter concludes with a prayer,
questions for reflection, and a quote from
an individual about the role of prayer in his
or her own life.
“Msgr. Vaghi draws skillfully on
his extensive experience as a pastor and
teacher to help readers come to a new
appreciation of prayer,” notes Cardinal
Sean O’Malley,
Archbishop of
Boston, “first
and foremost in
the Eucharist,
but also prayer
in all the rich
communal and
personal expressions that our
Catholic faith
offers us.”
Definitions for the Law of the Sea:
Terms Not Defined by the 1982
Convention
George K. Walker, ed. ’74 LL.M.
Martinus Nijhoff
Definitions for the Law of the Sea clarifies
undefined terms and phrases used in The
United Nations Convention on the Law
of the Sea, as well as terms used in its
analysis. This volume is based on nearly a
decade of work by the American Branch
of the International Law Association’s Law
of the Sea Committee. Over 200 terms
and phrases used in the United Nations
Convention on the Law of the Sea are
clearly defined, accompanied by analysis
and commentary contributed by prominent
experts in the field of oceans law. Relevant
In print
…
documents are included with updated
references as well.
Definitions for the Law of the Sea is
an invaluable reference for government
officials, academics, and practitioners of
oceans law and serves as an indispensable
supplement to the multi-volume United
Nations Convention on the Law of the Sea
1982: A Commentary.
George K. Walker is professor of law
at Wake Forest University. He chairs an
International Law Association (American
Branch) Law of the Sea Committee
research project on the U.N. Convention
on the Law of the Sea on which this book
is based.
Cosmic
Constitutional
Theory: Why
Americans Are
Losing Their
Inalienable Right
to Self-Governance
J. Harvie Wilkinson III ’72
Oxford University Press
In Cosmic Constitutional
Theory, Judge Wilkinson
explains how American
constitutional law has
undergone a dramatic
transformation in recent years and how an
increasing number of important and diverse issues, including health care reform,
abortion rights, firearms regulations, and
even a presidential election have come
into the domain of judges. He argues that
some of world’s most brilliant legal minds
have put forth cosmic interpretations of
the Constitution that have given the courts
unprecedented power and weakened the
role of representative democracy.
The tradition of judicial restraint and
bipartisan judicial deference shown by
some of the great judges of the past—Louis
Brandeis, Oliver Wendell Holmes, and
Felix Frankfurter to name a few—has largely been replaced by factions of conservative
and liberal activism supported
by a raft of different theories:
originalism, living constitutionalism, process theory, or the
so-called anti-theoretical creed
of pragmatism. Such theories
“have given rise to nothing
less than competing schools
of liberal and conservative
judicial activism, schools that
have little in common other
than a desire to seek theoretical cover for prescribed and
often partisan results,” Judge
Wilkinson writes. As a result of
their grand theories, liberal and
conservative judges try to second-guess
legislatures, chipping away
at the founding principles
of democracy.
Wilkinson argues for
self-disciplined judicial
modesty and restraint
and less “judicial hubris,”
drawing upon examples
of contemporary constitutional problems of
interest to general readers
to illustrate his case. Cosmic
Constitutional Theory “is
both unusual and inspiring” notes a New York
Times review.
J. Harvie Wilkinson III has served on
the U.S. Court of Appeals for the Fourth
Circuit since 1984, and as Chief Judge from
1996 to 2003.
Most Deserving of Death? An
Analysis of the Supreme Court’s
Death Penalty Jurisprudence
penalty lack confidence in the system
that carries it out. A
noted authority on
capital punishment,
Williams uses case
studies to examine
the role of race, jury
selection, and ineffective assistance of
counsel, all of which
affect the Court’s
decisions and how
those decisions play
out in lower courts.
The author
traces the history of capital punishment in
the United States, explaining the problem
of ineffective representation, the issue of
race and the death penalty, mental illness,
death penalty procedures and appeals,
international law and the death penalty,
execution methods, and judges and capital
punishment.
Most Deserving of Death? is a
compelling book for anyone interested in
criminal justice and human rights. “From
racial discrimination, to incompetent
lawyers, to wrongful convictions, Williams
offers a guided tour of the Supreme Court’s
failure to ensure a just system that executes
only the most deserving,” writes Adam
Gershowitz, University of Houston Law
Center.
Kenneth Williams is professor of
law at South Texas College of Law. He
has taught and written extensively on the
subject of the death penalty and currently
represents several death row inmates in the
state of Texas.
Kenneth Williams ’86
Ashgate
Thirty-five years ago the Supreme Court reinstated capital punishment in this country.
For a number of reasons Kenneth Williams
details in Most Deserving of Death? many
Americans both for and against the death
UVA Lawyer / spring 2012 75
In print
…
Fiction
A Walk Across the Sun
Corban Addison ’04
Silver Oak
In the aftermath
of a tsunami that
battered their
coastal town in
India, two sisters,
Ahalya Ghai, 17,
and Sita, 15, were
left orphaned
and homeless.
As they tried to
make their way
to find shelter in
a convent that was their school, they
were abducted and swept into the
grim, hidden world of sex trafficking.
A world away in Washington,
D.C., an attorney named Thomas
Clarke grieves over the death of his
infant daughter and his estranged
wife. He decides to take a pro bono
sabbatical in India with a group that
prosecutes sex traffickers. Soon he
sees firsthand the dark realities of the
sex trade and the corrupt institutions
that do nothing to stop it—in some
cases even facilitating it. When he
learns of Ahalya Ghai and Sita he is
determined to free them, risking a deadly
showdown with the hardened criminals
and profiteers responsible for their plight.
The business of sex trafficking is grim,
but the story told in A Walk Across the Sun
is nothing of the kind. “Chilling, suspenseful, and powerful …. Readers will mourn
the injustices depicted and celebrate the
triumphs long after the last page is turned,”
notes a review in Library Journal.
76 UVA Lawyer / spring 2012
The author began his legal career
specializing in corporate law and litigation.
He has a keen interest in international
human rights and the abolition of modern
slavery. Research for A Walk Across the
Sun, Addison’s first book, took him to
India, where he spent a month with a team
of investigators, attorneys, and social workers from the International Justice Mission.
He met with trafficking victims, activists
in France, and a senior official from the
U.S. Department of Justice. Well grounded
in fact, this fast-paced and timely thriller
educates readers about the illicit trade that
affects millions of women and children in
every country in the world.
Zero Day
David Baldacci ’86
Grand Central Publishing
As the plot of Zero Day, the first book in
David Baldacci’s newest mystery series
unfolds, Army Ranger John Puller, the best
military investigator in the U.S.
Army’s Criminal
Investigative
Division, heads for
a tiny mining town
in West Virginia to
investigate the brutal murder of Col.
Matthew Reynolds
and his family.
Puller, notes the
Kirkus Review, is
“a soldier/sleuth
who fights like
Rambo and thinks like Holmes.” Puller is
a war veteran who served in Afghanistan;
his experience in combat has driven him to
the edge. Now he’s a haunted man assigned
to track down a different kind of killer—on
native soil.
The victim had a desk job with the
Defense Intelligence Agency and lived
with his family in Northern Virginia. Why
was he killed in this remote town? Puller
has to find out, and the locals are not that
cooperative—except for one, an attractive
homicide detective named Samantha Cole.
She knows everyone and can navigate her
way through the tight-lipped community.
Puller discovers an old vine-covered
government building that was built in the
1960s and staffed by government workers
who never interacted with the people
in town. There are troubling clues that
the murderer had military training, and
that the case involves the Department of
Homeland Security. Could the government be involved? And if so, will Puller’s
investigation put his own life on the line?
The closer they get to solving the mystery,
the more dangerous their mission becomes.
David Baldacci and his wife,
Michelle, have founded the Wish You
Well Foundation, which works to promote literacy. Visit his Web site at www.
DavidBaldacci.com.
Everybody
Says Hello
Michael Kun ’88
Livingston Press
In Everybody
Says Hello,
computer
salesman Sid
Straw leaves
Baltimore and
his ex-girlfriend behind
to take a job with Velocity Computers in
Los Angeles. It seems like a great opportunity for a fresh start, but there’s one
big problem. Wherever he goes, Sid is still
Sid, and along with his enthusiasm and
considerable charm he takes all of his flaws
and foibles with him. Readers of this novel
are in for a hilarious ride.
Sid’s calamitous adventure is told
through letters, emails, and postcards sent
to his employer, his parents, his college
friend, Heather Locklear (yes, the bombshell actress, who bails him out of jail and
In print
…
talks him down from ledges), his
ex-girlfriend, and his little nephew.
Sid is full of notions that get him
into trouble. He is by turns sweet,
annoying, perceptive, and clueless.
He signs missives with a chipper
“Eat Wheaties!”
Time after time things go
wrong; just when it seems they
can’t get any worse, they do. His
boss at Velocity Computers fancies
himself to be the Tom Cruise
character in Top Gun and dubs
Sid “Goose.” Sid tries to make the
best of his new job, but trips himself up in
a surprising (and entertaining) variety of
ways, including online comments about
overweight co-workers and room charges
that reveal his penchant for repeat viewings
of adult movies. Along the way there are
altercations with motel management, an
accidental cat poisoning, and a nightmarish
trail of bills to pay. However you think it
might end, you will probably be surprised.
The author has “a deft hand, a keen
eye, and a kind heart to go with his quick,
acid-tipped tongue,” writes one reviewer.
Sid Straw will remind you of someone
you’ve known whose life seems a comedy
of errors. You’ll find yourself rooting for
him every step of the way.
Michael Kun is an attorney in Los
Angeles. This is his sixth novel.
researcher. They and
the other four in the
group must share
their stories in order
to heal. Adam and Joe
find a common bond
in their experiences
during the war and
in the Holocaust.
Together they deal with
the ghosts that were
created six decades ago.
When they are able
to open their hearts
and listen to each other’s struggles, their
healing begins.
Author Milgraum’s mother is a
Holocaust survivor who lives with emotional wounds from her experience. His
early experiences contributed to a lifelong
interest in trauma and how one survives it
to put their world back together again. As a
psychologist he has worked with Holocaust
survivors and their children and victims of
other kinds of trauma, including spousal
and child abuse. “These are painful stories,
says Milgraum, “but they are also very
important, because in seeing how people
heal from their emotional scars, we learn
something essential about the power of
hope and faith.”
Dr. Michael Milgraum is an attorney
and psychologist practicing in Silver
Spring, Md. This is his first book.
organizes a group for women who have
been emotionally traumatized in hopes of
helping them. One of the women struggles
with the fact that when she gave birth
as a teenager, the doctor took her baby.
Misunderstanding Summerford’s suggestions about locating her now 20-year-old
child, the woman tracks down the doctor
who delivered her baby and is found at the
scene of the man’s murder.
Believing herself at least partly to
blame, Summerford sets out to fight for
her patient, the only suspect. In the face of
incriminating circumstantial evidence, a
powerful family getting in the way, and an
investigating officer who thinks the case is
wrapped up, Summerford never waivers in
her quest to prove her patient’s innocence.
Along the way she discovers a secret that
could bring catastrophe upon people she
cares about if she reveals it to save the life
of her patient.
The author provides compelling
details, from behind-the-scene dealings in
Tammany Hall to elegant social events on
Fifth Avenue in New York City at the turn
of the century.
“A solid plot pulls the reader in with
little effort, while strong, flowing prose and
captivating characters provide the incentive
to remain to the very last page,” notes a
starred Kirkus review.
Cuyler Overholt was a litigation
associate before starting a freelance writing
business. This is her first novel. n
Never Forget My Soul
Michael Milgraum ’90
Guidelight Books
Never Forget My Soul explores the lives of
six traumatized people receiving treatment in group therapy, each bearing the
emotional scars of a trauma that occurred
years ago. Flashbacks that reveal these
traumatic experiences create suspense
throughout the book.
The therapy group brings together
a diverse set of patients, including Joe,
a cocky and self-centered surgeon,
and Adam, a shy and anxious medical
A Deadly Affection
Cuyler Overholt ’79
Copper Bottom Press
In 1905 when female doctors were few
and far between, Genevieve Summerford
finished third in her class at Johns Hopkins
Medical School. She’s driven to succeed
in her new career as a psychiatrist, in part
out of her feelings of guilt for her younger
brother’s death and regret over a painful
indescretion as a teenager. She wants to
make a difference in people’s lives.
Despite her father’s disapproval, she
UVA Lawyer / spring 2012 77
Opinion
Lower the Licensing Barriers So We May Serve
n Eleanor Magers Vuono ’95
W
Now, I am in a unique position: I am a military spouse attorney,
hen I think of military spouses, these words come to mind:
desiring to work in my chosen profession, all the while facing a
strong, adaptable, heroic, passionate, and committed. When
new state licensing process each time my husband receives his next
I think of military spouses who are trying to maintain careers and
assignment. The challenges of being a lawyer married to the military
professions while packing and moving to a new state every two or
are formidable and the exercise is expensive. My story is typical, but
three years, different words come to mind: stymied, challenged,
worth sharing. I passed the Virginia bar exam after graduating from
frustrated, and often under-employed. As we head into our second
law school. I quickly waived in
decade fighting the nation’s
to the District of Columbia bar,
wars, it is time to address these
because its rules were accomemployment challenges for
modating. When I left active duty
military spouses with simple
military service, I moved to Fort
fixes to state licensing and
Hood, Tex., with my husband. I
employment rules. The ability
was able to waive in to the Texas
to find rewarding work makes
bar because I just met the rule resense for everyone: the military
quiring legal practice for five out
benefits when there is strong
of seven years. However, I was
family support, the service
required to take the multi-state
member is more likely to stay in
ethics exam again. The timing
if the spouse is happy with the
was challenging. We had two
lifestyle, and the spouse is able
children under the age of three,
to contribute his or her unique
and my husband was deploying
talents to the communities
to Iraq. I also was serving as the
where they live.
battalion’s family readiness group
I have known many military
Eleanor Magers Vuono ’95 with her husband, Col. Tim Vuono.
advisor at the time.
spouses, because I have been in
In 2008 my husband took
the military—in one role or ancommand of a brigade at Fort Jackson, S.C. I learned of his orders too
other—since I was born in a military hospital in Germany in 1970. My
late that year to take the February exam, and we moved in the midst
father was an Army lawyer and we moved routinely, so I attended four
of the July exam. It was not worth the time or expense to take the
different high schools in four years. I attended Princeton University on
following year’s exam, knowing that we would be leaving in another
an Army ROTC scholarship, then the Law School. After clerking for a
16 months. Columbia, S.C. has an active legal community that is very
federal judge for one year, I served on active duty as an Army lawyer.
welcoming and supportive of military families. Like most states, South
I left active duty service after I fell in love in with an Army officer in
Carolina also has a tremendous need for attorneys who are willing to
the halls of the Pentagon, married him, and became an Army wife.
UVA Lawyer / spring 2012 79
Opinion
…
I am optimistic that change is on the horizon. Recent White House
serve the legal needs of military families and veterans. I very much
initiatives led by Michelle Obama and Dr. Jill Biden, wife of the Vice
would have liked to join that bar, but as the rules currently exist, it
President, have brought much-needed attention to the employment
simply was not feasible.
challenges facing military spouses. The Military Spouse JD Network
Although military spouses serve willingly, we also sacrifice
(“MSJDN”) formed last summer to help military spouse attorneys
greatly in our chosen role. Each state bar examination often costs
network with and support one another. In February
between $4,000 and $5,000 for preparation materials
the American Bar Association House of Delegates
and fees. Licensing may take up to a year for the
passed Resolution 108 at the midyear meeting in
application process, the character review, the two- to
As we seek to balance
New Orleans. Resolution 108 encourages state bar
three-day examination and waiting for the results. I
support for our
authorities to adopt rules that accommodate the
have given up working as a lawyer at times, because
unique needs of military spouse attorneys who move
the licensing barriers have been too high. At other
spouse’s career with
frequently in the nation’s defense. Idaho became
times, I have worked behind the scenes, or been
our personal and
the first state in the nation to adopt a rule change
underpaid, or worked for free. At all times, I have
allowing qualified military spouses to practice law
the continued expense of maintaining annual bar
professional goals,
without the burden of an additional bar license.
fees in the several states where I am licensed, so
there are many simple
MSJDN has submitted rule change proposals in
that I do not lose my status in the event the military
Virginia, California, Ohio, Georgia, Arizona, North
sends us back to one of those locations.
solutions that would
Carolina, and New York.
Military spouses are simply asking for state
make
our
jobs
easier.
Every day, I am grateful for my husband, for
licensing rules that minimize the inherent burdens
his service, and for this country that I love. It seems
that come with our military service. As we seek to
appropriate that we also acknowledge the hardbalance support for our spouse’s career with our
working military spouses who sacrifice as well. But
personal and professional goals, there are many
more than just saying “thank you,” it is time to take the simple steps
simple solutions that would make our jobs easier. One simple fix would
to lower licensing barriers and to improve access to employment
be the ability to waive into a state bar if we already are licensed and
opportunities for our military spouses. n
in good standing elsewhere. Another easy solution would be reduced
bar fees for military spouses who maintain multiple licenses. Many
states offer a reduced rate for lawyers who serve in the judiciary. It
Eleanor Magers Vuono currently is an adjunct professor at Catholic Law
would be a simple matter to expand that category to include military
School in Washington D.C., while her husband, Col. Tim Vuono, works on
spouses. Military spouse attorneys are a talented bunch. Our legal
the Joint Staff in the Pentagon. She also works as a freelance writer for small
skills can make a positive difference in the communities where we
law firms, handling trial and appellate briefs. She is an active member of the
live, particularly in the unique world of military families and veterans.
MSJDN.
We just need the opportunity to serve.
80 UVA Lawyer / spring 2012
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