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Spring 2009
Spring 2009
Vol. 33, No. 1
From
the
DEan
A Crowded Crossroad
Paul Mahoney
T
he past six months have been filled with drama. Real estate
and securities markets have suffered some of the sharpest
declines of the past century. The economy is in a recession
that is already longer than the postwar average and will rank as one of
the deepest since the Great Depression. A new president was elected
and inaugurated in the midst of financial and economic crisis, ongoing
wars in Iraq and Afghanistan, and threats from Iran, North Korea, and
non-state terrorist groups.
Law and lawyers will play a large role, as they always have, in
resolving these crises. Many Virginia graduates have been directly
involved in these events and members of our faculty have given policy
makers the benefit of their analyses of the underlying problems. This
issue of the UVA Lawyer offers insights from both.
Four years ago, we assembled a panel of faculty members with
deep and varied experience in international law and foreign policy
to discuss the legal implications of the war on terror. In light of the Obama administration’s
desire to change tactics in the struggle against terrorist organizations and those who facilitate
or fund them, we re-convened a faculty panel to talk about what has changed, what hasn’t, and
what should. David Martin, one of our original panelists, is now providing his advice more
directly as the principal deputy general counsel in the Department of Homeland Security under
Secretary Janet Napolitano ’83. Paul Stephan ’77 — who has since served as the counselor
on international law in the State Department — and John Norton Moore rejoin the panel.
They are accompanied by Barb Armacost ’89, who has recently expanded her research on the
control of police brutality in domestic law enforcement to include the international setting,
and Fred Schauer, whose influential work on the function of legal rules is of obvious relevance
to a discussion of the rule of law in the war on terror. In addition to this fascinating academic
discussion, we hope you will enjoy a first-hand look at the rule of law in the Iraq conflict by
Lieutenant Colonel Jack Ohlweiler ’93.
It takes a lot to push war off the front page, but the financial markets have managed to do
so recently. The only regret I had at succeeding John Jeffries as dean was putting aside a book I
have been writing on the New Deal’s financial reforms. I do, however, get to offer my two cents
on the current financial crisis along with several colleagues in this issue.
I often tell new law students that they should look at their education here not as learning a
set of rules but instead as acquiring a set of analytical tools that they can use to understand and
evaluate law as it exists and as it may change in the future. We stand at the threshold of changes
in law relating to financial markets, the environment, and health care, among others. Virginia
graduates stand ready to contribute to and navigate these changes.
Spring 2009 / Vol. 33, No. 1
Departments
Features
1
A Crowded Crossroad
19
5
Law School News
49
Faculty News & Briefs
59
Class Notes
79
In Memoriam
80
In Print
84
Opinion: The Convergence of
Massive Fiscal Problems
Richard G. Clemens ’65
A Stress Test for Capitalism
Cullen Couch
25
Policy, Morality, Politics …
and the Rule of Law
Barbara E. Armacost ’89
John Norton Moore
Frederick Schauer
Paul B. Stephan ’77
38
Rebuilding the Rule of Law in Iraq
Jack Ohlweiler ’93
42
Inside the Presidential Campaign
Cullen Couch
Find us online
FACEBOOK: law.virginia.edu/facebook
YOUTUBE: youtube.com/UVALawSchool
TWITTER: twitter.com/UVALaw
Editor Cullen Couch
“I hope we shall crush in its birth
Associate Editor Denise Forster
the aristocracy of our monied
Contributing Writers Rob Seal; Peter Trauernicht, A&S ’09; Emily Williams; Mary Wood
corporations which dare already
Design Roseberries
Photography Michael Bailey, Ian Bradshaw, Tom Cogill, Peggy Harrison, Robert Llewellyn
to challenge our government to a
trial by strength, and bid defiance
to the laws of our country.“
—Thomas Jefferson
Law
School
News
Law School News
Alito Endorses Role of Lawyer-Servant
T
he future of the legal profession
a speech by former Chief Justice
result, this model is outdated and its
as an instrument for public good
William Rehnquist.
time has indeed passed,” Alito said.
lies in the hands of an emerging
Kronman points out in his
“But I would suggest that we still
generation of lawyers who must find
book, The Lost Lawyer, that gradual
have cause for optimism about public
ways to serve society, U.S. Supreme
changes have occurred in law schools,
service by lawyers.”
Court Justice Samuel A. Alito, Jr.,
law firms, and the court that have
said during a visit to the Law School
devalued the role of the lawyer-
public service is very prevalent today in
in January.
statesman, Alito said.
some areas of the profession, he said.
“Public service is and always has
“The late chief justice attributed
A new model of lawyer devoted to
“It is the model that I think is the
been at the heart of our profession,”
the demise of this ideal at least
inspiration for this conference, and
said Alito, who headlined the Law
partially to the commercialization
I’ve searched for a phrase that is the
School’s 10th Annual Conference on
of law practice,” Alito said. As the
equivalent of the lawyer-statesmen
Public Service and the Law.
pressure to bill hours increased,
that might capture it. I haven’t found
lawyers had less time and inclination
anything that entirely fits the bill, but we
in American society was as an officer
to foster and pursue political
might call it the lawyer public servant, or
of the court and a defender of our
interests, he said.
for short the lawyer-servant.”
“The traditional role of the lawyer
country’s laws and Constitution.
“Now, I do not dispute that
This kind of lawyer is someone
The lawyer was viewed ideally as a
the legal profession has undergone
who feels a sense of responsibility to
member of a noble profession who
significant changes since the time of
hold the law in public trust, and who
rose above self-interest to promote
the lawyer-statesmen, and that as a
finds a way throughout his or her
the rule of law and pursue the
common good.”
But this view of the lawyer has
eroded and changed over the years,
and it’s now up to legal practitioners
to serve the common good despite
new economic and professional
pressures, Alito said.
In the earliest chapters of American
history, the country was led by several
prominent lawyers who were also
great leaders. However, these lawyerstatesmen are quickly vanishing from
the public life, Alito said, referencing
the work of former Yale Law School
Dean Anthony Kronman, as well as
UVA Lawyer • Spring • 2009
|5
Law
School
News
career to make some form of public
variety of ways,” he said. “Corporate
career in public service need not be
service a priority, Alito said.
lawyers can help small businesses
an all-or-nothing proposition.”
“Rather than bemoan the demise
survive. Bankruptcy lawyers can help
Though one professional path
of the lawyer-statesmen, I would
companies and individuals that file
is to devote an entire career to
suggest that we devote our time and
for reorganization. Real estate lawyers
public service — a route Alito
energy to how best to turn the idea
can help to avoid foreclosures.
himself took, and said he has never
of the lawyer-servant into a more
Benefits lawyers can help individuals
regretted — but it is not the only
prevalent reality,” he said.
apply to government programs. In
path. “The lawyer-statesmen with
all of these situations, various actors
whom we began alternated periods of
in the New York Times by David
in the economy may or may not
government service with periods of
Brooks, who wrote about the notion
understand the critical help that a
private practice. And many of today’s
of institutional thinking as opposed to
lawyer could provide.”
prominent government lawyers do
Alito referenced a recent column
individualism. Throughout a person’s
A second way to reinvigorate
the same thing,” he said. “Lawyers in
life, he or she is part of a variety
institutional thinking and adapt
the private sector, meanwhile, serve
of institutions— family, school,
it to practical use is by accepting
throughout their careers through
pro bono work or
periods with public
“A legal career in public service need not be an all-or-nothing proposition.”
interest or advocacy
organizations. There
is no set formula.
professional. These institutions help
the commercialization of the law
The lawyer-statesman is a lawyer who
shape the course of a person’s life by
practice, he said.
incorporates service throughout his
or her career in some way, and no one
imparting certain ideals, rules, and
“The development of law as a
principles that are passed down to
business is inevitable, and I think an
does so, or no one needs to do so in
future generations, Alito said.
irreversible trend, and rather than
any particular or set way.”
Another way to combat the
The fact that the legal profession
continuing to condemn this trend,
still places institutional value on the
we would be well served by turning
pressures exerted by law firm salaries is
ideal of the lawyer as a public servant
our attention to the critical question:
to focus on the non-economic rewards
is cause for hope, Alito said.
How can we enable and encourage
of public service work, Alito said. He
lawyers to act as public servants
encouraged all the students present to
invent anything anew, but that rather
within the framework of this new
talk to the conference’s panelists and
the task is two-fold: first, to adapt
reality?”
other public service lawyers about
“It means that our task is not to
our institutional ideals to present day
Facing this question involves
why they do what they do.
“I predict that you will hear stories
realities so that acting upon these
addressing the economic incentives
ideals is a realistic proposition, and
weighing against public service,
that are both inspired and inspiring,
second, to encourage all lawyers —
Alito said.
and I think you will hear from them
and particularly young lawyers — to
think institutionally in this sense.”
“After all, as law school
the view that no salary could outweigh
tuition and law firm salaries have
the satisfaction and the fulfillment
skyrocketed, nobody can blame law
of serving the country, a segment of
be for lawyers to think about how
students who feel they have little
society or a particular cause.
they can find ways to use their skills
choice after graduating from law
to meet new challenges on the local,
school than to take the lucrative
Annual Conference on Public
national, and global level, Alito said.
offers that are provided by law firms.
Service and the Law content at
One way to address these incentives
www.law.virginia.edu/news.
One way to go about this would
“For example, in the context of the
current economic crisis, lawyers have
is to highlight the fact that despite
many unique skills that can help in a
the economics of the situation, a legal
6 | UVA Lawyer • Spring • 2009
Find links to more of the 10th
Law
School
News
Members of the 2007–08 Supreme Court Litigation Clinic
Supreme Court Litigation Clinic Earns Second Win
O
n March 9, the U.S. Supreme
Court ruled in favor of a client
learning opportunity, Ortiz said.
“There are lots of moving parts,
cases. Eventually, students also work
on briefs and help prepare arguments.
“The clinic was a fascinating
of the Law School’s Supreme Court
and it’s the kind of stuff that law
Litigation Clinic.
school students typically don’t
experience — rewarding, intense,
confront until their third year of law
and challenging,” O’Doherty said.
centered on whether a federal court
school,” he said. “It was fantastic for
“With the guidance of our professors,
had the authority to move a Maryland
them. It was a real law geek’s case,
we had the opportunity to explore
woman’s dispute with a credit card
and most of our clinic students are
complex issues, draft arguments,
company from the state courts to
happy law geeks.”
and present two different cases to the
The case, Vaden v. Discover Bank,
arbitration.
“We were arguing that it could
only be heard in state court,” said
Dan Ortiz, clinic professor and John
Allan Love Professor of Law.
The court’s 5-4 ruling crossed
Former clinic student Sinead
O’Doherty ’08 said the case was
intricate, but also interesting.
“Of all our cases, Vaden was the
Supreme Court.”
The 2007–08 clinic students were
also involved in Indiana v. Edwards,
and traveled to Washington, D.C., in
most cumbersome and yet the one
March 2008 to watch clinic instructor
with the most compressed schedule,
Mark Stancil ’99 argue that case.
ideological lines and affirmed that
which meant many long days for
The Vaden decision is also the
the federal courts had no jurisdiction
everyone,” O’Doherty said. “But
clinic’s second win. In 2007, the court
to force the case into arbitration.
given the outcome, it was definitely
ruled unanimously on behalf of the
worth it.”
petitioner in Watson v. United States,
For students who were enrolled
in the 2007–08 clinic — and, to
Students in the clinic work on
a case centered on whether a man
a lesser extent, for current clinic
myriad aspects of their cases, from
could be charged with a firearms
students — the complicated nature
researching potential clients to
violation for attempting to trade a
of the case made for an exceptional
petitioning the court to take up their
gun for drugs.
UVA Lawyer • Spring • 2009
|7
Law
School
News
Documenting Violations Key to Justice in Iraq
By Prashanth Parameswaran
D
ocumenting and analyzing
human rights violations in Iraq
is a necessary step toward achieving
transitional justice in the country, an
international human rights scholar
and activist told Law School students
in March.
“It is striking how little is known
about the experience of Iraqis in the
country, particularly in terms of
political violence. The project’s goal is
to address this,” said
Daniel Rothenberg, managing
director of international projects at
the International Human Rights Law
Institute of DePaul University College
of Law and head of the Iraq History
Project (IHP).
International human rights scholar Daniel Rothenberg
Over the past three years, IHP has
collected more than 8,000 testimonies
This, Rothenberg added, is despite
representing 55,000 pages of personal
with legal issues that arise in the wake
narratives on human rights violations.
of atrocities that produce widespread
the fact that Iraq is one of the world’s
These first-hand accounts tell stories
human rights violations, he said.
most serious humanitarian crises
of political violence under Saddam
Though this is usually done more
and one of the best places for the
Hussein’s regime, as well as after the
formally through truth commissions,
United States and the international
U.S.-led invasion in 2003.
as in South Africa, Guatemala, or
community to make a difference.
Peru, the IHP has sought to begin
An estimated 5.2 million Iraqis have
collection projects of its kind in
this process more informally in
either fled Iraq or are internally
the world and the largest in Iraq,”
Iraq. “This is a prime example of
displaced in the country, while
Rothenberg said.
transitional justice,” he said.
studies estimate that between 100,000
“It’s one of the largest data
He also thanked Law School
Despite the growing
and 1 million have been killed since
students who had assisted in this
institutionalization of transitional
the 2003 invasion. Congress has
ambitious project as part of the
justice and the proliferation of
approved more than $600 billion for
Human Rights Clinic last semester.
nongovernmental organizations
the war so far and Washington has
“My experience working with students
and human rights professionals,
deployed more than 140,000 troops at
has just been fantastic. You guys do
Rothenberg said it was interesting
any given time in Iraq.
really good work,” Rothenberg said.
that calls for transitional justice in
“Yet somehow, in this country,
Iraq have not been as loud as they
Americans tend not to refer to Iraq as
documenting the truth about
have been in Darfur and other cases.
a human rights crisis,” he said.
political violence is an integral part
“You have not heard a lot about this
of transitional justice, which grapples
regarding Iraq, have you?” he asked.
IHP’s commitment to
8 | UVA Lawyer • Spring • 2009
To gather this extensive data, IHP
sent out trained interviewees from
Law
School
News
its all-Iraqi staff to talk to people
about their experiences. Rothenberg
initially had doubts about the
project’s success since most human
rights groups had determined it
was too dangerous to collect such
data. He was also skeptical about
Iraqis speaking openly about their
From left: Erin Crowgey, Stephen Anthony, Saira Karim, and Jordan McKay
traumatic past.
“When we started the project, we
didn’t know if it was going to work.
We didn’t even know if people would
Law School Team Wins NBLSA Mock
Trial National Championship
talk to us,” he added.
Rothenberg said he hopes this
A Law School team won the National Black Law Students
will stimulate more data-gathering
Association Mock Trial Competition in Irvine, Calif., and other students either won
projects about specific atrocities and
awards or earned positions in the organization’s national leadership.
perhaps stir Iraqis to demand redress
The team of third-year Stephen Anthony and second-years Saira Karim, Erin
for their oppression through options
Crowgey, and Jordan McKay won NBLSA’s Thurgood Marshall Mock Trial Competition
like reparations.
in March.
“I don’t think Iraqis have yet
“NBLSA Mock Trial was one of the most enriching experiences here at law school,”
engaged the severity of victimization
Karim said. “Not only did I develop meaningful relationships with my teammates, but
and internalized the range of policy
learning trial advocacy from experienced coaches and team members was a great
options for addressing that,” he said.
learning experience.”
However, he stopped short of
First-year Melinda Hightower and third-year Kurt Davis were runners-up in the
suggesting that IHP may play a
NBLSA International Negotiations Competition, and Karla Hardy was first runner-up for
central role in Iraqi reconciliation.
the NBLSA National Best Advocate Award in the mock trial competition.
Since the International Human
Rights Law Institute is an NGO rather
than a truth commission, Rothenberg
“Participating in this year’s national competition has been one of the highlights of
my time at UVA Law,” said Hardy, who competed in a field of 78.
Last year, she was a member of a team that won the regional championship and
said it is not conferred any authority
advanced to nationals, but her team this year faced challenges, including replacing a
by the state like a commission is. This
member before the national finals.
limits its capacity to enable many
policy reforms.
“At the end of the day, I really
don’t think we have the power to
engage in reconciliation,” he added.
Rothenberg said he hopes that
“Despite the hurdles, we competed well at nationals,” she said. “My teammates
Erva Cockfield, Kara Akins, Suzanne Libby, and Bobbie King are all extremely talented
trial advocates, and we have learned so much working together.”
Hightower, who will serve as the University of Virginia BLSA president next year,
will also serve on the NBLSA board as vice-chair.
The students from the winning mock trial team won the regional championship
human rights groups and other actors
Feb. 19 in Philadelphia to advance to the finals, where Anthony praised his teammates’
will try to internalize the lessons of
performance. “Throughout the competition, I saw their confidence grow, their
Iraq. IHP, he added, was a first step
comfort grow and the competitiveness grow — as a result, they carried us to the
toward this important process.
championship,” said Anthony, who was the only team member with mock trial
“It really is a case for enormous
reflection, and I have always thought
experience.
In the competition, the team is given a set of facts about a hypothetical case, and
that this should start with the
team members assume the role of prosecutors, witnesses or defense counsel. Their
experiences of the Iraqi people,”
case at the national finals was an expansion of the case from the regional finals, which
Rothenberg said.
involved charges filed after a fictitious hazing incident at a college.
UVA Lawyer • Spring • 2009
|9
Law
School
News
Study of Forensic Testimony, Wrongful Convictions
Show Need for Reform
F
lawed testimony by forensic
by Garrett and Neufeld included
experts contributed to the
erroneous or unsupported testimony
justice system to prevent injustice.
The NAS report, “Strengthening
conviction of innocent defendants,
about the accuracy and results of
Forensic Science in the United States:
according to a new study co-authored
forensic techniques including hair
A Path Forward,” was released in
by Professor Brandon Garrett.
comparison, bite-mark comparison,
February, and recommends the
fingerprint comparison, and even
establishment of a national institute
DNA testing.
of forensic science, an independent
The findings of the study are
featured in an article, “Invalid
Forensic Science Testimony and
The study originated with a
scientific entity to adopt and enforce
standards for forensic
“Crime laboratories rarely conducted audits or investigations to review
report writing and
testimony.
“With the
the forensic evidence.”
exception of nuclear
DNA analysis … no
forensic method has
Wrongful Convictions,” published in
request to Garrett — who conducted
been rigorously shown to have the
the March 2009 issue of the Virginia
previous research on wrongful
capacity to consistently, and with a
Law Review.
convictions — from the National
high degree of certainty, demonstrate
Academy of Sciences (NAS)
a connection between evidence and
Peter Neufeld studied the transcripts
committee examining the needs
a specific individual or source,” the
of 137 trials in which prosecution
of the forensic science community,
NAS report says.
forensic analysts testified, and the
asking him to present at one of the
defendants were years later exonerated
committee’s public hearings.
Garrett and the Innocence Project’s
by post-conviction DNA testing.
Garrett and Neufeld then spent
In their study, Garrett and
Neufeld found that forensic analysts
often testified that a particular piece
more than a year compiling and
of evidence — such as a hair or a
of those wrongful conviction cases,
analyzing trial transcripts from the
fingerprint — was closely connected
forensic analysts gave “invalid
cases of people later exonerated by DNA
to the innocent defendant, despite the
testimony that overstated the
evidence. Several scientists and forensic
fact that no scientific data permitted
evidence,” Garrett said.
scientists also reviewed the categories
analysts to reach such conclusions.
The pair found that in 60 percent
“What we mean by ‘invalid’
is simply that the testimony was
used for analysis and examined
transcripts in particular cases.
In one case an analyst told a
jury that only five percent of the
unscientific or contrary to empirical
The majority of the cases were
population had a certain type of hair
data,” he said. “Just because a wrong
rape cases from the 1980s, and many
pigment discovered at a crime scene,
statistic was offered, does not mean
included testimony about forensic
and that the defendant was among
that the testimony necessarily caused
techniques that are still used today,
them. But there is no empirical data
the wrongful conviction. However,
according to Neufeld, co-director and
about the frequency of particular hair
these powerful examples support
co-founder of the Innocence Project,
pigments, Garrett said.
efforts to adopt and enforce scientific
a national litigation and public policy
standards governing forensic
organization that uses DNA testing to
fascinating to read, because in
reporting and testimony.”
exonerate wrongfully convicted people
retrospect we know that all of the
and seeks to reform the criminal
defendants were innocent,” he said.
The flawed testimony uncovered
10 | UVA Lawyer • Spring • 2009
“These trial transcripts were
Law
School
News
defense experts.
“Yet few have looked at these records.
know from reading trial transcripts
Even after these wrongful convictions
in how many cases errors were made
came to light, crime laboratories
in the laboratory, although in a
erroneous accounts of the forensic
rarely conducted audits or
few exonerees’ cases in which the
evidence during closing arguments,”
investigations to review the forensic
underlying evidence was reexamined,
Garrett said.
evidence presented at the trial.”
gross errors have come to light.”
The study’s authors agree with
“Prosecutors, moreover, presented
The study also notes that the
the NAS report’s assessment that a
the state of mind of analysts;
criminal justice system is not well-
set of national scientific standards
it’s impossible to tell from trial
suited to prevent unscientific testimony.
should be established to ensure the
materials whether they were simply
Reasons include that the presentation
valid presentation of forensic analysis.
inexperienced or poorly supervised,
of forensic evidence is almost entirely
Neufeld called the NAS report “a
or acting in bad faith, Garrett said.
one-sided, Garrett said.
major breakthrough toward ensuring
The study doesn’t speak to
“Nor do we know how many cases
“Defense counsel rarely cross-
that so-called scientific evidence in
involved concealment of forensic
examined analysts concerning
criminal cases is solid, validated and
evidence,” he said. “In 13 exonerees’
invalid testimony and rarely retained
reliable.”
cases it has since come to light that
experts, since courts routinely deny
forensic evidence was concealed
funding for defense experts.”
that would have helped to prove
innocence. Similarly, we do not
Only 19 of the eventual exonerees
Find the published study at:
www.virginialawreview.org
whose cases were examined had
Brandon Garrett
UVA Lawyer • Spring • 2009
| 11
Law
School
News
Her Love of the LSAT Helps Others Succeed
By Ashley Matthews
I
t is an understatement to say that
was in her mid-20s, Epps planned
of 2008, along with some of her first
Elisabeth Epps loves the LSAT.
to become a physician. She and her
students.
“To an unhealthy degree, I love
son, A.J., who is now 12, moved to
“This test, it gets a bad rep.
that test. I was a dork growing up. I
Charlottesville in 2003 so Epps could
Kaplan’s philosophy, which is a
would be on the bus — always with
pursue her goal of first earning a
good fit for me, is that the test is
a game of logic puzzles — from
master’s degree in medical ethics,
your friend. The point at which you
kindergarten through 12th grade,”
then pursue a medical degree. She
apply, your grades are done, your
said Epps, a first-year. “The LSAT was
began working as a patient care
recommendations are done, your
like grown-up permission to enjoy
coordinator at the Charlottesville
teachers either liked you or didn’t.
this sort of thinking. I really do love
Free Clinic.
Your resume is what it is,” Epps said.
the test.”
“It’s very hard to explain, but I
“The LSAT is an opportunity for a
couldn’t put one foot in front of the
fresh start. It is your friend. A 180
has become a beneficial sideline as
other, and I didn’t know why not. I’d
erases all blemishes. It says, ‘Who
she attends the Law School. Epps,
prepared for the MCAT, I’d taken all
cares about that ‘C’ you got your
an LSAT instructor for Kaplan Test
the prerequisites, survived organic
freshman year?’”
Preparation, was recently named
chemistry, done all the things I was
Teacher of the Year for the company’s
supposed to do — volunteered at the
far more rewarding than she ever
Charlottesville branch for the second
hospital, had a job in health care,”
expected, and she enjoys it so much
year in a row.
Epps said. “That’s when it occurred to
that she’d like to eventually teach at a
me all the things I loved about my job
law school. She taught Paul Wagoner,
in health care were legal. It was about
a Charlottesville student who earned
But Epps’ passion for the LSAT
For Epps, the journey to law
school wasn’t direct. In fact, until she
Elisabeth Epps
social justice and access
a perfect score on the LSAT — the
and health policy, and the
coveted 180. And, though she said
things I didn’t like at all
it was wonderful, Epps said it was
were bodies, blood, science,
no more fulfilling than helping any
medicine, prescriptions
student achieve his or her goals.
— those things I couldn’t
“As exciting as that 180 is — and
stand. When I figured out
it was clearly thrilling — it’s honestly
that what I liked about it
no different than when a student
had nothing to do about
is just dying to break 150, and she
science and health, law
does,” Epps said. “As a teacher, his
school was a natural fit.”
180 is not really different than when
So Epps found herself
the young woman who has been
prepping for the Law School
stuck in the 140s gets that 150 on her
Admissions Test. She never
test and can go to that school that is
took a prep course for the
where she wants to be. It’s her 180.”
LSAT, but scored high
12 | UVA Lawyer • Spring • 2009
Epps said teaching has been
Kaplan flew Epps to New York
enough on her first try to
late last year to appear in a television
begin teaching her own
commercial for the company, and
prep course for Kaplan in
Epps is waiting to hear whether she
the summer of 2007. She
will win Kaplan’s district teacher of
began law school in the fall
the year award.
Law
School
News
PILA: Alternative Spring Break
By Emily Williams
Students worked with legal
intake interviews
aid clients and immersed themselves in
with women seeking
social justice issues in Eastern Kentucky
divorces and wrote up
and Durham, N.C., during an alternative
the requisite petitions
spring break program piloted by the Public
and affidavits. They also
Interest Law Association in March.
visited a senior center
Seventeen Law School students
and assisted seniors
participated in the program, which PILA
in creating living wills
president Rebecca Vallas hopes will
and power of attorney
become a new tradition.
documentation.
“Programs like this are truly a win-win,
Students John White (back) and David Smith work in Kentucky
during Spring Break.
“I have never seen a part of the country
but also got hands-on experience working
and ours was no exception,” Vallas said. “It
like where we were,” said second-year
on a case involving a student getting
matched up motivated and energetic law
Susan Edwards. “It was so rural — it was
suspended from school.
students hoping to devote their spring
so different from any place that I’ve ever
breaks to a good cause with two terrific —
been. It was hard to see such a wonderful
exercise in legal thinking — something
if understaffed and overstretched — legal
community that does have some poverty
that you wouldn’t typically get because
aid organizations that need all the extra
juxtaposed with other communities. The
you can’t really replicate that in a
help they can get.”
disparities are striking and it’s challenging
classroom. It really requires a hands-on
to grapple with.”
approach,” he said.
Vallas and first-year Jesse Stewart
wanted to give students another
“Being able to put a face with the
“I thought it was a really interesting
The program at ACS included tours of
opportunity to do public service work and
paperwork that you’re doing is awesome,”
areas in Durham and Greensboro that were
came up with the alternative spring break
added first-year Veronica Bath, who helped
affected by the civil rights movement,
program.
plan the Kentucky trip and assisted a client
guest lecturers, and interaction with
with her divorce while there. “To hear her
clients.
“In the end, the students receive
valuable exposure to new areas of law
story and to feel like you’re in a position
and even new parts of the country, such
where you’re someone she wants to talk to
encouraged to think about how they can
as rural Kentucky, and the organizations
about that was just really neat.”
effect social change and what tools they
benefit from the students’ donation of
their pro bono time,” Vallas said.
AppalReD, the Appalachian Research
Second-year Dan Rosenthal was one
Rosenthal said the volunteers were
can use to make a difference. “Simply filing
of six students who travelled to Durham,
a brief as a lawyer is not the only tool you
N.C., to work for Advocates for Children’s
have at your disposal, and I think that that
and Defense Fund of Kentucky, based
Services (ACS), an organization that
was one of the things they were trying to
in Prestonsburg, hosted 11 students.
provides legal assistance on issues related
get across,” he said.
The legal aid organization provides free
to education in North Carolina.
legal help to those who can’t afford it
otherwise.
Expecting a short training session
The organizing committee for the
alternative spring break program wanted
before being thrust into client work,
to keep costs down and were able to
Rosenthal was surprised to find that the
operate the program on a $2,000 budget,
Harlan County, an area known for violent
program took a more systemic look at the
which they accomplished by having the
disputes between coal miners’ unions and
civil rights movement and its impact on
students carpool and both organizations
the mining companies in the 1930s and
education.
provide housing.
Students spent their first day touring
1970s. It’s known also for its prevalence of
black lung disease and poverty.
Later in the week, students performed
The students filed a brief with the
“It was awesome to see the
North Carolina Court of Appeals in a case
enthusiasm for the trip. People are looking
involving education and constitutional law,
for opportunities like this,” Stewart said.
UVA Lawyer • Spring • 2009
| 13
Law
School
News
Getting Connected: Technology and the Law School
By Peter Trauernicht, A&S ’09
E
ducation and the learning
locations, they are now available
the Internet has many advantages, but
process have always been deeply
virtually anywhere, including
is not without drawbacks. Students
classrooms.
can coordinate and work together
affected by the tools available to
more effectively, but the constant lure
educators and students. As new tools
Many students consider the
are created and old ones replaced, the
laptops themselves valuable tools,
of email can be a detriment to focus
process of education evolves, with
especially for note taking.
in the classroom. Laptops bring with
them a multitude of
“My generation is good at adapting to technology, so I feel we’re suited
distractions. Social
networking sites and
online media are as
to experimenting with this.”
available as academic
resources, if not more
so. Students today
educators and students alike striving
“My laptop helps me organize my
are more inclined to multitask, which
to be as effective as possible. Students
notes much more efficiently,” said
places new demands on personal
and faculty at the Law School
Alison Taylor, a second-year. “It’s a
focus and discipline.
continue to adapt to a variety of
lot easier to keep up with what the
new technologies, from taking notes
professor is saying, which makes my
good at multitasking. Most of us
on a laptop to maintaining audio
notes more accurate.”
find a balance that allows us to stay
recordings of lectures.
Pen and paper haven’t yet gone
“I think our generation is very
on track.” Taylor has a laptop and
the way of the dinosaur, but in
an iPhone which allows her to stay
has been wireless Internet access.
most classes laptops predominate.
connected virtually everywhere she
Almost every student possesses a
Occasionally, students supplement
goes. “The distractions might be
laptop, and with complete wireless
their laptops with a notepad,
tempting, but ultimately I’m more
coverage of the Law School they have
while others still prefer using only
interested in keeping pace in my
access to a wealth of information
traditional notebooks.
classes.”
The most influential development
wherever they go. Lexis and West
The unprecedented accessibility of
Laptops provide many benefits
Law are available online, as are many
to students, but they can change
digital resources from the Morris
the classroom dynamic. Professor
Law Library. Where students
Thomas Nachbar prohibits laptops
once had to seek out
during his section of Constitutional
these resources
Law for this very reason.
in specific
“Every Law School class includes a
combination of content and concept,”
he wrote in an email to his class at
the beginning of the spring semester.
His concern is that while laptops
are wonderful tools for effectively
capturing content, they actually
make the concepts less accessible.
“Notebooks, by virtue of both their
form and function, interfere with
14 | UVA Lawyer • Spring • 2009
Law
School
News
Students today are more inclined to multitask, which places
new demands on
personal focus and discipline.
that discussion, removing students
from a participatory stance to an
observational one.” While the students
may have a clear understanding of
the laws they have learned, there is a
worry that they lose a deeper sense of
students purchase an expensive
out their grades at the end of the
how the laws are applied.
computer and then not allowing them
semester. Additionally, LawWeb
to use it in class?”
provides consolidated access to career
Nachbar does not prohibit
laptops in all of his classes. “First-
It’s hard to say whether laptops
services, public service opportunities,
year classes are much more concept
interfere with learning or are purely
and student organizations. Normally
than content,” he says, and sets his
an enhancement to the process. But
each would have to be sought out
guidelines accordingly.
while laptops remain controversial,
independently, but through LawWeb
other tools developed from
all are readily accessible to students.
Not all students are so easily
LawWeb also gives students access
convinced, however. Andrew
technology are more obviously useful.
Howlett, a second-year, thinks the
LawWeb is the school’s secured
to class materials and information.
benefits of laptops in the classroom
internal-network site, and gives
Most classes post at least the syllabus
are too useful to ever forsake.
students quick access to necessary
online, and it is not uncommon to
information and resources.
find PowerPoint slides and digital
“Laptops serve a very valuable
research function. I can access any
Students can perform almost all
readings as well. Perhaps most
case or part of the U.S. Code online,
the administrative tasks associated
significantly, almost all exams are
for free, which means I don’t have
with their education through
now completed electronically and
to bring my heavy books to class, or
LawWeb, from course offerings to
submitted online. Students still
in many cases (such as tax, where
online registration, and even find
have the option to handwrite if they
the entire tax code is online free to
anyone who wants to look at it), buy
them at all.”
Andrew Howlett and Alison Taylor
Howlett agrees with Taylor that
laptops help a great deal with notetaking.
“Sometimes there is so much
information in a single class that
it is literally impossible to write
everything down; having a laptop
helps with this, because you can type
much faster than you can write.”
Ultimately, Howlett thinks that
the detriments laptops might bring to
a classroom are the responsibility and
burden of the student.
“It’s also worth noting that the
Law School requires students to have
a laptop. What’s the logic in making
UVA Lawyer • Spring • 2009
| 15
Law
School
News
the student then posts a summary or
outline on the Wiki that discusses
the relevant issues for that particular
subject. Contributing requires careful
thinking about the material and
the Wiki provides a comprehensive
overview of the material once it is
complete.”
There are some growing pains
associated with the adoption of new
techniques.
“Using the Wiki can take some
getting used to,” says Taylor. “It’s a
different format from traditional class
Professor Thomas Nachbar
Professor Rip Verkerke
involvement, and the technological
barrier can be imposing to some, but
my generation is good at adapting to
prefer, but most use the electronic
submission method.
One of the newest technologies
Verkerke requires his students to
contribute to the Wiki, and limits
authoring and editing privileges
technology, so I feel we’re suited to
experimenting with this.”
Verkerke acknowledges that
to enhance the classroom has been
to students in the class. Ultimately
something so new to the educational
audio recording. Many lectures are
the Wiki provides thorough
process can be difficult to readily
now recorded and made available
documentation of the course material
accept.
to students. “The recordings can
and is available online. Students can
be very useful if you have to miss a
post comments or questions on the
potential of these technological tools
class, or want to review a concept for
material and share relevant findings
to increase student engagement and
further clarification,” Taylor explains.
through the discussion forum.
enrich the learning environment. But
“I’m quite enthusiastic about the
Rather than appealing for a copy of
Most Wikis last longer than a
I’m also realistic about how difficult
the notes from a peer, students can
semester, but that is not the case here.
it can be to promote broad adoption
simply listen to the lecture and take
“Because producing the pages
of new methods.”
From pencil and paper to keyboards
their own notes. The recording is
from scratch is part of the learning
not a substitute for the classroom
process, I don’t want students to
and monitors, the Law School has seen
experience; cold-calling keeps
recycle or adapt material from prior
many changes in how students learn
students alert in the classroom.
years,” says Verkerke. “The goal of
the law. Some of the changes seem
the Wiki and the forum is to create a
minor. Students typing their notes
with new technologies in and out
space for students to continue their
instead of writing them doesn’t appear
of the classroom. Professor Rip
engagement with the subject outside
very complicated, but it can have a
Verkerke established a new type of
of the classroom.”
larger impact upon the way they pay
Some professors are experimenting
class homepage with an integrated
Taylor, who is taking one of
attention in class and how they think
Wiki and discussion forum. A Wiki
Verkerke’s classes, thinks the Wiki is
about the material. New endeavors like
is an online encyclopedia that can
a valuable educational tool.
Verkerke’s Wiki project point to new
be as general or specific in subject
“I found the Wiki helpful in
possibilities in cooperative learning
as the authors wish. Wikis grow as
preparing for the essay exams
and the development of new resources.
contributors add content, most are
distributed throughout the semester.
Technology is hard to predict, but the
free to be edited by anyone who
Professor Verkerke assigns every
students and faculty at Virginia Law
knows about them.
student a topic on the syllabus, and
are keeping pace.
16 | UVA Lawyer • Spring • 2009
Law
School
News
Human Genes Should Not Be Patented
By Lindsey Wagner
patenting of specific human
said Koepsell, who is a professor at
attorneys at Celera decided that the
genes constitutes a threat to basic
Delft University of Technology in the
company could begin patenting the
science and should not be allowed, a
Netherlands.
genes that its scientists discovered.
Craig Venter, Celera’s founder,
legal scholar and ethicist said at the
Law School recently.
Humans “have only 30,000 genes,
Since then, more than 8,000
and other scientists working for
genes have been issued to various
the company developed a new
corporations, Koepsell said.
so the fact that there are now 8,000 of
technology for the rapid sequencing
Koepsell pointed out several
those genes or more that are patented
of genes. Without this process, rapid
problems with these patented genes,
is a significant number,” David
sequencing was a tedious process
which is the subject of his new book,
Koepsell said during a talk sponsored
done by hand in laboratories,
Who Owns You? The Corporate Gold
by the Health Law Association.
Koepsell said.
Rush to Patent Your Genes. It impedes
Celera sold this technology to
The human genome continues to be
scientific research, which requires
a subject of interest as more and more
the Human Genome Project and
that scientists replicate the gene they
research shows that people metabolize
also began working on mapping the
wish to study, he said. If a scientist
drugs differently based on their
parts of the human genome that the
patents a gene, replicating the gene
individual genetic makeup, he said.
Human Genome Project had not
violates the patent.
In 1990, work on the international
already completed, creating what
Koepsell also argued that genes
Human Genome Project began with
Koepsell called a race between the
should not be patentable in the first
the aim of mapping the human
public and private groups.
place because of the distinction
Celera’s shareholders pushed for
genome. In 1998, a former University
between inventions and laws of
of Buffalo professor founded the
more profit than what the company
nature. Isaac Newton could not have
private company Celera, which
was making selling its rapid-
patented the law of gravity because
became a private competitor to the
sequencing technology, Koepsell said.
it is a law of nature, he said. Newton
public Human Genome Project,
After examining the existing case law,
discovered the law of gravity; he did
not invent it.
“Laws of patent are meant to be
Delft University of Technology Professor David Koepsell
used to protect inventions — things
that engineers are doing — not things
that scientist discover,” Koepsell said.
He said Celera “justly deserves”
a patent for its rapid-sequencing
technology, but because they are not
inventing the genes, only discovering
them, they should not be able to
patent the genes.
“These genes have existed for a
long time, and you and I have no
possessor right to them,” Koepsell
said. “Not only that — we couldn’t
logically try to protect them against
other people’s possession.”
UVA Lawyer • Spring • 2009
| 17
A Stress Test
for Capitalism
By Cullen Couch
L
ast October, according to a report on Frontline,
Treasury Secretary Henry Paulson and Federal
Reserve Chairman Ben Bernanke summoned
the CEOs of the country’s nine largest banks to
Washington. They were to come immediately,
without aides, to listen and take notes.
Paulson told the group that the government was going
to become a major shareholder in each bank after injecting
them with $125 billion. He handed each CEO a term
sheet explaining the rules. Each could make a phone call
to consult staff, but all of them had to sign the deal that
evening. Otherwise, feared the two officials, the banks
would fail and take the financial system down with them.
Just like that, Washington had begun the costliest
intervention in American economic history.
Anatomy of a Meltdown
The consequences of so much public debt will not be
known for some time. Of more immediate interest,
especially to academics, is how the financial system,
despite an alphabet soup of regulatory agencies, suffered
catastrophic losses once real estate values declined. To
those who study economic behavior and the capital
markets, the current crisis is a modern cautionary tale.
Dean Paul Mahoney, a leading securities law expert, saw
the meltdown unfold in three parts. First, excess leverage
UVA Lawyer • Spring • 2009
| 19
“Reaction in the market
after the Lehman Brothers
failure is in some sense
a measure of how much
investors believed that the
government would simply
”
step in …
created a debt bubble. The Fed kept monetary policy
of transparency is the core issue, and when you bundle
too loose for too long. Cheap money and low returns on
that with the high degree of leverage, which reduces the
government debt sent investors looking for higher returns
flexibility that individuals, firms, and whole markets
in real estate and equities. Meanwhile, homeowners
might enjoy, you have the tinder for an amazing bonfire.”
saw their own equity soar and joined the party. Retail
Third, underwriting standards loosened. Mahoney
businesses saw record profits as those with “paper” wealth
notes that in the 1990s, Congress passed legislation
spent freely and copiously. As Chip MacDonald ’79, a
that required Fannie Mae and Freddie Mac, the two
partner in Jones Day’s Atlanta office, said at the Virginia
government-sponsored enterprises that purchase and
Law & Business Symposium in February, “People were
securitize mortgages, to purchase a targeted amount of
basically day-trading with their houses and refinancing
mortgage loans to low-income households. As a result,
periodically. They were using exotic instruments like
bank regulators began putting pressure on all lenders to
option ARMs. There was all this cash to spend, and people
make loans to high-risk borrowers, which ultimately led to
spent it rapidly.”
a severe decline in underwriting standards in the mortgage
Second, Mahoney points to the dramatic mispricing of
the risk associated with securitized subprime mortgages.
Faulty risk modeling and rating agency ignorance led
market (and, not coincidentally, a booming market in the
securitization of these instruments).
Enter the financial institutions bailout. “For many
the markets — and financial institutions — down a
years the government seemed to be creating a free lunch
dangerous path. Bob Bruner, dean of the Darden Graduate
with Fannie Mae and Freddie Mac,” says Mahoney. “They
School of Business, agrees, adding that “information
were saying, on the one hand, that these entities do not
asymmetries”— insiders purposely designing investments
have an explicit guarantee from the federal government
to be too complex for all but them to understand —
and that their investors were not backed by the full faith
contributed mightily to the subprime mortgage crisis.
and credit of the U.S. government. Yet, at the same time,
“Complexity obscures,” Bruner says. “By the time you
the government never explicitly and forcefully refuted or
get up to a sufficiently high level, no decision maker
rejected the idea that there was an implicit guarantee of
can have a clear idea of what is going on …. The lack
government backing. Market participants believed that if a
20 | UVA Lawyer • Spring • 2009
huge problem ever materialized at Fannie Mae or Freddie
points out that the “shadow” banks — hedge funds and
Mac, the government would step in and make good on
investment houses such as Lehman — offered their clients
their obligations.”
banking-like services such as commercial paper issues
And so it did. In September 2008, the government
and interest rate swaps on very short turn-around. Money
nationalized both institutions out of concern that their
changed hands quickly and easily. When Lehman failed,
collapse would trigger an economic implosion (a redux
that credit market froze, and the impact was far-reaching.
of the considerations that prevailed in the government’s
“It didn’t just affect the investment banks and hedge
attempt to save Bear Stearns in March 2008). But it was
funds,” says Choi. “It affected the bread-and-butter
also a monumental application by the government of the
companies that rely on the short-term borrowing and
Good Samaritan rule. Investors could reasonably claim
lending market; huge healthy companies, like GE, that
that the government had been deliberately ambiguous
would routinely borrow and lend in the short term credit
about its intentions, says Mahoney, which caused investors
markets. Even state governments used these markets to
to rely on the government as a backstop. “Investors
meet their budget needs. Now the challenge is, who is
lent Freddie and Fannie money at something closer to
going to fill that role?”
government rates than commercial rates. It would have
been unfair for the government to then walk away.” The
government took over both entities and, predictably
The Way Forward: Reform and (re)Regulation
enough, they soon faced the next too-big-to-fail quandary:
Lehman Brothers.
Paulson, however, drew the line with Lehman,
Investors, having seen their 401(k)s shrink, want to see
corporate America get back to business and make money
signaling that moral hazard was a bigger threat than
again. But it would be a mistake to infer that all is forgiven.
systemic failure. “The government said, ‘We need to stop
Lavish pay and feckless management are among the sins of
this or else everyone is going to be too big to fail,’” says
this crisis, and the public — and an emboldened Congress
Mahoney. “The markets went absolutely haywire after
and White House — want accountability and reform.
the government did not step in to save Lehman Brothers.
It’s not hard to see why. As losses mounted, fresh
I think that reaction in the market after the Lehman
stories emerged about the large bonuses paid by the very
Brothers failure is in some sense a measure of how much
companies that had received billions from U.S. taxpayers
investors believed that the government would simply step
to save them. The relationship between results and rewards
in whenever a large important financial institution was
was broken, and it certainly looked like the social contract
about to go under.”
between Wall Street and Main Street was, too.
Instead, Mahoney believes the government should have
Professor Michal Barzuza, a corporate law scholar
made clear to the investment community that it would
who joined the faculty in 2005, says that misdirected
not rescue an entity in the absence of federal legislation
compensation incentives are what led to counterproductive
guaranteeing its solvency. “The job ought to be left to that
behavior. “Companies rewarded people for taking risks in a
entity’s creditors and stockholders to figure out whether it
way that was not efficient for the organization.” Employees
is taking on too much risk rather than having in the back
were encouraged to innovate new securities that would
of their minds that it’s okay because the government will
make money for financial firms, spawning ever more
come in and clean up after the fact.” Whether investor
esoteric financial products to sell to investors. “While it is
complacency about the government-as-savior contributed
important for compensation levels to be determined in the
to Lehman’s failure is anybody’s guess, but the result was a
market, the compensation structure should be such that it
sudden freeze in the short-term credit markets.
rewards people for the right things,” Barzuza argues. “We
Professor Albert Choi, who helped direct the Law
School’s John M. Olin Program in Law and Economics,
need to find a way that is not too intrusive but still assures
that we will not have these distortions.”
UVA Lawyer • Spring • 2009
| 21
From excess leverage and relaxed underwriting
standards to rating agency failures and improper
incentives, hindsight tells us that a collapse was inevitable.
financial markets were the house.” The question is how to
build a better house.
Some activities seem to cry out for re-regulation, or
Now that it has happened, is more government — more
at least refined regulation. For example, when Lehman
spending, more regulations — essential to recovery?
collapsed, “the Federal Reserve had to jump in and provide
The cure might be worse than the disease. “Both
a huge amount of liquidity to shore up the ‘shadow’
the market and the government were involved in these
banking system,” says Choi. “Of course, that can’t go on
failures,” says Mahoney. “Until we are at a point where
indefinitely. With investment banks gone, commercial
we can do a very careful post-mortem and figure out
banks likely will have to keep providing these services.
exactly what went wrong, it makes no sense to say that
But to do that, government regulations on capital reserve
this demonstrates that we need more regulation or more
ratios and durational matching of assets and liabilities will
government involvement.”
have to be modified, even loosened, so that they can take
At the outset, however, both the Bush and Obama
administrations saw fit to step in and commandeer failing
on short term liabilities even though their long-term assets
don’t match.”
banks and insurers. For them, the stakes were too great for
But regulations can be a double-edged sword. For
inaction, but that was as much a political calculation as an
example, mark-to-market accounting, which requires
economic one. There was no single answer to what went
carrying assets on your balance sheet at current market
wrong, but there was general agreement among many that
value, came into play after the savings and loan crisis
re-capitalizing the banks and re-regulating lending and
in the late 1980s. It picked up steam after Enron. But
investment practices was the way forward.
when an economy is in crisis and the market is virtually
But Bruner says he is “very skeptical that we can
disappearing, it can place undue stress on a company’s
regulate away the chance of a financial crisis.” He is
books. Many commercial banks failed because the market
co-author of The Panic of 1907: Lessons Learned from the
value of their assets suddenly plummeted. They could not
Market’s Perfect Storm and can identify more than a dozen
raise enough capital to balance their decimated assets.
financial crises in the last century that share the same
“A lot of people will say that mark-to-market
fundamentals that caused the 1907 panic (e.g, buoyant
accounting is a bad idea, can worsen the stress, worsen a
growth, complexity, “adverse leadership,” a “consequential
crisis,” says Choi. “Even though these banks in the long
spark” that lights the fire, and others). His analysis shows
run might be healthy, the mark-to-market accounting in
that there are simply too many variables and too little
conjunction with a financial crisis can create a short-term
control to anticipate and prevent these natural business
liquidity crisis. But the reason we had that accounting
cycles. “There is no single pill you can take,” he says. “No
in the first place was to prevent the problems like the
silver bullet of an explanation will explain everything that
S&L and Enron crises. Now we are looking at the flip
occurs in a crisis. It’s complex. The thoughtful practitioner
side of that problem. But if we go back to historical cost
in law or business or other fields needs to embrace that
accounting, it will bring back the same issues that created
complexity” and understand the interrelatedness of factors
the S&L and Enron debacles.”
in a crisis, which are difficult to untangle.
The real question, then, is whether we can make the
De-regulation, too, can lead to imperfect results.
Until 2000, most derivatives traded on formal markets
financial market healthy enough to withstand inevitable
using a central clearing house. Regulators designed the
crashes, says Choi. “Suppose you have a new earthquake-
clearinghouse to be largely bankrupt-proof. This freed
ready house in California, and an earthquake destroys
traders from worry about the individual credit risk of
it. The fact that your house collapsed tells you that there
multiple counterparties because there was only one
was something wrong with the house. Here, you can say
counterparty: the clearinghouse. But in recent years, in
the housing bubble collapse was the earthquake and the
order to avoid the cost associated with this system and
22 | UVA Lawyer • Spring • 2009
“No silver bullet of
an explanation will
explain everything
that occurs in a crisis.
”
It’s complex.
in response to changes in legislation, most derivatives
Presently, multiple agencies regulate different
transactions took place in the over-the-counter market.
activities: the SEC for securities; the Commodities Futures
Traders again had to take into account the creditworthiness
Trading Commission for commodities, futures, and
of their particular counterparty, causing asymmetries
derivatives markets; and the various banking regulators
in the value of futures contracts. Given the parlous state
for commercial and consumer lending. Each has very
of credit and the road that brought us here, does it make
different approaches in how it monitors the structure and
sense to return to a clearinghouse as the sole, and solid,
solvency of the firms it oversees. Mahoney thinks “current
counterparty? And if so, who is better at deciding these and
proposals to have one regulator focus on capital adequacy
other issues — the market or the government?
and financial soundness across the full range of financial
We’ll soon find out, but in a Financial Times op-ed
services firms makes some sense. But, like everything else,
in February 2009, Lloyd Blankfein, CEO of Goldman
a lot of the value will depend on how it’s implemented and
Sachs, offered cautionary words for policymakers and
how sensibly it’s designed.”
regulators. “It should be clear that self-regulation has its
Finally, to restore faith in the markets, Bruner would
limits. [Investors] rationalized and justified the downward
address the complexity with more transparency. “You help
pricing of risk on the grounds that it was different.
explain to people what is going on,” Bruner says. “You
We did so because our self-interest in preserving and
help to reinstitute the safety and soundness of balance
expanding our market share, as competitors, sometimes
sheets in the financial system. Then, you flood the market
blinds us — especially when exuberance is at its peak. At
with liquidity …. And, to build confidence, you address
the very least, fixing a system-wide problem, elevating
the issues of investor fear with assurances, and with the
standards or driving the industry to a collective response
intervention of tools of rescue.”
requires effective central regulation and the convening
The Panic of 1907 brought us the FDIC and the Federal
power of regulators.” But, he warns, “there is a natural and
Reserve. The Great Depression gave us the New Deal and
appropriate desire for wholesale reform of our regulatory
Social Security. We do not yet know what change this crisis
regime. We should resist a response, however, that is solely
will bring or what historians will call it, but it is safe to say
designed around protecting us from the 100-year storm.”
its name will be spelled in capital letters.
UVA Lawyer • Spring • 2009
| 23
Policy, Morality, Politics
… and the Rule of Law
F
our years ago, we conducted a faculty panel on the role of
international law in the war on terror. The prevailing view then
was that the Bush administration went too far to distinguish and
dismiss the Geneva Conventions. It is now 2009 and the beginning of a
new administration. In his first 100 days, President Obama has signed
executive orders that amend or revoke prior detention and interrogation
policies. Some Democratic members of Congress are also pressing to
investigate allegations of war crimes, illegal wiretapping, destruction of
evidence, and executive overreach by the Bush administration. Whether
this is constructive for the nation or simply partisan recrimination, these
issues will persist.
Asymmetrical warfare and terrorism are still with us, making the rule of
law more important than ever. We reconvened two faculty members from
our original panel and invited David and Mary Harrison Distinguished
Professor Fred Schauer and Horace W. Goldsmith Research Professor
Barbara Armacost ’89 to join them in a discussion of the law of sovereign
defense and military action in the modern age of terror.
UVA Lawyer • Spring • 2009
| 25
The panel:
Barbara E. Armacost ’89
Professor of Law
Horace W. Goldsmith Research Professor
John Norton Moore
Walter L. Brown Professor of Law
Director, Center for National Security Law
Director, Center for Oceans Law and Policy
Frederick Schauer
David and Mary Harrison Distinguished Professor of Law
Paul B. Stephan ’77
Lewis F. Powell, Jr., Professor of Law
Elizabeth and Richard Merrill Research Professor
UVA Lawyer: Late last year, the Bush administration’s
John Moore: There were serious mistakes made,
chief prosecutor at Guantanamo, Susan Crawford,
particularly among some of the civilian lawyers in the Bush
conceded that torture did indeed take place there. The
administration. I think some of the legal opinions which
Obama administration has vowed to end torture and
came out of the White House and Justice Department were
extraordinary renditions, and is closing Guantanamo,
seriously flawed. They did seek to authorize activities that
but it is moving more slowly when it comes to state
are widely regarded around the world as torture, are clearly
secrets doctrine. What, at a minimum, does the rule of
in violation of the Torture Convention, and are not in the
law require here? Where are we at this moment?
national security interests of the United States.
Paul Stephan: You said, “end torture,” which assumes
for effective war fighting it’s extremely important for
that was the policy of the United States. Susan Crawford’s
democracies to comply fully with fundamental principles of
assertion was that some torture had taken place but not
human rights. When democracies fail to do so, the cost in
that it was authorized. The Obama administration has not
alienating political allies and giving additional arguments to
ordered the end of extraordinary renditions. They want to
those whom we are trying to defeat are very high.
An important tenet of national security law is that
limit it but they haven’t said they want to end it.
They want to use renditions as a convenient tool when
I’ve been pleased at the early actions of the Obama
administration in trying to set aside those mistaken
it is necessary to go outside the judicial process. So, I think
policies. On January 22, President Obama issued an
what we’re seeing is a lot more continuity than breaking
executive order to stop torture. Water boarding is torture,
with the past. Now that the party of opposition is in
and I was pleased to see that they were going to stop it.
power, things look different. I think they’re being much
Yes, there is going to be continuity in other areas
smarter about how they’re handling these problems than
of national security law where there has been some
their predecessors were, but I don’t think the fundamental
exaggeration about problems. I think the Obama
policies have changed very much at all.
administration is correct in saying that they will continue
certain kinds of rendition actions. The problem with the
26 | UVA Lawyer • Spring • 2009
extraordinary renditions was their violation of a number
The bite of the rule of law, however, comes when an
of fundamental principles, particularly lack of clarity in
administration or an individual thinks that something is
relation to the Torture Convention which clearly obligates
morally right and policy right, but is nevertheless unwilling
the United States to avoid rendition to countries in which
to do it because it violates the law. In that sense of the law
individuals are likely to be tortured. There’s nothing
as an independent constraint, it turns out that historically
innately wrong in sending people back to countries where
there is far less respect than we might think for the law
there are criminal warrants for their arrest; but we do not
as law when it constrains what would otherwise be to the
want to send people to be tortured or to disappear.
administration desirable moral or policy judgments. Over
and over again, we see administrations and public officials
Fred Schauer: Everybody talks about the rule of law but
not respecting the law as an independent constraint if
very few people appear to believe in it, at least in the sense
their moral and policy and political views would lead them
of believing they should follow the law just because it is the
otherwise. I think that’s unfortunate, highly unfortunate,
law and thus even when there is no sanction, and even when
but often we talk about the rule of law and it’s just sort of
what the law requires differs from their otherwise best
a debater’s point when what we really want to say is, ‘This
judgment about what to do. Thus we should distinguish
was awful.’
between those things that are wrong as a moral matter or
I think what tends to happen empirically is that
as a policy matter and those things that are illegal. Many
when officials do what the policy and moral and political
things that are wrong morally and as policy are of course
environments think is the right thing, we rarely, if
also illegal, and we can and should condemn them for being
ever, punish the officials for breaking the law. On the
morally wrong, and wrong as a matter of policy.
other hand, if it turns out that the moral and political
and policy environment has, after the fact, come to the
conclusion that this was a policy or moral disaster, the
fact that it is illegal adds to the political and social and
historical penalty. It is a way of increasing the stakes for an
UVA Lawyer • Spring • 2009
| 27
“I don’t think the
fundamental policies
have changed very much
at all.”
Paul Stephan ’77
administration if they predict wrong about the moral and
Barb Armacost: For the Bush administration, the question
policy environments. But most administrations recognize
became almost entirely a legal one. It wasn’t only a matter of
that if the moral and policy and political environment
‘if we can solve the legal problems, the moral objections will
enforces what they do as a matter of substance, and it
go away,’ but there was a conflation of legal with moral. I’m
turns out well as a matter of substance, the fact that it’s
not sure the moral questions were entirely being surfaced.
illegal is not going to be any more of a problem than it
I think the other thing, adding to your point,
was for Abraham Lincoln and habeas corpus, or Franklin
Fred, is that if there was direct evidence that some of
Roosevelt and some of his actions.
the questionable things the Bush administration did
immediately after 9/11 definitely and clearly avoided
P. Stephan: My critique of the Bush administration, which
another big attack, it might look somewhat different to
to some extent echoes John’s, is that they were obtuse
us. Many of the legal opinions that we now look back at
about Fred’s point. They believed that if something could
with horror were written either in 2001 or in 2002 right
be rendered legal in the sense that a legal opinion could be
after 9/11 happened. The Bush administration was trying
provided to support it, that solved the moral and political
to figure out what to do in order to protect the country
issues and therefore suspended the moral and political
from possible additional attacks. I disagree with much of
judgment. Philip Zelikow [formerly director of the 9/11
their legal analysis and with some of the methods they
Commission, counselor of the Department of State, and
used, but I think some amount of humility needs to extend
director of UVA’s Miller Center; currently professor of
toward their efforts to keep the country safe in the period
history at UVA] made that point since he was out of office.
immediately after 9/11.
I think that captures 95% of the truly atrocious things that
were done.
F. Schauer: There is a lot more talk about international
law in light of the largely unsuccessful efforts in Iraq than
there was in the context of the largely successful efforts in
28 | UVA Lawyer • Spring • 2009
Kosovo, even though the international law issues may not
the discretion? Do you try to figure out additional ways to
be as dramatically different as some might think. Indeed,
constrain it? As a number of critics have pointed out, there
Dawn Johnsen, incoming Director of the Office of Legal
were at least two problems with the Bush administration’s
Counsel (OLC), has very recently written that most of the
use of executive power. One was that the substantive
problems of the Bush Administration, in her judgment,
legal arguments were flawed and therefore the actions
were not with the powers that were claimed; the problems
that followed from them were also wrong. But the second
were with specific abuses. She is largely sympathetic with
problem was the secrecy under which the administration
the idea of signing statements, sympathetic with the
operated. One way to constrain executive discretion is
view that presidents can act on their own constitutional
to make it more transparent and so more amenable to
interpretations even if they disagree with Supreme Court
outside critique. While executive analyses and actions will
interpretations, and sympathetic with the view that at
at times require secrecy, it strikes me that if positions are
times laws should not be enforced for a range of reasons.
being taken that strain against legal and constitutional
There is at least a question for some of us that if you’re just
boundaries, they probably need to be more public. I think
going to criticize the abuses and not criticize the nature
some of OLC’s legal determinations could have been more
of the authority that allowed the abuse, are you really
transparent, especially the ones justifying policies that
getting at the core of the problem? I’m somewhat of an
remained in effect well after the events of 9/11.
unreconstructed judicial supremacist on some of these
constitutional issues. I would like my presidents to defer
J. Moore: There’s an additional problem I think that fits
to Supreme Court interpretations of the Constitution, but
very much with what you’re saying. The National Security
that’s a highly contested issue at the moment.
Council system, including the legal part of the NSC,
normally brings into the process all of the concerned and
UVAL: So, if rule of law and national security are in
expert parts of the government. But it was bypassed in the
absolute opposition, what happens?
Bush administration; indeed it was not really meaningfully
used. I think one of the problems that led to the flawed
B. Armacost: Well, I don’t think I would even frame it as
decision to engage in the Iraq War in the first place was
rule of law and national security being in opposition. I
a collapse of the NSC system. There is nowhere that it
actually found some of Dawn Johnsen’s arguments in the
collapsed more thoroughly than when you look at the
Boston University Law Review article to which Fred was
process behind the scenes elevating a lawyer on the vice
referring quite persuasive. I am thinking back to times
president’s staff above that, for example, of the lawyers
during my tenure at the Office of Legal Counsel [1990–92],
to the Joint Chiefs of Staff or to the State Department
when a legal question would come in and there simply
legal advisor’s office. We saw a failure of an appropriately
wasn’t any law on it. In particular, the kinds of questions
functioning NSC process under Bush, including its legal
that come up in emergency circumstances may not have
dimensions.
a clear answer under existing precedent. In such cases,
But I’d like to come back if I could and point to one of
you’re trying to figure out what to do based on very little
the issues Fred has raised in relation to law and morality
authority. In these kinds of situations, there will inevitably
in foreign policy issues. I think Fred is right. It’s sad that
be a significant amount of discretion.
in most foreign policy issues we don’t see our national
officials thinking a great deal about the moral dimensions.
F. Schauer: That’s clearly right.
But despite that, I’m inclined to think that to some extent
law itself and the rule of law is in many cases something
B. Armacost: Unfortunately, discretion can always be
that embodies human experience and thinking about
abused and so the question then becomes, ‘What do you
effective policy and moral choices.
do after discretion has been abused?’ Do you take away
UVA Lawyer • Spring • 2009
| 29
Indeed, I think the torture prohibitions in the treaties
something. They are not saying that morality is irrelevant.
that the Bush administration set aside embodied precisely
They are saying the future of the nation depends on it. And
that level of human experience and moral choice that we
to them, that is a moral calling of the highest order that
had made earlier. I’m a considerably stronger proponent
trumps everything. But one of the reasons that we have
for the rule of law because for me, it is in its broadest sense
law is that people often disagree about morality. Law is a
a check on power. A democratic system typically has lots
way of settling moral disagreements or of making choices
of those checks. We are blessed to live in a Madisonian
in the face of moral disagreement. As a result, there are at
system with a genius for checks and balances. For that
least some of us who would like to see an administration
reason, I think law was one of the checks that was quite
that with some frequency is willing to say, ‘We really, really,
important in ultimately overturning some of the failures
really, think this is the right thing to do, but it’s illegal.’
in the Bush administration.
Administrations tend not to do that. It’s very much an
open question whether we’ll see it from the new one.
P. Stephan: I’d like to surface a paradox here. I think that
lawyers are peculiarly aware of the limits of what lawyers
P. Stephan: Well, I think that the good government lawyer,
and law can do. They understand that we’re talking about
like any lawyer, who wants to impede foolish as well as
classical structures and soft constraints rather than hard
illegal decisions has limited opportunities to say, ‘You
rules. But non-lawyers tend to be terrified of lawyers and
can’t do that,’ because you can be replaced. A good lawyer
think that they’re always bringing hard constraints. If you
should describe all the reasons why the officials’ idea isn’t a
look at the composition of the two administrations, one of
good one but, if the officials still want to do it, show them
the things that’s unusual for Washington about the Bush
how they can legally while warning that it will be a lot
administration itself was how few lawyers there were in
more expensive and more public than the officials thought.
the top positions; not the president, not the vice president,
If the officials really think great interests are at stake, they
not the director of national intelligence, not the secretary
can do it fully aware of the consequences. I think that kind
of state, not the secretary of defense. Compare that to the
of effective counseling is available to lawyers.
new administration where most, although not all, of the
people in those positions have a law degree. I do think it is
B. Armacost: What’s interesting about Paul’s observation
the terror of lawyers by non-lawyers that explains at least
that there were few lawyers in top positions during the
some of the displaced decision-making that took place in
Bush administration is that it was actually a small group
the prior administration.
of lawyers at the Department of Justice who were given a
tremendous amount of power to shape policy. I think this
F. Schauer: Although one reason that people are afraid of
raises an additional irony about the Bush administration.
lawyers at times is that good lawyers will often, or should
Paul and Fred suggested that people are afraid of lawyers
often, tell people, ‘You are absolutely convinced that this is
because lawyers tell them they can’t do things they find
morally, politically the right thing to do. But even if you are
expedient because to do so would be illegal. The irony is
right, you can’t do it.’ I’m not sure that even in some of the
that in this case it was the lawyers who were saying, “Here’s
expansive statements in the new administration, that there’s
a way you can do what you want to do,” rather than the
going to be as much of that as I’d like. I’m more sympathetic
other way around.
with a more constraining or harder-edged view of law.
A president or a governmental official of any kind
UVAL: Can a sitting president and vice president
who thinks that national security is at risk believes with
rely in good faith on an OLC memo that justified
ultimate sincerity that there is a moral compulsion to do
water boarding even though it has been universally
recognized as torture?
30 | UVA Lawyer • Spring • 2009
“We should distinguish
between those things
that are wrong as a moral
matter or as a policy
matter and those things
that are illegal.”
Fred Schauer
P. Stephan: I just want to be technical here: water boarding
or whether it is good policy, or whether it will look good
is a war crime. Cruel, inhumane, and degrading treatment
to the media or the public. My job is to tell you whether
is a war crime. It doesn’t mean it’s covered by the Torture
it is legal. What you decide to do with the legal analysis is
Convention. It’s not necessarily covered by the felony
not my problem.” This is essentially the position that John
prohibition of torture. I think these legal distinctions
Yoo took in defending the torture memorandum, which
matter because different people are covered by war crime
he authored. He said “What the law forbids and what
legislation than by the torture statute.
policymakers choose to do are entirely different things.”
While it is sometimes useful to make a distinction between
B. Armacost: To answer your question about reliance on
law and policy, there is no neutral legal analysis. Legal
OLC opinions, I think as a practical matter officials who
reasoning is always in the service of some concrete legal
act on OLC’s determination that particular actions are
problem or question and lawyers choose what arguments to
lawful are not likely to be prosecuted for having taken
make. Choices about legal arguments, in turn, make some
those actions. For one thing, OLC speaks for the Justice
policy choices more or less possible.
Department and DOJ lawyers would be the ones doing the
Lawyers cannot, in my view, disclaim all responsibility
prosecuting. According to Jack Goldsmith, who headed
for the policy options that are facilitated or even
OLC at the end of the Bush administration, CIA agents
encouraged by their legal arguments. At the very least,
certainly viewed OLC opinions that way, calling the so-
I think, lawyers, particularly government lawyers, have
called torture memorandum a “golden shield” against
some responsibility to say, ‘I understand what actions
criminal prosecution.
you want to take. Here’s a plausible legal argument that
The other thing I wanted to say goes back to Fred’s
could support these actions. But I must tell you that the
distinction between what’s legal and what’s moral. A
legal argument would really be a stretch and you should
lawyer could take the following position: “My job is not
recognize that.’ I believe that the rule of law requires a
to tell you whether what you propose to do is a good idea,
UVA Lawyer • Spring • 2009
| 31
“Lawyers cannot, in
my view, disclaim all
responsibility for the
policy options that
are facilitated or even
encouraged by their
legal arguments.”
Barb Armacost ’89
lawyer, especially a government lawyer, to be not only an
specifically that, ‘Didn’t I know that lawyers aren’t to give
interpreter of law but also a person who recognizes that law
policy judgments?’ I asked myself, ‘Where did this person
is closely related to policy and morality. You can’t entirely
go to law school? What view does he have of law?’ He then
separate the two.
went on to respond to one of my arguments in which I had
said that the traditional intelligence manual for the Army
J. Moore: This very much fits with the point that Paul
is far better than everything that’s being done. If you had
has made of the difference between good lawyering
to use one standard, use the traditional or slightly revised
and bad lawyering. You want to try to provide other
Army Interrogation Manual that does not authorize
lawful alternatives for the policymaker to try to figure
torture as broadly understood.
what might be done, but you must also deal with the
His answer to me was that the manual is for people in
policy implications. I had an experience with the Bush
the Army who are really kids and have poor education.
administration along these lines that I thought you might
‘In the “___” intelligence service,’ he said, ‘we do our
find of interest.
interrogations with Ph.Ds.’ Did he just not get it that
I was asked at one point to write a memorandum for
an intelligence service in the United States. I sent in a
memorandum on the torture issue describing how it was
torture is torture whether administered by an Army private
or a Ph.D.?
The great tradition in law, the right tradition in law, in
completely illegal and that they were getting poor legal
fact, perhaps the only serious tradition in law, should be to
advice. I also made a series of policy arguments as to
understand that law and policy fundamentally go together.
why what they were doing was completely wrong. I was
Now, of course, that is not to suggest that there aren’t a
not surprised when I quickly got a call from the lawyer
variety of policy issues that are not those for the lawyer to
for this particular office who was very upset. The lawyer
make. But the idea of trying to separate law and policy is
did not complain about the fact that I had written that
an enormous mistake, which leads to this kind of seriously
his principles were getting poor legal advice, but rather
wrong thinking.
he complained that I was dealing with policy issues,
32 | UVA Lawyer • Spring • 2009
F. Schauer: Although one way in which it might not be a
J. Moore: And there’s the famous Thomas Jefferson
mistake, or at least one thing we might have to worry about,
example where he personally believed that accepting the
is if we conflate the legal with the moral with the policy too
acquisition of the territory from the Louisiana Purchase
much, we are likely to find surfacing the ‘if it is moral’ and
without consent of Congress was unconstitutional, but he
‘if it is good policy,’ then therefore ‘it is legal.’ Given wide
believed that it was so strongly in the interest of the United
disagreements about policy and morality, I worry a great
States that he did it anyway.
deal about the view that that which is moral and good policy
is for that reason legal. When we have an administration or
F. Schauer: Interestingly, in this regard, one of the
lawyers in the administration that believe that something
historically very important counterexamples — and I
is profoundly morally necessary and profoundly good
wish there were more — was Eisenhower and Little Rock.
policy, I want to preserve some logical space for the people
Eisenhower sent federal troops to Little Rock to aid in
who will say, ‘Yes, it’s profoundly morally necessary, yes, it’s
the desegregation of the schools even though he believed
good policy — but it violates the law.’
that Brown v. Board of Education was a mistaken judicial
decision. The willingness to support the Supreme Court,
J. Moore: But surely you’re not making an argument to say
even when he disagreed with it, is a wonderful, but
that when it is both illegal and bad policy, you should not
unfortunately rare, example of obligations to the law even
as a lawyer make both arguments to the policy maker?
when they differ from a president or official’s own political
and moral judgment.
F. Schauer: No. I’ll stay away from the question of what
lawyers ought to do, which is different. Lawyers, after all,
P. Stephan: Well, I’ll add one more that’s quite
are human beings. That’s a contested view, but let’s assume
contemporaneous: Eisenhower and Suez. I mean,
for the sake of argument that lawyers are human beings.
Eisenhower felt that the actions of the British, French, and
Then somebody given the opportunity to talk to somebody
the Israelis were hostile to the U.N. system, that the U.N.
in power ought to be a human being and speak not only to
system was critical, and so he insisted that the Israelis
legal issues, but also to as policy and moral considerations.
surrender the territory that they’d acquired in violation of
the U.N. Charter.
UVAL: But isn’t that exactly what happened in the Bush
administration? They did conflate morality and policy
UVAL: The Bush administration took some very
saying these are obviously the smart things to do, so
aggressive positions about the scope of executive
they’ve got to be legal.
authority in dealing with threats to the U.S. and its
citizens. Critics charge that the result was a sharp and
F. Schauer: I think there was some of that in the
lasting reduction in civil liberties. Is that a valid concern?
Bush administration. There was some of that in the
Lincoln administration. There was some of that in the
J. Moore: I don’t think so. I think the serious detainee
Roosevelt administration. There was some of that in the
abuse was an aberration and there have been a wide variety
Clinton administration.
of different allegations about civil liberties problems in the
Bush administration which are to some extent overblown.
UVAL: That’s your point, then. If it’s right, then it’s okay?
We’ve discussed some of those from past presidents in past
wars. The Alien and Sedition Laws were clearly anathema
F. Schauer: If the judgment of history comes out on your
to appropriate First Amendment freedoms. Jefferson was
side on the policy and the morality, people will sort of
surely right in opposing that.
chuckle at Lincoln in habeas corpus, or Lincoln and the
freedom of the press, or Roosevelt and some of these things.
UVA Lawyer • Spring • 2009
| 33
One can talk in World War I about the restrictions
B. Armacost: I think there are two reasons for what
on the First Amendment. We did not have any real First
happened during the Bush administration. First, it seems
Amendment restrictions in this setting under George W.
clear that officials in the White House and the vice
Bush. We had a series of problems focused on detainee
president’s office had an explicit agenda to strengthen the
abuse, which includes but also goes beyond the torture
presidency. There was a perception by members of the
issue. Still, they did not engage in the kind of torture that
Bush administration that presidential power had shrunk in
the Vietnamese did against our POWs or the Iraqis did
previous administrations and their goal was to reassert that
against American POWs. In my judgment, what we did
power. As Paul has pointed out, to the extent that there was
was something we might call torture-lite. It was wrong.
such an agenda, it was largely, though not entirely, quashed
It was a mistake, and it was in violation of at least the
by the Supreme Court.
Torture Convention which was binding on the United
But the second factor that explains why the Bush
States of America, but I don’t see this as something that
administration took such aggressive measures is again,
has fundamentally changed our constitutional structure.
the events of 9/11. We had an unprecedented attack on the
I see it rather as a situation in which the checks and
country and, like the internment of Japanese-American
balances and our strengths in a democracy are bouncing
citizens during World War II, when we have a national
back. They’re correcting the Bush administration
emergency there is pressure to expand governmental power —
detainee treatment failures which will go down in history
especially executive power — to address the emergency.
as the principal “war on terror” abuses.
Fortunately, when the dust settles we question whether the
actions we took were justified. The positive thing is that there
P. Stephan: I would say that the gifts from the Bush
has been a huge amount of disclosure of what went on behind
administration to our law are Hamdan and Boumediene.
the scenes. This disclosure has led to some corrective actions.
I mean, if the administration hadn’t taken such extreme
There has been correction by military leaders, who rewrite the
positions, it wouldn’t have backed the Supreme Court
field manual on interrogation. There has been some political
into a place that it really hasn’t been before. We wouldn’t
correction by Congress and the judiciary. There has also been
have gotten those corrective checks in Europe, anywhere
a debate of these issues in the public square. So, it does seem to
in Europe — with all due respect to the House of Lords
me that we are re-stabilizing.
or the European Court of Justice and the European
On the question of presidential power, it has generally
Court of Human Rights. So, whatever the blunders of the
been understood that presidents have some responsibility
administration, and they were legion, I’m still reasonably
to determine the lawful extent of their own power. This
comfortable that this system as a structure is strong.
undertaking should be both humble and deferential to
the other branches. But to my mind, the president has
F. Schauer: And I think John’s right. It’s interesting that
a co-equal responsibility to make judgments about the
so few of those blunders related to speech and press. The
constitutionality of executive action.
cynic says that there is a political reason for that, and it is
the old journalists’ adage — or old politicians’ adage —
F. Schauer: That’s where I disagree.
that you should never argue with the fellow who buys ink
by the barrel. Thus it is much more dangerous in terms
B. Armacost: Here’s the argument. First of all, the
of press coverage to restrict freedom of the press than it
president is the primary representative of one of the three
is to restrict a whole bunch of other things, and that may
co-equal branches of government. It seems to me that each
explain part of why we have seen so little restriction of
branch has some responsibility for thinking about the
dissent, criticism, or anything of that sort.
lawfulness of its own action. Second, the president often
acts in contexts in which there isn’t a lot of precedent, so
even if we thought the president should defer to the other
34 | UVA Lawyer • Spring • 2009
“An important tenet of
national security law
is that for effective war
fighting it’s extremely
important for democracies
to comply fully with
fundamental principles of
human rights.“
John Norton Moore
branches, there are a lot of cases in which there isn’t clear
B. Armacost: But that assumes that the law on the many
law governing the actions at issue. The third thing, though,
difficult issues that confront a president is clear.
is how a president exercises this interpretive responsibility.
The president is not, of course, above the law. Thus a
F. Schauer: But sometimes it is clear. The question is
president ought to be most cautious in contexts in which
when it is clear, does the administration have to defer to
presidential action could conflict with the views of the
a clear and recent Supreme Court decision. The current
other branches.
administration is not willing to say, ‘Yes, we do.’ I wish
they were.
F. Schauer: I think we have to distinguish the other
branches here. For those of us who believe that the
J. Moore: I think that Fred’s and Barbara’s views here are
Supreme Court has a supreme role in constitutional
very similar and I’m not sure there’s any real space between
interpretation, where the Supreme Court has spoken —
the two. The starting point is, the system does work. The
not where there is no law but where the Supreme Court
system works well and the system may take some time,
has spoken — I would like to see administrations saying,
but the system does work and we’ve seen the system, I
at least if it is a recent decision very unlikely to be
think, work here. Surely Barbara is also correct that every
reversed, ‘That settles it.’ The last administration didn’t
single one of the branches has a constitutional obligation
say it. This administration is not willing to say it. I wish
to adhere to the Constitution of the United States, which
this administration were willing to say it. I don’t see
means inevitably also some level of judgment has to be
this administration being nearly as expansionist about
made. I’m inclined also to agree completely with Fred that
presidential power as the last, but I see them as more
if you do have a Supreme Court decision, that is a recent
expansionist than even some people highly sympathetic to
Supreme Court decision, one you have every reason to
the administration would like them to be. That remains to
believe in fact is the constitutional law as announced by the
be played out.
Supreme Court of the United States, it is incumbent upon
the President of the United States and the Congress of the
UVA Lawyer • Spring • 2009
| 35
United States to support the decision and be consistent
within the CIA, within other services of the United States
with it.
that rely on opinions, legal opinions from the Office of
I do think also that we might be a little more
Legal Counsel, for example, it is inappropriate to be talking
sympathetic to the starting value choice of the Bush
about trying those people or putting them in some kind
administration in relation to protecting presidential power
of criminal setting. We should be very careful in applying
because they were aware that we had had a variety of
criminal law to those who believed in good faith that they
periods in U.S. foreign policy history in which presidential
were complying with the law.
power had received short shrift. In my judgment, they were
I think on a second general principle that the failures
correct in putting that issue on the agenda. I think they
here were at a very high level. I would welcome a neutral,
simply did a terrible job in seeking to protect presidential
non-partisan review of the behavior of those high level
power and overreached in ways that in the long run
officials who were responsible. Such a review would have
probably have done enormous harm to presidential power.
to be narrowly circumscribed and should look seriously
at how we avoid this error in the future. An independent
UVAL: How should the Obama administration handle
ad hoc panel might be more neutral than a Congressional
the growing calls for investigations and trials, and do
committee to do such a review.
you think that some of the Bush administration officials
have created or committed war crimes?
B. Armacost: I’m not sure that criminal prosecutions of
high level officials would be helpful at this point. Our
J. Moore: Well, a couple of general observations. First,
focus ought to be forward, not backward. I’m glad that a
it seems to me clear that when you’re talking about the
lot of the questionable things that were done have come
general officers of the United States, the lower level officials
out. But I think we have to go back to the point that I keep
making, which is that these actions were taken while we
were in the throes of a national emergency. I think our
leaders made serious mistakes but I think the focus needs
36 | UVA Lawyer • Spring • 2009
and many of the military intelligence officers had never
interrogated a “real” detainee.
So what steps need to be taken to prevent similar
abuses in the future? Well, you don’t fix the problem if the
only thing you do is to rescind high-level legal arguments
and policy statements. Don’t get me wrong. It is really
important that executive and military officials indicate
their commitment to a different set of policy judgments
and that they set a different legal culture from the top.
But you also have to pay attention to operations on the
ground. We need to make sure that in an emergency like
this one we’re not turning loose untrained, undisciplined,
lower level folks who are going to be more aggressive than
they should be. Interrogators were misled and they were
undirected. We need to be at least as concerned about the
operational level pathologies as we are about prosecuting
high-level officials.
J. Moore: Abu Ghraib is hard to put together. It’s hard to
to be on how we handle these kinds of situations in the
know how much is the combination of simple failure of
future. In particular, we need to anticipate what kinds
leadership and untrained individuals and how much is
of precommitments are necessary to guard against bad
abuse that had been quasi-directed at Guantanamo and
decisions when we face the next emergency situation. And,
that then seeped over to Abu Ghraib. I have some good
in this regard, there is just as much need for review of what
friends who have strong opinions on both sides of that
happened on the ground as there is to question what went
question. They make strong arguments that, on the one
on at the highest level of government.
hand, it’s nothing more than a series of untrained people
For example, a big reason why the interrogation
abuses occurred was that military officials were told that
the war on terror had ushered in a new paradigm but
at the low level, and others who believe strongly that this
abuse resulted from a failure at the top.
For me, it comes back again to the notion that we’re
field level interrogators were given no guidance for how
blessed to live in a marvelous democratic country that does
to operationalize the new paradigm. Interrogators were
have a rule of law, a very serious and meaningful set of
told that the old rules no longer applied but they weren’t
checks and balances. Errors of policy have a way of getting
sure what the new rules were. They were also told that the
corrected. Sadly, however, in the meantime, bad policies
detainees they were interrogating were really dangerous
can do enormous harm and I think there is no doubt that
and that these detainees were withholding vital intelligence
great harm was done to the foreign policy of the United
information, essential for preventing future attacks.
States by the mistaken detainee abuse policies of the Bush
This message created enormous pressure for aggressive
administration.
interrogation. On top of all this, the military interrogators
and the military police, many of them reservists, were
UVAL: Thank you all for your time.
very poorly trained. The military police that were running
the prison in Abu Ghraib had never run a prison before
UVA Lawyer • Spring • 2009
| 37
Rebuilding the
Rule of Law in
Iraq
By Jack Ohlweiler ’93
In May of 2008, the Class of 1993 celebrated
its 15-year reunion. Having lived at Evergreen
Farm with six classmates for two years, I was
looking forward to a great weekend of catching
up and sharing pictures. Unfortunately, I
wasn’t able to attend; I was deployed to Iraq.
I was to serve as the Deputy Staff
Judge Advocate for Multi-National
Corps-Iraq. For the nonmilitary
among you, that means I serve as
deputy general counsel advising
Lt. Gen. Lloyd J. Austin III, who
commands the 160,000 soldiers,
airmen, seamen, and marines currently
serving in Iraq. I am one of the nearly
161 military lawyers and 237 military
paralegals who are dealing with the
unique legal issues associated with the
Rule of Law in Iraq.
In this environment, the Office
of the Staff Judge Advocate of the
Multi-National Corps-Iraq faces issues
unlike anything seen in the United
States, from the legal review of targeting
decisions, administrative investigations
into hostile deaths, detention operations, payments to local
nationals under the foreign claims act, and all manner of
fiscal and contract law issues related to the billions of dollars
spent to sustain the force and rebuild the country.
38 | UVA Lawyer • Spring • 2009
to be sure we comply with the laws of armed conflict and
our own Rules of Engagement (ROE).
The ROE delineate the circumstances and limitations
under which U.S. forces initiate or continue combat
engagement with the enemy. The importance of these rules
cannot be overstated. They inform the men and women
doing patrols and working in Iraq when the use of force is
permissible. It is the judge advocate’s job to cull and refine
in real time the ROE to distill the best, simplest set of rules
that can be taught to the 18-, 19-, and 20-year old soldiers
in the field.
Ohlweiler in Iskandariyah on his way to a courthouse groundbreaking
ceremony
Most operations bring about issues unique to the
environment. Can we legitimately engage Al Qaeda
operatives who meet and hide weapons in a mosque?
My boss, the Staff Judge Advocate Col. Thomas Ayres,
Can we shoot a missile at two men who are seen by an
is fond of saying: “Being a Judge Advocate is not for the
unmanned aerial vehicle digging a hole near a road known
faint of heart.” And while he is usually talking about the
for roadside bombs? What if you only have two minutes
moral courage required to provide hard legal advice, in
to decide? Can you pursue or fire upon enemy forces with
Iraq it means something more. Since the beginning of
whom you are lawfully engaged when they retreat across
the War on Terror, six members of the Judge Advocate
the border into a neighboring country? Does the legal
General’s Corps have died and 29 have been wounded in
advice change depending on which neighboring country
combat operations. Every day in Iraq, judge advocates
they retreat to?
leave the relative safety of our bases to visit police, judges,
Similarly, we developed rules for the Escalation of
and prisons to help facilitate changes that will make these
Force. These rules help soldiers determine whether a
institutions worthy of the trust and confidence of the
person or group is hostile and should be engaged. It’s easy
Iraqi people. This work is just one part of rebuilding the
when someone is shooting at you to know that you should
civil capacity of this country, but it may be the keystone to
shoot back — but it is always better to figure out if you
developing a functioning, stable, and democratic Iraq.
are right to shoot at someone before they start shooting at
you. Since the enemy doesn’t wear a recognizable uniform,
the rules for Escalation of Force help soldiers determine
The Rule of Law: Primary Line of Operation
whether a vehicle speeding toward a checkpoint is a suicide
bomber, or a civilian trying to get home for dinner and not
When I first arrived in Baghdad in February 2008, the
paying attention to the approaching checkpoint. These
Rule of Law effort was a part-time responsibility for one
rules require constant updating to address the enemy’s
attorney. Back then, during the heart of the surge, the
ever-evolving tactics of attack.
primary issue facing U.S. forces was security, so my office
In recent months, as the number of attacks and
focused on traditional operational law issues. In the
violent incidents began to decline, we recognized that the
deployed environment, this means lawyers make decisions
emerging stability and security would only take hold if the
and recommendations about the principles of the law of
population began to trust in the institutions of law. If the
armed conflict: necessity, distinction, proportionality, and
Iraqi people don’t trust the rule of law and instead use the
humanity (the very principles that I studied in the classes
“rule of the gun” to settle disputes, then the cessation of
of Professor John Norton Moore). Eight lawyers review
violence will always depend on a large number of armed
every operation and incident where our soldiers use force
soldiers standing on street corners.
UVA Lawyer • Spring • 2009
| 39
The Newest Legal Discipline
The newest editions of the U.S. Army Field Manual define
the rule of law as “a principle of governance in which all
persons, institutions, and entities, public and private,
including the state itself, are accountable to laws that are
On a C-130, headed to an Elections Conference in Mosul
publicly promulgated, equally enforced, and independently
adjudicated, and which are consistent with international
human rights norms and standards.” Devising ways to
everything else associated with a functioning criminal
encourage and facilitate the emergence of this principle
justice system.
in a country where the state spent 30 years misusing and
There are approximately 1,235 judges throughout the
manipulating the law to victimize the population is not an
country. The Higher Judicial Council of Iraq estimates it
easy task. But it is this task for which my office is directly
needs at least 3,000 judges. Unless expatriate Iraqi lawyers
responsible.
begin returning in large numbers, the Council estimates
In order to foster the rule of law, we have engaged
that they can produce just 89 qualified, trained judges in
all entities of the Iraqi justice system to develop and
the next two years. That is a huge shortfall for a country
implement an Iraqi-owned and accepted system. We do
that is twice the size of Idaho, with a population of
this through an approach we call: “Courts, Cops and
28 million people.
Corrections.” Essentially, we work with officials in all
It was the next step, however, that proved to be the
three of these areas simultaneously. Endemic corruption,
most difficult: determining what metrics appropriately
inefficient and intimidated courts, a recent history of
reflect, in a quantifiable manner, whether the rule of law
distrusting these institutions, a general lack of concern for
was improving over time. How do you assess whether
the human rights of detainees, and an insufficient number
the judiciary is functioning and secure? By the number
of trained and qualified individuals in each area makes this
of judges hearing cases? The number of cases heard? The
a particularly difficult task.
number of judges murdered?
We first needed to understand the Iraqi legal system.
And, how do you measure whether the prison system
Iraq is a civil law, investigative system (as opposed to
has improved? By the number of detainees above capacity
a common law, adversarial system) with a long history
in particular facilities? Reports of abuse in detention
of practices and procedures unique to this culture.
facilities?
Unfortunately, most of the country’s adult population
How do you calculate whether investigative procedures
grew up under Saddam Hussein’s version of Iraqi law,
are getting better? By the number of people detained? The
where rules did not apply to everyone and certainty of legal
number of police investigators who have received approved
principles was nonexistent. Judge advocates spent countless
training?
hours researching Iraq law to produce information papers
for U.S. forces trying to implement it. Additionally, we
used these resources to mentor and teach Iraqi judges and
What about the overall population’s belief that the
system is fair and just?
For all of these proposed metrics, how do you get the
police about how to implement their own system of laws
numbers and measurements in the first place? If we don’t
effectively and fairly.
have a good way to measure quasi-objective conditions
Our next step was to determine the current state of the
that are reflective of the overall rule of law in Iraq, then we
Iraqi system. Judge advocates visited courthouses, prisons,
won’t know whether our efforts — whatever they might
and police stations to assess the physical infrastructure. We
be — are improving the rule of law.
also needed to evaluate how Iraqi authorities investigated
Once we identified those metrics, we turned our
crimes, processed cases, fed prisoners, and accomplished
attention to developing plans and programs we hoped
40 | UVA Lawyer • Spring • 2009
It is always better
to figure out if you are right to shoot at someone before they start shooting at you.
would improve the system and make it self-sustaining.
Law, including appropriate due process rights, such as
We obtained and provided training for Iraqi trial judges,
issuing detention orders within 24 hours of capture. This
Iraqi investigative judges, and police investigators. We
is a novel legal experience; we are essentially imposing a
provided classes on the use of forensics and crime scene
criminal justice template onto combat operations. We have
investigative techniques. We arranged personal security
thus far developed successfully strong personal, working
details for judges and provided computers, phones, and
relationships with Iraqi judges, and formed multiple
portable generators to courthouses and police stations.
task forces to develop prosecutable cases based on Iraqi
We developed training programs with provincial bar
criminal practice and procedures.
associations and law schools. And in perhaps our most
Creating Change
Certainly, the development of the Rule of Law in Iraq
is in its early stages, but we are making progress. For
example, the Iraqi Supreme Court invalidated an attempt
to prosecute a member of the government for traveling to
Israel, a sign by the court that it wanted to use a system
based on laws and not personal or religious animosity.
When a local trial judge recused himself from a case
because he was of the same religious sect as the victim, in
favor of a judge from the same religious sect as the accused,
it was a sign of the appreciation that sometimes the
appearance of fairness and impartiality is as important as
actual fairness and impartiality. And when an Iraqi police
officer reports detainee abuse or corruption by fellow
police officers, it is a sign of the overarching belief that the
system can work. All of these are important steps forward
in a country where such faith in fairness and the system
Ohlweiler and his daughter, Abigail, saying “goodbye” at the airport
have long been absent.
But there is still a long, long way to go.
As the end of my 15 months in Iraq approaches, I
ambitious and comprehensive project, we built a Rule
am reflecting on the totality of this experience. Being
of Law Complex where judges, police investigators, and
away from my wife and daughter was more difficult and
pretrial detention facilities could all operate free of
more heart-wrenching than I ever could have imagined.
intimidation and acts of violence, and where they could
However, being a part of something this big — rebuilding
mutually support each other in the pursuit of justice.
the legal system of a nation — has been a more gratifying
Of course, the best way to encourage Iraqis to use the
and rewarding professional experience than anything I
Rule of Law is to demonstrate our own respect for Iraqi
have done since graduating from the Law School. I’m not
law. Since the implementation of the Security Agreement
saying I want to come back anytime soon … but I wouldn’t
between the U.S. and the Government of Iraq on January 1,
give up the experience for anything.
2009, we have performed all of our operations by, with,
and through the Iraqi Security Forces. This includes
Lt. Col. Jack Ohlweiler welcomes correspondence at
detaining and prosecuting Iraqis in accordance with Iraqi
john.n.ohlweiler@us.army.mil.
UVA Lawyer • Spring • 2009
| 41
Inside the Presidential Campaign
Rival General Counsels Reminisce
By Cullen Couch
F
or two very long, frenzied, and
sleepless years, Trevor Potter ’82 and Bob Bauer ’76
ran opposing legal shops — Potter as general
counsel for the McCain campaign, Bauer as
general counsel for Obama’s — in one of the most
momentous presidential elections in American history.
From their demeanors alone, it is easy to see who won
the election. Potter is relaxed, quick to laugh, and clearly
unburdened now that the Herculean grind of the campaign
has ended. Bauer is affable but reserved; now serving as
President Barack Obama’s personal attorney, he can expect
even more work from the world’s most famous client.
Potter leads Caplin & Drysdale’s political activity law
practice. He is a former commissioner (1991–95) and
chairman (1994) of the Federal Election Commission, a
non-resident fellow at the Brookings Institution, and the
author of several books and articles about election law. He
is also the founding president and general counsel of the
Campaign Legal Center, the Washington-based nonprofit
that helped successfully defend the McCain-Feingold law
all the way to the United States Supreme Court. He has also
taught seminars on election law at the Law School.
Bauer chairs the political law group of Perkins Coie.
In his 30 years of practice, he has provided counseling
and representation on matters involving regulation of
political activity before the courts and administrative
agencies of national party committees, candidates,
political committees, individuals, federal officeholders,
42 | UVA Lawyer • Spring • 2009
UVA Lawyer • Spring • 2009
| 43
corporations, trade associations, and tax-exempt
groups. He is also author of numerous books and
articles, as well as an influential blog on political
affairs, www.moresoftmoneyhardlaw.com.
Both are veterans of the political wars and at the
top of their games. At a recent meeting in Potter’s
offices in Washington, they shared their campaign
experiences.
“Campaigns flow less predictably than other
organizations,” says Bauer. “In less than two years,
we set up an organization, raised over $750 million,
spent it, and ran an election. That’s a short period
of time. In a compact and intense period like that,
there are going to be challenges that you don’t
anticipate.”
Trevor Potter ’82
But the McCain campaign did anticipate
one specific challenge. McCain built a career on
campaign finance reform, and Potter was a former
chair of the FEC. “We knew we were walking around with
Media Mania
a target on our back,” he says. “Any mistake we made,
however innocent or minor in the area of campaign
Facing a voracious, 24/7 media appetite for news strained
finance was likely to be seized on as an example of
nerves in both camps. Teams of reporters picked through
hypocrisy. And I think Bob did his best to make sure we
every campaign finance filing. The mainstream press and
got the scrutiny, and then some.”
the blogosphere demanded answers on a daily basis, eager
In fact, the issue did come up during the Republican
to go national with their stories in just hours. “Trevor
primaries. The McCain campaign took out a $3 million
and I both wound up having to spend a lot of time with
bank loan to be paid off after the primary nomination.
the press,” says Bauer. “There are issues that only the
Critics such as Bauer charged that McCain had used as
counsel can really explain to the press and very often on
collateral his entitlement to payments from the primary
background,” says Bauer.
federal funding system, a result that would have severely
“Often, I would not be aware of an issue until we
restricted McCain’s spending in the six months after he
would file a voluminous FEC report,” recalls Potter. “And
won the Republican nomination and before he received
then, within about five hours, I would start getting calls
public general election funds in September. It was an
from our press office saying that so and so of Roll Call or
unorthodox loan that raised questions. “After endless
the Washington Post wants to know what this item is on
sleepless nights and working on Sunday mornings under
schedule Z on page 27, and they need the answer by 4:30.”
the pressure of the moment, I wondered if I had made
Adding to the frenzy, each side invested heavily in
a mistake,” recalls Potter. “Had I done something that
opposition research. They read every filing, scoured every
was going to turn around and bite me? The candidate’s
newspaper, and looked at every quote. It often wasn’t clear
counting on me. He’s gone on national television and said
if “gotcha” issues were more campaign-generated and
‘I’m sure it’s fine, we have a former chairman of the FEC
picked up by the press, or the other way around.
overseeing this,’ and you think, ‘I better be right.’ Was I
ever relieved when the FEC unanimously agreed with me
and said what we’d done was okay.”
44 | UVA Lawyer • Spring • 2009
“After endless sleepless nights and working on Sunday mornings under the pressure of the
moment,
I wondered if I had made a mistake.”
Meanwhile, each campaign tried to convince reporters
Citing one example of how to kill a story, Potter praised
and bloggers that they had the wrong facts. But if the media
Bauer for his response to an aspect of Obama’s purchase of
ran with a story, it was already too late for damage control.
his residence that had turned up in research. The McCain
“You could soften the impact of a bad story with a careful
campaign had hoped to make it a corruption issue. “But
reporter,” says Bauer. “There were some who cared a great
buried in some papers was an affidavit from Bob’s office
deal about their professional reputation and they would
that had been done months before,” recalls Potter. “Clearly
work with you, but they were under tremendous pressure
Bob had seen this coming and had in the can the affidavit
to write stories and not be outdone by the competition. It’s
from the seller explaining that they had done this as an
a natural tension between a campaign and the media.”
arm’s length transaction and there was no intent to benefit
“It is great training for a lawyer in private practice,”
Senator Obama. And I thought, ‘Now there is a good piece
adds Potter. “If you think clients need quick answers, it’s
of lawyering.’”
nothing compared to working on a campaign. We would
answer and try to explain to them they didn’t have a story.
But they were going with it anyway and you would see
Bipartisanship? Not so much …
it on the screen within six hours. Compared to previous
campaigns, I found the media glare of this one startling. I
Clearly, Bauer and Potter have known and respected each
would say that some days I easily spent more than 50% of
other for years. They continue to do so, in spite of the
my time dealing with a press inquiry solely for the purpose
rhetoric that flew during the campaign. At the outset of the
of proving that what they thought had happened hadn’t.”
general election campaign, both campaigns announced
For example, Potter recalled when McCain went to the
they were going to stick to the issues and avoid personal
Middle East on a fact-finding trip and was inaccessible.
attacks. Potter says both the McCain campaign and the
The Drudge Report, an online news aggregator that pushes
Obama campaign early on spoke about changing the tone
certain stories, posted a photo of McCain with a large
in the fall election. The McCain campaign suggested this
purple spot on his forehead that looked like a recurrence of
extend to cooperative legal efforts on election procedures.
his skin cancer. Potter called McCain’s personal doctor in
However, as the general campaign progressed, it quickly
Arizona and got him out of bed to look at the photo. The
went negative. What happened?
doctor, diagnosing from the Drudge website, said it looked
“It’s a highly competitive period,” says Bauer. “The
as if the Senator had hit his head on something. “With
campaigns have a clash of interests which makes it awfully
the time change, we had to wait a couple of hours while
hard to look past your own interests. You have to structure
the media was going crazy. It was on FOX before we could
the debates, how many of them to have, how to raise your
reach McCain, who said, ‘What? Yeah, I hit my head on
money, what voter registration programs you have. It’s
the helicopter this morning. Why?’ There was no story, but
highly unlikely that the party that receives a proposal from
there is too much competitive pressure for anyone to back
the other is going to imagine that it was fashioned without
off and wait for the answer from the campaign.”
any attention to competitive advantage.”
UVA Lawyer • Spring • 2009
| 45
“… it was important for us to send
a very clear message to the Attorney General …”
Potter agrees. “I think it’s fair to say that perhaps we
point to what appear to have been Republican efforts to
were naïve in thinking that in the structure of a general
prevent Democratic voters from voting based on racial
election you could actually have a bipartisan approach
or socioeconomic grounds. That dispute continues and
to issues like voter registration or Election Day disputes.
ACORN walked right into it. Then McCain fed the fire,
From our side and I think from Bob’s, we thought there
citing ACORN in one of the debates as a “fundamental
were impediments to that, not the least of which is a lot
threat to the fabric of our democracy.”
of history. Both sides suspect the motives of the other and
However, ACORN has been around for over a decade.
assume that whatever they’re proposing must have some
Like the proverbial phoenix, it rises out of the ashes of an
nefarious purpose. But, at some stage,” he concludes, “you
earlier election season and then flies off Republican radar
just have to get on with life and stop worrying about that.”
until the next one. As a result, Potter was initially skeptical
Perhaps their longest and loudest disagreement
that ACORN was an issue at all. So, when McCain became
involved public financing. Both men understood there
the nominee apparent in the spring, Potter asked for all the
was an advantage for Obama to go outside of the system,
evidence that supported the Republican claims.
and for McCain to try to keep him inside it. Their legal
“I saw this as an example of a place where partisan
positions followed that logic, Bauer arguing that Obama’s
interests can take over on both sides,” he says. “ACORN
fundraising program involved a revolutionary number
is damned if they do and damned if they don’t, so I have
of small donors participating over the Internet, which
some sympathy. They have a bad business model [paying
obviated the basic concerns the public financing system
by the number of signatures gathered]. Then you put on
was meant to address. Potter claimed McCain was
the partisan gloss that this is intentional and just the tip of
protecting the system by staying in it and that Obama
the iceberg. It becomes an enormous partisan battleground
should keep his pledge to participate in the system or take
with nothing but seething distrust on both sides. In the
responsibility for damaging it. Ultimately, everything
midst of that, ACORN was leading with its chin. That’s
became a source of potential argument about tilting the
where the partisans took over.”
playing field for or against a campaign. “That’s in the
nature of this sort of competition,” says Bauer.
Bauer responded aggressively to Republican allegations
about ACORN. He fired off a letter to Attorney General
Michael Mukasey. He asked Mukasey to instruct the Justice
Department’s inspector general to investigate whether Bush
ACORN
administration officials were coordinating with McCain’s
campaign over voter registration fraud allegations. He
Then came the controversy stoked by the voter registration
asked Mukasey to “personally take steps” to make sure the
efforts of the Association of Community Organizations
department “is not misused for partisan purposes.”
for Reform Now, or ACORN. According to Potter, the
Republican base is convinced that Democrats try to steal
elections. They remember the big city machines and
the first Mayor Daley. But Democrats, he says, can also
46 | UVA Lawyer • Spring • 2009
“Lawyering Up”
Another dynamic drove campaign decision-making.
Democrats remain angry about the “hanging chads”
in Florida in 2000 and Ohio irregularities in 2004.
They did not want to be “out-lawyered” again on
Election Day. Bauer understood that pressure, but
he also knew that it wouldn’t help to “tell voters
that hundreds of thousands of lawyers are fanning
out across the United States. The notion that there’s
going to be pitched battles at the polls scares voters
away.” Nevertheless, it was important for the
Obama campaign to signal its voters that whatever
happened in 2000 and in 2004 would not happen
anywhere in 2008. “We had a reason to be clear
Bob Bauer ’76
about that.”
Potter had the opposite problem. The campaign
“The Department of Justice under George W. Bush had
needed to avoid appearing as if they were “lawyering
gotten itself into a fairly difficult pickle and its credibility
up,” yet the press kept asking about how many lawyers
had been seriously sapped,” recalls Bauer. “For that reason,
the campaign was going to deploy. He directed that the
it was important for us to send a very clear message to the
campaign response should be that it “thought elections
Attorney General that we expected him to conduct himself
should be decided by voters and not lawyers.” Otherwise,
in a non-partisan fashion. If there was going to be an
his rule was “Don’t say a word. Obviously, we had
investigation of the voting process and of voting rights, it
preparations. Obviously, we had lawyers, but it didn’t
had to be a concern that took into account all sides of the
benefit us to be out there talking about as it did Bob’s side.”
question; their concern about fraud, our concern about
manipulation to restrict access. That was an important part
of our sending a message to the Department of Justice.”
Potter’s hands were tied. “We felt that we couldn’t
respond or write a similar letter with our complaints. We
would inevitably be seen as improperly coordinating with
the department since the Attorney General worked for a
Republican president and we were a Republican nominee.
“I will not say how I felt about Bob when I realized that
he had just called for a special prosecutor to investigate
me,” says Potter in feigned outrage. “I went into the
u
So, just how well did they get along during the campaign?
“We emailed a couple of times,” says Bauer. “We were
doing press conference calls a couple of times.”
“I remember you jumped in on one,” Potter says with
a grin.
“I jumped in once. I listened in on one of his calls. I
did not crash it because he’s a former colleague of mine at
UVA. We’d never do such a thing ….”
On the way down the elevator, Potter marveled that
campaign manager’s office and said ‘Good news, the
Bauer was still going at the same campaign pace without
Obama campaign has just asked for a special counsel to
rest, but Bauer shook his head. “No, I’m fine,” he said, “but
investigate you and me!’”
they’re working on fumes over at the White House.”
Bauer responded with a wry grin. “I’m sorry. Remind
me of that again. Did I do that to you?”
UVA Lawyer • Spring • 2009
| 47
Faculty News & Briefs
On April 2, Ken
Abrams sponsored a Conference
System” at the SIPO Intensive Training
Abraham
on Law & Emotion: Re-Envisioning
Program at Cardozo Law School,
presented a
Family Law, in September. The
Yeshiva University in New York City;
paper, “Custom,
conference included talks by well-
and “Cleansing Patents” at the IP
Non-Customary
known legal scholars, psychologists,
Speaker Series, also at Cardozo.
Practice, and
and lawyers. Several of the talks will
Negligence,” at a
be published in an upcoming volume
“The New Invention Creation
Symposium on
In February, Bagley presented
of the Virginia Journal of Social Policy
Boundary in Patent Law” at the
the Restatement (Third) of Torts at
and the Law. In March, she coordinated
William & Mary School of Law
Wake Forest Law School.
with the Virginia Festival of the Book
Symposium on Boundaries in IP Law
to sponsor a lecture and book-signing
in Williamsburg, VA.
by Philip Schrag and David Ngaruri
Kerry Abrams
Kenney, authors of Asylum Denied: A
published an
Refugee’s Struggle for Safety in America.
article co-
Michal Barzuza
presented her
authored with
paper, “The State
Peter Brooks,
Margo Bagley
of State of
Sterling
published “The
Antitakeover
Professor of
Need for Speed
Law,” to the
Comparative
(and Grace):
annual conference
Literature at Yale University, entitled
Issues in a
“Marriage as a Message: Same-Sex
First-Inventor-
Couples and the Rhetoric of
To-File World”
Accidental Procreation” in the Yale
of the American
Law and Economics Association.
in the 2008
Journal of Law & Humanities. She
symposium issue of the Berkeley
In his role as chair
presented “The Hidden Dimension of
Technology Law Journal.
of Virginia’s
Nineteenth-Century Immigration
In October, Bagley presented
Commission on
Law” at the Boston University Legal
“Cleansing Patents” at the University
Mental Health
History Workshop in October and
of Pennsylvania School of Law in
Law Reform,
gave a related lecture to “Women’s
Philadelphia.
Richard Bonnie ’69
Work,” a University of Virginia
In November, she presented
spearheaded the
women’s faculty research lunch group.
“Illegal, Immoral, Unethical …
In March, she presented a paper on
Patentable? Issues in the Early
legislative reforms through the General
family-based immigration law at the
Lives of Inventions” as the 2008
Assembly in January and February.
Workshop on Comparative Family
Katz-Kiley Memorial Lecturer at
These reforms empower people with
Law at American University’s
the University of Houston School
mental illness to guide their treatment
Washington College of Law.
of Law; “The International Patent
during a crisis by using advance
As co-director of the Center
for Children, Families, and the Law,
second phase of
directives. The previous reforms in 2008,
in the wake of the Virginia Tech
UVA Lawyer • Spring • 2009
| 49
Faculty
Briefs
shootings, had focused on
In April, Darryl
Poor People in the Deep (Louisiana
strengthening civil commitment
Brown ’90
State, 2007), in the Journal of Southern
statutes. Bonnie presented the
moderated a
History, November 2008
Commission’s proposals to a variety of
panel at the
audiences throughout the state,
Texas Tech Law
appointed Charles Warren Visiting
including the Virginia Neurological
School
Professor of American Legal History at
Society, and the Virginia Association
Symposium on
Harvard Law School.
of Local Human Services Officials.
Criminal
This fall, Brown-Nagin was
In October, she presented
Excuses and Justifications, and
“Uncovering the Grassroots, Re-
during this period was the January
delivered a Hoffinger Colloquium
imagining the Legal History of
publication of a book entitled Law
Lecture at New York University Law
the Civil Rights Movement,” for
Touched Our Hearts: A Generation
School. Presently, he is a visiting
the Harvest Lecture at Vanderbilt
Remembers Brown v. Board of
scholar in residence at the Institute for
University School of Law; and In
Education, written in collaboration
Criminology at the University of
“Courage to Dissent,” at a Harvard
with Mildred Robinson and published
Oxford, in England.
Law School faculty workshop.
Another important event
In November, she presented
by Vanderbilt University Press.
the James H. Thomas Lecture at
Robinson and Bonnie appeared in
variety of forums to speak about the
In June 2008,
Yale Law School, “Re-Envisioning
book, including the Library of Virginia
Tomiko
the Civil Rights Movement: Courts,
in Richmond and the Virginia Festival
Brown-Nagin
Communities, and Legal Liberalism.”
of the Book in Charlottesville.
was a
Other activities included
commentator at
presentations on mental health
a meet the
Doug Ford
problems experienced by service
author
contributed to
members returning from combat
roundtable on
two books
in Iraq and Afghanistan at the
Risa Goluboff ’s The Lost Promise of
published in
annual meeting of the Virginia
Civil Right at the Law and Society
2008. Ford
Bar Association on January 23;
Association Annual Meeting in
authored the
on the Supreme Court’s decision
Montreal; and a panelist at a session
chapter,
allowing Indiana courts to disallow
on “The Roberts Court and Equal
“Inspiring and
a mentally ill criminal defendant
Protection” at the AALS Conference
Inadequate: the Krstic’ Genocide
from representing himself at trial at
on Constitutional Law in Cleveland.
Conviction through the Eyes of a
the annual meeting of the American
Her publications include “One
Srebrenica Survivor,” in International
Psychology-Law Society in San
of These Things Does Not Belong”:
Human Rights Advocacy Stories, of
Antonio on March 6; and on tobacco
Intellectual Property and Collective
which he was also a co-editor. He was
policy and the Annual Virginia Forum
Action Across Boundaries” in the
also a legal advisor and contributor to
on Youth Tobacco use in Richmond
summer 2008 Yale Law Journal;
Underground America, Narratives of
on April 15.
and book reviews on Thomas
Undocumented Lives. Ford spoke at
Jackson, From Civil Rights to Human
several events in support of the book
serve on the Board on Behavioral,
Rights, Martin Luther King, Jr., and
and on the topic of undocumented
Cognitive and Sensory Sciences of
the Struggle for Economic Justice
immigrants, including at the Virginia
the National Research Council, a
(University of Pennsylvania, 2007);
Festival of the Book.
component of the National Academy
Felicia Kornbluh, The Battle for
of Sciences.
Welfare Rights, Politics and Poverty
Bonnie was also appointed to
in Modern America (Univ. of
Pennsylvania, 2007); Kris Shepard,
Rationing Justice, Poverty Lawyers and
50 | UVA Lawyer • Spring • 2009
Faculty
Briefs
Brandon
Charles Goetz’s
A. E. Dick
Garrett has two
Fourth edition
Howard ’61 was
articles
of Goetz &
a featured
forthcoming,
McChesney,
speaker at the
“The Substance
Antitrust Law:
inauguration of
of False
Interpretation
George
Confessions” in
and
Washington
the Stanford Law
Implementation
University’s
Review ,and “Corporate Confessions”
was published by Foundation Press in
India Project. Paired with Dr.
in the Cardozo Law Review. Garrett
November.
Abhishek Manu Singhvi, a member of
has posted new data on wrongful
India’s Parliament, Howard spoke on
convictions at his faculty website
the Constitution of India and judicial
www.law.virginia.edu/html/librarysite/
Risa Goluboff
activism in that country’s Supreme
garrett_exonereedata.htm.
visited at New
Court, especially in encouraging
York University
public interest litigation and
in several briefs and amicus briefs
Law School in
delineating social and economic
on both sides in the case Osborne v.
the fall and is
rights. Papers from the inaugural
District Attorney’s Office of the Third
currently the
event will be published in the George
Judicial District (see http://www.
Stephen and
Washington International Law Review.
innocenceproject.org/Content/1852.
Barbara
Garrett’s work has been cited
php).
Howard published a paper, “The
Friedman Visiting Professor at
Road from Monticello: The Influence
Columbia Law School. She presented
of the American Constitutional
“Globalized Corporate Prosecutions”
her work on vagrancy, entitled
Experience in Other Lanes,” in a
to a conference on New Research
“People out of Place: The Sixties, the
volume, Religion, State, and Society:
in Regulation of Corporations,
Supreme Court, and Vagrancy Law,”
Jefferson’s Wall of Separation in
Managers, and Financial Markets at
to faculty workshops at both schools
Comparative Perspective. The paper
the Washington University School
and to the NYU Legal History
was among those presented at a
of Law; and “The Substance of False
Colloquium. Goluboff also presented
conference, “The Call for a New
Confessions” at the NYU Goldstock
it this spring to the Yale Legal History
World Order,” organized in Prague by
Criminal Law Luncheon.
Colloquium and to the
Monticello, the University of Virginia,
In May, Garrett presented
Constitutional Theory Conference at
and Colonial Williamsburg.
“Regulation of Industries and
the University of Southern California
Organizational Prosecutions,” to the
Law School. She also presented her
gave the second Sandra Day
Regulation by Prosecutors Conference
work on the Thirteenth Amendment
O’Connor Lecture. His topic was
at New York University Law School.
to a conference on that topic at the
“The Global Voyage of American
He presented “Forensic Science
University of Chicago this spring.
Constitutionalism.” A year earlier,
and Wrongful Convictions” to the
Finally, in April Goluboff won a
Howard had given the inaugural
Forensic Science for the 21st Century:
Guggenheim Fellowship to support
O’Connor Lecture, his topic on that
The National Academy of Science
her writing of her upcoming book,
occasion being “The Changing Face
Report and Beyond at Arizona State
People out of Place: The Sixties, the
of the Supreme Court.” In addition to
University Law School in April; at the
Supreme Court, and Vagrancy Law.
the O’Connor Lecture, Howard also
In March, he presented
At Elon University, Howard
University of Chicago School of Law,
gave a series of lectures at Elon’s law
Crime and Punishment Workshop,
school on the subject of “Constitutions
in February; and at the Ninth Annual
and Culture.” In those lectures he
Buck Colbert Franklin Memorial Civil
sought to set national constitutions
Rights Lecture, University of Tulsa
in the context of a country’s history,
School of Law, in October.
traditions, and culture.
UVA Lawyer • Spring • 2009
| 51
Faculty
Briefs
Howard was an adviser to
In February, Hurwitz attended
(article forthcoming in the Iowa Law
Review).
Monticello on their newly opened
the launch of Musawah, a global
visitor’s exhibit, “The Boisterous
movement for equality and justice in
Sea of Liberty,” as well as on the film
the Muslim family. Approximately 250
Sabbatical Site Inspection Team for
that introduces visitors to Thomas
scholars and activists from 47 countries
Notre Dame Law School for the ABA
Jefferson and his ideas.
gathered in Kuala Lumpur, Malaysia,
Section on Legal Education.
Howard assisted the Community
for the meeting, which featured UN
In March, Johnson chaired the
In April, Johnson presented
Idea Stations, WCVE and WHTJ, in
Special Rapporteur on Violence
a paper entitled, “Preventing a
the preparation of their documentary,
against Women Yakin Ertürk as a
Return Engagement: Destroying the
“Judicial Independence in the New
keynote speaker. Hurwitz participated
Negotiability of the Mortgagor’s Note
World: The Evolution of Virginia’s
in a panel on comparative religious
Via the Unconscionability Doctrine,”
Early Court System and Its Effect on
perspectives, with a presentation
at Pepperdine Law School as part of a
the Nation.” He focused, in particular,
entitled “Engendering Judaism: Jewish
law review symposium, Bringing Down
on Virginia decisions which, decided
Identity, Gender and Human Rights.”
the Curtain on the Current Mortgage
before Marbury v. Madison, anticipated
In March, she spoke at Yale
Crisis and Preventing a Return
John Marshall’s articulation of the
Law School’s Arthur Liman Public
Engagement; and was a panelist
Court’s power of judicial review. The
Interest Program, Forty Years of
at the National Conference of Bar
documentary has been shown on
Clinical Education at Yale: Generating
Examiner’s Annual Meeting to address
public broadcast stations throughout
Rights, Remedies, and Legal Services,
diversity issues in the legal profession.
Virginia and elsewhere in the nation.
Reflections on The Shape of Clinical
In Richmond, Howard did
Education Today .
workshops on constitutionalism for
In September,
the “We the People” team at the Maggie
Liz Magill ’95
L. Walker Governor’s School for
In addition to
commented at
Government and International Studies.
continuing his
the University of
Howard’s workshops were designed to
role for the third
Virginia Law
help the school’s team, which won the
year as president
Review’s
state championship, take part in the
of the executive
Symposium on
national competition, organized by the
committee of
Center for Civic Education.
the Order of the
and Exchange Commission. The
Coif, Alex
comment offered an administrative
the Securities
Johnson became the chair of the
law perspective on a paper called
Deena Hurwitz
AALS’ Committee on Bar Admission
“Securities Law and the New Deal
edited with
and Lawyer Performance.
Justices.”
Margaret L.
In October, Johnson was
In March, Magill presented a
Satterthwaite
a panelist on Diversity and Bar
paper called “Agency Self-Regulation”
and Doug Ford
Admissions at the Bar Exam Passage
at a faculty workshop at the Harvard
International
Conference, ABA Section of Legal
Law School, where she is visiting for
Human Rights
Education and Admissions to the
the spring semester.
Advocacy Stories
Bar and Law School Admission
(Law Stories Series) (Foundation Press,
Conference in Chicago; and in
2008), and wrote the chapter “Universal
February presented “The Re-
Jurisdiction and the Dilemmas of
Emergence of Race as a Biological
International Criminal Justice: The
Category: The Societal Implications–
Sabra and Shatila Case in Belgium.”
Reaffirmation of Race” as part of the
Critical Race Theory Speaker Series at
the University of Iowa College of Law
52 | UVA Lawyer • Spring • 2009
Faculty
Briefs
Greg Mitchell
and several
Martin Heads to Washington
co-authors
published
Law School Professor David A. Martin
“Strong Claims
was named principal deputy general counsel of the
& Weak
Department of Homeland Security by President Barack
Evidence:
Obama’s administration. He will be working closely with the
Reassessing the
new secretary of Homeland Security, Janet Napolitano ’83,
former governor of Arizona.
Predictive Validity of the Race IAT” and
In his new role, Martin will be the second-highest-
“Transparency Trumps Trust” in the
ranking lawyer at Homeland Security, which has 208,000
Journal of Applied Psychology. Mitchell
and Philip Tetlock co-authored a
employees. The agency’s legal team includes 1,700 attorneys.
chapter titled “Experimental Political
“I am very pleased to be invited to serve on Secretary Napolitano’s team
Philosophy: Justice Judgments in the
and to have the chance to help the department address its remarkably broad
Hypothetical Society Paradigm,” for the
responsibilities,” said Martin.
book New Explorations in Political
Martin, who has received a two-year leave of absence from teaching, will
Psychology (Jon A. Krosnick & I-Chant
take on a legal portfolio that covers the full range of issues the agency deals with,
A. Chiang eds., forthcoming 2009)
including transportation security, cargo screening, disaster response, immigration
and a paper titled “Facts Do Matter: A
and port security. He expects to be closely involved in advising the Homeland
Reply to Bagenstos,” that will be
Security secretary on immigration issues. Martin previously served as general
published in the Hofstra Law Review.
counsel of the Immigration and Naturalization Service from 1995 to 1998, and is a
Mitchell also presented a paper to the
leading academic expert on immigration and refugee law.
Law and Economics Seminar at the
University of Illinois this spring.
Martin noted that Napolitano was a student in the very first class he taught at
Virginia. “I was a rookie professor and she was a rookie law student,” he said. “That
small section was tolerant of my mistakes and I tried to return the favor. I have
always felt especially close to the students in that class.”
Tom Nachbar
Martin had kept in touch with Napolitano over the years, and the two of them
organized and
worked on projects together when he was INS general counsel and she was the U.S.
participated in a
attorney for Arizona.
conference on
“Establishing the
The class of 1983 celebrated its 25th reunion last year. Martin was invited to
the class dinner and sat next to then-Governor Napolitano. “We talked a bit about
Rule of Law in
immigration policy and the political races, but I certainly had no idea I was dining
the Context of
with my future boss.”
Military
Intervention,” which the Law School
Martin was named to the Obama transition team in November, where he
served on the review team examining the Department of Homeland Security.
co-sponsored with the Georgetown Law
Martin is the Warner-Booker Distinguished Professor of International Law at
Center’s Human Rights Institute and the
the University of Virginia, where he regularly teaches immigration law and a course
Judge Advocate General Legal Center
in presidential powers. Before joining the Virginia faculty he was special assistant
and School. The conference, which was
to the assistant secretary for human rights and humanitarian affairs at the U.S.
held at Georgetown, brought together
Department of State.
panelists from academia, the military,
civilian governmental agencies, and
non-governmental organizations to
discuss how the military can best work
with other agencies to re-establish the
rule of law in war-torn countries like
Afghanistan and Iraq.
UVA Lawyer • Spring • 2009
| 53
Faculty
Briefs
In March, Jeffrey
Columbia, and before the end of
Mildred
O’Connell
the spring will speak at the annual
Robinson
lectured on
meetings both of the Association of
published (with
reform of
Governing Boards (San Diego) and
Richard
medical
the National Association of College
Bonnie) Law
malpractice law
and University Attorneys (Toronto).
Touched Our
at the annual
Hearts: A
meeting of the
Generation
Health Coalition on Liability and
Dan Ortiz won
Remembers Brown v. Board of
Access in Washington, D.C.
his first Supreme
Education, Vanderbilt University
Court case,
Press. Her article, “The States’ Stake
Vaden v. Discover
and Role in Closing the Federal Tax
This spring
Bank, which he
Gap,” is forthcoming in the Virginia
semester, Robert
argued on
Tax Review.
O’Neil is a
behalf of the
Law School’s
visiting
professor at the
University of
Supreme Court Litigation Clinic.
He also published “Get A Life?,”
This spring,
George
Texas School of
in the Georgetown Law Journal;
Rutherglen
Law in Austin,
“Democratic Norms, Structures, and
attended a
teaching Con Law II: Church and
Conflict” in International Election
conference on
State. He continues for another year
Principles; “Constitutional Meaning,”
the Thirteenth
and a half as director of the Ford
in What Should I Read Next?; and “The
Amendment at
Foundation’s Difficult Dialogues
Difference Two Justices Make: FEC v.
Initiative.
Wisconsin Right to Life, Inc. II and the
Chicago, where he presented a paper,
Destabilization of Campaign Finance
“The Badges and Incidents of Slavery
under the auspices of the Boniuk
Regulation” in the Albany Government
and the Power of Congress to Enforce
Center at Rice University, later at the
Law Review.
the Thirteenth Amendment.” He also
O’Neil spoke in early February
the University of
annual conference on Community
attended the annual meeting of the
College Law at Valencia (Florida)
Maritime Law Association in New
Community College, and received
In November,
York, where made a presentation on
the first William Kaplin Award given
Margaret Riley
current issues in legal ethics.
by Stetson University at its annual
spoke at the Food
Higher Education Law Conference
and Drug
Rutherglen published “Public
in Orlando. In March, he spoke
Administration
Employee Speech in Remedial
at Colby College in Waterville,
on “Morality,
Perspective” in the Journal of Law and
Maine, on academic freedom; at the
Ethics and Law:
Politics and “State Action, Private Action,
Clinton School and the University
Genetically
and the Thirteenth Amendment” in
Earlier this academic year,
of Arkansas-Little Rock on the 45th
Engineered Animals and the FDA. In
the Virginia Law Review. He also has a
anniversary of New York Times v.
May, Riley is speaking at the National
new edition coming out of his casebook
Sullivan; and participated in the
Meeting of BIO in Atlanta on “Challenges
with John Donohue, Employment
annual Cosmos Club Symposium in
and Solutions in Commercializing
Discrimination: Law and Theory.
Washington. In April, he addressed
Genetically Engineered Animals and their
the annual dinner of Friends of the
Products”; and in July on a panel at
Library at the University of Missouri-
the ABA national meeting in Chicago
on “Law and Ethics of Genetically
Engineered Animals.”
54 | UVA Lawyer • Spring • 2009
Faculty
Briefs
Schauer Charges Students to Ponder Nature of
Legal Reasoning
By Ashley Matthews
David and Mary Harrison Distinguished
but it is not entirely specific to the field of law. The
Professor of Law Frederick Schauer asked
concept of precedence, he said, is often used by
students to consider what it is to “think like a
children: “Why can’t I go to a rock concert at the
lawyer” at a Student Scholarly Lunch in February,
age of 14 if you let my older sister go to a rock
one month after National Jurist magazine named
concert when she was 14?”
him as one of the most influential people in legal
The concept of authority, he said, is displayed
education. The national publication recognized
by the Catholic church’s view of the Pope.
Schauer for having “influenced legal education in
“If there is something that is special about legal
some way that continues to benefit current and
reasoning, it is important to recognize that it is not
future law students.”
totally, entirely hermetically sealed ‘special.’ The
Schauer’s book, Thinking Like a Lawyer: A New
differences between legal reasoning and ordinary
Introduction to Legal Reasoning, is now available.
reasoning are not the differences between
Law students, Schauer said, are told from the
literary criticism and differential calculus, or the
beginning of their education that they are not
differences between Estonian and English or other
in law school to learn legal rules or practical skills, but to learn to
“think like a lawyer.”
However, there are many scholars who believe there is no such
thing as legal reasoning, he said.
“There are a fair number of quite-distinguished skeptics about
whether there is anything at all that can be called ‘thinking like a
things in which there is almost no overlap,” Schauer said.
“Most of the things that we do and think about when we do
legal reasoning are things that we think about in ordinary life … All
of this is to suggest that rules, precedent, authority, sources and a
whole bunch of things exist in lots of places outside the law.”
However, Schauer said he believes certain types of reasoning
lawyer.’ Whether there is anything at all that is characteristically
are particularly suited, though not exclusive, to legal argument and
legal reasoning, as opposed to good thinking, good reasoning or
reasoning.
anything of that variety,” Schauer said.
Schauer said one school of skeptics, the pragmatists, believe
that legal reasoning should involve taking all factors into
“In numerous other ways, arguments from precedent, rules,
authority, so on, are in my view concentrated in the legal system.
In ways that they are present, but not as present in other areas. We
consideration and making “the right decision for just this case on
always talk about authority; scientists almost never do. In science,
just this occasion,” he said.
one is expected to do one’s own research, reach one’s conclusion,
Others contend that what is often called legal reasoning is
and the idea that something is right in science just because
simply good, moral reasoning, which is not specifically legal at all.
someone else has said so seems somewhat bizarre to most
“They would say, ‘Yes we want our judges and our other legal
reasoners to exercise the best of practical reasoning, we want our
scientists. So, too in lots of other areas,” Schauer said.
A concept that is unique to the legal system, Schauer said, is
judges and legal reasoners to be pragmatic, but we also want this
that some decisions are based not on what is the best result in a
in our physicians, our policymakers, our scientists and everything
particular case, but on what is the right systemic result. Rules and
else,’” Schauer said. “Lawyers are particularly good at it, are trained
precedent matter, he said, even if they do not create the “right”
to be good at it, but it is nothing that is in any way specially,
results in every case.
characteristically or distinctively legal.”
Finally, legal realists view judges and other legal decision-
“To take legal texts seriously, to take the ‘writtenness’ of law
seriously, legal rules seriously, legal precedent seriously, is to do
makers as human beings who exhibit the typical range of virtues
something other than reach the right result in every case and
and faults. This means that to understand legal reasoning, one
therefore with some frequency, to be willing to accept for larger
must study human nature and the way all people make decisions.
systemic reasons, reaching the wrong result in a particular case,”
Schauer said his own philosophy is that there is legal reasoning,
Schauer said.
UVA Lawyer • Spring • 2009
| 55
Faculty
Briefs
Fred Schauer’s
In May, Gil
Barbara
article “Why
Siegal, Richard
Spellman and
Precedent in
Bonnie, and
Fred Schauer
Law (and
Margaret Riley
published
Elsewhere) is
are hosting a
“Artists’ Moral
Not Totally (or
national
Rights and the
Even
conference on
Psychology of
Substantially)
About Analogy” was published in
November in Perspectives on
Psychological Science.
“Genetics, Ethics
& the Law” at the Law School.
In February, Siegal participated
Ownership” in
the Tulane Law Review. Spellman also
published with Elizabeth R. Tenney
as an expert in the review process
and Robert J. MacCoun “The Benefits
of the European Community (FP7
of Knowing What You Know (And
Defense of Rule-Based Evidence
framework), and in March lectured
What You Don’t): How calibration
Law — and Epistemology Too” was
at the European Foundation of
affects credibility in the Journal of
published in Episteme: A Journal of
Genetics, in Bologna, Italy on the
Experimental Social Psychology.
Social Epistemology; and he delivered
legal and ethical framework of genetic
the Annual Ben Beinart Lecture at the
research and on biobanks. His article,
National Academies Committee
University of Cape Town on the topic
“An Account of Collective Actions
on Behavioral and Social Science
of “Democracy and Limits on Political
in Public Health” (with Neomi
Research to Improve Intelligence
Discourse.”
Siegal and Richard J. Bonnie) is
Analysis for National Security.
In December, his article “In
In January, Schauer presented
“Was Austin Right After All?: The Role
forthcoming in the American Journal
of Public Health.
Spellman was appointed to the
In November, she presented
“Evaluating Information from
of Sanctions in a Theory of Law” at the
Uncertain, Deceptive, and Unreliable
General Aspects of Law Lecture Series
Sources” at a workshop series on the
at the Boalt Hall School of Law at the
Stephen Smith ’92
law and economics of intellectual
University of California Berkeley.
published “Jail
property at the Swiss Federal Institute
In February, he presented “When
for Juvenile
of Technology in Zurich; “Judges,
and How (If at All?) Does the Law
Child
Expertise, and Decision Making”
Constrain Official Action?” at the
Pornographers?:
at the Max Planck Institute for
Public Law Workshop at the Harvard
A Reply to
Research on Collective Goods, Bonn,
Law School.
Professor
Germany; and “Evaluating Witnesses’
Leary” in the
Believability by Assessing Calibration”
In March, Schauer delivered the
annual ‘Or ‘Emet Lecture at the Osgoode
Virginia Journal of Law & Social
at a symposium on Psychology and
Hall Law School, York University,
Policy; “Proportional Mens Rea” in
Law: Emerging Trends Addressed by
Toronto, on the topic of “On Law and
the American Criminal Law Review;
Empirical Studies at the 49th Annual
Coercion”; and presented “Knowledge,
and “Clarence X? The Black
Meeting of the Psychonomic Society
Truth, and the Millian Calculus” at
Nationalism Behind Justice Thomas’s
in Chicago (with Elizabeth R. Tenney).
a Conference on Unchallengeable
Constitutionalism” in the New York
In March, Spellman presented
Orthodoxies at the Arizona State
University Journal of Law & Liberty
“The Relation Between Counterfactual
University College of Law.
(forthcoming 2009).
and Causal Reasoning” at a
Schauer also serves on the board of
symposium on Causation in the
directors of the MacArthur Foundation
Law (and in Psychology) at the 2009
Law and Neuroscience Project.
American Psychology-Law Society
Conference in San Antonio, Texas.
56 | UVA Lawyer • Spring • 2009
Faculty
Briefs
Modern American Legal History.”
In December,
In December-
the Virginia Law
January, Paul
Review
Stephan ’77
with the University of Cincinnati
published an
taught a course
College of Law’s William Howard Taft
article by Chris
on international
Lecture on Constitutional Law. The
Sprigman
law in the
Taft Lectureship, which dates back
co-authored
Supreme Court
to 1986, has featured, among others,
at the Radzyner
Justices Antonin Scalia and Sandra Day
with Dotan
In October, White was honored
Oliar “There’s No Free Laugh
Law School, Interdisciplinary Center
O’Connor, and Professors Akhil Amar
(Anymore): The Emergence of
Herzliya in Israel. He also gave a
and Robert Post of Yale Law School.
Intellectual Property Norms and the
workshop on his paper, “Symmetry
White’s lecture was “Revisiting the
Transformation of Stand-Up
and Selectivity: What Happens in
Central Ideas of the Founding Period.”
Comedy.” In this article, Oliar and
International Law When the World
Sprigman examine the norms
Changes,” at Radzyner and also to the
feature panelist on “Presidential Power
governing the ownership, transfer, and
Haifa University law faculty. Finally, he
and the Constitution” at the New York
use of jokes by stand-up comedians,
gave a panel presentation on “Interna-
Historical Society. The other panelists
and how these norms govern relations
tional Economic Law in a Time of
were Benno Schmidt, former President
among comics in place of the formal
Crisis” at the Radzyner Law School.
of Yale University, Professor Akhil Amar
intellectual property law.
In March, the Stanford Law
Review published an essay Sprigman
In February, Stephan moderated
the J.B. Moore Society Conference on
International Arbitration.
Also in October, White was a
of Yale Law School, and Floyd Abrams.
In March, White presented
“Biographical Dimensions of Holmes’
In March, he took part in the
The Common Law,” to a staff seminar
professor Kal Raustiala titled “The
annual meeting of the American Society
at the London School of Economics
Piracy Paradox Revisited.” This
of International Law, having served on
and Political Science.
essay refines and extends Raustiala
the program committee for this session.
and Sprigman’s 2006 analysis
He moderated a panel on international
Discounting For History,” is forthcoming
(“The Piracy Paradox”, published
approaches to the enforcement of the
in the Vanderbilt Law Review.
in the Virginia Law Review) of how
judgments of international tribunals
the copying of fashion designs
by domestic courts. He also gave a
of Oliver Wendell Holmes’s The
contributes to the fashion industry’s
presentation on current issues on
Common Law (John Harvard Library
innovation culture.
foreign sovereign immunity law to
edition, Belknap Press of Harvard
co-authored with UCLA Law School
White’s article, “Neglected Justices:
White is editor of a new edition
In May the Journal on
the judicial advisory committee of the
University Press, forthcoming May,
Telecommunications and High-
ASIL, and was elected co-chair of the
2009). This edition of Common
Technology Law published Sprigman’s
International Law in Domestic Courts
Law contains an introduction, a
article titled “Copyright and the Rule
Interest Group of the ASIL and will
bibliographical essay, and an extended
of Reason.” In this article, Sprigman
preside at the interest group’s meeting as
chronology of Holmes’s life.
suggests ways in which the liability
part of the ASIL annual meeting.
In May, at the Woodrow
rules for copyright law could be
Wilson International Center for
made more efficient, in particular by
Scholars in Washington, D.C., White
adopting something like the mix of
In September,
was chair and commentator of a
rules and standards that characterize
G. Edward White
panel, “Alger Hiss, I.F. Stone, and
the law of antitrust.
presented at
Counterintelligence,” at a program
conference at
on Alexander Vassiliev’s Notebooks
Harvard Law
and the Documentation of KGB
School, “The
Operations in the United States,
Origins of
1930–1950.
UVA Lawyer • Spring • 2009
| 57
Class
Notes
Memphis Lawyer
Retires at 95
1940
1949
Reunion Year
Hugh Meredith writes that shortly
after graduation he went to work with
Charles Crump ’37
Vandeventer and Black, a Norfolk, Va.,
is retiring from the
law firm. In September of 1940 he joined
practice of law with
the Naval Reserves. He graduated from
Apperson Crump at
midshipman school in 1941 and served
95 years of age.
for five years as a deck officer in the Navy
After graduating
on various mine sweepers. In 1946 he
from the Law School,
returned to Vandeventer and Black and
Mr. and Mrs. Peter J. Rogers celebrated
Crump practiced law
practiced for 40 additional years, retiring
their 60th wedding anniversary with their
for a few years, before becoming a Naval
in 1986.
family in 2008.
intelligence officer tasked with briefing
dive bomber pilots for their missions in
the Pacific Theater during World War II.
After returning to Memphis, Crump
resumed a legal career, focusing on trusts
and estates. While not considered a
glamorous aspect of the legal profession,
Caplin Receives Multiple Honors
Crump found ways to make positive
differences. He is credited with opening
Mortimer Caplin ’40 was recently honored for his contributions to the United States’
up social links between blacks and
role in the liberation of France during World War II. Awarded by the President of the
whites in the 1960s by helping with
French Republic, the “Chevalier” of the Legion of Honor is one of France’s highest honors
the Memphis Community Leadership
given as a testament to an individual’s outstanding accomplishments.
Training organization.
In 1999, Crump was honored by the
National Conference for Community
and Justice for helping to integrate the
During the Normandy invasion, Caplin served as a U.S. Navy beachmaster and was a
member of the initial landing force on Omaha Beach. For his service, he also received the
Medal of the Jubilee of Liberty.
Caplin was also named a recipient
Memphis Rotary Club and the Chamber
of the University of Virginia’s 2009
of Commerce. Additionally, he helped
Brennan Award. Established in 1987
establish Memphis Area Legal Services, a
in honor of Justice William J. Brennan,
group that provides legal advice to low-
Jr., of the Supreme Court of the United
income residents.
States, honorees are selected based
Crump has some advice for the next
on their individual contributions to
generation of the legal profession:
the Trail Advocacy Institute and the
“Honesty and integrity are absolutely
legal profession. “These awards reflect
paramount. You can’t violate those
values I’ve always held dear such as an
principles. I would say they are absolutely
unwavering commitment to excellence
essential. And be thorough, and be
and public service,” said Caplin.
The French Minister of Defense Hervé Morin
pins the “Chevalier” of the Legion of Honor on
Mortimer Caplin ’40 at the French Embassy in
Washington, D.C., in March.
respectful.”
UVA Lawyer Spring • 2009
| 59
Class
Notes
Institute based in Hawaii from 1983 to
WANTED:
A few good annual giving
volunteers
Join the Law School’s volunteer team.
Contact Helen M. Snyder ’87
1956
1991. He co-chaired a commission to study
the structure and procedures of the Senate.
Pearson leaves behind Margaret
Mark H. Berliant, a senior partner at
Strauss & Troy in Cincinnati, Ohio, has
(Lynch), his children, James, Thomas,
been recognized for his outstanding
William, and Laura, and his sister,
professional accomplishments and for his
Virginia Green.
noteworthy talent in the law. Berliant was
helensnyder@virginia.edu
selected for Best Lawyers in America 2009
434-924-4668
for an unprecedented 26th straight year.
1953
Berliant is one of a very small number
of attorneys nationwide who have been
1950
Senator John W. Warner will be knighted
recognized in Best Lawyers in America
by Queen Elizabeth II at Buckingham
each year from the inception of the award
Palace this spring in a centuries-old
in 1983.
ceremony. British Ambassador Sheinwald
James Blackwood Pearson of Baldwin City,
made the announcement, saying,
Al Evans continues to recover from his
Kans., and Gloucester, Mass., passed away
“Throughout his long and distinguished
2006 stroke, bit by bit. Linda Evans says,
January 13. Pearson served for 17 years as
career he has been a constant and
“His sense of humor is astounding, and
the United States Senator from Kansas.
unstinting friend of the United Kingdom,
many people aren’t quick enough to grasp
working with us on issues ranging from
his thinking.” The last case on which
Navy transport pilot, flying DC 3s from
defense cooperation to the Northern
Evans worked as a defendant’s lawyer was
coast to coast, often landing at the Olathe
Ireland peace process.”
dismissed just a few months ago.
1955
1959
Senate in 1956, becoming Republican
William Weeks fully retired from law
W. Shelby Coates is of counsel to the
state chairman in 1960. Upon the death of
practice at the end of 2005, completing
Manhattan firm, Dickerson, Tomaselli &
U.S. Senator Andrew Schoeppel, Pearson
50 years of practice with three different
Mullen on Lexington Avenue.
was appointed to fill the seat in 1962.
firms in Boston. “Best regards to all my
During World War II, Pearson was a
Naval Air Station near Kansas City.
Pearson practiced law in Prairie
Village, Kans., before serving as a probate
Reunion Year
judge. He was elected to the Kansas
Early in his Senate tenure, Pearson
classmates,” writes Weeks.
earned a reputation for intelligence, wry
British Prime Minister Gordon Brown
bestowed a knighthood on Senator
humor, and independence. Probably his
Charles Wehland retired several years
Edward Kennedy on behalf of the Queen
most important political and legislative
ago. After selling property in central
of England. In his recent address to the
legacy is to be found in the details of
Maryland, the Wehlands purchased a
U.S. Congress, Brown described “Sir
natural gas regulation. He won three
home in Raleigh, N.C.
Edward Kennedy” as “one of your most
general elections by wide margins and
distinguished senators, known in every
retired in 1979.
continent, and a great friend.” He hailed
After retiring from the Senate, Pearson
the work of the Massachusetts Democrat
and his wife, Margaret, traveled frequently
on bringing peace to Northern Ireland
to Japan and Southeast Asia. Pearson
and expanding access to healthcare and
served as a director of the East-West
education.
Tell us the important things that happen in your life! 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 15 for inclusion in the next issue.
60 | UVA Lawyer • Spring • 2009
Class
Notes
1960
commercial litigation, and corporate law.
approached by Gonzalez Saggio & Harlan,
He is a partner with Gentry Locke Rakes &
one of the nation’s most ethnically diverse
G. Thomas Battle has been named in Best
Moore in Roanoke, Va. His practice areas
law firms. He has provided scholarships
Lawyers in America 2009 in tax law. He is
include commercial litigation and business,
to students at the Law School for 25
of counsel with Spilman Thomas & Battle
estate, probate, and trust litigation and
years, and was intrigued by the firm’s
in Charleston, W.Va.
professional liability.
commitment to diversity.
1964
1966
Several members of the Class of 1960
enjoyed another Civil War battlefield
Reunion Year
“campaign.” Classmates Bob Hiden,
Henry Simpson, Jack Ackerly, Bill Izlar,
Shepard Ansley started practicing with
G. William Birkhead is working
Max Bahner, Tony Unger, Lloyd Smith,
the Atlanta firm of Carter & Ansley in
towards full retirement after 38 years
George Grattan, and Jim Simpson ’57
1967. He practiced there as an associate,
at Vandeventer Black in Norfolk, Va.,
participatedin the most recent outing.
partner, and of counsel, before the firm
finishing a full cycle from junior associate
“These campaigns have been going
merged with Smith, Moore, a Greensboro,
to managing partner to of counsel. He
on for about 15 years in one form or
N.C., firm. He now practices with Carter
has enjoyed the transformation from a
another, and have become highlights for
& Terry, an Atlanta securities firm. In
ten-attorney maritime boutique to a 70-
all of us, despite demanding campaign
1997 he joined with three other investors
attorney full service firm.
homework,” says Hiden.
to form a company in California, known
as CRM Co. CRM grinds up waste tires
1967
Rust E. Reid has been selected for
into crumb rubber, which is used to make
inclusion in Best Lawyers in America 2009
rubberized asphalt for roads. CRM has
in trusts and estates. He is of counsel in
plants in Arizona and New York. Ansley is
J. Rudy Austin has
the Dallas, Tex., office of Thompson &
an executive vice president and secretary
been named to
Knight.
of CRM, and serves on its board.
Virginia’s Legal Elite
by Virginia Business
1963
Missouri Senator Christopher S.
Robert J. Berta has joined the Southport,
magazine. He has also
Conn., office of Pepe & Hazard as counsel
been selected for
with the wealth preservation practice
inclusion in Best
group.
“Kit” Bond will retire in 2010. Bond’s
retirement will end a long and honorable
career in Missouri politics. In 1970, he
Lawyers in America
2009 in personal injury litigation. He is a
1965
partner in the Roanoke, Va., office of
Gentry Locke Rakes & Moore.
was elected state auditor, and two years
later was elected Missouri’s youngest
Thomas T. Lawson has written a book
Governor in the state’s history. In 1986,
entitled Carl Jung, Darwin of the Mind,
Bond won a U.S. Senate seat and has held
published by Karnac Books of London.
the seat ever since.
Since leaving the practice of law in 1992,
Phillip Helslander is semi-retired in
Lawson has pursued his interest in
Duncanville, Tex. In 1996 he retired from
Richard Gershon has retired after
painting and writing about Carl Jung. His
AAFES (the military PX system) and has
practicing trial law in upstate New York
book explores interesting connections
been representing the downtrodden in
for 45 years. Gershon now resides in
between mythology and psychology. He
employment and discrimination matters
Bonita Springs, Fla.
lives in the mountains near Roanoke, Va.
ever since. Before joining AAFES, he served
(See In Print)
four years with the Army JAG Corps and
William R. Rakes has
1968
about a year with the U.S. Postal Service
been named “Roanoke
C. Willis Ritter has become a partner
Banking Lawyer of the
with Gonzalez Saggio & Harlan, where
Year” and is included
he focuses on financial and federal tax
Peter Kiernan, deputy director
in Best Lawyers in
aspects of municipal finance in the firm’s
of the Office of Legislative and
America 2009 in
Chicago, Ill., office. He is also co-chair
Intergovernmental Affairs with the SEC,
antitrust law, appellate
of the firm’s nationwide public finance
retired December 31 after more than 40
law, banking law,
practice. Ritter had retired when he was
years—his entire professional career—
Congressional Affairs Office.
UVA Lawyer Spring • 2009
| 61
Class
Notes
with the Commission. Kiernan served
insurance in 13 states. Benjamin is
under 14 SEC chairmen and 17 directors
also of counsel to Williams Parker in
of legislative affairs during his tenure. He
Sarasota, Fla.
1972
Candace Cummings
joined the agency as a staff attorney in
received the ATHENA
what is now the Division of Investment
Timothy E. Hoberg
Award from the
Management when he graduated from the
was recently named
Greensboro
Law School.
among the 2009
Partnership in
Lawyers of the Year in
recognition of her
Gail S. Marshall has been selected for
Greater Cincinnati by
professional
the third year in a row by Best Lawyers in
Best Lawyers in
America 2009 in the category of appellate
America 2009 for his
commitment to the advancement of
work in corporate law
women. She is vice president-
practice. She attended the investiture of
excellence and
Cleo Powell ’82 to the Virginia Court of
and was also listed for excellence in the
administration, general counsel, and
Appeals in November.
areas of corporate law and securities law.
secretary for global apparel leader VF
He was also chosen for the 2009 Ohio
Corporation, the world’s largest apparel
Super Lawyers list compiled by Law &
company, with brands such as Wrangler,
Politics magazine. He is a partner with
Lee, The North Face, Nautica, JanSport
1969
Reunion Year
Taft Stettinius & Hollister in the
and Vans. Since joining VF Corporation
Ford Barrett is still on the legal staff
Cincinnati office, where he concentrates
in 1995, Cummings has been an advocate
of the Office of the Comptroller of the
on corporate and securities matters.
for women interested in advancing their
careers and a mentor for rising female
Currency. Barrett recently litigated a case
before the Fifth Circuit Court of Appeals
on whether a suspicious activity report
1971
executives. She is an active member of
Greensboro’s Professional Women’s
Forum and serves on the board of
can be used in a private civil action.
Ron Castille became the chief justice
advisors for the North Carolina
Michael R. Chesman has been named
of the Pennsylvania Supreme Court
Conference for Women.
senior vice president, associate general
in January 2008. He is responsible
counsel, and director of tax law for the
for both the court’s case docket and
Skip Myers is the chair of the Health
Hartford Financial Services Group, Inc.
the administration of Pennsylvania’s
Initiative Foundation, which provides
in Hartford, Conn. As director of tax law,
unified judicial system. Additionally
grants to 501(c)(3) organizations in
he will oversee and set strategic direction
he has remained the court’s liaison to
Montgomery County, Md. Myers is
for the Hartford’s tax law group. He
Pennsylvania’s First Judicial District,
the managing partner, as well as the
was recently with the Internal Revenue
Philadelphia. A highly decorated Vietnam
co-chair of the insurance practice group
Service, where he served as director of the
veteran, Castille occasionally finds time
at Morris, Manning, and Martin in
Office of Professional Responsibility.
to enjoy skiing and golf.
Washington, D.C.
Alexander Williams retired from the
Roger H. Kimmel has been elected to the
Mark A. Saunders, father of Christina
Los Angeles Superior Court in September
board of directors of PG&E Corporation
and David ’07, has been appointed
2008, after 24 years of service. Williams
and to the board of its subsidiary, Pacific
as general counsel of WR Capital
now works in private practice as an
Gas and Electric Company. Kimmel is
Management, L.P. in Stamford, Conn.
arbitrator and mediator at ADR Services
vice chairman of Rothschild, a 200-year-
in Century City.
old global banking firm, and also serves
Robert Sugarman was appointed to
as chairman of that firm’s investment
the AFL-CIO Lawyers Coordinating
banking committee.
Committee by AFL-CIO President John
1970
Sweeney. The Committee enhances the
Alan Mogol was selected for both Best
quality of legal representation to the
Robert Benjamin has been elected to
Lawyers in America 2009 and Maryland
labor movement. He practices labor and
the board of directors of FCCI Mutual
Super Lawyers 2009, for his work in
employee benefits law in South Florida
Insurance Holding Company, a Florida
equipment finance law as Ober|Kaler’s
with Sugarman & Susskind.
property and casualty insurer writing
finance practice chair.
62 | UVA Lawyer • Spring • 2009
Class
Notes
1973
Howard, a partner of Covington &
Gary V. Dixon has
Burling in New York City, is a frequent
been selected for
Kenneth Ahl is a partner at Archer and
contributor to the op-ed pages of major
inclusion in Best
Greiner where he practices tax, estate
newspapers, and chairs a nonprofit called
Lawyers in America
planning, and international law. He is
Common Good (www.commongood.org),
2009 in insurance law.
based in the Philadelphia office.
dedicated to restoring reliability to
He is a partner with
American law. (See In Print)
Troutman Sanders in
Jack T. Camp recently stepped down as
the Washington, D.C.,
chief judge of Georgia’s Northern District.
Dick Menaker’s general New York
office, where he represents insurers in
He finished his 20th year as a federal
commercial practice firm, Menaker
matters involving subprime lending,
judge last year. Now on senior status, he
& Herrmann, celebrated its 25th
auction rate securities, backdating stock
will keep his office and a staff, but will
anniversary this year. Dick is a business
options, ERISA stock drop suits,
work a less strenuous schedule. He looks
litigator and a faculty member of the
employment discrimination, insurance
forward to farming his land in Georgia
National Institute for Trial Advocacy,
industry contingent commissions,
and restoring his collection of antique
Northeastern Region.
criminal and regulatory investigations,
and coverage litigation.
tractors.
Bruce M. Stanley has
Lee F. Feinberg has been named in Best
been selected for
Chuck Howard’s son, Brian, will be
Lawyers in America 2009 in energy law.
inclusion in Best
graduating from the Law School this
He is with Spilman Thomas & Battle in
Lawyers in America
spring in the class of 2009.
Charleston, W.Va.
2009 for personal
injury litigation. He
Frederick Lowell is chair of the political
G. Franklin Flippin
has also been named a
law department at Pillsbury Winthrop
was selected for
“Fort Myers Area Best
Shaw Pittman in the San Francisco office.
inclusion in Best
Lawyers Personal Injury Litigator of the
Lawyers in America
Year” for 2009. He is with Henderson,
Don P. Martin has
2009 in banking law,
Franklin, Starnes & Holt in the firm’s Fort
been named in Best
corporate law, and
Myers, Fla., office, where he practices civil
Lawyers in America
mergers &
litigation of all types with an emphasis on
2009 in commercial
acquisitions law. He is
medical malpractice, aviation cases,
litigation and legal
a partner in the business law practice
products liability defense, and eminent
malpractice law. He is
group in the Roanoke, Va., office of
domain.
a partner with
Gentry Locke Rakes & Moore.
Quarles & Brady in
John Wymer was named one of the top
1974
Reunion Year
Philip K. Howard has
magazine. Wymer was also named as one
Pete Tennyson was named in Best Lawyers
of the 50 best employment lawyers in
in America for 2007–2009, and in Super
America by HR Executive Magazine.
Lawyers. He teaches in the University
of California, Irvine, MBA Executive
a new book, Life
Without Lawyers:
Liberating Americans
the Phoenix, Ariz., office.
ten lawyers in Georgia by Georgia Trend
1975
from Too Much Law
Course.
1976
(W.W.Norton 2009).
James W. Batchelor has been recognized
Called by George Will
as one of the best bankruptcy and
“2009’s most needed
creditor’s rights attorneys in Michigan for
Jeffrey Andrews has been recognized by
book on public policy,” Life Without
2008 by Super Lawyers magazine. He is
Business Leader Magazine as one of the
Lawyers proposes an overhaul of legal
managing attorney in the Grand Rapids,
“2008 Top Lawyers” for his work as a
structures to restore freedom in daily
Mich., office of Trott & Trott.
business attorney in the Triad Region of
choices—so teachers have authority to
North Carolina. Andrews is a shareholder/
maintain discipline, and doctors don’t
principal with Vernon, Vernon, Wooten,
feel the need to squander billions in
Brown, Andrews, and Garrett.
unnecessary “defensive medicine.”
UVA Lawyer Spring • 2009
| 63
Class
Notes
Peter E. Broadbent, Jr., was recently
Fisher & Phillips in the firm’s Atlanta
conducts its survey with more than
recognized by Virginia Business
office. Her focus is on employment
270 general counsel at Fortune 1000
magazine as one of Virginia’s “Legal
litigation.
organizations and large professional
Elite” in the field of intellectual property
service firms. Emch is in the litigation
law. Broadbent practices business,
David B. Shapiro has been named among
department of the Charleston, W.Va.,
intellectual property, governmental, and
Best Lawyers in America 2009 in corporate
office of Jackson Kelly.
communications law as partner with
law. He is a member with Spilman
Christian & Barton in Richmond.
Thomas & Battle in Charleston, W.Va.
John Engel, the son of Richard and
Brenda Farr Engel ’78, graduated
James Hingeley was awarded a
Brad Stillman was appointed a U.S.
from the Law School in May 2008 and
Wasserstein Fellowship by the Harvard
Magistrate Judge for the Eastern District
works for Richards, Layton & Finger in
Law School. The fellowship program
of Virginia in Norfolk for a second eight-
Wilmington, Del.
brings distinguished public service
year term, which began in October.
Amy B. Ginensky is
lawyers to the school for a brief visit
to speak on career panels, counsel law
Stanley A. Twardy, Jr., has been
serving a two-year
students, and serve as a resource to the
recognized in Connecticut Super Lawyers
term as president of
school’s Office of Public Interest Advising.
for 2009 and selected for inclusion in Best
the Philadelphia Bar
Lawyers in America 2009 for white collar
Foundation, which
Bradford Keithley has become a partner
criminal defense. He is a partner in the
promotes access to
with Perkins Coie, practicing from the
Stamford office of Day Pitney, where
justice for everyone,
firm’s Anchorage, Alaska, and Washington,
he has served on the firm’s executive
particularly those who
D.C. offices. His practice will continue to
committee for the past eight years.
focus on oil and gas matters as part of the
struggle with poverty, abuse, and
discrimination. In September she was
firm’s national environmental and natural
M. Hamilton Whitman was selected for
inducted as a fellow of the American
resources practice group.
both Best Lawyers in America 2009 and
College of Trial Lawyers in a ceremony
Maryland Super Lawyers 2009, for his
held at the College’s annual meeting in
Charles Lee was the U.S. team’s Chef de
work in alternative dispute resolution
Toronto, Canada. Ginensky is a partner
Mission for the Beijing Olympics in 2008.
and international arbitration. Whitman
with Pepper Hamilton and serves as chair
Twenty four years ago Lee led a delegation
is with Ober|Kaler’s transportation and
of its commercial litigation practice group
that persuaded the Chinese to compete in
maritime practice.
and leader of its media and
the 1984 Olympics despite pressure from
a Soviet boycott. He recently retired from
his position as a judge in Los Angeles
communications practice in the
Philadelphia, Pa., office. In addition to
1977
handling class action and commercial
Superior Court after nearly 20 years.
litigation matters, she has an active media
Stephen W. Earp has
and communications practice that focuses
James J. Lee was recently elected chairman
been included in Best
on First Amendment, defamation, and
of the board of United Cerebral Palsy of
Lawyers in America
other media-related areas.
Metropolitan Dallas. Lee is a partner in
2009 in environmental
the Dallas office of Vinson & Elkins, where
law. He has also been
Beverly and Peter Jost became
he practices bankruptcy litigation. He has
named one of Business
grandparents on November 14, with the
been repeatedly recognized by Best Lawyers
North Carolina’s Legal
birth of their granddaughter, Frances
Elite for 2009 in
Alexandra Seward.
in America, Chambers USA, Who’s Who
Legal-Texas, Corporate Counsel, and as a
environmental law. He is in the Greensboro
Texas Super Lawyer.
office of Smith Moore Leatherwood.
John E. Noyes was
recently elected
Ann Margaret
A.L. Emch has been named to the 2009
president of the
Pointer has been
BTI Client Service All-Star Team for Law
American branch of
named in Georgia
Firms. He is one of only 176 attorneys
the International Law
Super Lawyers 2009.
worldwide to be so recognized. BTI
Association. He will
She is a partner at
serve a two-year term.
The Association,
headquartered in London, is a
64 | UVA Lawyer • Spring • 2009
Class
Notes
nongovernmental organization whose
in Versailles, France. D’Angelo is a
member of the litigation practice group,
purpose is to develop international law.
partner in the litigation department at
where her practice focuses on antitrust
Noyes is on the faculty at California
Montgomery, McCracken, Walker &
and trade regulation, as well as other
Western in San Diego, where he has
Rhoads in the Philadelphia, Pa., office.
complex business litigation, including
insurance coverage, class actions, contract
taught since 1982.
John Engel, the son of Brenda Farr
disputes, securities litigation, trade
A. Justin Ourso III
Engel and Richard ’77, graduated
secrets, and corporate takeovers.
has been appointed as
from the Law School in May 2008 and
chair of the American
works for Richards, Layton & Finger in
W. Thomas
Bar Association’s
Wilmington, Del.
McGough, Jr. has
intellectual property
been named one of six
law section’s state
Michael P. Haggerty
Top Lawyers of the
trademark laws
has been selected as
Year in Pittsburgh by
committee and will
one of the Best
Best Lawyers in
serve a one-year term. He has also been
Lawyers in America
America 2009. He was
elected to the board of directors of the
2009 in real estate law.
International Trademark Association’s
He is a partner in
Pittsburgh Best Lawyers, Bet-the-
Political Action Committee, where his
Jackson Walker’s
Company Litigation Lawyer of the Year.
term will be for two years. He is a partner
Dallas office, and is
McGough is a partner in the litigation
also selected as the
in the Baton Rouge, La., office of Jones
head of the financial services practice
department of Reed Smith, where he
Walker; his practice focuses on business
group.
handles diverse cases including those that
litigation, intellectual property and trade
regulation law, and media law.
1978
involve intellectual property, white collar
Laura G. Kuykendall
crime, and the First Amendment. He
has been jointly
currently teaches short courses on white
appointed by Ohio
collar crime at the Law School, where he
Senate President Bill
is a visiting professor.
Harris and Speaker of
Christopher D’Angelo
the House
William K. Smith has joined the
received the Product
Representative Jon A.
Cleveland, Ohio, office of Buckingham,
Husted to serve on the
Doolittle & Burroughs as partner. He will
Liability Advisory
Council’s
Joint Legislative Study Commission on
focus on non-standard financing for real
Distinguished Service
most favored nation clauses in health care
estate transactions, including mezzanine
Award at the
contracts. The Commission, established
and securitized lending, ground leasing
Council’s 25th
to fulfill a provision of HB-125, the
and ground-leasehold financing, and sale/
anniversary dinner
Health Care Simplification Act, will
leaseback transactions.
held in Las Vegas, Nev., in November. The
research and report on how availability
award recognized D’Angelo’s many years
and accessibility of quality health care are
Donald Switzer was named in 2009 Ohio
of service to the Council and its projects.
influenced by most favored nation clauses
Super Lawyers for medical malpractice
He was a speaker at the International
within health care contracts. Kuykendall
defense, as well as in Best Lawyers in
Association of Defense Counsel meeting
is a partner in the Columbus office of
America 2009 for medical malpractice law.
in Munich, Germany, in December. His
Vorys, Sater, Seymour and Pease. She is a
topic, “Attorney-Client Privilege and
1979
Attorney Work Product: Principles for
In-house and Outside Counsel,” focused
on the comparison of privilege or similar
protections in various jurisdictions and
impacts on global or multinational
WANTED:
A few good annual giving
volunteers
Reunion Year
Jack Berry was appointed a judge in
the 16th Judicial Circuit of Virginia in
the summer of 2008. The circuit covers
transactions and litigation. Last May he
Join the Law School’s volunteer team.
served as a member of the faculty of the
Contact Helen M. Snyder ’87
Greene, Albemarle, Orange, Fluvanna,
helensnyder@virginia.edu
Louisa, and Goochland, and the City of
International Corporate Counsel College
434-924-4668
the counties of Culpeper, Madison,
Charlottesville.
UVA Lawyer Spring • 2009
| 65
Class
Notes
John Head, still teaching at the University
Sally C. Merrell has
serving as its president in 1988; a member
of Kansas Law School, will soon be
been named in Best
of the Virginia Association of Criminal
releasing his latest book, “China’s Legal
Lawyers in America
Defense Lawyers, where he was president
Soul,” and is working on another book for
2009 in trusts and
in 1999 and served on the Board of
release in China this year. His wife, Lucia
estates. She is a partner
Directors from 1996 to 2000; a member
Orth, recently published her first novel
with Quarles & Brady
of the National Association of Criminal
“Baby Jesus Pawn Shop.” (See In Print)
in the Milwaukee,
Defense Lawyers and the National Legal
Wis., office, where she
Aid and Defender Association.
Michael K. Kuhn has
focuses on estate planning, probate, and
been selected as one of
charitable gift planning.
David P. Ferretti has been named among
Best Lawyers in America 2009 in corporate
the Best Lawyers in
America 2009 in the
W. David Paxton has
law and mergers & acquisitions law. He
field of real estate law.
been named to
is in charge of lawyer administration in
He is a partner in the
Virginia’s Legal Elite
the Charleston, W. Va. office of Spilman
Houston, Tex., office
by Virginia Business
Thomas & Battle.
of Jackson Walker,
magazine. He was also
where he focuses on commercial real
selected for inclusion
William M. Herlihy has been named in
estate, with a particular emphasis on
in the Best Lawyers in
Best Lawyers in America 2009 for corporate
office and retail leasing, in the firm’s real
America 2009 in labor
law, energy law, and natural resources law.
estate group.
David L. Kyger has been included in
and employment law. He is a partner in
He is a member with Spilman Thomas &
the Roanoke, Va., office of Gentry Locke
Battle in Charleston, W.Va.
Rakes & Moore.
Edward “Ned” Kelly was named chief
Best Lawyers in America 2009 in the area
of non-profit/charities law. He is in the
Greensboro, N.C., office of Smith Moore
1981
financial officer at Citigroup. On January
16, Citi announced senior management
changes to support the company’s
Leatherwood.
John Baker Boatwright III passed away
business realignment of Citi into Citicorp
Ely A. Leichtling has
on February 9 in Richmond, Va., leaving
and Citi Holdings. Kelly was previously
been named in Best
behind his wife, Allison, son, John Baker
head of global banking of Citi Private
Lawyers in America
Boatwright IV, and a multitude of close,
Bank and president and chief executive
2009 in labor and
loving friends.
officer of Citi Alternative Investments
employment law. He is
Boatwright practiced law at
in Citi’s Institutional Clients Group. He
a partner with Quarles
Morchower, Luxton and Whaley until
is a member of Citi’s senior leadership
& Brady in the
1985. He practiced solo from 1986 to
and executive committees. Prior to
Milwaukee, Wis., office.
1988. In 1988 he formed the law practice
joining CAI in February 2008, Kelly was a
of Boatwright and Linka and practiced
managing director at The Carlyle Group,
there until September 2002.
a private investment firm.
1980
From September 2002 to December
2007 he was named the first Capital
Blaine A. Lucas has been selected for
Leslie Jones has been named senior vice
Defender for the Central Region of the
inclusion in Best Lawyers in America 2009
president, general counsel of Children’s
Virginia Indigent Defense Commission.
in the areas of land use and zoning law, and
Healthcare of Atlanta, a not-for-profit
From January 2008 through August 2008,
municipal law. He is in the Pittsburgh office
pediatric health care organization, where
he was Special Capital Counsel of the
of Babst, Calland, Clements and Zomnir.
she will oversee the legal services and
Virginia Indigent Defense Commission.
risk management departments. Jones
Boatwright was an adjunct faculty
has a personal connection to Children’s;
member for VCU from 1988 to 1998 and
her daughter, who was cared for there
again in 2002. He was a member of the
after suffering a traumatic brain injury
Richmond Criminal Bar Association,
1982
William B. Baker has been elected to the
as a teenager, is now a junior at Stanford
Council of the American Bar Association’s
University. Jones was most recently of
section of science & technology law. He is a
counsel with Chorey, Taylor & Feil’s
partner at Wiley Rein in Washington, D.C.
health care practice.
66 | UVA Lawyer • Spring • 2009
Class
Notes
David Beck has been named chief legal
1983
Former Governor of Arizona Janet
Napolitano is the current Secretary of the
officer of the Golden Living family of
health care companies, with his principal
In December, Mark A. Bradley received
U.S. Department of Homeland Security,
office in Washington, D.C.
an Assistant Attorney General’s Award for
a Cabinet-level post in President Barack
supporting the national security mission.
Obama’s administration.
William H. Hines has
A member of the federal government’s
been named to New
senior executive service, Bradley heads
Andrew Sleigh LL.M. became a partner
Orleans CityBusiness’
the U.S. Department of Justice Office of
with Levy & McRae, a Glasgow-based
2009 Leadership in
Intelligence Oversight Section.
boutique firm of solicitors with an
international reputation. Sleigh will
Law. Honorees are
selected based on their
California plaintiffs’ attorneys Mike
establish a corporate and commercial
contributions to the
Danko and Terry O’Reilly have
law offering at the firm to complement
legal profession and
announced that they are ending a 14-
its market leading litigation practice. He
their contributions to the community. He
year partnership on April 1. Danko is
was previously a partner with Burness,
is listed in Best Lawyers in America 2009
establishing the Danko Law Firm and
a leading commercial legal firm in
in banking law, corporate law, insurance
will continue to focus on aviation cases,
Scotland, for 15 years.
law, international trade and finance law,
cases involving catastrophic injury, and
project finance law, and real estate law.
business torts.
Steven W. Sloan has been selected for
inclusion in Best Lawyers in America
Hines is a managing partner in the New
Betty S. W. Graumlich
2009 in labor and employment law. He
has been made
is a partner in the Dallas, Tex., office of
Jennifer Jordan McCall enjoys working
partner at Reed Smith
Thompson & Knight.
in trusts and estates with Pillsbury
in the Richmond
Winthrop Shaw Pittman in both Silicon
office. Her focus is on
Scott C. Thompson has been selected by
Valley and New York City. Her husband,
employment and
Best Lawyers in America 2009 in real estate
Jim, works in investments in new
labor law.
law. Thompson practices with Lowndes,
Orleans, La., office of Jones Walker.
Drosdick, Doster, Kantor & Reed of
technologies at Intel. “We love playing
golf in Scotland and Ireland in the
Dustin F. Hecker has been named
summer.” The couple has four children,
co-chair of the litigation section of the
two at Princeton and two high school
Boston Bar Association. He is a partner at
Craig Owen White has been elected to
seniors.
Posternak Blankstein & Lund in the firm’s
the board of directors of the International
Boston, Mass. office.
Senior Lawyers Project. He is a partner
In November, Cleo E. Powell was sworn
Orlando, Fla.
with Hahn Loeser & Parks in the
in as the newest judge of the Virginia
R. Marshall Merriman, Jr., is a managing
Cleveland, Ohio, office, where he focuses
Court of Appeals. She previously served
director at BlackRock Kelso Capital,
on publicly traded corporations and high-
as a general district and circuit judge in
a business development corporation
growth, privately owned concerns.
Chesterfield County.
headquartered in Manhattan that
provides financing to privately held
James S. Ryan III has
middle market companies. He lives in
been selected for
Richmond with his wife, Sarah, and
inclusion in Best
daughters, Claire and Laura.
Lawyers in America
1984
Reunion Year
In September, ForKids (a Norfolk, Va.,
non-profit that helps homeless families)
2009 for corporate law
Paula Campbell Millian lives in McLean,
opened the Marie and Paul Finch Center for
and mergers and
Va., with her husband, John, and children
Families and Children. “We have both been
acquisitions law. He is
Courtney (18), Andrew (16), and
very involved over the last three years with
a partner in the Dallas
Matthew (14). She is a legal recruiter with
ForKids, and are privileged to work with a
Finn & Associates and specializes in the
group of caring, professional individuals
Washington, D.C. legal market.
who achieve real long-term success in the
office of Jackson Walker.
local fight against homelessness,” writes
Marie Achtemeier Finch.
UVA Lawyer Spring • 2009
| 67
Class
Notes
Chip English joined Ober|Kaler’s
Senate Judiciary Committee. She became
and regulatory issues. Close lives in Park
Washington, D.C., office in the
staff director and chief counsel while he
Hill in Yonkers, N.Y., overlooking the
commercial litigation and government
was chairman.
Palisades and the Hudson River.
Michael J. Lockerby, a partner with
In October, Martha N. Donovan
J. Thomas Francis, Jr., is a member
Foley & Lardner, has been named chair
moderated a seminar for environmental
of the American College of Bond
of the litigation department in the firm’s
professionals entitled “New Jersey
Counsel. The College recognizes lawyers
Washington, D.C., office.
Going Greener: What to Expect from
relations practice.
the New Jersey Energy Master Plan.”
who have established reputations for
their skill, experience, and ethical
Mark Mamantov was
The program offered insights on the
conduct in the practice of tax-exempt
vice-chair for the Tax
proposed plan, in particular aspects
bond law. Francis is a partner in the
and Securities Law
related to sustainability, site remediation,
Birmingham, Ala., office of Balch &
Institute held
and greenhouse gas reduction. Donovan
Bingham, where he specializes in public
March 5–6 in
is co-chair of the Norris McLaughlin
finance law. He represents housing
Orlando, Fla. The
& Marcus environmental group in the
authorities, municipalities, counties,
institute is a technical
firm’s Bridgewater, N.J., office, where she
boards of education, and various other
seminar presented by
focuses her practice on environmental law
governmental entities, as well as banks,
the National Association of Bond Lawyers
and complex litigation with an emphasis
developers, and bond underwriters. He
and is for the most advanced practitioners
on the defense of environmental property
has been included in Best Lawyers in
in the field of tax and securities law for
damage and toxic tort claims.
America 2009, recognized in Alabama
public finance. He had previously chaired
Super Lawyers 2008, and named among
NABL seminars on Municipal Bond Law
In October, Daniel J. Dunne joined
Birmingham Business Journal’s Best of
and Bond Attorneys’ Workshop. He is a
Orrick Herrington & Sutcliffe as
the Bar 2007 in Public Finance. He lives
founding partner of Bass, Berry & Sims in
a partner, where he continues his
in Mountain Brook with his wife, Patty
the Knoxville, Tenn., office, where he
complex commercial litigation practice,
Francis ’86, who practices energy law
focuses his practice on financial
representing companies, directors,
with El Paso Corporation, and his son,
transactions, with special emphasis on
officers, and major accounting firms
Joey (16), and daughter, Katherine (12).
tax-exempt finance, commercial lending,
in securities and corporate governance
Timothy B. Goodell has been appointed
and real estate. He was selected for
litigation, internal investigations, and
senior vice president and general counsel
inclusion in Business Tennessee’s Best
class action disputes. He has particular
of Hess Corporation, a global integrated
Lawyers 2009 in the area of public finance.
expertise in matters involving financial
institutions with significant mortgage-
energy company headquartered in New
York. Goodell had been partner with
David M. Rosenberg has been selected for
related assets. He continues to live in
White & Case, joining the firm in 1984.
inclusion in Best Lawyers in America 2009
Seattle, Wa., with his wife of 20 years,
in the area of non-profit/charities law.
Layne Presho, and their two daughters,
Cynthia C. Hogan is serving as counsel
He was recently named a member of the
Carly and Mallory.
to Vice President Joseph Biden. She has
Catholic Foundation’s Board of Trustees,
been a legal advisor to Biden for almost
where he will serve a three-year term. He
In March, University of Tokyo Law
20 years, having joined his staff in 1991 as
is a partner in the Dallas, Tex., office of
Professor Yuji Iwasawa S.J.D. was elected
counsel for constitutional law on the U.S.
Thompson & Knight.
as the chairperson of the Human Rights
Committee under the International
1985
WANTED:
A few good annual giving
volunteers
Join the Law School’s volunteer team.
Contact Helen M. Snyder ’87
helensnyder@virginia.edu
434-924-4668
68 | UVA Lawyer • Spring • 2009
Covenant on Civil and Political Rights
for a term of two years. The Committee
meets three times a year for three weeks
After working at The American Lawyer
magazine for ten years as editor of two
of the company’s magazines, John Close
started his own in 1999. The M&A
Journal covers mergers and acquisitions,
including the Delaware courts, proxy
fights, prominent jurists and dealmakers,
each time in Geneva and New York.
Class
Notes
Paul Lombardo is a professor of law in
The work deals with a myriad of issues,
the Center for Law, Health and Society
including animal rights, dairy pricing,
at the Georgia State University College
and general regulations.
of Law. His book, Three Generations, No
1988
Bill Berlin has been selected as one of
ten lawyers from the whole nation to be
Imbeciles: Eugenics, the Supreme Court
Edward Rogers has joined Arent Fox as a
included in Nightingale’s Healthcare News
and Buck v. Bell, was published in 2008.
partner in the Washington, D.C., office.
2008 ranking of “Outstanding Healthcare
In February, Lombardo traveled to Rome
He practices in the area of real estate
Antitrust Lawyers.” Berlin is a principal
to speak at a conference at the Vatican
development and commercial finance,
in Ober|Kaler’s health law and complex
on “New Frontiers of Genetics and the
with a focus on the development of large-
civil litigation groups.
Danger of Eugenics,” sponsored by the
scale, mixed-use projects.
Julian Abele Cook, Jr., LL.M., senior
Pontifical Academy for Life. (See In Print)
1986
judge of the U.S. District Court, Eastern
1987
District of Michigan, Detroit, received
the prestigious Honorable William J.
Doug Beck lives in Denver, Colo., with
Brennan, Jr., Award at the 28th Annual
Randolph Beales remains a judge on the
his wife, Karen, and their daughter, Dori
National Trial Advocacy College at the
Court of Appeals of Virginia. “The big
(4). He is currently vice president, deputy
Law School in January. The Brennan
news in our family is that my wife, Julie,
general counsel (global) for Molson Coors
Award, named after Justice William J.
and I had twins, born last year. They are
Brewing Company.
Brennan, Jr., of the Supreme Court of the
United States, recognizes outstanding
our fourth and fifth children and are just
a joy. We now have two sons and three
Elizabeth Finn
trial lawyers and members of the judiciary
daughters. (The girls won out on the ‘last
Johnson has been
for their invaluable contributions to the
play of the game!’)”
named chair of the
Trial Advocacy College and the legal
board of the Study
profession.
George Doumar’s firm, the Doumar Law
Hall, a non-profit
Group, just celebrated its fifth anniversary
after-school program
Brant O. Gardner has
in Arlington, Va. The firm primarily
that serves
been recognized as a
handles business litigation. Doumar is the
kindergarten through
“2008 Five Star Best in
father of four teenagers, Lia (17), Celine
fifth grade children and families in the
Client Satisfaction-
(16), Albert (15), and Karim (13). He
Peoplestown community of South
Health Manager” and
coaches Karim’s little league basketball
Atlanta. She has served on the board since
was recognized in the
team—which at one point had a 22-game
2004. Finn Johnson also serves on the
October issue of
winning streak.
boards of the Women’s Resource Center
Indianapolis Monthly.
to End Domestic Violence, Street Law
He is a partner at Baker & Daniels,
Bill Eigner was recently noted among
Inc., and the Atlanta Bar Association
practicing in the trusts and estates group
those destined to be newsmakers in 2009
Foundation. She is senior litigation and
in the Indianapolis, Ind. office.
by San Diego Metropolitan magazine,
employment counsel with the Coca-Cola
which referred to him as the “go-to guy
Company in Atlanta.
for emerging companies.” He was also
Pete Johnson transferred to the
environmental team after 20 years on the
selected for the Daily Transcript’s San
David Keesler was selected as the
litigation team at Hunton & Williams
Diego County Top Attorneys for 2008 for
inaugural recipient of the Charlotte Latin
in Richmond, Va. He will focus on
corporate transactional law. This involved
School Distinguished Alumnus Award.
environmental litigation after making the
a lengthy peer voting process that asked
He currently serves as a U.S. Magistrate
move.
San Diego County lawyers to name those
Judge in Charlotte, N.C. He and his wife,
among their peers who were worthy of
Susan, have two daughters, ten and eight.
recognition.
Matthew Myers retired from the U.S.
Army Judge Advocate General Corps
as a lieutenant colonel in June of 2007.
Judy Gleason is thoroughly enjoying a
Myers is now a diplomat assigned to the
position as ‘in-house’ counsel for the
U.S. Consulate in Ciudad Juarez, Mexico.
New Jersey Department of Agriculture.
In July he will be assigned to the U.S.
Embassy in Manila, the Philippines.
UVA Lawyer Spring • 2009
| 69
Class
Notes
J. Marshall Page is a partner at Jones
Smith Leads NFL
Players Association
Walker in New Orleans. Page is the
practice group leader of the business and
banking department.
1989
The National Football League
Reunion Year
Players Association announced
DeMaurice Smith ’89 has been named
David N. Cohan, an
the new NFL Players Association Executive
attorney with the
Director. NFLPA Player Representatives
Virginia law firm of
acting on behalf of the 32 NFL teams
Gentry Locke Rakes &
selected Smith to succeed the late Gene
Moore in Roanoke,
Upshaw, who died in August. Smith
has been selected to
becomes only the third executive director
serve a three-year
in NFLPA history and will serve a three-year
term.
term on the
Intellectual Property & Information
“I’m humbled by their decision. I’m honored and proud to lead a great group of men,”
Technology Section Council of the
Smith said. “I think we understand the challenges that face us but we also understand
Virginia Bar Association. Cohan’s term
the strength of our unity.”
took effect January 23 during the
Association’s Annual Meeting.
The NFLPA’s constitution requires that the executive director be elected by a majority
of the members of the Board of Player Representatives. Smith was unanimously elected
to the position.
Keith H. Johnson has
Smith was selected from among three other finalists for the position: former NFLPA
been named one of
presidents Trace Armstrong and Troy Vincent, and sports attorney David Cornwell.
Business North
The four finalists were given the opportunity to speak directly to the 70 player
Carolina magazine’s
representatives and alternates. They then met with player reps in smaller break-out
Legal Elite in the
sessions before the official election took place.
environmental
“The Board of Player Representatives made a decision that will chart the course of this
category. He is a
organization,” NFLPA President Kevin Mawae said. “This decision is a legacy decision. It is
partner with Poyner
one that will unify and strengthen the National Football League Players Association.”
Spruill in Raleigh, N.C.
Smith, 45, had been a trial lawyer and litigation partner at Patton Boggs in
Washington, D.C. He has defended individuals in high profile criminal cases and
1990
Congressional investigations while also representing Fortune 500 companies in criminal
and complex civil cases, compliance matters, and internal investigations. A former
Assistant U.S. Attorney, Smith previously served as counsel to then Deputy Attorney
Kent Clayton is chairman of the business
practices group of Berger Kahn, a
General Eric Holder in the U.S. Department of Justice.
“Inside or outside of the courtroom, DeMaurice Smith is a superstar,” said
California-based midsize law firm with
Stuart M. Pape ’73, managing partner of Patton Boggs. “The sharp intelligence, striking
offices in Los Angeles, San Francisco,
eloquence and intense dedication that make him the outstanding lawyer that he is,
San Diego, and Irvine. Kent practices
will certainly serve the NFL players well. They are very wise to have elected such an
securities law, technology and intellectual
impressive leader. We are extremely happy for him and wish him all the best in his
property law, and mergers and
exciting new endeavor. We will miss him as a colleague, but even more as a friend.”
acquisitions law. He lives in Irvine with
his wife, Junko, and his daughter, Sara
(15). Kent still plays bass guitar from time
to time around the Orange County area.
John Edgar joined Ober|Kaler’s estates
and trusts group. He currently chairs
the estate and trust law section of the
Maryland State Bar Association, and is a
fellow of the American College of Trust
70 | UVA Lawyer • Spring • 2009
Smith, who is married with two children, will begin his term with the NFLPA
immediately and will work out of the Association’s Washington, D.C. office.
Class
Notes
and Estate Counsel. He also serves on the
serving in a variety of positions in the
Ted Mathas has been
Baltimore Estate Planning Council.
Department of Justice, most recently
named chairman of
in the appellate section of the criminal
the board of directors
division.
of New York Life
Sean Gertner spent “an interesting year”
starting a new firm—now up to three
Insurance Company,
partners and three associates. The bulk of
Mike Lincoln has been crowned the “go-
effective June 1.
his work involves representing municipal
to guy” for venture deals and mergers and
Mathas has served as
governments, elder law, zoning and
acquisitions in the Washington Business
land use, and commercial litigation and
Journal’s listing of top Washington
president since July 2007 and CEO since
transactions.
lawyers in corporate finance. After
July 2008. He will retain both titles when
founding Cooley Godward Kronish’s East
he assumes the chairman’s role in June.
Brian Hansen has
Coast office in 1999, Lincoln has been
He and his wife, Keryn, live in Armonk,
been elected partner
involved in a “significant share” of the
N.Y., with their three children.
in the Boise, Idaho,
venture capital deals in the Washington
office of Holland &
area. In addition to VC deals, Lincoln
For the past five years, Robert A.
Hart. Hansen has
focuses on public and private offerings,
Matthews, Jr., has maintained his patent
experience in a broad
M&A, and representing technology and
law practice from his home “thanks to the
range of business and
emerging growth companies. Lincoln
wonders of modern technology.” Seeking
commercial matters,
was also named a Super Power in
to pursue more of a patent law consulting
including mergers and acquisitions,
Washingtonian magazine, as well as one of
practice than one of a traditional patent
securities, licensing and technology, and
the top dealmakers by Legal Times.
litigator, in May 2007, he joined several
former colleagues of Finnegan Henderson
real estate. He previously served as senior
vice president and general counsel of
MPC Corporation.
New York Life’s
to form Latimer, Mayberry and Matthews
1992
IP Law. In his new firm, Matthews
provides legal consulting services to
Ronald J. Tenpas joined Morgan, Lewis &
Maxwell Taylor Kennedy has written
law firms and/or corporate counsel on
Bockius as a partner in the firm’s litigation
a new book entitled Danger’s Hour: The
all facets of U.S. patent law and patent
practice in Washington, D.C. Tenpas
Story of the USS Bunker Hill and the
litigation. His seven-volume patent law
focuses his practice on environmental
Kamikaze Pilot Who Crippled Her. The
treatise, the Annotated Patent Digest, will
litigation and counseling. Prior to joining
book recounts the devastating attack
soon enter its fourth year of publication,
Morgan Lewis, Tenpas was the Assistant
on the U.S. ship that occurred on May
and has been steadily gaining popularity
Attorney General for the Environment
11, 1945, just days after the Japanese
among patent practitioners and district
and Natural Resources Division at the U.S.
surrendered. Kennedy is a maritime
court judges. His second patent law book,
Department of Justice.
historian and currently serves as associate
the Patent Jury Instruction Handbook, was
scholar of the John Carter Brown
published in October by Thomson-West.
Tom Repke is a partner in the
Library at Brown University. He lives
Matthews enjoys a quiet life away from
Washington, D.C. office of McDermott
in Los Angeles, Calif., with his wife and
big firm practice and urban sprawl in the
Will & Emery in the firm’s corporate
children. (See In Print)
hills of Forest, Va., with his wife and two
daughters. (See In Print)
department. His wife, Karla Palmer,
is also a partner in McDermott’s trial
Clifford F. Kinney, Jr.,
department. Tom and Karla are busy with
has recently rejoined
Kim Reisler writes, “So, Thelen (what
their four children, Hannah (13), Jack
Spilman Thomas &
started for me as Reid & Priest in summer
(11), Graham (4), and Mackie (2).
Battle as counsel in
of ’91) dissolved December 1, after
the Charleston, W.Va.,
approximately 80 years. Along with my
office, where his
group of other utility finance lawyers, I
primary areas of
moved to Morgan, Lewis & Bockius to
practice are general
join the business and finance department.
1991
Jeffrey P. Singdahlsen has been named
litigation, class actions, mass torts, toxic
MLB has been incredibly welcoming,
associate general counsel for legal
torts, construction litigation, and
which is awfully kind in the face of the
policy in the Securities and Exchange
alternative dispute resolution.
broader economic times!”
Commission’s Office of the General
Counsel. He rejoins the agency staff after
UVA Lawyer Spring • 2009
| 71
Class
Notes
1993
1994
Reunion Year
Kevin A. Maxim left Troutman Sanders
in December and opened the Maxim
Mark E. Freitag has
Fran Cannon
Law Firm in Atlanta on New Year’s Day.
been made partner in
Slayton’s debut novel,
The firm serves the litigation and other
the Atlanta office of
When the Whistle
legal needs of businesses throughout
Locke Lord Bissell &
Blows, is coming out
Georgia, Alabama, and the Southeast.
Liddell, where he
with Penguin’s
Kevin’s wife, Adrienne (née McCullough),
focuses his practice on
Philomel Books
and children, Hampton (8) and Sophia
life settlements,
imprint on June 11.
(5), are excited about this new family
It’s a coming of age
business. The Maxims are often in
premium finance,
insurance, private debt, corporate
novel about a boy growing up in a 1940’s
Norfolk visiting family and would enjoy
finance, and other transactional matters.
train town and his adventures every
catching up with classmates there or in
Halloween from the ages of 12 to 18 as he
Atlanta.
George Kliavkoff has been named
discovers more and more about his
executive vice president and deputy
crotchety old dad, who is a member of a
John F. Phelps LL.M. is currently chief
group head of Hearst Entertainment &
secret society. The book was inspired by
executive officer/executive director of the
Syndication. Kliavkoff is charged with
stories Fran’s father told her as a kid about
state bar of Arizona. He recently served as
leading the digital expansion of Hearst
his childhood adventures growing up in
chief of staff of the U.S. General Services
Entertainment & Syndication, the
Rowlesburg, W.Va. in the 1940s.
Administration in Washington, D.C.
operating group responsible for Hearst’s
Fran hopes to see lots of old friends
interests in cable television networks,
as she heads across the country on a
Mary Porter is the founder and president
including ESPN, Lifetime, A&E, and the
book tour in June and July. Please stop
of the Curiosity Zone, a hands-on science
History Channel; television production
by and say hi if you’re in one of these
center for young children in Ashburn, Va.
and distribution; newspaper syndication;
areas: Charlottesville, Va., June 13,
Her company coproduced and recorded
and merchandise licensing. Kliavkoff
Alexandria, Va., June 20, Lynchburg, Va.,
“Swamp Stomp Boogie: Science You Can
was most recently chief digital officer at
June 27, Charleston, W.Va., June 29,
Sing To,” recently featured in USA Today
NBC Universal, where he was part of the
Columbus, Oh., June 30, Cincinnati, Oh./
as a recommended album for children.
team responsible for the success of Hulu.
Ft. Thomas, Ky., July 1, Indianapolis, Ind.,
A former associate with Gibson, Dunn
com, NBCU’s online video joint venture
July 2, Chicago, Ill., July 8.
& Crutcher, Porter uncovered her own
with News Corp., playing a key role in its
For tour details, or to contact
entrepreneurial skills while working
conception and design. Prior to joining
Fran, see her Website at www.
at the Answer Network, a technology
NBC in August 2006, Kliavkoff served as
FranCannonSlayton.com or via Fran@
startup in Seattle, Wa., in the 1990s. She
executive vice president, business, Major
francannonslayton.com. (See In Print)
was quoted in an article in the December
League Baseball Advanced Media, Major
issue of the National Law Journal entitled
League Baseball’s interactive media and
Bret Gifford is a staff attorney for the
“Is the Versatility of a Law Degree Just
Internet company.
Supreme Court of New Hampshire. He
a Myth?” in which she affirms that her
lives in Manchester with his wife, Doreen,
experience as an antitrust lawyer gave
and their daughter, Maeve (7).
her the self-assurance to start up her
Bob Yates III continues to practice law
own company. “Once you’re a lawyer,”
with LeClairRyan and is managing
partner of the firm’s Charlottesville
M. Christine Klein has
she said, “you can’t be intimidated in
office. He was selected for inclusion in
been promoted to
business. It helps you see around corners.”
Best Lawyers in America 2009 for personal
counsel in the
injury litigation. Bob’s son, Harry, is now
Richmond office of
Richard Winston
a freshman at the University of South
Hunton & Williams.
joined the Miami
Carolina, and his daughter, Emily, is in
She is a member of the
office of K&L Gates as
the ninth grade.
global competition
a partner in the firm’s
practice group, where
international tax and
72 | UVA Lawyer • Spring • 2009
she focuses on antitrust matters,
corporate practices.
franchising and distribution disputes,
Winston joins K&L
business torts, intellectual property, general
Gates from Hughes
civil litigation, and appellate advocacy.
Hubbard & Reed.
Class
Notes
Carole Yeatts Timberlake and her
1996
Scott Surovell was elected chairman of the
Fairfax County Democratic Committee in
husband, Brent, welcomed Sarah Grace on
After a spending a little over a year as
January and was named a 2008 Virginia
the senior legal officer at the Global
“Rising Star” by Virginia Super Lawyers
Fund to Fight Aids, Tuberculosis and
magazine for the second year in a row. He
Malaria, Issa Matta has re-joined the
continues to practice civil, commercial,
World Health Organization in Geneva,
and criminal litigation in Fairfax, Va.,
Janice Johnston recently won her second
Switzerland, as the senior legal officer in
with Robert Surovell ’69, David M. Levy
Emmy Award. After nine years at Good
the Office of the Legal Counsel, working
’70, David J. Fudala ’79, J. Chapman
Morning America she joined the team
primarily on public health partnerships
Petersen ’94, and Brian F. Chandler ’01.
at 20/20 and is looking forward to the
and governance as well as commercial
He lives in Mt. Vernon, Va., with his wife,
opportunities and creative growth that
and contractual matters. Matta resides in
Erinn Madden, and his four children.
lie ahead.
Divonne les Bains, France, with his wife
September 29. She joins brother Sam (2).
1995
and three children.
In October, Attorney General Michael
1997
B. Mukasey and Deputy Attorney
Viva Moffat, assistant professor of law at
General Mark R. Filip presented John
the University of Denver’s Sturm College
Brian W. Byrd has
T. Kavanaugh, Jr., with the Attorney
of Law, was featured in the Denver
been included in Best
General’s Award for Exceptional Service,
Business Journal in an article about
Lawyers in America
the Department of Justice’s highest award.
the fast-growing sector of intellectual
2009 for real estate
Kavanaugh was honored for his work as a
property law. Moffat teaches classes on IP
law. He has also been
member of the team that investigated and
and contracts.
named one of Business
prosecuted Jose Padilla, Adham Hassoun,
North Carolina
and Kifah Jayyousi for supporting Al
Kevin Mottley is proud to announce
Qaeda and other terrorist organizations.
the opening of his new litigation firm,
in 2009 in real estate. He is in the
The highly complex prosecution lasted
The Mottley Law Firm, located in
Greensboro office of Smith Moore
five years.
the Richmond, Va., area. (See www.
Leatherwood.
magazine’s Legal Elite
mottleylawfirm.com)
Fourd Kemper has become vice
Laura Deddish Burton has been
president and general counsel of Luna
Jessica Pardi and her husband, Bobby
included in Best Lawyers in America
Innovations, a public technology
Lanier, welcomed their first daughter,
2009 for immigration law. She is in the
company headquartered in Roanoke,
Elle Pardi Lanier, in February. The family
Greensboro, N.C., office of Smith Moore
Va. He remains of counsel with Woods
resides in Atlanta, Ga., where Jessica is a
Leatherwood.
Rogers. Kemper has two daughters, ages
partner at Morris, Manning & Martin.
Emily Giffin recently published her
six and eight.
Eric Perkins has been appointed to serve
fourth novel, Love the One You’re With,
Kraig James Powell was elected to
as chair of the national Tennis Rules and
which debuted at number two on the New
the Utah House of Representatives in
Regulations Committee for the United
York Times bestseller list. Film rights to
November. He began his service in
States Tennis Association (USTA), the
her first two novels were recently acquired
January.
national governing body for the sport of
by actress Hilary Swank. Giffin lives
tennis, with over 725,000 members. He
in Atlanta with her husband and three
Randall T. Shepard LL.M. has been
is a partner with Hirschler Fleischer in
children. She is at work on her fifth novel.
appointed to the Civil Rules Advisory
Richmond, Va., where he specializes in
Visit her at www.emilygiffin.com.
Committee by Supreme Court Chief
franchising, tax-exempt organizations,
Justice John G. Roberts.
Regulation D private placements, and
Kevin Holt returns to
sports and entertainment law. Perkins
Gentry Locke Rakes &
Joel and Gayle Trotter welcomed their
resides in Richmond with his wife,
Moore as partner in
sixth child, James Edward Trotter, into
Chrissie, and daughters, Alexandra (5)
the Roanoke, Va.,
their family in August.
and Madison (5 months).
office after having
served as general
counsel of a publicly
traded technology
UVA Lawyer Spring • 2009
| 73
Class
Notes
1998
company. He will handle commercial
in San Diego, Calif. He will oversee
litigation, including contract disputes,
administrative functions with the
trademark infringements, product
company, including corporate
Donald Bowman is U.S. operations
liability, and construction matters. His
development, managed care, finance,
manager with LEMO, a Swiss electronics
litigation experience spans several
legal, human resources, intellectual
company. He relocated to Sonoma
practice groups: commercial litigation,
property, and investor relations.
County, Calif., from Fairfax, Va., in 2007.
construction, and employment.
DexCom is a medical device company
focused on the design, development, and
Jeffrey Cimbalo, founder of the Cimbalo
Jeffery Hubbard was re-elected in
commercialization of continuous glucose
Firm headquartered in Richmond, has
November for an additional term on city
monitoring systems.
opened a new office in Brussels, Belgium,
council for the City of Bedford, Va.
near the Palais de Justice, and will travel
Mika and John Slaughter welcomed
there as needed in the coming months.
Coke Morgan Stewart has been named
triplets on February 18. The trio is healthy
counsel in the Washington, D.C.,
and their names are John IV, Maya, and
Jonathan C. Hamilton is a partner with
office of Kaye Scholer. She is a trial and
Emma.
White & Case. After working in the firm’s
appellate lawyer with a focus on complex
intellectual property disputes.
New York and Mexico City offices, he has
Wendy Yoviene joined Ober|Kaler’s
been based in Washington, D.C., since
Washington, D.C., office in the
2003. His practice focuses on international
Steven R. Pacelli has been appointed
commercial litigation and government
dispute resolution with a particular focus
to the newly created position of chief
relations practice.
on Latin America. His practice group is
administrative officer of DexCom
Alumni Event
The annual spring alumni luncheon held at the Yale
Club in New York City was attended by more than 120 alumni
and 15 admitted students. Dean Paul Mahoney, in addition
to his state of the Law School remarks, commented on the
high quality of students being accepted and how fortunate
for all that the alumni in attendance can share their personal
experiences with the students.
Clockwise, from top:
From left: Al Carney ’74, Elizabeth Scott ’76, Gigi Parris ’06, and
Jennifer Dacosta ’08.
From left: Jack Bissell ’65, William Halter ’64, and
Dan Rosenbloom ’54.
From left: Carlos Cruz-Abrams ’02, Allan Cohen ’97, and
Steve Malone ’97.
74 | UVA Lawyer • Spring • 2009
ranked at the top of its field nationally
Class
Notes
and globally. Most recently, he led the
energy, financial services, corporate &
representation of the Republic of Peru in
securities, telecommunications, life
a US $150 million investment dispute at
sciences and medical technology,
the World Bank. The case was a complete
Internet/e-commerce, and technology
victory for Peru. He continues to serve
practice areas of Jackson Walker.
Join the Law School’s volunteer team.
on the board of advisors of the Virginia
Journal of International Law.
WANTED:
A few good annual giving
volunteers
John S. “Jay” Darden serves as an assistant
Contact Helen M. Snyder ’87
chief in the fraud section, criminal division
helensnyder@virginia.edu
434-924-4668
Robert E. McGlarry is senior vice
of the U.S. Department of Justice. For
president, programming and business
his work prosecuting health care fraud
affairs for Major League Baseball
cases in Miami, he recently received
Network. He is responsible for all
the U.S. Attorney General’s Award for
program acquisitions as well as business
Distinguished Service, the second highest
coverage disputes and is a national co-
and legal affairs. On January 1, MLB
award given out by the Department.
leader of Dickstein Shapiro’s insurance
Network launched in approximately 50
Jay and Elise Bryant Darden ’95 live in
coverage initiatives.
million homes, the largest cable television
Alexandria, Va., with their two children,
launch in history.
Harper (7) and Corbet (4).
Gregory J. Phillips has been elected
The Federal Election Committee has
partner in the Cleveland, Ohio, office of
elected Matthew S. Petersen vice chairman
Amy Boyea and her husband, Brent,
Ulmer & Berne. He focuses his practice
for 2009. Petersen was nominated to serve
welcomed their third child, Emma
on complex commercial litigation,
as a commissioner by President George W.
Elizabeth, on August 9. Emma joined
including commercial contract disputes,
Bush and was unanimously confirmed by
older brothers David (5) and Ryan (2).
business torts, product liability defense,
the U.S. Senate.
The family resides in Arlington, Tex.
Michael C. Rakower, who opened his
Carlos Cruz-Abrams and his wife,
solo law office in New York in 2005,
Hilary, are pleased to announce the birth
Kevin Thomas Pigott has been elected
has expanded his firm. Rakower’s civil
of their son, Owen Finn Cruz-Abrams,
partner in the Washington, D.C., office of
practice focuses on commercial litigation
on November 6. Weighing in at 8 pounds
Womble Carlyle Sandridge & Rice, where
and civil rights actions in federal and state
7.5 ounces, Owen joins his older siblings,
he practices in the area of commercial
courts. His white-collar criminal defense
Robin (6) and Mason (4). They reside
real estate transactions. In September, an
practice focuses on the representation
in New York City, where Carlos is an
article he co-authored critiquing Treasury
of individuals facing state and federal
associate with Gibson, Dunn & Crutcher.
Secretary Henry Paulson’s $700 billion
investigations.
2000
antitrust, trade secret and non-compete
litigation, and appeals.
Andrew R. Gladin has been elected
bailout plan was published in National
Mark P. Rankin has
partner at Sullivan & Cromwell in the
been elected
New York office. His practice focuses on
Mary Quagliano Blunt has been elected
shareholder with
securities, mergers and acquisitions, and
probate judge of Dorchester County, South
Carlton Fields in the
other corporate matters for domestic and
Carolina. She will serve a four-year term.
Tampa, Fla., office. He
international clients in the banking and
is a member of the
financial services industry.
Review Online.
1999
Reunion Year
firm’s white collar
crime and
government investigations practice group.
Stephanie L. Chandler
Keri Holleb Hotaling has been made
partner in Jenner & Block’s Chicago
office. She is a member of the firm’s
has been recognized as
Andrew M. Weiner has been elected
environmental, energy and natural
a San Antonio “Rising
partner in Dickstein Shapiro’s insurance
resources practice, where she focuses
Star” for 2008 in Scene
coverage practice in the Washington,
on litigation and regulatory matters.
in S.A. Monthly. She is
D.C., office. He primarily represents
She is also a member of the litigation
a partner in the
corporate policyholders in insurance
department and its climate and clean
business transactions,
technology law and insurance litigation
intellectual property,
UVA Lawyer Spring • 2009
| 75
Class
Notes
and counseling practices. She represents
liability, and appellate groups. His
Joseph R. Baldwin
parties in Superfund and CERCLA
practice focuses on defending tobacco,
was recently named
matters nationwide.
pharmaceutical, and consumer product
counsel in the
companies in complex personal injury
litigation/controversy
Anna R. Palmer was recently made
lawsuits in state and federal courts. He is
department of
partner in the Atlanta, Ga., office of
co-chair of the trial advocacy program of
WilmerHale in the
Seyfarth Shaw. She is in the litigation
the Young Lawyers’ Division of the Bar
Washington, D.C.,
department and the construction
Association of Metropolitan St. Louis.
office. He is a member
of the intellectual property litigation
practice group, and her practice includes
construction law, commercial and general
Brian Wise and his wife welcomed their
business litigation, complex litigation,
daughter, Constance, on November 12.
practice group.
Dr. L. Wolfgang Berger LL.M. and
and class actions.
Kenya J. Reddy has
opera singer Rasa Marisiute were recently
2001
married in Rasa’s home town of Vilnius,
Lithuania. Michael Warner Kallus ’03 was
been elected
shareholder with
Michael Fitzpatrick married Helen Kim
pleased to attend the festivities and wish
Carlton Fields in the
of Alexandria, Va., on June 7. Taryn
the couple (especially Rasa) good luck.
Tampa, Fla., office.
Kiekow, Michael Hendershot, Donald
Her practice focuses
LeGower, Igor Purlantov, Charles Reed,
primarily on major
and Thomas Rust were in attendance.
commercial litigation,
The couple lives in Chicago.
with an emphasis in antitrust law and
class action defense.
Gunes F. Hopson was recently appointed
to serve on the Board of Governors of the
Melissa Sawyer has been elected partner
Virginia State Bar’s corporate counsel
with Sullivan & Cromwell in the New
section. She is director, assistant general
York office. Her practice focuses on
counsel in the legal department of Capital
corporate mergers and acquisitions and
One in Richmond.
private equity matters in the U.S. and
Thomas M. Wearsch
abroad.
has been elected
George W. Shuster,
partner with Baker
Jr., made partner in
Hostetler in the
the bankruptcy and
Cleveland, Ohio,
financial
office. His practice
restructuring practice
concentrates on
group of WilmerHale
bankruptcy,
in the Boston, Mass.,
restructuring, and creditors’ rights.
office. He focuses on
areas of bankruptcy, out-of-court
restructurings, and debt financing
Wolfgang Berger ’02 and Michael Warner Kallus ’03
Jeffrey C. Bollerman has left Citigroup to
join www.secondmarket.com. SecondMarket
is the world’s largest centralized
2002
transactions.
marketplace for illiquid assets, such as
limited partnership interests, auctionrate securities, bankruptcy claims, and
Terra K. Atkinson was named one of
restricted securities in public companies.
Samuel Waxman has been elected partner
the Charlotte Business Leader’s 2008
Bollerman will run the limited partnership
at Shearman & Sterling in the New York
Women Extraordinaire. She is a partner
interest marketplace.
office, where he practices in the firm’s
with Katten Muchin Rosenman in
intellectual property transactions group.
the Charlotte, N.C., office, where she
Meredith Caskey Parker and her
concentrates her practice in residential
husband, Andrew, welcomed their first
mortgage banking matters.
child, Olivia Catherine, on October 29.
Jason A. Wheeler has been elected to
partnership in the St. Louis, Mo., office of
Thompson Coburn, where he is a member
of the firm’s tobacco litigation, product
76 | UVA Lawyer • Spring • 2009
The family resides in Fairfax, Va.
Class
Notes
Peter and Kimberly Robertson and
2004
Reunion Year
their daughter Anne Rose welcomed
Laura Catherine to the family on
David A. Chandler LL.M. was invested
February 29, 2008.
as Mississippi Supreme Court Justice
in Starkville in January. Chandler
Reid Doolittle, the son of Noah Doolittle and his
wife, Jaime, at the Genesee River’s High Falls in
Rochester, N.Y.  The couple is expecting another
son in July.
Bill and Kathleen Hanlon Sinclair
served for eight years on the Court of
welcomed Edward Joseph (“Teddy”)
Appeals and as chair of the Court of
Sinclair on November 3, just in time for
Appeals rules committee and co-chair
Bill to vote in the Presidential election the
of the professionalism committee of the
next day. “Teddy is growing like kudzu
Mississippi bar. He serves as adjunct
and weighs more than some one-year-
professor at Mississippi College School
olds.” Bill, still at Beveridge & Diamond
of Law.
in Baltimore, is enjoying teaching an
international environmental law course at
The Georgia Court of
Paul DeLaney joined FedEx Express after
the University of Maryland School of Law
Appeals swore in the
three years working at the U.S. Trade
and has been invited to teach in the fall.
Honorable M. Yvette
Representative’s Office as deputy chief of
Kathleen is currently taking time off from
Miller LL.M. as the
staff. DeLaney has joined FedEx Express’
the law practice to care for Teddy, “a job
Court’s new Chief
new Washington, D.C., Office of Trade
far more challenging in many ways than
Judge on January 6, at
and International Affairs to work on trade
my legal practice was.”
the Georgia State
Capitol. Judge Miller
policies for the company.
Dusty Vogelpohl has joined Bryan
is the first African American woman to
Afi Johnson-Parris is pleased to
Cave as an associate in the Phoenix,
hold this position. Miller will focus on
announce the formation of the law office
Ariz. office. His practice in the firm’s
strengthening relationships between
of Afi Johnson-Parris in Greensboro,
intellectual property group involves
branches of state government and within
N.C. The practice will focus on family
counseling in patents, trademarks,
the appellate court; maintaining the
and divorce law and employment
Internet issues, copyrights, trade secrets,
viability of the court in difficult financial
discrimination.
and business transactions.
times; and establishing electronic filing
for the state Court of Appeals. First
James L. “Jay” Mitchell
is a shareholder in the
2003
appointed to the Court of Appeals in 1999
by Governor Roy Barnes, Miller has been
re-elected statewide, without opposition,
Birmingham-based
firm of Maynard,
Nick Boivin has joined the Boston office
for two six-year terms. Unanimously
Cooper & Gale, where
of Fish and Richardson. His practice
selected by her peers to serve as Chief
he practices general
emphasizes patent prosecution.
Judge for a two-year term, she will be
responsible for the administration of one
civil and commercial
Tristan Snell is with WilmerHale in
of the busiest appellate courts in the
wife, Elizabeth Bloodworth Mitchell, now
Boston, Mass., focusing on intellectual
country and will act as the head of the
have three children—a daughter, Tully (4),
property and appellate litigation. He
Court for ceremonial purposes and for all
a son, Jack (2), and a daughter, Claire
was part of the WilmerHale team that
communications.
(born in August).
tried the first habeas corpus hearings in
litigation. He and his
Boumediene v. Bush for detainees held at
Jake and A-J (Fershleiser) Secrist
Nicole Murray joined Quarles & Brady’s
Guantanamo Bay, winning writs for five
welcomed their first child, Frida Kathyrn,
intellectual property practice as an
of their six clients. Rumor has it that he
on December 4. Frida Kathryn was
associate in the Chicago office. Murray
rounded out 2008 with an appearance on
born weighing 6 pounds, 5 ounces, and
focuses her practice on intellectual
Jeopardy!, finishing a close second.
measured 19 inches. The family lives in
property litigation as well as trademark
Charlotte, N.C.
and copyright counseling.
UVA Lawyer Spring • 2009
| 77
Class
Notes
Sean S. Suder has been
Bordering on Madness: An American Land
John J. Engel is an associate in the business
named a 2009 Ohio
Use Tale, by Andrew F. Popper, a (not-
department of Richards, Layton & Finger
“Rising Star” in the
so) fictional account of the conflict and
in Wilmington, Del. Engel is a member
area of real estate. He
compromise that arises in development
of the real estate group, he focuses his
is in the Cincinnati
disputes. The supplement expands upon
practice on commercial site acquisition
office of Keating
the issues raised in the novel, using cases,
and development, leasing, land use, and
Muething & Klekamp.
scholarship, and case studies.
financing.
Christine and Matt Vermeeren welcomed
George Pence joined Sullivan and
Joseph M. Esmont has
their second child, Elise Rose, on April 26,
Cromwell as an associate in their Los
been named associate
2008. Matt, Christine, Sydney, and Elise
Angeles office. He and Tim Nolan
in the Cleveland,
enjoy living in San Diego while Matt works
occasionally meet up for a round of
Ohio, office of Baker
for Latham & Watkins.
golf. He recently took a day off to join
Hostetler.
Dan Bress and his new wife for a day at
2005
In October, David Avitabile was married
Disneyland.
Richard M. Gulbrandsen is an associate
2007
with Bryan Cave in the Phoenix, Ariz.,
office, where he is in the commercial
to Elizabeth Slade Shaw on Kiawah
Island, S.C. Liz is currently employed as
Jason S. Beaton has joined the litigation
in-house counsel to the Oprah Winfrey
department of Williams Parker Harrison
Foundations. The couple purchased a
Dietz & Getzen in the Sarasota, Fla., office.
litigation client service group.
Ryan S. Johnson has joined Leonard,
Street and Deinard in the firm’s
house in Arlington, Va., and are happily
settling into their new home. Rick Bettan
Chris Nasson is an associate at Choate,
Minneapolis, Minn., office, where he
was a member of the bridal party, and
Hall, and Stewart in Boston, Mass. He
focuses his practice on business and
David Thomas, Matthew Cooper, Mark
practices litigation.
commercial litigation.
Horowitz, Caroline Geiger ’06 and
David Reed ’06 were also in attendance
at the wedding. Dave continues to work
Sara E. (Bradshaw)
2008
Stinnett is an
as an associate in the real estate section
associate in the
at Pillsbury Winthrop Shaw Pittman in
Jeffrey Albertson has
transactions section of
Washington, D.C., where he practices
joined Oppenheimer
Jackson Walker in the
land use and zoning law. He also recently
Wolff & Donnelly in
firm’s Austin, Tex.,
co-authored a teaching supplement on
Minneapolis, Minn.,
office.
land use and zoning issues, which was
where he practices in
published in October. The teaching
the corporate finance
supplement serves as a companion to
& transactions group.
Upcoming
Alumni
Events
June 11Richmond Reception
The Jefferson Hotel
Richmond, Va.
June 20 Virginia Bar Association Meeting
Virginia Beach
June 24 Annual D.C. Luncheon
Mayflower Hotel
Washington, D.C.
For the latest on alumni events: www.law.virginia.edu/alumni
78 | UVA Lawyer • Spring • 2009
In
Memoriam
William H. File, Jr. ’37
Beckley, W.Va.
March 15, 2009
Henry S. Halprin ’49
New York, N.Y.
November 26, 2007
Richard Ayres Reid ’56
Lutherville Timonium, Md.
December 15, 2008
Archibald M. Smith, III ’66
Middleburg, Va.
January 3, 2009
M. Frazier King ’38
Bristol, Va.
August 19, 2008
James Blackwood Pearson ’50
Gloucester, Mass.
January 13, 2009
William P. Snedeker ’56
Highland Park, N.J.
September 8, 2008
John B. Dinsmore, Sr., ’69
Virginia Beach, Va.
January 22, 2009
Stephen Gano Palmer III ’39
Hudson, Wis.
January 14, 2009
Giles B. “Bim” Cook, Jr., ’50
Charlottesville, Va.
December 22, 2008
James Henderson Abrams, Jr., ’57 Paul Hopkins ’69
Summerville, S.C.
Seabrook Island, S.C.
March 9, 2009
September 20, 2008
Austin Cunningham ’40
Orangeburg, S.C.
January 26, 2009
John W. Keith, Jr., ’51
Richmond Va.
October 10, 2008
John W. “Jack” Gray, Jr., ’57
Alexandria, Va.
January 14, 2009
Charles W. Best, Jr., ’71
Virginia Beach, Va.
August 20, 2008
Hansell Merrill Pasco ’40
Richmond, Va.
November 28, 2008
Alice E. Watson ’51
Virginia Beach, Va.
September 22, 2008
William A. Johnston III ’57
Winchester, Va.
December 24, 2008
James Brown ’72
Pleasant Hill, Iowa
September 16, 2008
Kenneth H. Cudmore ’43
Denver, Colo.
May 2, 2008
Leroy T. Canoles, Jr. ’52
Norfolk, Va.
March 17, 2009
James E. Simpson ’57
Birmingham, Ala.
March 10, 2009
Leonard McCants ’72
Washington, D.C.
September 1, 2008
Dorothy Boucher ’46
Abingdon, Va.
January 21, 2009
Eugene Marshall Jordan ’52
Hampton, Va.
November 16, 2008
Joseph A. Gawrys ’58
Virginia Beach, Va.
December 8, 2008
Donald Joseph Schliessmann, Jr., ’72
Atlanta, Ga.
July 18, 2008
Beatty Jennings White ’47
Rock Hill, S.C.
October 28, 2008
Robert I. Parkes ’52
Marco Island, Fla.
October 13, 2008
Alexander “Sandy” Wellford ’58
Glen Allen, Va.
December 31, 2008
Ronald Scott Taylor ’75
Falls Church, Va.
January 18, 2009
Roland L. Banks ’48
Capistrano Beach, Calif.
November 16, 2008
Augus E. Peyton ’52
Charleston, W.Va.
December 18, 2008
Colin M. Dillon ’59
Atlanta, Ga.
February 20, 2009
George Douglas Hohein ’76
Alexandria, Va.
November 2, 2008
Harvey Holland, Jr., ’48
Frederick, Md.
October 6, 2008
Max C. Kennedy ’54
Charlottesville, Va.
January 23, 2009
Paul Moran, Sr., ’59
Cincinnati, Ohio
February 16, 2009
William Ray Lucas, Jr., ’80
Mountain Brook, Ala.
September 26, 2008
Alvin Buckner Trigg ’48
Lexington, Ky.
February 5, 2009
Reginald E. Francklyn ’55
Camden, S.C.
November 13, 2008
William Walker Stevenson ’59
Charlottesville, Va.
October 9, 2008
John Baker Boatwright III ’81
Richmond, Va.
February 9, 2009
Martha Sue Stokes ’48
Melbourne, Fla.
January 11, 2009
Robert R. Maynard ’55
Bristol, Conn.
December 23, 2008
Harold M. Hawkins ’62
Linden, Va.
September 3, 2008
Michael Mello ’82
White River Junction, Vt.
September 21, 2008
Charles R. Dalton, Jr., ’49
Norfolk, Va.
November 21, 2008
Joel A. Skidmore ’55
New York, N.Y.
October 25, 2008
Robert J. Sher ’65
Chevy Chase, Md.
March 5, 2009
Nathaniel D. Chapman II ’84
Alexandria, Va.
November 9, 2008
UVA Lawyer Spring • 2009
| 79
In Print
Non-Fiction
central questions: (1) what sort of a “rule
most needed book on public policy,”
of law” does today’s Chinese legal system
Life Without Lawyers’ urgent and elegant
China’s Legal Soul: The Modern
Chinese Legal Identity in Historical
Context
hope to achieve against its ages-old
argument is full of examples, often
John W. Head ’79
Carolina Academic Press
This new look at Chinese law and
society reflects the “triple anniversary”
Legalist-Confucianist background; and
darkly humorous.
(2) is there any modern correlative to the
He describes the
Imperial Confucianism that gave dynastic
historical and
China its “legal soul,” or is today’s China
cultural forces that
“soul-less,” as some would claim?
led to this mess, and
In addressing these questions,
he lays out the basic
that 2009 will mark for Chinese law
Head insists on looking beyond easy
shift in approach
reform. In 1979, the People’s Republic
assumptions and assertions found in
needed to fix it. Today
of China embarked on a dramatic new
much Western legal literature about
we are flooded with
phase of legal transformation; 30 years
China and its law; instead, he relies
rules and legal threats that prevent us
before that, in 1949, Mao announced
heavily on leading contemporary legal
from taking responsibility and using
the creation of the PRC itself, another
scholars at Chinese universities and their
our common sense. We must rebuild
moment of legal
views on politics, constitutionalism, and
boundaries of law that affirmatively
reorientation; and 30
rule of law in China.
protect an open field of freedom. The
Head is a professor of international
stories here will ring true to every reader.
1919, the May Fourth
and comparative law at the University of
The analysis is powerful, and the solution
Movement also had
Kansas, though this semester he is on a
unavoidable. What’s at stake, Howard
legal reform at its
Fulbright visiting professorship in Italy.
explains in this seminal book, is the
years before that, in
vitality of American culture.
core, as thousands
Howard, a partner of Covington
of protesters in
& Burling in New York City, is also one
refusal Western powers to acknowledge
Life Without Lawyers: Liberating
Americans from Too Much Law
that China’s legal system was no longer
Philip K. Howard ’74
reform, and works closely with public
inadequate and uncivilized.
W.W. Norton
officials, corporate executives, academics,
Beijing erupted at the
This claim—that China’s legal
In his latest book, the author of
of America’s leading proponents of legal
and judges across the country. He chairs
system is inadequate and uncivilized—
The Death of Common Sense and The
a nonprofit called Common Good
remains in play today, particularly in
Collapse of the Common Good reveals how
commongood.org, dedicated to restoring
respect of how China approaches the rule
Americans have handed over everyday
reliability to American law.
of law and human rights. Head’s new
decision-making to lawyers. From no-risk
book (following his earlier work, Law
playgrounds to doctors afraid of the legal
Codes in Dynastic China) examines these
ramifications of discussing a patient’s
issues by focusing on modern China’s
treatment plan in emails, we seem to be
“legal soul”—by which he means the
avoiding potential lawsuits at all costs.
Danger’s Hour: The Story of the USS
Bunker Hill and the Kamikaze Pilot
Who Crippled Her
set of fundamental and animating legal
“How did the land of freedom become
Maxwell Taylor Kennedy ’92
principles or values that give a society its
a legal minefield?” Howard asks. He
Simon and Schuster
unique spirit and character. His lively and
offers numerous anecdotes that support
insightful comparison of contemporary
his case, showing how today’s justice
were trained to become the ultimate
Chinese law with dynastic Chinese
system thwarts and confounds most
weapons of war. As kamikaze pilots they
law—readily accessible by (and written
Americans. Called by George Will “2009’s
made suicidal dives in bombers packed
for) non-specialists—addresses these
80 | UVA Lawyer • Spring • 2009
In World War II, Japanese officers
with explosives, causing catastrophic
In Print
damage to their
to the point of becoming deeply versed
but through another form of natural
targets. On May 11,
in the esoterica of Eastern mysticism,
selection: that propagated through
1945, soon after the
Gnosticism, and alchemy.
culture itself.
Taken collectively, Jung’s works
Lawson left the practice of law in
in World War II, a
develop a coherent theory about how
1992. This book is the outgrowth of an
pair of kamikaze
the psyche is constructed, including an
interest he has long held in mythology
pilots targeted USS
idea of how consciousness emerged as a
and psychology and the connection
Bunker Hill, one
part of it. The author demonstrates that
between the two.
of America’s most
Jung’s concept of a collective unconscious
Japanese surrendered
powerful aircraft carriers. They destroyed
structured by archetypes meshes well
100 American aircraft and killed or injured
with accepted views of evolution and can
more than 700 Americans.
be squared with the most rigorous science
of today. So taken, Jung’s work is of
Three Generations, No Imbeciles
Eugenics, the Supreme Court, and
Buck v. Bell
through the stories of the kamikaze pilots
unrivaled explanatory power and opens
Paul A. Lombardo ’85
and the men aboard the USS Bunker Hill
new vistas for understanding who we are
The Johns Hopkins University Press
on that fateful day. With quotes from
and how we function.
Kennedy chronicles the episode
letters, diaries, and extensive interviews
with survivors, the author recounts the
It is accepted that everything
in biology can be explained through
In the landmark 1927 case Buck v.
Bell, the U.S. Supreme Court ruled that
states could forcibly sterilize citizens as
period in vivid detail, and helps readers
Darwinian evolution
a means of preventing “feebleminded
understand the destructive force of
except the human
and socially inadequate” people from
terrorist attacks in modern times. Readers
mind. Jung’s theory
having children. In 1924, Carrie Buck
will find multimedia content related to
contemplates that the
was institutionalized against her will
the book, including video footage of the
collective unconscious
after she was raped
ship on fire and interviews with kamikaze
evolved through
and impregnated.
pilots, at dangershour.com.
natural selection just
Judging the woman,
as instinct did. From
her mother, and her
this uniform, inherited
daughter mentally
Kennedy is currently a research
fellow at the John Carter Brown Library
for Advanced Research in History and the
unconscious, consciousness arose and
defective, the state
Humanities at Brown University. He lives
the rapid expansion of consciousness
of Virginia wanted
in Los Angeles with his wife and children.
over the last 6,000 years can be traced
to sterilize her to
in the various cultures in which it has
prevent further
been embodied. Indeed, Erich Neumann,
generations of mentally incompetent
Carl Jung, Darwin of the Mind
Jung’s brilliant successor, has charted this
offspring. In the Supreme Court decision,
Thomas T. Lawson ’65
evolution through the myths and rituals
Justice Oliver Wendell Holmes Jr.
Karnac Books, London (U.S. distributor is
of successive phases of culture.
declared, “Three generations of imbeciles
Stylus Publishing)
The author enlarges upon Jung’s
are enough.” Sympathy for the eugenics
Jung explored the human psyche
and Neumann’s findings by showing that
movement had prevailed, and Carrie Buck
throughout his long life. His writings
the evolution of consciousness must have
was sterilized.
elaborate on imagery that can be found
occurred not through genetic selection as
in rituals, myths and fables worldwide
with that of the collective unconscious,
Lombardo’s years of research,
including the last interview with Carrie
as well as in the dreams, visions and
Buck before she died, the honor roll
fantasies of his patients and himself. Jung
grade book of her daughter, and private
pursued common threads of meaning
correspondence of the lawyer who was
UVA Lawyer Spring • 2009
| 81
In Print
Robertson researched a wealth of
named to represent her, support the
tool that guides patent lawyers through
conclusion that the Buck case was a fraud,
the process of creating legal arguments
primary resources to uncover the history
initiated to hide the shame of a poor girl,
and briefs for patent litigation. It provides
of the esteemed organization. He served
pregnant after she had been raped.
the information needed to determine
as NYCLA’s 54th president, from 2006-
whether to cite a case in a letter, brief, or
2007, and is a partner at Cadwalader,
stage for more than 60,000 operations
other document and is a key reference
Wickersham & Taft in New York City.
in the United States and was cited at
for writing opinion letters and responses
the Nuremberg trials in defense of Nazi
to office actions by the U.S. Patent and
sterilization experiments, it has never
Trademark Office.
Although the Buck decision set the
career of Buck in American memory, as a
Mayberry & Matthews Intellectual
Taking Sports Seriously: Law and
Sports in Contemporary American
Culture
potent symbol of government control of
Property Law in Blacksburg, Va., where
Jeffrey Standen ’86
reproduction and a troubling precedent
he provides patent litigation consulting
Carolina Academic Press
in the human genome era. “Three
services to corporations and law firms
Generations, No Imbeciles is a must read
regarding all aspects of U.S. patent
to the common
for anyone who wants to understand the
litigation and pre-litigation analysis.
“wisdom” that
been overturned. This book tracks the
The author is a partner with Latimer,
Contrary
historical context of Buck v. Bell and its
people take sports
implications for ethics, law and public
too seriously today,
Brethren and Sisters of the Bar: A
Centennial History of the New York
County Lawyers’ Association
Jeffrey Standen
at Georgia State University College of
Edwin David Robertson ’71
enough. Without
Law. He has played a key role, as both a
Fordham University Press and the New
historian and a lawyer, in the movement
York County Lawyers’ Association
policy,” according to a review in the New
England Journal of Medicine.
Lombardo is a professor of law
to solicit state apologies and legislative
Edwin David Robertson’s book
argues that we don’t
take them seriously
taking sports as
seriously as we do law and public policy,
he explains, we will have a difficult, if
denunciations of past eugenics laws.
celebrates the 100-year history of a
not impossible time fixing the problems
Supplemental material is available at
pioneering organization that has been
in contemporary sports. This collection
buckvbell.com.
front and center in public debates over
of essays offers an unflinching take on
important legal
the salient legal issues from the world
issues, including
of sports, including player violence, fan
Patent Jury Instruction Handbook
legal ethics,
injuries, free agency, player agents, drug
Robert A. Matthews ’92
the defense of
testing, athletes as role models, gambling,
Thomson West
indigents, the right
and other hot-button topics. Each essay
to counsel, judicial
provides background information on
A. Matthews provides a comprehensive
selection, and just
the issue, poses the relevant problems
sampling of annotated jury instructions
compensation
provocatively, and presents surprising
for judges and
resolutions sure to generate reflection
In his most recent book, Robert
used in patent
infringement actions. He
employees of the courts. Here are
and discussion. Written in a fast-paced,
details the legal issues
stories of the legions of lawyers who, in
accessible style that unpacks jargon, this
most often implicated
the association, successfully faced the
book brings sophisticated legal analysis to
in patent infringement
challenges of their profession and created
bear on the problems of sports.
trials and offers expert
a powerful community of shared interests
guidance through the
and commitments. The New York County
of law at Willamette University
complex process. It
Lawyers’ Association, founded in 1908,
in Salem, Ore. His website,
includes model jury
was the first major bar association in the
thesportslawprofessor.blogspot.com, is
country that admitted members without
dedicated to the complete integration of
regard to race, ethnicity, religion, gender
sports and law.
instructions from the American
Intellectual Property Law Association.
Matthews’ recently updated, sevenvolume treatise on patent law, Annotated
Patent Digest, is in its fourth year of
publication. It is an invaluable research
82 | UVA Lawyer • Spring • 2009
or sexual identity.
The author is a professor
In Print
Fiction
First Family
When the Whistle Blows
Lethal Legacy
Fran Cannon Slayton ’94
Linda Fairstein ’72
Philomel Books
Knopf Doubleday
Jimmy lives in Rowlesburg, W. Va.,
In Linda Fairstein’s new novel, the
David Baldacci ’86
during the 1940s. He does all the things
New York Public Library houses dazzling
Grand Central
boys do in the small mountain town:
treasures—and deadly secrets.
David Baldacci’s latest King and
plays a mean game of football, pulls the
When Assistant District Attorney
Maxwell thriller begins with a children’s
unforgettable Halloween prank with his
Alex Cooper is summoned to Tina Barr’s
birthday party that seems at first like
friends in “the Platoon,” and promises to
apartment on Manhattan’s Upper East
any other—except
head off into the woods on the first day
Side, she finds a
this one is at the
of hunting season—no matter what. He
neighbor convinced
Presidential retreat
also knows his father belongs to a secret
that the young
Camp David. All the
society, and is determined to uncover the
woman was assaulted.
fun and games end
mysteries behind it! But it is a midnight
But the terrified
abruptly when a child
encounter with a train that shows Jimmy
victim, a conservator
is kidnapped, and
the man his father really is.
of rare books and
a national security
Newcomer Fran Cannon Slayton’s
maps, refuses to
powerful first
nightmare begins.
cooperate with
Against the wishes of the FBI, former
novel captures
investigators. Then another woman is
agents Sean King and Michelle Maxwell
the serendipity of
found murdered in that same apartment
are drawn into the investigation by the
boyhood by shining a
with an extremely valuable book, believed
First Lady, and the race is on to save the
spotlight on the peak
to have been stolen. As Alex pursues the
child. With Michelle still battling her
adventures of Jimmy’s
murderer, she is drawn into the strange
own demons, and forces aligned on all
life. But at its heart,
and privileged world of the Hunt family,
sides against them, the two are pushed to
this is a story about a
major benefactors of the New York
the absolute limit. In the race to save an
boy and his father in a
Public Library and passionate rare book
innocent victim, the line between friend
and foe will become impossible to define
time when trains reigned supreme.
“When the Whistle Blows is
collectors.
Eventually Alex connects their
reminiscent of classic tales by Jack
internal family rivalries to a priceless
London, William Golding and Robert
edition of Alice in Wonderland, which also
Virginia and have founded the Wish You
Louis Stevenson, yet carries the
contains the world’s oldest map. Would
Well Foundation, a nonprofit dedicated
remarkable, fresh voice of its author. Fran
one of the well-bred Hunts be willing
to supporting literacy efforts in America.
Cannon Slayton should be extremely
to kill for the treasures? The search for
Visit his Web site at DavidBaldacci.com.
proud of this, her debut novel,” writes,
the answer takes Alex and her team on
National Book Award finalist, Ellen
a breathtaking chase from Manhattan’s
Hopkins.
grandest apartments to the secret tunnels
… or defend.
Baldacci and his family live in
Slayton lives and works in
and chambers of the New York Public
Charlottesville. Find more on the book at
Library, and finally to a nineteenth-
FranCannonSlayton.com.
century underground vault. There, in the
pitch-black darkness, Alex comes faceto-face with the killer who values money
more than life.
Fairstein lives in Manhattan and
on Martha’s Vineyard. She’s also a legal
commentator for the major television
and cable networks. Her website is
lindafairstein.com
UVA Lawyer Spring • 2009
| 83
Opinion
The Convergence of Massive Fiscal Problems
by Richard G. Clemens ‘65
T
he moment when our nation’s political leaders should
needed fiscal reforms happen — especially while the economy is
come face to face with reality and develop real solutions for
in a serious recession.
our country’s unsustainable fiscal path is here. By 2030, the age
Members of Congress and the administration should sit
65 and older population will double to 71.5 million, and the
down together and work constructively in a concentrated
85 and older population will increase by
and bipartisan fashion to address these fiscal problems. I am
125% to 9.6 million. As the baby boomers
sure that the American people would applaud such an effort,
retire and live longer, Social Security benefit
regardless of their political affiliation. Sometimes presidential
payments will skyrocket. Beginning in 2017,
leadership has provided a catalyst for necessary change but,
Social Security’s annual costs will exceed
most often, it is only a dire situation as when the Social Security
its payroll tax revenues. In 2025, Social
Trust Fund almost ran out of money in the 1980s, that triggers
Security’s Disability Insurance Trust Fund,
necessary reform.
which currently covers about 9 million
One way for bipartisan action to occur more quickly is for
beneficiaries, will be totally exhausted. As
Congress to enact legislation creating a bipartisan commission
of March of this year, only one bill had been introduced in the
or task force to address the unsustainable fiscal path caused
current session of Congress that proposes a solution for Social
by the projected rapid growth in spending on Medicare, Social
Security’s fiscal problems.
Security, and Medicaid. In a chapter of my book, Rescuing
Similarly, as our population ages, a much greater number
of Americans will require costly medical care. The numbers of
America: The Bipartisan Path, I discussed a number of ways that
a bipartisan commission or task force might be useful, such as a
Americans with chronic illnesses and disabilities are higher for
requirement that recommendations made by a super-majority of
elderly minorities, women, and citizens living at 150% of the
a bipartisan commission to assure the solvency of Social Security
poverty level and below. The funding issues with Medicare and
and Medicare would have to be voted up or down by Congress
Medicaid are far worse than the shortfall with Social Security.
within an expedited period. This year, a bipartisan bill called the
A “Medicare funding warning” has been issued for three years
Social Security and Medicare Solvency Commission Act (S. 246)
in a row by the trustees of the Medicare Trust Funds without
has been introduced in Congress by Senator Dianne Feinstein
any action by Congress. By 2010, the Medicare Trust Fund
(D-California) and John Cornyn (R-Texas) to establish such a
expenditures are expected to exceed annual revenues. The
bipartisan commission.
Medicare Trust Fund will be depleted by 2018. Medicare has
The unfunded obligations for Medicare and Social Security
about $36.3 trillion in unfunded obligations owing to current
increase by about $2 trillion each year that nothing is done.
generations.
The tsunami of spending on these programs has put us on an
Many of these fiscal problems, exacerbated by our
unsustainable fiscal path, especially as we grapple as a nation
government’s recent stimulus and TARP spending, are inter-
with the current financial crisis. Clearly, these problems are
related and converge, causing massive budget deficits. The
destined to get far worse until fiscal realities and common sense
national debt now exceeds $10.8 trillion — having more than
dictate the necessary bipartisan action.
doubled in the last nine years. Projections show it doubling again
within twelve years. Various ideas for tax and budget reform
Richard G. Clemens ’65 is a retired senior partner of Sidley
have been presented, such as cutting spending and/or raising
Austin and the author of the recent book, Rescuing America: The
taxes, but there appears to be no catalyst or driving force to make
Bipartisan Path.
84 | UVA Lawyer • Spring • 2009