Vol. 48, 2014
Morehead speaks on leading UGA and role of law school INSIDE:
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President Morehead shares thoughts on UGA and law school
Distinguished Research Professor and Shackelford Distinguished Professor in Taxation Law Walter Hellerstein explains how tax laws have barely begun to address cloud computing.
Associate Professor Elizabeth Chamblee Burch explores how ๏ฌnanciers can resolve some issues that occur in aggregate litigation.
%FBO8IJUFBOOPVODFTTIFJTTUFQQJOH down 14 After 11 years of leading the law school, Dean Rebecca Hanner White announces she is stepping down from her position as dean.
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state taxation of
BY DISTINGUISHED RESEARCH PROFESSOR AND SHACKELFORD DISTINGUISHED PROFESSOR IN TAXATION LAW WALTER HELLERSTEIN
he advent of cloud computing and its profound reshaping of the architecture of computer networks and their applications raise a broad array of troublesome issues relating to security, privacy, technical standards, intellectual property, and, most importantly for present purposes, the taxation of global digital commerce. Because cloud computing is still a relatively novel development, even in this era of rapid technological change, tax laws have barely begun to address its implications. We nevertheless believe that a discussion of state taxation of cloud computing will, at a minimum, provide readers with an overview of cloud computing and identify the principal consumption tax issues that it raises for digital commerce.
Editor’s Note: The following article on state taxation of cloud computing draws from the extensive treatment of that topic in Taxing Global Digital Commerce (2013), co-authored by Distinguished Research Professor and Shackelford Distinguished Professor Walter Hellerstein, which relies, in turn, on an article published in 117 Journal of Taxation 11 (July 2012) that he co-authored with Georgia Law 2007 alumnus Jonathan G. “Jon” Sedon, who is currently a senior manager at KPMG specializing in state taxation. These excerpts are reproduced with the permission of the respective publishers, Kluwer Law International and Thomson Reuters/WG&L. The detailed references from the original publications have been omitted.
WHAT IS CLOUD COMPUTING? whether there is personal jurisdiction over (or nexus with) one or According to the National Institute of Standards and both of the parties to the cloud computing transaction, a question Technology (NIST), cloud computing is a model for enabling that may turn on the jurisdictional implications of the cloud ubiquitous, convenient, on-demand network access to a shared computing transaction itself. pool of conﬁgurable computing resources (e.g., networks, servers, If the provider or purchaser1 has nexus with the state (whether storage, applications, and services) that can be rapidly provisioned as a result of the cloud computing transaction or other activities), and released with minimal management effort or service provider the next question is whether the transaction is taxable in that interaction. particular state. To answer this question, a series of additional The ﬁve “essential characteristics” of cloud computing are: oninquiries is necessary, including whether the particular cloud demand self-service, broad network access, resource pooling, rapid computing transaction is a type of good or service subject to sales elasticity and measured service. and use tax, whether a taxable “sale” or “use” has occurred, and As the NIST further observes, however, cloud computing is where the taxable “sale” or “use” occurs. “an evolving paradigm.” There are three “models” of cloud computing. The Software as a Service (SaaS) model allows a customer to Jurisdiction to tax the parties to the transaction: Nexus access a provider’s applications on a cloud infrastructure (i.e., The threshold question confronting both purchasers and the collection of hardware and software that enables the essential providers of cloud computing services is whether they have characteristics of cloud computing described above). Under nexus with the state in which the cloud computing the SaaS model, a customer does not manage or control transaction may be deemed to occur, whether as a The five the underlying cloud infrastructure, with limited result of the transaction itself or otherwise. “essential exceptions. The Platform as a Service (PaaS) model characteristics” PURCHASER’S NEXUS allows a customer to deploy its created of cloud computing are: From the purchaser’s perspective, there are or acquired applications on a cloud at least two issues to consider. on-demand self-service, infrastructure using programming First, if the purchaser is considered to own languages, libraries, services or broad network access, resource or lease tangible personal property in a state tools supported by the provider. pooling, rapid elasticity and in which it would not otherwise have nexus As with the SaaS model, the as a result of a cloud computing transaction, measured service. customer does not manage or it arguably satisﬁes the physical-presence control the underlying cloud requirement that the U.S. Supreme Court’s infrastructure. However, the Dormant Commerce Clause jurisprudence has customer has control over established for the states’ ability to enforce sales the deployed applications and, and use tax collection obligations. potentially, conﬁguration settings for the application-hosting Needless to say, whether an interest in tangible personal environment. property causes the purchaser to have nexus in a particular state The Infrastructure as a Service (IaaS) model allows a customer is fact-sensitive. On the one hand, a taxpayer that leases dozens access to processing, storage, networks and other computing of servers in a particular state almost certainly has created nexus resources, where the customer can deploy and run software, with that state, as would a taxpayer that leases any other type of including operating systems and applications. Under the IaaS tangible property in the state. model, the customer does not manage or control the underlying On the other hand, we doubt that a taxpayer that purchases cloud infrastructure but has control over operating systems, software application services, and acquires no interest in the storage and deployed applications. servers on which the software is hosted, would establish even a Providers of SaaS and PaaS are often called “application service de minimis physical presence in the state where the software is providers.” The term “application services” generally refers to hosted. services that allow customers to access software on the provider’s Even if the purchaser’s own activities do not create nexus in the system, typically by means of a Web browser. state, the purchaser of cloud computing services must consider whether the service provider’s activities create nexus for the SALES AND USE TAXATION OF CLOUD COMPUTING purchaser. This could occur, for example, if the cloud provider Cloud computing raises a host of sales and use tax issues for performs activities in a state on behalf of the purchaser that are both providers and purchasers of cloud computing services. signiﬁcantly associated with the purchaser’s ability to establish and The initial question, at least from a practical perspective, is maintain a market in the state for its sales. 1 Although the purchaser’s nexus with the state may be of little significance in the Business to Consumer (B2C) context, because individual consumers are no more likely voluntarily to remit a use tax on the purchase of
cloud computing services than they are to remit a use tax on the purchase of a book from Amazon.com, in Business to Business (B2B) transactions a business with nexus in the state may well take its tax payment and collection obligations seriously, particularly if it is a large business that is routinely audited by state taxing authorities. Moreover, the purchaser of cloud computing services in a B2B transaction may also be a seller in a B2C transaction, so that it must be attentive to the possibility that a purchase of cloud computing services in the B2B transaction will trigger tax collection nexus with respect to a B2C transaction in the same state.
The taxability of cloud computing transactions for sales and use tax purposes is in principle no different from the taxability of transactions involving other goods, services or intangibles under the sales and use tax.
PROVIDER’S NEXUS Providers of cloud services face thorny nexus issues as well. We doubt that software in digital form, even if characterized by a state as tangible personal property for sales or use tax purposes, becomes tangible personal property for purposes of the U.S. Supreme Court’s physical-presence test, thereby providing a basis for imposing sales or use tax collection responsibility upon the provider at the “location” of the software. If, however, the provider owns servers or leases server space, the issue becomes more difﬁcult, because servers are indisputably tangible. Texas has relied on the existence of an in-state server in asserting sales tax collection obligations upon Internet sellers. Other states appear to be divided as to whether maintenance of an in-state server creates nexus, with some states drawing a distinction between “maintenance” (no nexus) and “ownership” (nexus) of the server. In some states, there is an ambiguity in their position, because it is not entirely clear whether the reference to the “taxpayer’s server” is to a third-party’s server used by the taxpayer, the taxpayer’s own server, or both.
Taxability The taxability of cloud computing transactions for sales and use tax purposes is in principle no different from the taxability of transactions involving other goods, services or intangibles under the sales and use tax. Accordingly, the taxability of a cloud computing transaction in a state depends on whether there is (1) a sale or use of (2) a taxable good, service or intangible (3) in the state. The challenge in analyzing cloud computing transactions is that these complex and unfamiliar transactions often do not ﬁt easily into existing statutory classiﬁcations that determine taxability in a state.
TANGIBLE PERSONAL PROPERTY, SERVICE OR INTANGIBLE? Historical Background: Taxation of Software Before we turn to the appropriate classiﬁcation of cloud computing transactions, it will be instructive brieﬂy to review the states’ experience in taxing computer software. Such a discussion is warranted for several reasons. First, the struggles states have had with classifying computer software as tangible personal property, a service or an intangible are analogous to the struggles states are now having – and will increasingly confront – in classifying cloud computing transactions.
Second, state guidance with respect to the taxability of certain cloud computing transactions (generally, SaaS/hosted software) often turns on the question of whether the service should be characterized as computer software. Third, the history of state taxation of computer software may provide a roadmap for the future of state taxation of cloud computing. Here, as in other contexts, “a page of history” may be worth a “volume of logic,” as U.S. Supreme Court Justice Oliver Wendell Holmes Jr. once wisely observed. In 1976, the ﬁrst state supreme court to consider the taxability of computer software, which was then embodied in tangible magnetic tapes, held that its sale did not constitute a sale of tangible personal property. In that case, the Tennessee Supreme Court reasoned that what was sold was “information” and that the magnetic tapes transferred were simply “a method of transmitting … intellectual creations from the original to the user” and that it was “merely incidental” that the intangible information was transmitted by a tangible medium. Other courts, however, focused on what was in fact delivered. In determining that a sale of computer software delivered via magnetic tape constituted a sale of tangible personal property, for example, the Vermont Supreme Court observed that the tape could be “seen, weighed, measured, and touched ... .” The court rejected the taxpayer’s argument that the result should be different because the taxpayer might have acquired the same programming in a different manner that would have led to different tax consequences. As state law and jurisprudence evolved, some state taxing regimes drew a distinction between “canned” software (i.e., prepackaged or off-the-shelf software) and “customized” software (i.e., software created to meet the needs of a particular customer). Every state now taxes prewritten software, at least if delivered in tangible form, but many states exempt customized software as non-taxable services or intangibles. When prewritten software is delivered electronically, some states tax it – indeed, they often deﬁne electronically delivered prewritten software as tangible personal property, although other states tax electronically delivered canned software without pretending that it is tangible. If software is characterized as tangible personal property (whether or not it is in fact tangible), familiar tax consequences ordinarily follow. It will be taxable, like all tangible personal property, unless speciﬁcally exempted from tax, and its sale will qualify for a sale-for-resale or related exemption if the software is resold or directly used in producing other property for sale.
If the software is not characterized as tangible personal property, it will be taxable only if it is speciﬁcally enumerated as a taxable service or intangible, and the availability of sale-for-resale and related exemptions becomes more problematic. Within this framework, computer software can be placed in one of four general categories, with the following tax consequences:
Sometimes taxable as the sale of tangible personal property or non-taxable if “true object” is sale of non-taxable services, intangibles
(or defined as tangible) Always taxable as the sale of tangible personal property
prewritten, delivered electronically
customized, delivered electronically: Sometimes explicitly taxable as the sale of services, intangibles or generically non-taxable as the sale of services, intangibles
Sometimes explicitly taxable or generically non-taxable as the sale of services, intangibles
All cloud services deliver more than just the use of software – the cloud provider’s operating system, servers and other hardware usually are vital to the provision of cloud services. Yet the state taxing authorities that have deemed cloud computing services to be canned or prewritten computer software have done so with little or no analysis of the underlying service offering. For example, the taxing authorities in Arizona, New York, Pennsylvania and Utah have summarily concluded that various cloud services constitute canned or prewritten computer software. Even if certain cloud computing services may be characterized as canned or prewritten computer software, they may not be taxable in some states if they are delivered electronically. Cloud Computing as a Taxable/Non-taxable Service If a state does not characterize a particular cloud computing transaction as involving a taxable sale of tangible personal property, the rationale underlying the state’s position often will be the state’s conclusion that the cloud computing transaction constitutes a service. The question then becomes whether the service is taxable or not. The Texas Comptroller has addressed a variety of cloud computing transactions on numerous occasions in order to determine whether they constitute taxable “data processing” services under Texas law. For example, the comptroller has determined that each of the following cloud services constituted “data processing:” s VOICE RECOGNITION SOFTWARE PROVIDED OVER THE )NTERNET that turns clinician dictations into formatted draft documents. s ACCESS TO A WEBSITE DESIGN CENTER THAT ALLOWS A CUSTOMER to design, provide and test content, and to have administrator functions. s A 7EB APPLICATION USED TO RECORD AND MANAGE BUSINESS transactions, from customer relationship management to enterprise resource planning. s A 7EB BASED REPORTING SYSTEM THAT ALLOWS CUSTOMERS TO enter data from remote locations and retrieve reports from customers’ ofﬁces.
Insofar as the states approach taxation of cloud computing transactions through the lens of their laws governing the taxation of computer software, this framework may assist in understanding the states’ analysis of cloud computing transactions. Cloud Computing as Canned/Prewritten Computer Software One of the most puzzling trends in the taxation of cloud computing is how casually state taxing authorities have concluded that certain cloud services constitute canned or prewritten computer software and thus generally are classiﬁed as tangible personal property under the state statutes.
s APPLICATION SOFTWARE THAT UPON A CUSTOMER ENTERING a SKU (used to identify the item purchased or sold) along with one or more addresses, provides a corrected address, taxability information, and properly calculated taxes. s AN )NTERNET BASED APPLICATION THAT READS INFORMATION contained in a communication (such as a fax, letter, voice call, email, etc.) and generates a summary report. s A 7EB PORTAL TO FACILITATE THE EXCHANGE OF INFORMATION between insurance carriers and their insurance agents.
Connecticut subjects “computer and data processing services” to sales tax. The phrase includes “providing computer time, storing and ﬁling of information, retrieving or providing access to information, designing, implementing or converting systems providing consulting services, and conducting feasibility studies.” Accordingly, a legal ruling determined that online data storage services were subject to sales and use tax. Other states have concluded that certain cloud transactions constitute non-taxable services, based largely on the determination that they involve the sale of services rather than the sale of tangible personal property. Once that determination has been made, the sale of the cloud computing service, like the sale of most services in most states, is not taxable because there is no enumerated taxable service classiﬁcation into which the cloud computing transaction falls.
The Wisconsin Tax Commission has likewise suggested that sale of application services may constitute the lease of tangible personal property.
WHERE DOES THE SALE OR USE OCCUR? One of the most perplexing issues with respect to sales and use taxation of cloud computing transactions is the determination of where the sale or use occurs, the “sourcing” issue. Recall that most states that have determined that a particular SaaS/hosted software transaction is subject to sales or use tax have done so on the theory – and ﬁction – that the transaction constitutes the sale of tangible personal property, based on the determination that the transaction involves canned or prewritten software, which is treated as tangible personal property.
Location of the Server Several states have determined that hosted software Cloud computing can raise difﬁcult questions as to whether transactions should be sourced to the location the transaction in question constitutes a taxable of the server on which the hosted software is “sale” or “use.” One of the most perplexing stored. A “sale” for sales tax purposes is typically For example, prior to a change in the law, issues with respect to sales deﬁned as “[a]ny transfer of title or possession, the Utah State Tax Commission concluded on or both, exchange, barter, license, lease, or and use taxation of cloud several occasions that sales of hosted software rental, conditional or otherwise, in any manner computing transactions is should be attributed to the state where the or by any means whatsoever, of tangible server that housed the software was located. the determination of where personal property for a consideration.” In a Tennessee ruling, the Department Assuming that a cloud computing the sale or use occurs, the of Revenue concluded that although the transaction involves “consideration” for granting of a license to use computer software “sourcing” issue. “tangible personal property,” there may be a constituted a taxable “sale,” a taxpayer’s question whether there is a “transfer of title or remote access of software located on a server possession.” outside of Tennessee was not taxable by Tennessee. For example, on several occasions, the Tennessee Department Determining the source of sales of cloud computing services of Revenue concluded that a service that allowed customers to by reference to the server on which software is located has its access software remotely over the Internet did not constitute a advantages. “sale” because there was no “transfer.” First, any serious issue over whether the seller has nexus On the other hand, the New York Department of Taxation and with the state will probably be avoided if the seller has tangible Finance concluded that the access of a taxpayer’s software by its personal property in the state (e.g., a server). customers constitutes a “transfer of possession” because customers Second, the location of the server is likely to be known by the gain “constructive possession” of the software and have “the right seller. to use, or control or direct the use” of the software. Third, the location of the server may be a single location, at The Utah Tax Commission similarly determined that fees least with regard to a particular customer. received for “Web services” constituted a sale because the Collectively, these features tend to support the “location of company at issue “in substance grants subscribers the right to use the server” regime from the standpoint of administrative ease, the Company’s proprietary software under a lease or contract.” although, as we have already observed, the “single location” Even if no “transfer” occurs, one might consider certain cloud assumption may be problematic because of the widespread use computing transactions to constitute taxable “licenses,” “leases” or of multiple servers in cloud-based applications. “rentals” of tangible personal property. Whatever its administrative advantages, however, the For example, the Arizona Department of Revenue has “location of the server” regime makes no sense from a tax policy characterized hosted software transactions as “leases” or “rentals” standpoint, assuming that the retail sales tax should reﬂect the of tangible personal property. destination principle.
DOES CLOUD COMPUTING INVOLVE A TAXABLE “SALE” OR “USE?”
State tax law in the area of cloud computing is still in its infancy and currently raises more questions than it answers.
The destination would ordinarily be the customer’s location, not the seller’s. The location of a server (or other hardware of the seller) is likely to correspond to the customer’s location only in unusual circumstances and is thus a poor choice for attributing sales of cloud computing services, aside from its administrative beneﬁts. Accordingly, in that context, the sourcing issue is a difﬁcult one in large part because the application of the traditional rules for determining where a sale of tangible personal property occurs can be awkward at best when applied to cloud computing. Traditionally, sales of tangible personal property are sourced to their “destination,” which normally means the place of “delivery” or where title passes. However, when software or hardware is accessed remotely, where delivery occurs is not self-evident. Two different sourcing regimes have emerged among states with respect to cloud computing transactions: location of the server on which the software is located and location of the user.
Location of the User A number of state taxing authorities have attributed hosted software transactions to the location of the customer. New York has considered the source of hosted software sales on several occasions. In each case, the Department of Taxation and Finance determined that the situs of the sale was the location of the customer’s employees who used the software. In the event that the customer’s employees who used the software were located both in and outside New York, the department concluded that tax should be collected based upon the portion of the receipts attributable to the customer’s employee-users located in New York. Utah enacted a law addressing the source of sales of computer software when there is no transfer of a copy of the software to the purchaser. Such sales are generally sourced based upon “an address for or other information on the purchaser if (a) the address or other information is available from the seller’s business records; and (b) use of the address or other information from the seller’s records does not constitute bad faith.” A Utah letter ruling addressing the sale of hosted software summarized this law as providing that the locations of sales are based on the addresses of the purchasers. Guidance promulgated by the Arizona Department of Revenue likewise reﬂects the view that fees derived from sales of hosted software should be sourced to the location of the consumer.
Just as the “location of the server” regime had its advantages and disadvantages, so the “location of the user” regime has its advantages and disadvantages, although they are largely the “ﬂip side” of the server regime. First, from a tax policy standpoint, the customer-location rule reﬂects the destination principle that is widely accepted as the appropriate rule for implementing the retail sales tax and other consumption taxes. Furthermore, sourcing hosted software to the customer’s location would result in equivalent treatment between cloud computing and transactions involving the sale of prewritten computer software in tangible form. There is no policy justiﬁcation for taxing our purchase of say, tax compliance software that is delivered on a disc (or, indeed, downloaded onto our computers) at our locations while not taxing our purchase of an “online” version of the same tax compliance software, which involves the use of hosted software in the “cloud.” Second, at least in circumstances in which the customer owes use tax and is responsible for and likely to be compliant with its own tax obligations – namely, in the Business to Business (B2B) context – the customer will be in a position where it can source the tax to its proper location, which it is likely to know. Nevertheless, the “location of the user” regime is not without its own problems. The seller might not have the requisite information to determine the purchaser’s location, particularly if the “user” for purposes of the sourcing rule is the location of the ultimate user rather than the purchaser. Furthermore, even if the seller has the requisite information about the purchaser, if the seller has no nexus with the state, tax collection of Business to Consumer (B2C) transactions relying on purchaser compliance is likely to be no more effective in the cloud computing contexts than in other contexts. “Taxing honesty” has not proven to be a winning tax strategy.
CONCLUSION State tax law in the area of cloud computing is still in its infancy and currently raises more questions than it answers. As the law matures, many of these questions will no doubt be resolved, ideally in a way that reﬂects sound tax policy and administration. If that goal is going to be achieved, it is essential that the state tax questions raised by cloud computing be resolved within a meaningful analytical framework.
Financiers as Monitors in Aggregate Litigation BY ASSOCIATE PROFESSOR ELIZABETH CHAMBLEE BURCH
he class action isn’t quite dead, though efforts aimed at extinguishing it have metastasized over the past 15 years and culminated most recently in the Supreme Court’s Wal-Mart Stores, Inc. v. Dukes opinion. Without class certiﬁcation, aggregate litigation offers all of the perils and few of the promises of a class action. Granted, class actions posed problems too, but without the closure they generate and the judge ensuring a fair settlement, lawyers have dreamed up new means for achieving ﬁnality that evoke class-action nostalgia. To name but a few, they have exploited the attorney-client relationship to coerce clients into accepting a settlement, threatened to withdraw from representing nonconsenting clients, paid off holdouts to fulﬁll defendants’ demands for complete resolution, forged ongoing “sweetheart” business relationships with settling defendants and overcompensated weak but prevalent claims to attract more clients.
Editor’s Note: This piece was excerpted from Associate Professor Elizabeth Chamblee Burch’s article titled “Financiers as Monitors in Aggregate Litigation” in 87 New York University Law Review 1273 (2012).
The problem, in part, is that plaintiffs’ attorneys are both It does so by (1) unbundling the attorney’s competing roles ﬁnanciers and agents, and those dual roles sometimes pull them as investor and adviser, (2) shifting ﬁnancial risk to a third party in divergent directions. who pays the attorneys on a billable-hour basis (plus, perhaps Just as they did in class actions, lawyers front the costs of some small percentage of the recovery as a bonus) and (3) litigating massive nonclass cases. putting in place a sizeable stakeholder with the sophistication But these cases are even more expensive than class actions; and incentive to monitor the agents. attorneys must spend time advertising and recruiting clients. If plaintiffs assign a ﬁnancier a portion of the litigation’s Then they must track each case, hire paralegals to handle the proceeds (as the contingent fee does now) in exchange for added paperwork, establish speciﬁc causation, and spend time ﬁnancing the lawsuit on a nonrecourse basis, the ﬁnancier persuading each client to settle. would become a super stakeholder. Add to that the cost of expert witnesses, investigation, Third-party ﬁnanciers have already started funding aggregate document review and coordinating with other multidistrict litigation: Napoli Bern made headlines when it borrowed some litigation attorneys and the expenses could easily bankrupt a $35 million from Counsel Financial to fund the Ground Zero small ﬁrm. workers’ personal-injury cases against the City of New York So, when a defendant puts money on and tried to pass $6.1 million in interest the table – even money with many strings costs onto the workers. Burford Capital The way in which ﬁnanciers attached, like withdrawing the settlement funded thousands of Ecuadorian plaintiffs offer if too few plaintiffs accept it – it tempts in their controversial personal-injury battle bankroll aggregate litigation is plaintiffs’ attorneys to strong arm their against Chevron. Likewise, in a toxic-tort critical; this new relationship clients to settle so they can recoup and proﬁt case against BNSF Railway, attorney Jared raises a panoply of questions from their ﬁnancial investment. Woodﬁll borrowed more than $3.5 million Because the plaintiff’s and the lawyer’s from a hedge fund to help ﬁnance litigation about maintenance, interests never overlap perfectly, the lawyer’s on behalf of some 400 plaintiffs with skin champerty, barratry, monetary self-interest and duty of loyalty and gastrointestinal cancers allegedly caused may be at odds with one another. by chemicals used to make railroad ties. conﬁdentiality, privileges, Yet, nonclass aggregation lacks a monitor These ﬁnancing arrangements, however, consent, decisionmaking to police these settlements the way a judge do not follow this article’s blueprint. authority and incentives. polices class actions. Lending money to plaintiffs’ law ﬁrms Although some judges have likened large on a recourse basis (where the ﬁrm must multidistrict litigations to class actions and tried to oversee repay the loan regardless of whether it wins or loses the lawsuit), them accordingly, the existence of a legal basis for policing a as was the case for Napoli Bern and Jared Woodﬁll, may either “voluntary” settlement between private parties is uncertain intensify the pressure on plaintiffs to settle or present them with at best. unexpected interest charges. The clients themselves are unlikely to monitor their attorneys As this suggests, the way in which ﬁnanciers bankroll because the very aggregation that increases the economic viability aggregate litigation is critical; this new relationship raises a of their claims fosters collective-action problems and makes panoply of questions about maintenance, champerty, barratry, meaningful information from their attorney difﬁcult to attain. conﬁdentiality, privileges, consent, decisionmaking authority When cases are interdependent, learning the progress of one’s and incentives. own case may yield little information about the overall litigation and vice versa. A TAXONOMY OF THIRD-PARTY FINANCING Plus, individual plaintiffs tend to be unsophisticated about Presently, there are three main types of third-party ﬁnancing – legal matters and trust their attorney’s advice – that is, after all, consumer legal funding, loans to plaintiffs’ law ﬁrms and why they hired her. commercial dispute funding – each of which raise distinct legal But the potential for a private monitor does exist in the and ethical concerns. unlikely guise of third-party ﬁnanciers – hedge funds, private Third-party funding took root in the United States when investors and venture capitalists. companies started loaning money to cash-strapped plaintiffs Alternative litigation ﬁnancing has gradually made its way who could not use their lawsuit as bank collateral but needed from Australia and the United Kingdom into the United States, money for day-to-day expenses. causing substantial controversy in the process. This so-called “consumer legal funding” is a nonrecourse loan Despite the controversy, allowing third parties to fund where a litigant would not need to pay any more than what she nonclass aggregation helps to manage principal-agent problems receives from the lawsuit; there is no personal liability – if she by freeing attorneys from their ﬁnancial self-interest and loses the suit, the lender loses the money. encouraging them to act as more faithful agents. www.law.uga.edu
Given the risk involved, however, interest rates can be quite high – between 36 and 150 percent per year – but the nonrecourse basis enables funders to avoid state usury laws. Consumer legal funders making cash advances to plaintiffs traditionally run up against historical maintenance doctrines, which prohibit third parties from assisting a litigant in pursing a lawsuit. Over time, a second type of ﬁnancing emerged: loaning money to plaintiffs’ law ﬁrms, as opposed to cash-advance loans to plaintiffs themselves. As of early 2010, only around nine companies provided loans to law ﬁrms; but as of late 2011, that number had grown to around 12. When ﬁnanciers lend money to law ﬁrms, they secure those debts not by a single case, but by all of the ﬁrm’s assets, including future fee awards from other cases. Occasionally, funders will lend lawyers money based on a trial verdict on appeal. Unlike a nonrecourse loan, plaintiffs’ ﬁrms must repay the money regardless of whether they win or lose a particular case. Such was the case in ﬁnancing the Ground Zero workers’ litigation; Napoli Bern would have to reimburse Counsel Financial regardless of the litigation’s outcome. Interest rates are signiﬁcantly higher than what a bank might charge for a loan based on traditional assets – rates tend to be “north of 20 percent” – which makes the loans unattractive to well-ﬁnanced ﬁrms.1 Still, lenders in this area can do what banks cannot; banks loan money based on traditional assets and collateral, not on potential winnings. Finally, a burgeoning market of around seven lenders provide money directly to businesses to ﬁnance commercial, businessversus-business disputes in exchange for either a percentage of the plaintiff’s eventual recovery or a multiple of the supplied capital. Those percentages range from 35 to 67 percent of the lawsuit’s recovery. This kind of lending may run into historical prohibitions on champerty, a form of maintenance where the lender receives an interest in the suit’s outcome. Two of the lenders in this area, Juridica Investments and Burford Capital, are publicly traded companies in the Alternative Investment Market on the London Stock Exchange and principally bankroll international arbitrations, as well as intellectual property, breach of contract and antitrust disputes. Most commercial dispute lenders currently steer clear of funding aggregate litigation and leave those investments to funders who loan money to plaintiffs’ law ﬁrms. 10
But this model of contracting with the plaintiffs for a portion of their proceeds has the most potential for creating a workable monitor. And for those investors seeking a longer-term investment with a potentially exponential payoff, funding aggregate litigation is a logical next step.
FINANCIERS AS INTERMEDIARIES IN AGGREGATE LITIGATION Layering a ﬁnancier’s incentives atop an already complex principal-agent relationship can fundamentally alter litigation and settlement dynamics. An investor who bankrolls a plaintiffs’ law ﬁrm on a recourse basis and accrues monthly interest may care less about speedy settlements so long as the law ﬁrm’s ﬁnancial solvency is not in doubt. If the loan is nonrecourse in the same scenario, then both the funder and the lawyer have powerful incentives to settle quickly, perhaps at their clients’ expense. But it is also possible to overlay the ﬁnancier’s incentives with the plaintiffs’ incentives such that the ﬁnancier, who has litigation expertise, sophistication, and substantial capital involved, will monitor the attorney and thwart at least some of the agency problems that tend to arise between contingent-fee attorneys and their clients. Allowing third parties like commercial-claims lenders to invest in the dispute’s outcome by contracting directly with plaintiffs generates two principally positive effects. First, it disentangles – at least in part – the lawyer’s role as investor from her role as a ﬁduciary and adviser. When litigating no longer threatens the law ﬁrm’s solvency or ability to take on other matters, the attorney’s loyalty no longer divides between self-preservation and the clients’ best interest; she can afford to be a faithful representative. Second, assigning a ﬁnancier a percentage of the plaintiffs’ winnings converts that ﬁnancier into a sizeable stakeholder and incentivizes it to monitor the attorney’s and the litigation’s costs. Because aggregate litigation is capital intensive, the investor can act as an advocate for the plaintiff by keeping costs reasonable. If the attorney wants to borrow money for travel and experts at a high interest rate, the investor has the incentive to prevent that transaction and ﬁnance those expenses at a much lower cost. And unlike geographically dispersed plaintiffs who face collective-action problems, a single, experienced ﬁnancier can, for instance, require attorneys to keep their travel budgets reasonable. But the need for monitoring and the degree to which agency is disentangled from risk depends chieﬂy on how the third-party ﬁnancier compensates the lawyer for her services. www.law.uga.edu
THIRD-PARTY COMPENSATION OPTIONS Consider three options for compensating attorneys and third-party ﬁnanciers: (1) ﬁnanciers pay the attorneys an hourly rate on the billable-hour system, (2) attorneys receive a discounted contingent fee that accounts for the lack of ﬁnancial risk, or (3) ﬁnanciers pay attorneys on a billable-hour rate plus some small percentage of the proceeds as a bonus.
planes and yachts, trappings common for successful mass-tort plaintiffs’ attorneys. While third-party ﬁnancing would increase competition among the plaintiffs’ bar and may thus foster innovation and loyalty, the question remains whether plaintiffs would still receive advocacy of the same quality and creativity and whether trading some ingenuity for greater loyalty is worth the cost.
2. Financiers and plaintiffs’ attorneys split a contingent fee 1. Paying plaintiffs’ attorneys on a billable-hour system Paying attorneys a billable-hour rate cleanly cleaves a lawyer’s role as a risk-taking investor from her role as a client adviser and ﬁduciary, which means that she may be more loyal to her clients and have less incentive to arrange a quick settlement or collude with the defendant to settle on suboptimal terms. Moreover, a litigation-savvy ﬁnancier could negotiate a better hourly rate and thereby prevent astronomical fees while ensuring that the case is adequately funded. Were a quick settlement offer generous enough to cover the ﬁnancier’s expenses and provide it with some return on the risk, the ﬁnancier might push plaintiffs to accept the settlement, but here the billable-hour attorney’s self-interest checks the ﬁnancier’s. If anything, a billable-hour attorney would prefer to prolong the litigation, would advise plaintiffs to wait for a better deal, and would thus counterbalance the investor. Billing hours also encourages lawyers to spend time counseling their clients about the alternative options available and explain the risks of litigating versus settling, which curtails the effect of contrast biases and uninformed risk preferences. This arrangement may likewise negate some of the pressure attorneys feel to cram the settlement down on their clients and misallocate settlement funds to payoff holdouts. When an attorney’s payday isn’t inherently tied to settling the lawsuit (as is the case when she works on a contingent fee), it alleviates her pressing ﬁnancial concerns. So, though the attorney’s ability to tender ﬁnality to the defendant is still vital for achieving a satisfactory settlement, she no longer feels the accompanying ﬁnancial urgency and self-interest tugs that the current system engenders. There are hazards involved with this billable-hour option, too. There is some risk that the billable-hour attorney would encourage her clients to accept a settlement that was not in their best interests if it furthers her prospects of doing repeat business with the ﬁnancier. Thus, the collusion occurs not between plaintiffs’ attorneys and defense attorneys, but between plaintiffs’ attorneys and funders. But perhaps the most worrisome aspect of this compensation scheme is whether it would still attract the best and brightest plaintiffs’ attorneys. Although defense attorneys on the billable-hour system make a very nice income, one rarely sees them with their own private www.law.uga.edu
This second option allows attorneys and ﬁnanciers to split the attorneys’ standard contingent fee. The lawyers would receive a reduced award since they are shouldering less ﬁnancial risk, but the payoff is still potentially momentous. This option recognizes that contingent fees and their attendant rewards encourage entrepreneurial attorneys to accept monolith cases and thus promote ex post law … the question remains enforcement. It likewise accounts for whether plaintiffs would the lingering reputational still receive advocacy of risks that attorneys must shoulder despite taking on the same quality and less ﬁnancial risk. creativity and whether As noted, most claimants trading some ingenuity agree to a 33–40 percent contingent fee, though for greater loyalty is some judges have reduced worth the cost. that fee to between 25–28 percent. Assuming the initial agreement’s range provides ample incentive to accept the litigation’s risks, the total percentage allocated to parties other than the plaintiffs should not exceed those parameters. Attorneys and ﬁnanciers might divide the total by splitting the percentage in some agreed upon fashion. The trouble is, if both funders and attorneys operated purely on a percentage-of-the-proceeds payment plan, their incentives would overlap with one another, but not necessarily with plaintiffs. Like the contingent-fee attorney today, both would have some motivation to achieve a higher settlement since it means a greater proﬁt, but the attendant risks of that fee arrangement would plague plaintiffs to an even greater degree. Both ﬁnanciers and attorneys may prefer to settle quickly (provided the offer exceeds costs and fees), collude with the defendant if the deal beneﬁts them ﬁnancially, pressure plaintiffs to accept an offer through questionable means and misallocate settlement funds if it is necessary for achieving the deal’s required consensus. So, while a third-party funder could ensure that litigation is not underfunded and might negotiate a reduced attorneys’ fee, the savings would beneﬁt the investor, not the plaintiffs. Advocate 2014
Having a ﬁnancier foot the bill actually encourages attorneys to spend time communicating with their clients.
With the lawyer’s ﬁnancial wellbeing secured by the ﬁnancier’s nonrecourse investment in the litigation’s proceeds, she can faithfully and loyally represent her clients’ best interests as well as counterbalance any undue settlement pressure the ﬁnancier exerts.
3. Billable hours plus a small percentage of the proceeds
MAKING THIRD-PARTY FINANCING WORK
While awarding attorneys a pure percentage of the proceeds would attract creative, entrepreneurial attorneys, the better approach is for the funder to negotiate a billable-hour rate plus a small percentage of the proceeds as a successful litigation bonus. Providing a bonus and having a sophisticated ﬁnancier oversee the billable hours allays at least some of the traditional objections to having a billable-hour system. These objections include that billable hours encourage lawyers to duplicate their efforts and not communicate effectively with their clients, fail to provide predictable client costs and penalize efﬁcient and productive lawyers. Having a ﬁnancier foot the bill actually encourages attorneys to spend time communicating with their clients. And bonuses reward efﬁciency and productivity while helping to counteract any tendency to unduly prolong the litigation or duplicate effort. Granted, there is still some risk that attorneys might cherry pick certain cases for continued litigation (and the billable hours that accompany them). Yet, the attorney’s reputation among the ﬁnanciers might serve as a failsafe. If the attorney hopes to gain repeat business from ﬁnanciers while maintaining her reputation as a faithful agent to her clients, then she may continue to litigate only where it best serves her client’s interests. By injecting a sophisticated ﬁnancier into the lawsuit and making it the largest stakeholder, this arrangement improves the status quo. First, ﬁnanciers enable plaintiffs’ law ﬁrms with less monetary capital to litigate high stakes, resource intensive cases, which increases competition within the private bar. Once a market for funding aggregate litigation emerges, it is also likely to spur competition among ﬁnanciers, which could, in turn, mean that they would accept a lower percentage of the proceeds for stronger cases. Second, this proposal incentivizes ﬁnanciers to monitor the attorneys, while reducing the need for monitoring in the ﬁrst place. The demand for oversight swelled from bundling ﬁnancial risk with the attorney’s duty of loyalty to clients: self-interest in avoiding ﬁnancial strain tempted attorneys to engage in selfdealing, overbearing – if not unethical – settlement practices. But uncoupling these divergent interests permits the ﬁnancier to negotiate a competitively priced fee and to monitor the monthly costs.
As one might imagine, shifting the status quo from contingent-fee arrangements to litigation-funding agreements necessitates reexamining historical bans on maintenance and champerty as well as contemplating how a ﬁnancier may affect the attorney-client privilege, work-product doctrine and attorney conﬁdentiality. First, if ﬁnanciers take a more active role in funding aggregate litigation, they need to be able to independently evaluate the claim’s merits and communicate with both the plaintiffs and the attorneys without waiving plaintiffs’ attorneyclient privilege or losing objections based on the work-product doctrine. Although some ﬁnanciers rely principally on publicly ﬁled pleadings and memoranda and thus do not need privileged information, it seems that a ﬁnancer considering whether to invest millions of dollars into funding aggregate litigation would need more information. Sharing privileged information requires plaintiffs’ informed consent to satisfy attorneys’ ethical duties of conﬁdentiality, but it also entails considering the attorney-client privilege and the work-product doctrine. Because lawyers generally waive the work-product doctrine only when they make disclosures that substantially increase the likelihood of putting documents in their adversary’s hands, it raises fewer concerns than the attorney-client privilege. One possibility for addressing the attorney-client privilege is to extend the common-interest doctrine to include ﬁnanciers who invest in the lawsuit as well as those who considered investing. Covering the latter category of investors encourages price competition among ﬁnanciers without jeopardizing plaintiffs’ conﬁdential information. The common-interest doctrine evolved from situations where two clients retained the same attorney to pursue their common interest and has long been used by insurance companies, in joint defense strategies (such as by asbestos and tobacco defendants), and by plaintiffs involved in group litigation. In these contexts, the doctrine extends to “two or more clients with a common interest in a litigated or nonlitigated matter” who are represented by the same or separate lawyers to encourage full and efﬁcient case preparation.2 Although the third-party ﬁnancier seems to ﬁt neatly under this common-interest umbrella, there is one critical matter worth clarifying: the ﬁnancier and the plaintiff cannot be considered joint clients of the plaintiff’s attorney.
Financial Protection, should prohibit arbitration in consumerIf that were the case, the lawyers would have duties of loyalty ﬁnancing agreements. to the ﬁnancier, not just her client. That would undermine This would ensure some transparency in the funding the disaggregated incentive structure that promotes loyalty to process through enforcement challenges, allow consumers to plaintiffs. vindicate their contractual rights in a convenient forum and, Second, states should continue to lift the historical through judicial adjudication, outline the permissible bounds of prohibition on champerty such that the enforceability of a litigation-funding agreements. ﬁnancing agreement does not hinge on a particular state’s laws Potential judicial enforcement also deters collusive behavior or an ad-hoc balancing approach to conﬂict of laws, both of between the ﬁnancier and the plaintiffs’ attorneys; when the which provide further impetus for forum shopping. two know that the agreement is not shrouded in arbitration’s One recent survey showed that 26 of 51 jurisdictions conﬁdentiality and could land before a judge (and in (including the District of Columbia) permit champerty to some publicly ﬁled documents), they are far less likely to engage in degree so long as the ﬁnancier does not promote clearly frivolous clandestine behavior. litigation, participate in “malice champerty” (“meritorious litigation employed for an improper end”) or “intermeddling” (controlling trial strategy or settlement). CONCLUSION Further, as Anthony Sebok has argued in detail, the Alternative litigation ﬁnancing, if properly engineered, arguments against assignment and maintenance are “not could help alleviate the ﬁnancial pressure on the attorney-client currently persuasive from either a historical or jurisprudential relationship and thereby encourage ethical behavior in litigating perspective.”3 and settling aggregate litigation. And most studies about champerty predict This potentially powerful Presently, attorneys who specialize in large-scale that lifting this ban will be beneﬁcial by litigation bear the crushing burden of funding it, bond between ﬁnanciers increasing access to justice and improving a practice that prevents lawyers with less capital the likelihood that settlements will reﬂect the and attorneys suggests from entering the ﬁeld and tempts those who do claim’s merit as opposed to economic pressures. to prefer their own ﬁnancial self-interest over their that judges must play a The trouble is that attorneys are likely clients’ best interests. the ones referring clients to a ﬁnancier. And mitigating role. If ﬁnancial risk is no longer an integral part of attorneys’ preferred ﬁnanciers may depend an attorney’s relationship with her clients, it opens more on the hourly rate and percentage of the proceeds the the door to several new possibilities. ﬁnancier will pay them than the clients’ best interests. First, ﬁnanciers might bankroll talented attorneys who could This brings us back to the potential for collusion between not otherwise afford to initiate aggregate litigation. the ﬁnancier and attorney. Unlike clients, who are typically oneSecond, new entrants could intensify competition among shot players, ﬁnanciers and lawyers are both repeat players; their the plaintiffs’ bar that could encourage innovation and drive relationship is more enduring. down fees. This potentially powerful bond between ﬁnanciers and Finally, given the increased costs and risks associated with attorneys suggests that judges must play a mitigating role. multidistrict litigation as opposed to class actions, allowing But two things must happen before they can do so. ﬁnanciers to enter the picture ensures that meritorious suits will First, they must know that an alternative-ﬁnancing not wither alongside the class action. arrangement exists. Accordingly, in multidistrict litigation, To be sure, adding an intermediary can introduce competing there should be mandatory, in camera disclosure of ﬁnancing incentives and is thus not a cure-all for principal-agent problems. agreements. Rather, third-party ﬁnanciers offer one means for managing Currently, ﬁnancing agreements contain conﬁdentiality some of these problems in aggregate litigation. provisions and ﬁnanciers regularly require plaintiffs to sign additional non-disclosure agreements. END NOTES Although these measures keep the defendant from exploiting this information, submitting the funding agreement to the judge 1 Alison Frankel, Helping Underfunded Plaintiffs Lawyers—At a Price, LAW.COM (Feb. 13, 2006), http://www.law. in camera allows the judge not only to learn of its existence and com/jsp/law/international/LawArticleFriendlyIntl.jsp?id=900005547685. ensure its terms are not unconscionable, but to recuse herself if 2 Restatement (Third) of the Law Governing Lawyers § 75 (2000). she has a disqualifying relationship with the ﬁnancier. 3 Anthony J. Sebok, The Inauthentic Claim, 64 Vand. L. Rev. 61, 133 (2011) (surveying state laws on champerty and maintenance). Moreover, should it become necessary, this enables the judge to report unethical behavior between attorneys and ﬁnanciers to the relevant bar authorities. Second, as Congress has done in similar areas of consumer concern, it, or perhaps the newly minted Bureau for Consumer www.law.uga.edu
Photo by UGA Photographic Services’ Andrew Davis Tucker.
Dean White announces
arlier this spring, Rebecca Hanner White, who has served as the leader of the law school since 2003, announced her decision to step down from her position as dean of Georgia Law. Her plan is to remain as dean until her replacement is found and then she will return to the law school’s faculty. She said it has been an honor and a privilege to lead the law school for the past 11 years. (The current average term of service among ABA-approved law school deans is less than four years.)
Rebecca White, who is the first female dean of Georgia Law, said leading the law school for the last 11 years has been a labor of love and that she will long treasure the friendships she has made. In 2003, when she assumed the deanship, White said, “I love our school and am committed to doing my level best to make it an even better school. I do not expect everyone to agree with every decision I make, but I do hope the various constituencies of the law school will understand that I am making the decisions that I believe are in the best interest of our law school.”
“It has been an honor and a privilege to lead the law school for the past 11 years.”
“Our students, faculty, administrative team and staff are outstanding,” she added. “Our law school has accomplished much over the past 11 years. Our law school, and I, have enjoyed strong support from the university, and I could not ask for a more loyal and supportive alumni base. Together, we all have made a good law school an even better one.” UGA President Jere W. Morehead (J.D.’80) said White’s record as dean of the law school has been “simply extraordinary” and her service as a senior leader of the university has been “profound.” When White became the leader of the law school on July 1, 2003, some of the objectives she set included: enhancing the academic reputation of the law school, enriching the learning environment and increasing private giving. The following will provide some highlights of the numerous advances made under her guidance.
The school has undergone a multiyear, multimillion dollar renovation. Designed with students in mind and to address overcrowding, almost 4,000 square feet of building space was “captured,” a “private” courtyard was created and most of the school’s primary building has been beautifully transformed.
The academic offerings of the law school have been enhanced. The school launched a Business Law and Ethics
Photo by UGA Photographic Services’ Andrew Davis Tucker.
Program to help students with building essential skills in negotiating, legal drafting, critical thinking, counseling and creative problem-solving. The ﬁrst-year curriculum has been revamped. Additionally, a new degree – the Master in the Study of Law – will be offered starting this fall, and the J.D./Master of Social Work joint degree program was created.
The school added six experiential learning programs. They are: the Appellate Litigation Clinic, the Business Law Clinic, the Corporate Counsel Externship, the Mediation Practicum, the Medical-Legal Partnership Clinic (starts this fall) and the Washington, D.C., Semester in Practice Program.
The Sutherland Courtyard was transformed during the law school’s multimillion dollar renovation. It is now a popular spot for members of the law school community.
she is stepping down
UGA Senior Vice President for Academic AďŹ€airs and Provost Pamela Whitten has appointed a committee to lead a national search to ďŹ ll Whiteâ€™s position.
International work and study abroad programs were created and expanded. The semester-long study abroad program at the University of Oxford was established. The Summer Program in China with study opportunities in Beijing and Shanghai debuted. The long-running summer study abroad initiative in Brussels, focusing on the European Union, became accredited Among the study abroad offerings established under by the ABA and was expanded to include time in Geneva and an emphasis on the Whiteâ€™s leadership is the Georgia Law at Oxford Program. World Trade Organization. The Global This is one of the few ABA-approved, semester-long study Internship Program has grown to include abroad opportunities offered by an American law school. work opportunities with one of more than 70 organizations in more than 35 countries spanning the globe.
The size of the faculty has increased with the hiring of more than 30 new faculty members since 2003. The law school now has a student:faculty ratio of 11.48:1 versus 22.18:1, the ratio in 2003.
Student academic credentials have risen over the years. The most recent entering class, the Class of 2016, boasts a median LSAT score of 163 and a median undergraduate GPA of 3.69. One of the hallmark conferences hosted by Georgia Law since XBTUIFi5IF3FQPSUPGUIF4FDSFUBSJFTPG4UBUFBipartisan Advice to the Next Administrationâ€?GFBUVSJOH DMPDLXJTFGSPNMFGU )FOSZ,JTTJOHFS 8BSSFO$ISJTUPQIFS 5FSFODF4NJUI NPEFSBUPS +BNFT#BLFS*** .BEFMFJOF"MCSJHIUBOE$PMJO1PXFMM
No fewer than 500 outside speakers â€“ including national and foreign high-ranking ofďŹ cials â€“ and approximately 220 professors have visited campus since 2003, greatly enhancing scholarly debate and dialogue at Georgia Law.
A few notables are current and former U.S. Supreme Court Justices Clarence Thomas, Stephen G. Breyer and John Paul Stevens as well as the participants in â€œThe Report of the Secretaries of State: Bipartisan Advice to the Next Administrationâ€? featuring Henry Kissinger, James Baker III, Warren Christopher, Madeleine Albright and Colin Powell.
During her deanship, approximately 40 new endowed funds supporting student scholarships and faculty have been created, along with private funding for renovations, and the annual fund has more than doubled, now raising over $900,000 each year. Six Georgia law graduates have served as U.S. Supreme Court judicial clerks in the last nine years. And, on average, 26 Georgia Law alumni have served the federal courts as judicial clerks for each of the last ďŹ ve years.
Search committee named
The search and screening committee will be chaired by College of Pharmacy Dean Svein Ă˜ie. Other members of the committee are: t,BUIFMFO7"NPT +% DIBJSPGUIF schoolâ€™s Board of Visitors and president of the AďŹ‚ac Foundation t,FOU)#BSOFUU BTTJTUBOUQSPGFTTPS t&MJ[BCFUI$IBNCMFF#VSDI BTTPDJBUF professor t+VMJF&$BSOFT +% DIJFGKVEHFPGUIF U.S. District Court for the Northern District of Georgia t,FMMJF$BTFZ +% EJSFDUPSPGBEWPDBDZ t%BO5$PFOFO 6OJWFSTJUZ1SPGFTTPS Caldwell Chair in Constitutional Law t"OESFB-%FOOJT BTTPDJBUFQSPGFTTPS t&WFMZO"'SFODI SJTJOHUIJSEZFBSMBX student t&SJDB+)BTIJNPUP BTTPDJBUFQSPGFTTPS t5JNPUIZ.FZFS BTTJTUBOUQSPGFTTPS t%BWJE&4IJQMFZ (FPSHJB"UIMFUJD Association Professor in Law t(SFHPSZ$i(SFHw4PXFMM +% TFOJPS director of law school advancement Whitten said she appreciates Whiteâ€™s willingness to serve as dean while the national search for her successor is underway. i6OEFS%FBO8IJUFTPVUTUBOEJOH MFBEFSTIJQ UIF4DIPPMPG-BXIBTTFFOJUT stature as one of the nationâ€™s top public law TDIPPMTSJTFESBNBUJDBMMZ w8IJUUFOTBJE
A with UGA President and Georgia Law Alumnus Jere Morehead On July 1, 2013, Georgia Law 1980 alumnus Jere W. Morehead became the 22nd president of the University of Georgia. Recently, he took some time to answer a few questions and share his thoughts about his new role at the university and his goals.
You are only the second Georgia Law graduate to lead the University of Georgia in its 229 year history. What does that mean to you? I am honored and humbled to be only the second Georgia Law graduate to lead the University of Georgia. I believe the skills I learned as a law student, to think critically and carefully, have served me very well in this new role. I also believe that the law school faculty provide an excellent example of what we expect from our university faculty – a strong and balanced approach to teaching and scholarship.
What is the primary objective you would like for the university to achieve under your leadership? The university needs to have a highly successful comprehensive campaign to raise private contributions to new levels of support from both our alumni and friends. We need to increase the size of the endowment which supports our academic programs, faculty and students, and we need to increase our alumni participation rate that has been declining for several years. We have a great story to tell about a national university on the rise, and we will need the ongoing support of our alumni to keep getting stronger.
How has UGA’s presidency been different from what you anticipated? There simply are not enough hours in the day to get everything done that I would like to accomplish. I enjoy spending quality time with our alumni, students, faculty and staff, and I relish the opportunity to sit around a table solving problems and ﬁnding solutions. However, I have learned to be deliberate and recognize I cannot accomplish everything in the ﬁrst year of the job.
How important is the law school to the overall university? What type of role should a law school play within a major research university? The law school is very important to the University of Georgia. Professional and graduate programs drive the academic reputation of an institution like UGA. We are very fortunate to have an outstanding law school with a strong tradition of excellence. We need to do everything possible, working with Dean White and the superb law school faculty and alumni, to move it even higher in the national rankings. I am conﬁdent we can do so in the coming years.
What do you think distinguishes the University of Georgia in higher education today? UGA is a land-grant institution and the ﬂagship institution of Georgia. We have a unique responsibility to serve the people of Georgia and beyond. Parts of our institution exist in every county in the state of Georgia and in many countries around the world. How many other institutions can cite both a strong local and international inﬂuence? I think it is very exciting and something to be proud of as an alumnus.
Please describe the last time something on campus – a student, a colleague or an event – truly surprised you. I am heartened by the deep and abiding love that our students, faculty and staff have for this institution. I sense the excitement and anticipation everyone has about our future. Everyone knows we are an institution on the rise, and they are very proud of what is going on at UGA. When the law school’s moot court program won another national championship recently, I enjoyed reading all the emails to Director of Advocacy Kellie Casey (J.D.’90) congratulating her on this signiﬁcant accomplishment. There was nothing but pride and happiness for Kellie and her team. As a former moot court advisor, and her former professor, I shared in that pride and excitement for the law school.
What’s the best advice you have ever received? The best advice I have ever received is being told to listen more than I talk. When I enter a meeting, I like to hear from everyone and understand what concerns or motivates them. Individuals in positions like mine have to be careful that they continue to receive good advice and counsel. I need to know what others know in order to make sound and principled decisions. www.law.uga.edu
Photo by UGA Photographic Services’ Dot Paul.
The 1992 National Moot Court championship team of Mark Lewis (J.D.’92) (sitting left), Greg Gunter (J.D.’92) (standing center) and Julia Lynch Bassett (J.D.’92) with advisor Jere Morehead (standing left) and Dean Ron Ellington.
Photo by UGA Photographic Services’ Andrew Davis Tucker.
Photo by UGA Photographic Services’ Rick O’Quinn.
Morehead has said, “My core belief about the University of Georgia is a simple one: What we do here matters. It is important, and not just to the students and faculty and staff; it is important to the citizens of Georgia.”
Keith Hall (right) poses with UGA President Jere Morehead after winning the 2014 Richard B. Russell Moot Court Competition and receiving the Jere W. Morehead Best Oralist Award. The award is named for Morehead in honor of his service as the law school’s moot court faculty advisor from 1986 to 1995. Morehead served as a justice during the final round of competition in April with U.S. District Court Judge Steve Jones (J.D.’87) and U.S. District Court Chief Judge Lisa Godbey Wood (J.D.’90).
What is one thing you would like to do before you die – the top item on your “bucket list?” I would like to have a very successful presidency, raise the academic proﬁle of UGA even higher, complete a record-setting comprehensive campaign, and then return to the faculty and have a few good years left as a professor.
If you could travel back in time and give the younger you one piece of advice, what would it be? I would have advised me to be more patient and recognize that change comes more slowly than you sometimes would like. Patience is something you learn as you get older and wiser.
Which individuals in your life have influenced you the most? In what way(s)? Several individuals have inﬂuenced my life in a positive manner. Certainly my loving parents who always supported me and several great friends and mentors who have helped me along the way. You cannot underestimate the importance of having wonderful friends and mentors, and I have been fortunate to have had many, including the current and former law school deans and many faculty members.
)0/034"8"3%4 t4FMFDUFEGPSGeorgia Trendâ€™s Most Influential Georgians List, 2014. t"QQPJOUFEUPBPOFZFBSUFSNPOUIF Committee of Research Intensive Public Universities by the Association of Public and Land-grant Universities, 2013. t+PTJBI.FJHT"XBSEGPS&YDFMMFODFJO Teaching, 2001. t-PUIBS5SFTQ0VUTUBOEJOH)POPST Professor Award, 1999. t5FBDIFSPGUIF:FBS"XBSE 5FSSZ$PMMFHF of Business, 1998. t3JDIBSE#3VTTFMM6OEFSHSBEVBUF Teaching Award, 1995. t#FTU0SBMJTU"XBSEGPSUIFMBXTDIPPMT Russell Moot Court Competition named in Moreheadâ€™s honor, 1995.
13&7*064104*5*0/4)&-%"56(" t4FOJPS7JDF1SFTJEFOUGPS"DBEFNJD"Ã²BJSTBOE1SPWPTU 2010â€“2013. t7JDF1SFTJEFOUGPS*OTUSVDUJPO o t7JDF1SPWPTUGPS"DBEFNJD"Ã²BJST o t"TTPDJBUF1SPWPTUBOE%JSFDUPSPGUIF)POPST1SPHSBN 1999â€“2004. t'BDVMUZ.FNCFSBUUIF5FSSZ$PMMFHFPG#VTJOFTT 1986â€“present; current title: Josiah Meigs Professor of Legal Studies. t"EKVODU1SPGFTTPSBOE.PPU$PVSU1SPHSBN'BDVMUZ Advisor at the School of Law, 1986â€“1995. The Moot Court Program had a 288â€“103 record under Moreheadâ€™s leadership, which included international, national and state championships.
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"UIJTJOWFTUJUVSF .PSFIFBETBJEIFXBTFRVBMMZIVNCMFEBOEFYDJUFEBOEUIBUIFXBTDFSUBJOUIBU UIFVOJWFSTJUZTCFTUEBZTMJFBIFBE3FHBSEJOH.PSFIFBETTFMFDUJPOBT6("QSFTJEFOU 6OJWFSTJUZ 4ZTUFNPG(FPSHJB$IBODFMMPS)BOL.)VDLBCZTBJEUIF#PBSEPG3FHFOUTDPODMVEFEUIBUiIBWJOH TFBSDIFEUIFDPVOUSZFBTUUPXFTU XFGPVOEUIFQFSTPOUIBUXFXBOUFEBOEOFFEFESJHIUIFSF PODBNQVTw(FPSHJB(PW/BUIBO%FBMXBTRVPUFEBTTBZJOH.PSFIFBEJTiUIFQFSGFDUDIPJDFw for president of UGA.
Photo by UGA Photographic Servicesâ€™ Andrew Davis Tucker.
The naming of the Kirbo Foundation Concourse acknowledges the Thomas M. and Irene B. Kirbo Charitable Foundation and the Kirbo family for their support, which has helped the law school to improve its academic programming in a variety of areas over the years.
Renovations continue; Concourse named for Kirbo family
ver the past three years, much of the law school’s primary building has undergone a series of renovations. The most recent projects, completed over the past 12 months, include updating the hallways on the second and third ﬂoors to aesthetically link with the work previously completed on the ﬁrst ﬂoor, the Rotunda and the northern end of the building. Additionally, the third ﬂoor area on the northern end of the building was named the Kirbo Foundation Concourse, acknowledging the Thomas M. and Irene B. Kirbo Charitable Foundation and the Kirbo family for gifts totaling approximately $3 million. Portraits of the late Charles L. Kirbo (LL.B.’39) and Bruce W. Kirbo (J.D.’51) now hang in this area. Both of these alumni have been trusted advisers to many and are known for their leadership, service and philanthropy. They both are also recipients of the law school alumni association’s highest honor – the Distinguished Service Scroll Award. This multiyear, multimillion dollar renovation process has been undertaken to repurpose underutilized areas and address overcrowding. With law students in mind, approximately 4,000 square feet of building space was “captured,” the Sutherland Courtyard was transformed into a beautiful and usable space, and several study/interview rooms were created in addition to new student organization ofﬁces and a locker room.
Looking to hire a law student or experienced attorney? www.law.uga.edu
As depicted, the second floor hallway has been dramatically altered. While it still has that familiar look and feel, the walkway is brighter and the appearance now matches that of remainder of the building.
Please allow Georgia Law’s Career Development Ofﬁce to assist you with your recruiting efforts. At any time throughout the year, we can arrange: s
Job postings on our student and alumni jobs board
Career Development Ofﬁce (706) 542-7541 | email@example.com www.law.uga.edu/employers
Successfully preparing U.S. Supreme Court and other federal court clerks 6 U.S. Supreme Court clerks in 9 years; average of 26 federal clerks annually for the last 5 years Georgia Law graduates have performed well at the highest levels in the national employment marketplace over the last decade, specifically demonstrating the ability to meet the challenges and demands associated with clerkships at the U.S. Supreme Court and other federal courts. Georgia Law alumnus Andrew A. Pinson (J.D.’11) clerked for U.S. Supreme Court Justice Clarence Thomas for the October 2013 term. He is a member of a distinguished line of Georgia Law graduates who have served the U.S. Supreme Court as judicial clerks. Over the years, 10 alumni have worked for an array of justices including Chief Justice John G. Roberts Jr., Stephen G. Breyer, John Paul Stevens and Clarence Thomas, among others. Furthering Georgia Law’s record in preparing students for prestigious positions in the federal courts, in 2013, 28 alumni began judicial clerkships at the federal level. On average, 26 law school graduates have been selected to serve judges throughout the federal system each of the last five years. Georgia Law graduates have clerked, or will clerk, for judges in the 4th, 5th, 6th, 9th, 11th and D.C. Circuits as well as the Federal Circuit. They also have worked for judges nationwide in districts such as the Southern District of New York; the District of the District of Columbia; the Eastern District of Virginia; and the Middle, Northern and Southern Districts of Georgia, among others. These records of success reflect Georgia Law’s status among the top echelon of law schools in the country for preparing federal judicial clerks.
Wilson joins school as leader of career development Earlier this spring, Susan J. Wilson (J.D.’89) became Georgia Law’s executive director of career development, overseeing the school’s legal career services and professional development programs. Dean Rebecca Hanner White said she was pleased Wilson was able to join her team to lead the school’s important efforts in career services and professional development. “This is such a critical area for our students and the law school,” she said. “I am confident Susan will bring fresh insights and make valuable contributions to these programs and the law school more generally.” Prior to coming to Athens, Wilson was a partner in the Atlanta office of the law firm Alston & Bird, where her practice included negotiating mergers, acquisitions and other complex transactions, advising executive and board level management on corporate governance matters and performing internal investigations. Wilson served as chair of the firm’s nationwide corporate transactions and securities practice from 2006 to 2011. While at the law firm, she also served as the law clerk for the City of Atlanta Board of Ethics and played a significant role in the Enron investigation.
Law school launches new degree – Master in the Study of Law This fall, Georgia Law will begin offering a new graduate level degree for professionals and recent graduates seeking to increase their knowledge of law relevant to their career or academic discipline. The Master in the Study of Law is a non-thesis, 30-credit-hour degree for non-lawyers that can be completed in one year on a full-time basis or over three years on a part-time basis. It will provide students with a solid understanding of the U.S. legal system and the opportunity to delve more specifically into law as it relates to a particular field such as employment law, health care law and environmental law, among others. “This degree is ideal for those looking to build their knowledge of the law in order to increase their value in the employment marketplace,” Paul B. Rollins, associate dean for administration and director of Graduate Legal Studies, said. “This degree will not qualify candidates to sit for the bar or for the practice of law, but it will provide an understanding of basic legal principles that is increasingly important across a wide range of career fields,” he added. Master in the Study of Law students will take classes with traditional law students, and enrollment will be limited to maximize individual student support.
Her other professional experience includes teaching as an adjunct law professor at Emory University and Georgia Law as well as serving as a judicial clerk for Judge J.L. Edmondson of the U.S. Court of Appeals for the 11th Circuit. 20
HIRSCH HALL HIGHLIGHTS
istorical truths can be colored by human fallacy, making them a tenuous guide for lawyers and judges, according to retired U.S. Supreme Court Justice John Paul Stevens. Stevens, the third-longest serving Supreme Court justice, spoke to a near-capacity crowd at the UGA Chapel about originalism and history as the keynote speaker at the Georgia Law Review’s conference titled “The Press and the Constitution 50 Years after New York Times v. Sullivan.” He shared his concerns about a philosophy that attempts to determine the intent of what the framer of a law or provision meant when a text was adopted. “History is, at best, an inexact ﬁeld of study, particularly when employed by judges,” he said. Giving a truly Southern example of historical recollection versus reality, the nonagenarian jurist described a trip he took with his family from Chicago to Florida in 1939. The Stevens family stopped in Atlanta, he said, and went to the theater to see the recentlyreleased ﬁlm “Gone with the Wind.” Stevens said he has a “vivid but apparently somewhat inaccurate memory” of a nonexistent scene in the ﬁlm showing the devastation of Atlanta at the hands of Union General William T. Sherman that caused such an emotional response in the Georgia crowd it left the thencollege student “afraid even to whisper a comment lest [his] accent reveal the fact that Yankees were in the audience.” His reminiscence shows that the ﬂaws in his recollection “demonstrate that even eyewitness testimony about historic events may be inaccurate,” Stevens said. The discrepancy in historical views is evident in other areas as well, he explained, citing the presidential election of 1876. In William Rehnquist’s book about the election, the Supreme Court justice noted Southern Democrats kept Republican voters away from election-day polls with intimidation and threats of violence. However, Southern historian C. Vann Woodward did not mention those problems in his own writings about the election. Stevens also noted there are other moments in history with “gaps in our knowledge about the real decision-making process” and described the historical records of New York City and Kansas City when Tammany Hall and the Pendergast Machine were in control as “undoubtedly incomplete.” “When areas of uncertainty apply to the work of the most distinguished and best-qualiﬁed historians, lawyers and judges who are not specially trained in that ﬁeld must exercise caution whenever they are asked to apply a so-called jurisprudence of original intent to the process of interpreting the Constitution,” he told the audience. www.law.uga.edu
While original intent isn’t to be discounted, the former justice cautioned it should be tempered. “A jurisprudence of original intent, while always relevant and important, can play only a limited role in the court’s adjudication of constitutional issues,” he said. Using Brown v. Board of Education as an example of the study of original intent, Stevens noted the framers of the 14th Amendment would not have considered school desegregation as one of their goals, despite what the justices of 1954 decided. “A study of the original intent of the framers of the 14th Amendment will not identify an interest in desegregating public schools as one of their principle concerns,” he said. “Nevertheless, the Equal Protection Clause, a role by which the states are
Photo by UGA Photographic Services’ Paul Efland.
U.S. Supreme Court Justice Stevens: History seen through the eyes of the beholder
governed, imposes a duty to govern impartially that is broad enough to prohibit racial segregation in public schools.” Stevens also weighed in on the Supreme Court in its current incarnation, saying he believed it has not lost its ability to effectively make decisions. “I think it’s made a number of decisions that are incorrect, but I do think it’s still a very intelligent, functioning institution,” he said. The day-long conference also included three panel discussions regarding courts and freedom of the press in the 50 years since New York Times v. Sullivan.
As keynote speaker of a Georgia Law Review conference, former U.S. Supreme Court Justice John Paul Stevens addressed whether justices should serve set term limits of 15 years. “It’s not a frivolous suggestion by any means,” he said. “I’m sure there’s a lot of merit to it but I’m happy they didn’t have such a statute that would go into effect during my term, and I do think, in the long run, allowing judges to continue serving while they’re capable of doing so is in the country’s best interest. For the most part, judges are able to let one another know when it’s time to go.”
HIRSCH HALL HIGHLIGHTS
Symposium focuses on judicial ethics
he 14th Annual Legal Ethics and Professionalism Symposium, hosted this year at Georgia Law, was titled “Who Are They to Judge? – Ethical and Professional Issues Facing the Bench” and focused on the increasing ethical challenges encountered by judges in light of changes in their jobs and the legal profession more generally. The symposium had an impressive lineup of judges, attorneys and professors on hand to discuss civility in the courtroom, judicial elections and investigations into alleged judicial misconduct. Associate Dean and Cleveland Distinguished Chair of Legal Ethics and Professionalism Lonnie T. Brown Jr., who organized the event, said the impetus for the theme of the symposium was “the growing perception that more and more judges were behaving badly.” Maintaining civility in the courtroom is paramount for lawyers and judges, who have an “obligation to do it right,” said David B. Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and one of the conference’s keynote speakers. Sentelle urged lawyers and judges to consider how they personally would like to be treated. “When litigants, ofﬁcials, criminal defendants, witnesses and victims see attorneys behaving like uncivilized barbarians in the very temple of law and order, we can hardly expect them to display better behavior than the examples the lawyers set,” he said. Several other panelists also offered their thoughts on the behavior of members of the judiciary. “Being a judge is like doing your life’s work in a ﬁshbowl, everybody’s watching you from every angle,” said M. Gino Brogdon Sr., former State Court and Superior Court judge in Georgia. He urged jurists to refrain from poor behavior, especially on social media, and shared advice he received when he was ﬁrst appointed to the bench. “Never accept anything from a lawyer except arguments, cases or advice,” he said. “Never let anyone take a picture of you with a
Marsha Ternus, former Iowa Supreme Court chief justice and keynote speaker, asked the question, “Is fairness and impartiality most important or is judicial accountability to voters what counts?”
drink in your hand or your arm around anyone who’s not your wife or your family and don’t say things to lawyers in court that you wouldn’t say to your mama.” It isn’t just behavior in courtrooms that concerned conference participants. Yale University’s Crawford Lecturer Lawrence J. Fox, a Pennsylvania resident, “We are the profession that, more than any other, noted some of the represents the rule of the law. Lawyers have the obligation issues he’s witnessed, to do it right,” U.S. Court of Appeals Judge David Sentelle, including seeing judges who served as a keynote speaker, said. receive money for Christmas gifts. He also acknowledged that judges have received kickbacks from private incarceration facilities and run election ads that undermine one another. “I think the bigger problem for the judiciary is not the lack of discipline but what I call the background stuff that’s going on that isn’t discipline-related but is causing a crisis in conﬁdence in America in this particular institution,” he told the audience. Former Chief Justice of the Iowa Supreme Court Marsha Ternus, who also served as a keynote speaker, focused on her experiences in a controversial judicial election. After Ternus and her six fellow Supreme Court justices unanimously ruled to legalize gay marriage in Iowa, special interest groups spent more than $1 million to oust her and two other justices who were facing a retention election in 2010. Citing “a retaliatory element in the campaign against us,” Ternus questioned to whom judges should answer. “These messages suggest to judges that judges should be more concerned about public opinion and their own retention than about the consistent application of legal principles,” she said. “Ironically, one criticism that was never voiced throughout the 2010 campaign against us was that we had erroneously applied the law.” The politicization of judicial elections can have a negative effect on how the public sees courts, too. Most voters, Ternus said, think that contributors to judicial elections have a great deal of inﬂuence on judges’ decisions. She concluded that the trend toward politicizing America’s courts “threatens the very foundation of our system of justice.” www.law.uga.edu
Examining Georgia’s public defender system
he year 2013 marked the 50th anniversary of Gideon v. Wainwright, where a unanimous U.S. Supreme Court held that due process requires that states provide defense counsel to indigent defendants in criminal cases. In honor of Gideon, the law school held a conference titled “Honoring Gideon’s Promise, Rallying Gideon’s Army.” The event focused on Georgia’s public defender system, which was created by Georgia’s Indigent Defense Act of 2003. The struggle to give those who live in poverty adequate legal representation and ensure fairness in the criminal law system is a long and difﬁcult road, according to panelists at the conference. Russell C. Gabriel (J.D.’85), the director of the law school’s Criminal Defense Clinic and organizer of the event, explained that the Gideon case is to criminal justice what Brown v. Board of Education is to segregated schools, “except that the states have taken much longer to fully appreciate the mandate of Gideon.” Panelists included the heads of public defender ofﬁces in Savannah, Albany, DeKalb County and Athens; recent law school graduates working in public defender ofﬁces; indigent defense advocates and a documentary ﬁlmmaker. Panels covered topics including: the challenges of new public defenders adjusting to practice; organizational, training and caseload issues faced by public defender ofﬁces; and the struggles facing Georgia’s public defender system as a whole. Circuit public defenders showcased the geographic, structural and funding diversity of public defender ofﬁces across Georgia. Panelists explained that while the state funds approximately 35 percent of indigent defense representation, individual counties fund 65 percent. However, this varies widely and constituent counties in some circuits fund as much as 90 percent of indigent defense programs, but in other circuits fund as little as 10 percent. Leisa Johnson, the circuit public defender for the Dougherty Judicial Circuit, started the public defender ofﬁce there pursuant to the 2003 Indigent Defense Act. She noted a number of improvements that have resulted from the move to a dedicated public defender ofﬁce, including a more aggressive pursuit of appeals. Johnson said successful appeals in and of themselves are not her goal, but effective legal representation is. She stressed the importance of defendants knowing they are receiving fair treatment. “I’m not looking for reversals,” she said. “I just want to follow the law, so we try one case at a time.” Stephen Bright, the president and senior counsel of the Southern Center for Human Rights and a visiting professor at the law school for the last two years, discussed the need for independence of public defender programs from prosecutors and judges. He noted that while the Attorney www.law.uga.edu
General’s Ofﬁce is the chief prosecutor for the state, it also represents the Georgia Public Defender Standards Council in litigation challenging the agency’s execution of its statutory and constitutional mandate. “How do you get the government – that’s trying to convict people and imprison them and execute them – to hire more lawyers to defeat Ilham Askia, executive director and cofounder that?” Bright asked. of Gideon’s Promise (a nonprofit that offers Attendees also screened the training and mentorship for new public award-winning 2013 HBO defenders in the South), served as a featured ﬁlm “Gideon’s Army,” which speaker at the conference. followed three public defenders in the South. The documentary showed the extended hours, lack of pay and volume of work facing public defenders. One of the lawyers featured in the ﬁlm is Georgia Law 2008 alumnus Travis A. Williams. The ﬁlm follows Williams, an assistant public defender in Hall County, Ga., as he and a client – accused of armed robbery – navigate the legal system. Also a conference panelist, Williams said, “This is tough work. This is grueling work. You’re dealing with people that society has forgotten about.” The producer and director of “Gideon’s Army,” Dawn Porter spoke about reactions to the ﬁlm, saying it had helped some public defenders see themselves differently. Porter, herself a lawyer, said the often-negative attitude toward public defenders can affect the way public defenders feel about themselves and their jobs. “To see themselves celebrated is something new,” she said. One of the conference’s featured speakers, Ilham Askia, explained she is not a lawyer. She is, however, the executive director and cofounder of Gideon’s Promise, a nonproﬁt that offers training and mentorship for new public defenders, particularly in the South. Askia spoke about her own personal experiences, including the incarceration of each of the male members of her family, her marriage to a public defender and the vision of effective, client-centered legal representation by public defenders that led to the creation of Gideon’s Promise. “We cannot continue to let poor people be treated the way they are in this country,” she said. PortionsGriffeth of this article were taken, with permission, from articles on the conference written by Katheryn Hayes Tucker for the Daily Report and by Lee Shearer for the Athens Banner-Herald. Advocate 2014
Conference focuses on cybersecurity in the international realm
he freedom of the Internet can expose government and business vulnerabilities, according to several experts who discussed cybersecurity at a recent Georgia Law conference. Organized by the Dean Rusk Center for International Law and Policy, the “Cybersecurity and National Defense: Building a Public-private Partnership” conference brought together senior level government officials as well as leaders from the corporate sector and academia to discuss cybersecurity law and policy issues. The panelists discussed the national security risks that cyber issues present to both the public and private sectors. Quentin E. Hodgson, chief of staff for cyber policy with the Office of the Secretary of Defense, explained that from a Department of Defense perspective, the government has to be ready to defend and operate in the event of a cyber attack. “Although we’ve been accused of this a lot, we are certainly not trying to militarize cyberspace,” he told attendees. He also noted that the controversy surrounding former National Security Agency contractor Edward Snowden has caused the department to reassess how it operates. “How do we address the very real needs the United States government has to collect intelligence – but also to consider privacy – [while considering] what impact it has when we’re thinking about particular targets of intelligence?” Hodgson asked. “That’s something I think, although it didn’t happen the way we wanted it to, certainly has opened up the conversation in a way I think is healthy.” The collection of information is actually “sort of an understood concept,” said Jamil Jaffer, a senior Senate staffer and director of George Mason University Law School’s Homeland and National Security Law Program. However, the Internet has changed what countries are actually collecting, he added. Jaffer used China as an example of a country which gathers data on the United States. However, he said, China has moved from just collecting information about the government to targeting American corporations as well. “[China is] stealing our core intelligence property – the very thing that drives the American economy,” he said. Clete D. Johnson (J.D.’04), the chief counsel for cybersecurity for the Federal Communications Commission, addressed the unusual nature of these cybercrimes, describing the Internet as a “global commons.” He explained that the lack of borders is a major challenge when dealing with legal issues. The intangible nature of the Internet means that threats do not just
Adam Golodner (left), partner and leader of the global cybersecurity and privacy group at the law firm Kaye Scholer, discusses cybersecurity issues while Victoria Woodbine of the British Embassy’s Foreign and Security Policy Group and Jamil Jaffer, director of George Mason University Law School’s Homeland and National Security Law Program, look on. 24
come up against military forces anymore, but rather they can be thousands of miles away and still wreak havoc, he said. “The people who are attacking us in cyberspace don’t have to physically be within our borders,” Johnson elaborated. This requires “a new paradigm of collaboration” between entities, he said. Victoria Woodbine, of the Foreign and Security Policy Group at the British Embassy in Washington, D.C., also explained that “the crucial bit in this is partnerships.” “Partnerships with industries, partnerships with governments, partnerships with academia, but also that international angle as well,” she said. Andrea Matwyshyn, assistant professor of legal studies and business ethics at the University of Pennsylvania Wharton School and a senior policy adviser at the Federal Trade Commission’s Office of Policy Planning, noted there are online susceptibilities that affect governments and businesses separately and together. “Vulnerabilities come in two flavors and impact both government agencies and entities and companies as well as, obviously, the consumer base,” she said. Adam Golodner, partner and leader of the global cybersecurity and privacy group at the law firm Kaye Scholer and former director of global security and tech policy at Cisco Systems, stressed the importance of different agencies working in tandem. “We have an interest, as do people who care about the Internet, of having interoperable standards,” he said, adding that it is important to look at existing multilateral and global institutions and how they can affect both cybersecurity and the Internet. Working together to tie up those loose ends in cyberspace is important, said Jacob Olcott, principal at Good Harbor Security Risk Management, but not without difficulties. “It is impossible to identify any sort of unifying theory of public/private partnerships or relationships,” he said. Olcott explained that there are a multitude of relationships the government has with the private sector – from supportive to punitive – and that “it’s an evolving relationship.” He shared that the two groups work together in several ways to secure cyberspace, including direct information sharing with the private sector as well as joint criminal investigations and infrastructure assessments in addition to facilitating collaborations between business industries.
Judges talk diversity on the bench Conference explores meeting point of public health and environmental law Georgia Law’s 26th Annual Red Clay Conference, titled “Healthy Planet, Healthy People: Conversations from Environmental Law and Public Health Perspectives,” addressed the intersection of public health and environmental law. University of Maryland School of Law Professor and Center for Progressive Reform President Rena Steinzor was the event’s keynote speaker.
Three judges visited Georgia Law in November to discuss diversity on the bench. State Superior Court Judge Gail Tusan (left), Georgia Court of Appeals Judge Carla Wong McMillian (J.D.’98) and U.S. Magistrate Judge Justin Anand served on the panel, which was sponsored by the Asian Law Student Association, the Davenport-Benham Black Law Student Association, the American Constitution Society and the Women Law Students Association.
GJICL conference debates new roles of corporations This year’s Georgia Journal of International and Comparative Law conference, titled “The New Roles of Corporations in Global Governance,” hosted Bennett Freeman (right), senior vice president for sustainability research and policy at Calvert Investments, as the keynote speaker. Other discussions centered on how corporations have, in recent years, begun to play a significantly larger role in international governance.
Ninth annual WIPI conference SCOTUSblog heads, journalists visit UGA Journalists and legal professionals from SCOTUSblog, the first blog to win a Peabody Award, visited UGA to discuss covering the nation’s top court. “SCOTUSblog: Supreme Court Coverage and Cases,” hosted by Georgia Law and the Grady College of Journalism and Mass Communication, focused its discussions on the upcoming U.S. Supreme Court term, the rise of SCOTUSblog as a preeminent source of information about the Supreme Court and the role of digital media in Supreme Court coverage. Participants were: (l. to r.) SCOTUSblog Editor Amy Howe, National Law Journal Supreme Court Correspondent Tony Mauro, Georgia Law Associate Professor Sonja West, SCOTUSblog Publisher Tom Goldstein and NBC News Justice Correspondent Pete Williams.
The student-organized Working in the Public Interest Conference focused on several different topics in its ninth year, including the Voting Rights Act, military tactics used by law enforcement, suburban poverty, prison privatization and public assistance. Georgetown University Law Center Criminal Defense and Prisoner Advocacy Clinic Director Abbe Smith delivered the keynote address. WIPI conferences aim to explore practical approaches to lawyering that can promote social justice and human rights for all.
Former governor speaks at law and politics symposium The Third Annual Georgia Association of Law & Politics Symposium brought together a few of Georgia’s leading legal minds and political luminaries to discuss critical issues facing our state and nation. Former Gov. Roy E. Barnes (J.D.’72) (right) presented the keynote address, and panel discussions were held on Georgia’s glass ceiling, its new juvenile justice code and its federal judicial nomination process. Advocate 2014
HIRSCH HALL HIGHLIGHTS
The Sibley The Sibley Lecture Series, established in 1964 by the Charles Loridans Foundation of Atlanta in tribute to the late John A. Sibley, is designed to attract outstanding legal scholars of national prominence to Georgia Law. Sibley was a 1911 graduate of the law school.
Edith House lecturer urges women to defy expectations It’s important to find your own version of success, according to Home Depot executive Teresa Wynn Roseborough, who presented Georgia Law’s 32nd Edith House Lecture titled “It’s Time to Try Defying Gravity – One Woman’s Thoughts on Having it All.” Roseborough, who serves as executive vice president, general counsel and corporate secretary for The Home Depot, said she has “broken almost every rule in the book” on how women should achieve professional success.
Civil rights the focus of 110th Sibley Lecture “When we speak openly about the successes of others, in a weird way, we elevate ourselves,” she said. “So it’s one way we contribute to our own success by noting the success you see in others.” While building up one another is important, honest assessments are sometimes warranted and can help change and improve a person’s focus, she added. “Find the people around you who are willing to tell you the things you don’t want to hear,” she said, and use their honesty for the better.
“I have cried at work. I smile a lot, and I hug the people I work with,” she said. “I talk about work at home and home at work.”
Ultimately, Roseborough said, one should “pursue and achieve” her own definition of success.
Everyone has their own lives and roles outside of their work, she explained, and for lawyers, their jobs are not just a 9-to-5 commitment. Legal work is “largely executed at the behest of others” and sensitive to time.
“You have to decide what success means for you and in your life,” she said. “If what you achieve is success in the eyes of others, but not a success in the warmth of your heart or happiness to your soul then you really haven’t achieved anything of value.”
However, “don’t accept that the way things are, are the way things have to be,” she said, encouraging women to imagine a world where more females are in leadership roles.
Roseborough previously served as deputy general counsel for MetLife, as deputy assistant attorney general for the U.S. Department of Justice, and as a judicial clerk for Justice John Paul Stevens of the U.S. Supreme Court and for Judge James Dickson Phillip of the U.S. Court of Appeals for the 4th Circuit. She earned her bachelor’s degree from the University of Virginia, her master’s degree from Boston University and her law degree with high honors from the University of North Carolina School of Law, where she was editor-in-chief of the North Carolina Law Review.
Roseborough encouraged women to be daredevils and “defy gravity” in their efforts to be successful on multiple fronts by visualizing the world and asking how to change it.
“How can we create a fantastic learning environment that produces more leaders?” she asked. “How can you change the things in our environment that might The Edith House Lecture is sponsored by the Women hold women down?” Law Students Association in honor of one of the first female graduates of Georgia Law. House, a native of She also noted the importance of advocating for Winder, Ga., was co-valedictorian of the law class of other women and finding those who will be honest in their opinions. 1925, the first to graduate women. 26
If all the world’s a stage, then the differences between civil and constitutional rights are like the final acts of a Shakespearean comedy and tragedy, according to Haas Professor Robin S. West, the director of the Georgetown University Center for Law and Humanities. In her role as the fall semester’s Sibley lecturer, West discussed civil rights jurisprudence, contrasting these rights, which were made into law in the historic 1964 Civil Rights Act, with constitutional rights over the last 50 years. Civil rights are natural rights, she said, by the “virtue of one’s humanity” and his or her membership in a society. These rights are different from constitutional rights, she explained, in that civil rights are rights of entry, while constitutional rights are “rights of exit.” www.law.uga.edu
HIRSCH HALL HIGHLIGHTS
Lecture Series Civil rights give an individual the right to public education, maternity leave, affordable health care and protection against violence, while constitutional rights give the individual the chance to homeschool children, to have an abortion, to opt out of health insurance or to own a firearm and use it as selfdefense. These constitutional rights are “tragic” by nature, West said, like in a Shakespearean tragedy, which often leaves the characters of the play dead on stage. “In constitutional tragedies, all those dead individuals, as well as those who killed them, are shrouded in rights,” she added. Civil rights, then, are more comedic in tone, she explained. “In the last of these legal comedies, not just the individual but the communities in which they live are all on stage celebrating the civil rights that unite and support them,” she said. “There’s nothing Dionysian and nothing romantic about any of it.” Citing the 2012 shooting of Trayvon Martin and the consequent arrest and trial of his shooter, George Zimmerman, West said there may have been multiple violations to Martin’s civil rights, due to expanded self-defense and “stand your ground” laws. These civil rights altering laws “expand the scope of justified lethal force to include the scenarios in which a combatant is in fear of his life regardless of who or what triggered the fight that put him there,” she said. “Some measure of public civic violence is now fully permitted that was fully criminal a very short time ago,” West said, noting that Martin’s right to physical security and the state’s obligation to protect it were violated. “We’ve shrunk the scope of the civil rights we’ve protected, and we’ve constitutionalized various rights to kill each other,” she said, adding that minority communities may possibly see more carnage from these moves. The right to safety is perhaps the most “quintessential civil right,” West said. “Yet somehow we’ve lost the civil rights underpinning of our right to be protected by the state against private violence.”
Sibley Lecture explains ‘inexcusable wrongs’ Tort law, which enables victims to hold their wrongdoers accountable, can refuse to acknowledge excuses in a way that criminal laws do not, said Harvard University’s Goldston Professor of Law John C.P. Goldberg, who presented “Inexcusable Wrongs” as Georgia Law’s 111th Sibley lecturer. In order to understand the difference between tort and criminal law, Goldberg said that a clear definition of an excuse is necessary. Using an example of one person shooting another, Goldberg explained the differences between denial, justification and excuses. If the shooter said he was holding the gun but someone bumped into him, causing the weapon to fire, he would be denying responsibility, Goldberg said. He added that justification would be if the shooter admitted he shot the victim but only did so because his own life was threatened, while also noting there are laws in place to allow such a reaction. An excuse, though, would offer an explanation as to why a wrong was committed. For example, Goldberg said if the shooter shot the victim because he was told his own child was kidnapped and would be harmed unless he committed the crime, he could use the excuse of duress. While the victim in that instance was “totally innocent,” one can understand why the shooter did the wrongful act. “Sometimes we can’t expect people to do the right thing,” Goldberg said. “There are some times when it’s just too hard to do the right thing. It doesn’t make it right, but it makes it understandable.” Tort law does not subscribe to the same forms of lenience or relief that can be found in criminal law, Goldberg said, even if evidence shows the wrongdoer was under some form of pressure. “There’s very compelling evidence that at least on the nominate excuses like duress and provocation, tort law just doesn’t care about it,” he said. “You can go ahead and argue until you’re blue in the face as a tort defendant that you were under duress and it won’t help you a bit if the judge is following the formal docket.” According to Goldberg, the very etymology of the word “tort” – coming from the Latin word meaning “to twist” – shows that the laws are based on someone harming another.
According to Goldberg, the very etymology of the word “tort” – coming from the Latin word meaning “to twist” – shows that the laws are based on someone harming another.
“Torts are wrongs – conduct that is twisted, that is not right, that is not straight,” Goldberg said. “Every tort is a violation of a legal directive that defines unacceptable conduct.” Tort wrongs are a special kind of wrongs, he added. These laws “empower victims,” he said, and “the whole point of tort law is to allow the twisted victim to untwist, to make things straight, to make things right.” When tort law is violated, it is because someone did not live up to a standard of conduct expected for everyone, Goldberg explained. Torts give “victims a response, an opportunity to address further wrongdoing.” These laws give victims a chance to respond to their wrongdoer, and in doing so, “the idea is when the law is in the business of defining this kind of wrong, for this kind of purpose, excuses are understandably left out of the story,” he said.
HIRSCH HALL HIGHLIGHTS
Invited lecturers with an international law focus The Dean Rusk Center for International Law and Policy hosted several guests this past academic year that brought an international perspective to the university. ,BSJNB#FOOPVOF, international human rights expert and University of California, Davis, School of Law professor, discussed Muslim fundamentalism during the fall. Her talk was based on her recently published book Your Fatwa Does Not Apply Here: Untold Stories From the Fight Against Muslim Fundamentalism, which addresses resistance to fundamentalism through accounts of interviews of more than 280 people of Muslim heritage, many of whom have channeled their resistance through various forms of artistic expression. Middle Eastern scholar 3BNJO+BIBOCFHMPP spoke on democracy and nonviolence in Iran during the spring. An associate professor and the holder of the York-Noor Visiting Chair in Islamic Studies at York University in Toronto, Canada, Jahanbegloo is the recipient of the 2009 Peace Prize awarded by the Association for the United Nations in Spain for his extensive academic works in promoting dialogue between cultures and his advocacy for nonviolence. Among his 24 books in English, French and Persian are: India Analysed (Oxford University Press), Talking Politics (Oxford University Press) and The Gandhian Moment (Harvard University Press). 8JMMJBN73PFCVDL+S, the deputy assistant secretary for Egypt and Maghreb Affairs and Georgia Law 1992 alumnus, presented â€œFrom Law School to Diplomacy in Libya:Â Threading a Path Through the Foreign Serviceâ€? during March. He joined the Foreign Service in 1992 and has held a wide variety of positions both in Washington and in the Middle East, including that of chargĂŠ dâ€™affaires for Libya. Prior to joining the U.S. State Department, Roebuck served as a volunteer in the Peace Corps, teaching English in Cote dâ€™Ivoire. Congressman David Scott came to campus in January and presented on international finance, particularly as it relates to the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act. He is currently serving his sixth term representing Georgiaâ€™s 13th Congressional District, which includes six Atlanta-area counties â€“ Cobb, Clayton, Douglas, Fayette, Fulton and Henry. Scott presently serves on the Financial Services Committee, the Agriculture Committee and the NATO Parliamentary Assembly.
Transnational Law Program strengthens international reputation One of Georgia Lawâ€™s newest international initiatives is the Transnational Law Program, which allows partnering foreign universities to bring their law students to Athens for one week of study focused on requested areas of international or domestic law. The program debuted last spring with 13 law students from the University Mauricio de Nassau in Brazil. This year, one Brazilian student was joined by 10 students from the Dominican Republic in classes covering international law, human rights law, environmental law, U.S. constitutional law and U.S. criminal law. Dean Rusk Center Director C. Donald â€œDonâ€? Johnson (J.D.â€™73) said international partnerships and exchanges like the Transnational Law Program strengthen the law schoolâ€™s reputation in the international arena. â€œThese opportunities allow the law school to showcase its faculty, students and facilities to the international community as well as to partner with international educational institutions to facilitate relationships and broaden scholarly discussions.â€?
Georgia Law expresses sympathy to the family and friends of the former members of the law school community who passed away during the academic year. Security OfďŹ cer H. Kimball â€œKimâ€? Barron died on February 15 at the age of 85. He is survived by his wife, Betty Hollis Baron, and sons Michael John and Richard Lynn and four grandchildren. Longtime Deanâ€™s OfďŹ ce secretary Clair Riley Drew passed away on December 24 at the age of 71. She worked for former Associate Dean Paul M. Kurtz and the late Woodruff Professor of International Law Louis B. Sohn, among others. She is survived by her husband, Donnie, daughters Kimberly and Kerri, and four grandchildren.
Former Director of Development Ronald D. â€œRonâ€? Hill passed away on February 26. He worked at the law school from 2002 to 2004. He is survived by his wife, Mary, and sons Justin and Jordan. Former Legal Aid Clinic Director Adrienne R. McFall died on March 1 at the age of 63. She led the clinic from 1991 to 1994. She is survived by her son Nicholas and two grandchildren. Former Public Services Librarian JosĂŠ â€œFicoâ€? RodrĂguez, who worked in the Alexander Campbell King Law Library from 1967 to 1990, passed away on August 19. He is survived by his wife, Antonia; daughters Adriana, RocĂo and Laura; son JosĂŠ; and seven grandchildren and two step-grandchildren. www.law.uga.edu
Faculty Notes The following will summarize the scholarly productivity of Georgia Law’s distinguished faculty during the calendar year 2013 and year-to-date 2014.
Diane Marie Amann
Kent H. Barnett
Editor-in-chief of Benchbook on International Law (American Society of International Law, 2014), available at www. asil.org/benchbook; “La Responsabilité et la Cour pénale internationale” in Internationalisation du droit: Pathologie ou métamorphose de l’ordre juridique? (M. Delmas-Marty and S. Breyer eds.) (forthcoming 2014); “Children and the First Verdict of the International Criminal Court” in 12 Washington University Global Studies Law Review 411 (2013); “A Janus Look at International Criminal Justice” in 11 Northwestern University Journal of International Human Rights 5 (2013); “International Law and the Future of Peace” in 107 American Society of International Law Proceedings 111 (2013); and a book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl in 107 American Journal of International Law 724 (2013).
“Codifying Chevmore” in 89 New York University Law Review (forthcoming, 2014–15); “Improving Agencies’ Preemption Expertise with Chevmore Codiﬁcation” in 83 Fordham Law Review (forthcoming 2014); “To the Victor Goes the Toil – Remedies for Regulated Parties in Separation-of-Powers Litigation” in 92 North Carolina Law Review 481 (2014); “International Sale of Goods” in Benchbook on International Law (D.M. Amann ed.) (American Society of International Law, 2014); and “Resolving the ALJ Quandary” in 66 Vanderbilt Law Review 797 (2013) (reprinted in 33 Journal of the National Association of the Administrative Law Judiciary 644 (2013)).
Peter A. Appel Wilderness Law and Policy: Cases and Materials (Carolina Academic Press, forthcoming 2014); and “A Funhouse Mirror of Law: The Entailment in Jane Austen’s Pride and Prejudice” in 41 Georgia Journal of International and Comparative Law 609 (2013).
Mehrsa Baradaran “Banking and the Social Contract” in 89 Notre Dame Law Review 1283 (2014); “It’s Time for Postal Banking” in 127 Harvard Law Review Forum 165 (2014); and “How the Poor Got Cut Out of Banking” in 62 Emory Law Journal 483 (2013).
Randy Beck “Overcoming Barriers to the Protection of Viable Fetuses” in 71 Washington & Lee Law Review (forthcoming 2014) (symposium) (invited); “Prioritizing Abortion Access over
Abortion Safety in Pennsylvania” in the University of St. Thomas Journal of Law & Public Policy (forthcoming 2014) (symposium) (invited); “State Interests and the Duration of Abortion Rights” in 44 McGeorge Law Review 31 (2013) (symposium); and “The Biblical Foundations of Law: Creation, Fall, and the Patriarchs” in Law and the Bible: Justice, Mercy and Legal Institutions (D. VanDrunen and R. Cochran eds.) (InterVarsity Academic Press, 2013) (with D. VanDrunen).
Elizabeth Chamblee Burch “Revisiting Government as Plaintiff” in 5 Journal of Tort Law 227 (2014); The Law of Class Actions and Other Aggregate Litigation, 2d ed. (Foundation Press, 2013) (with R. Nagareda et al.); “Adequately Representing Groups” in 81 Fordham Law Review 3043 (2013) (symposium); and “Disaggregating” in 90 Washington University Law Review 667 (2013) (symposium).
Jason A. Cade “The Plea Bargain Crisis for Noncitizens in Misdemeanor Court” in the Immigration and Nationality Law Review (forthcoming) (reprinted from 34 Cardozo Law Review 1751 (2013)); “The Challenge of Seeing Justice Done in Removal Proceedings” in 89 Tulane Law Review (forthcoming 2014-2015); and “Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment” in 113 Columbia Law Review Sidebar 180 (2013).
Georgia Law says farewell to Bowen After more than 20 years at Georgia Law, Rosemary Myers Bowen (formerly Hathaway) will retire this summer. She joined the law school in 1991 as a staff attorney and clinical instructor in what was then known as the Legal Aid and Defender Clinic. Approximately six years later, Bowen began teaching in the legal analysis, writing and research program, where she worked for the last 17 years. For a majority of these summers, she taught in the law school’s Early Start Program. During her time at the law school, Bowen performed pro bono work with recent immigrants to Athens through Oasis Católico Santa Rafaela and other groups. She also served as president of the board of directors of the Athens Area Homeless Shelter, where she served as a member of the board for many years. In 1999, when she was on a one-year leave of absence from the law school, she served as the first staff attorney at the newly formed Athens Justice Project. In recent years, Bowen has been involved – through her husband’s solar energy business – in licensing and regulatory issues surrounding renewable energy and sustainable development.
Rutledge named associate dean for faculty development In the fall,1FUFS#i#Pw3VUMFEHF assumed the position of associate dean for faculty development, a post that allows him to work closely with the law schoolâ€™s faculty, especially its untenured professors, to expand and promote scholarly activities.Â Dean Rebecca Hanner White said she is confident Rutledgeâ€™s enthusiasm and work ethic will be important assets as he works with the schoolâ€™s younger faculty members. â€œThis position has traditionally benefited our professors with their pursuit of serious research agendas, and I know Bo will be successful in this role.â€? Also the holder the Talmadge Chair of Law, Rutledge specializes in the areas of international dispute resolution, arbitration, international business transactions and the U.S. Supreme Court. He is the author of Arbitration and the Constitution and co-author of International Civil Litigation inÂ United States Courts. He also has contributed chapters to several edited volumes published by the Yale University Press, the Oxford University Press and the Cambridge University Press, among others. His work has appeared in a diverse array of journals such as The University of Chicago Law Review, the Vanderbilt Law Review and the Journal of International Arbitration. He has published articles, essays and book chapters in both English and German.
Rutledge has been invited to give lectures at number of prestigious institutions, both in the United States and overseas, including Columbia University, the University of Virginia, Oxford University, Cambridge University, the London School of Economics, the University of Oslo and the University of Stockholm, among others. In 2010â€“11, he was a Fulbright Professor at the Institut fĂźr Zivilverfahrensrecht at the University of Vienna Law School in Austria. He holds a B.A. magna cum laude from Harvard University, an M.Litt. in Applied Ethics from the University of Aberdeen (Scotland) and a J.D. with high honors from the University of Chicago, where he served as executive editor of The University of Chicago Law Review and was inducted into the Order of the Coif. Following law school, Rutledge served as a judicial clerk for Justice Clarence Thomas of the U.S. Supreme Court and for Chief Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit.
Ronald L. Carlson
Dan T. Coenen
Julian A. Cook III
Trial Handbook for Georgia Lawyers, 2014â€“15 ed. (West, forthcoming 2014) (with M. Carlson and J. Cook), 2013â€“14 ed. (West, 2013); â€œUnconstitutionality and the Rule of Wide-Open CrossExamination: Examining the Accusedâ€? in the John Marshall Law Journal (forthcoming 2014) (with M. Carlson); Carlson on Evidence, 2d ed. (Institute of Continuing Legal Education in Georgia, 2013) (with M. Carlson); Criminal Justice Procedure, 8th ed. (Anderson Publishing, 2013) (with S. Moak); Objections at Trial, 6th ed. (National Institute for Trial Advocacy, 2013) (with M. Bright and E. Imwinkelried); â€œThe Curious Case of Differing Literary Emphases: The Contrast Between the Use of ScientiďŹ c Publications at Pretrial Daubert Hearings and at Trialâ€? in 47 Georgia Law Review 837 (2013); and â€œThe Best Evidence Rule Made Better: A Glimpse into Georgiaâ€™s New Evidence Codeâ€? in 19 Georgia Bar Journal 12 (2013) (with W.M. Wilson).
â€œThe Commerce Power and Congressional Mandatesâ€? in 82 George Washington Law Review (forthcoming 2014); and â€œThe Filibuster and the Framing: Why the Cloture Rule Is Unconstitutional and What To Do About Itâ€? in 55 Boston College Law Review 39 (2014).
Trial Handbook for Georgia Lawyers, 201415 ed. (West, forthcoming 2014) (with R. Carlson and M. Carlson); and â€œPlea Bargaining, Sentence ModiďŹ cations, and the Real Worldâ€? in 48 Wake Forest Law Review 65 (2013).
Harlan G. Cohen
â€œTeaching â€˜The Wireâ€™: Crime, Evidence, and Kidsâ€? in the Journal of Legal Education (forthcoming 2014); â€œPoetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidenceâ€? in Hip Hop and the Law: The Key Writings that Formed the Movement (P. Bridgewater et al. eds.) (Carolina Academic Press, forthcoming 2014) (reprinted from 31 Columbia Journal of Law and the Arts 1 (2007)); â€œA Snitch in Time: An Historical Sketch of Black Informing During Slaveryâ€? in 97 Marquette Law Review 279 (2014); and â€œCollateral Damage? Juvenile Snitches in Americaâ€™s â€˜Warsâ€™ on Drugs, Crime, and Gangsâ€? in The Wire: Crime, Law and Policy (A. Gershowitz ed.) (Carolina Academic Press, 2013) (reprinted from 46 American Criminal Law Review 1145 (2009)).
Nathan S. Chapman â€œTranslating Thayerâ€? in 42 Florida State University Law Review (forthcoming 2015); and â€œDisentangling Conscience and Religionâ€? in 2013 University of Illinois Law Review 1457. 30
â€œFormalism and Distrust: Foreign Affairs Law in the Roberts Courtâ€? in 83 George Washington Law Review (forthcoming, 2014); â€œInternational Law in a Time of Scarcity: An Introductionâ€? in 41 Georgia Journal of International and Comparative Law (forthcoming 2014); â€œTheorizing Precedent in International Lawâ€? in Interpretation in International Law (Oxford University Press, forthcoming 2014); â€œInternational Precedent and the Practice of International Lawâ€? in The Challenges of Global and Local Legal Pluralism: Mediating State and Non-State Law (Cambridge University Press, forthcoming 2014); â€œInternational Lawâ€™s Erie Momentâ€? in 34 Michigan Journal of International Law 249 (2013); and â€œLawyers and Precedentâ€? in 46 Vanderbilt Journal of Transnational Law 1025 (2013).
Andrea L. Dennis
Jaime L. Dodge â€œDisaggregative Mechanisms: The New Frontier of MassClaims Actionsâ€? in 63 Emory Law Journal (forthcoming 2014); â€œBilateral Mass Settlementsâ€? in 90 Notre Dame Law Review (forthcoming 2014); â€œBehind the Curtain: MDL Plaintiffs Steering Committeesâ€? in 64 Emory Law Journal (forthcoming 2014); and â€œReconceptualizing Non-Article III Tribunalsâ€? in 99 Minnesota Law Review (forthcoming 2014).
Thomas A. Eaton Workersâ€™ Compensation Cases and Materials, 7th ed. (West, forthcoming 2014), 6th ed. (West, 2013) (with J. Little and G. Smith).
Matthew I. Hall â€œThe Prudential Third-Party Standing of Family-Owned Corporationsâ€? in 162 University of Pennsylvania Law Review Online 151 (2014); and â€œHow Congress Could Defend DOMA in Court (and Why the BLAG Cannot)â€? in 65 Stanford Law Review Online 92 (2013).
Erica J. Hashimoto â€œAn Originalist Argument for a Sixth Amendment Right to Competent Counselâ€? in the Iowa Law Review (forthcoming 2014) (symposium); â€œReclaiming the Equitable Heritage of Habeasâ€? in 108 Northwestern University Law Review 139 (2013); and The Problem with Misdemeanor Representationâ€? in 70 Washington and Lee Law Review 1019 (2013) (symposium).
Walter Hellerstein â€œJurisdiction to Tax in the Digital Economy: Permanent and Other Establishmentsâ€? in the Bulletin for International Taxation (forthcoming 2014); State and Local Taxation: Cases and Materials, 10th ed. (West, 2014) (with K. Stark et al.); â€œDesigning the Limits of Formulary Income Attribution Regimesâ€? in 72 State Tax Notes 45 (2014); Taxing Global Electronic Commerce (Kluwer Law International, 2013) (with A. CockďŹ eld et al.); â€œState Jurisdiction to Tax â€˜Nowhereâ€™ Activityâ€? in 33 Virginia Tax Review 209 (2013) (with J. Swain); â€œA Unitary Business is the â€˜Linchpin of Apportionability,â€™ Not Nexusâ€? in 67 State Tax Notes 865 (2013); â€œComparing the Treatment of Charities Under Value Added Taxes and Retail Sales Taxesâ€? in VAT Exemptions: Consequences and Design Alternatives (R. de La Feria ed.) (Kluwer Law International, 2013); â€œCommentary on CFC Rules within the CCCTBâ€? in The Common Consolidated Corporate Tax Base (CCCTB) and Third Countries (M. Lang et al. eds.) (Edward Elgar Publishing, 2013); â€œFormulary Apportionment in the EU and the US: A Comparative Perspective on the Sharing Mechanism of the Proposed CCCTBâ€? in Movement of Persons and Tax Mobility in the EU: Changing Winds (A. Dourado ed.) (International Bureau of Fiscal Documentation, 2013); and â€œTax Coordination Among the US States â€“ The Role of the Courtsâ€? in Horizontal Tax Coordination (M. Lang et al. eds.) (International Bureau of Fiscal Documentation, 2013).
Fazal Khan Bioethics and the Law (Carolina Academic Press, forthcoming 2015); and â€œGenomics Unbound: The ScientiďŹ c and Legal Case Against Patents Based on Naturally Occurring DNA Sequencesâ€? in 13 Nevada Law Journal 668 (2013) (with L. Kessler). www.law.uga.edu
Sanders and Brumby Scholars enhance learning This year, former Ambassador Lee A. Feinstein and the Student Press Law Centerâ€™s 'SBOL%-P.POUF (J.D.â€™00) joined the law school faculty as visiting professors. Feinstein served as the Sanders Political Leadership Scholar for the fall 2013 semester and taught Intervention and Sovereignty: Contemporary Issues in International and National Security Law. Previously he served as the U.S. ambassador to the Republic of Poland, a position he held from September 2009 to October 2012. Feinstein has also served one secretary of defense and two secretaries of state, including as principal deputy director of the policy planning staff and as senior adviser in the Office of the Under Secretary of State for Arms Control and International Security.
Sanders Scholar Lee Feinstein
Brumby Scholar Frank LoMonte (J.D.â€™00)
A foreign policy adviser for multiple presidential candidates and a frequent lecturer and commentator domestically and internationally, Feinstein has taught at George Washington University and at the City University of New York. LoMonte served as a Visiting Scholar in the Brumby Distinguished Professorship this spring and taught the Law of Newsgathering to both law and journalism students. Since 2008, LoMonte has served as the executive director of the Student Press Law Center, a nonprofit organization that provides legal research, advocacy and training in support of student journalists nationwide. Before joining the SPLC, LoMonte was a litigation associate in the Atlanta office of Sutherland Asbill & Brennan, where he was named Associate of the Year by the Georgia Asylum & Immigration Network for his pro bono representation of unaccompanied minors in removal proceedings. He also clerked for Judge R. Lanier Anderson III of the U.S. Court of Appeals for the 11th Circuit and for Magistrate Judge C. Christopher Hagy in the Northern District of Georgia. The Sanders Political Leadership Scholar position is named for Georgiaâ€™s 74th Governor and 1948 Georgia Law alumnus Carl E. Sanders. It was created so law students could learn from individuals who have distinguished themselves as leaders in politics or other forms of public service. The Otis Brumby Distinguished Professorship of First Amendment Law was created by the late Otis A. Brumby Jr. (LL.B.â€™65). This position is shared between the law school and UGAâ€™s Grady College of Journalism and Mass Communication. Advocate 2014
Cook selected as SEC Administrative Fellow In October, Julian A. Cook III was named an SEC Administrative Fellow. He was one of four faculty members selected campus-wide for the 2013–14 academic year. The Administrative Fellows Program at UGA is part of a broader Academic Leadership Development Program of the Southeastern Conference, which seeks to identify, prepare and advance academic leaders for roles within SEC institutions and beyond. The fellowship includes two, three-day SEC-wide workshops that include lectures, panel discussions and opportunities for the fellows to interact with their counterparts from other SEC institutions. Cook joined the law school faculty in the fall of 2006 and was named a Hosch Professor in 2008. He came to UGA with nearly 10 years of legal teaching experience, having most recently been at Michigan State University. Specializing in criminal law, criminal procedure and evidence, Cook served for several years as an assistant U.S. attorney in Nevada and the District of Columbia. While a federal prosecutor and a member of the Organized Crime Drug Enforcement Task Force, he was responsible for the handling of an array of criminal matters, including felony narcotic, white-collar and various arrest-generated cases during the trial and appellate stages. He also served as a judicial clerk for Judge Philip M. Pro of the U.S. District Court for the District of Nevada. He is the author of Inside Investigative Criminal Procedure: What Matters and Why and the forthcoming Inside Adjudicative Criminal Procedure: What Matters and Why, as well as a co-author of the Trial Handbook for Georgia Lawyers, 2014–15 edition, which is forthcoming. His scholarship has also been published in the Notre Dame Law Review, the Yale Journal of International Law, the Colorado Law Review, the Brigham Young University Law Review, the Harvard Journal of Law and Public Policy and the Wake Forest Law Review. He earned his bachelor’s degree from Duke University, his Master of Public Administration from Columbia University and his J.D. from the University of Virginia. 32
Elizabeth Weeks Leonard (J.D.’99) “Crafting a Narrative for the Red State Option” in 102 Kentucky Law Journal 381 (2013–14); “Death Panels and the Rhetoric of Rationing” in 13 Nevada Law Journal 872 (2013); “Employers United: An Empirical Analysis of Corporate Political Speech in the Wake of the Affordable Care Act” in 38 Journal of Corporation Law 217 (2013) (with S. Scholz and R. Alexander); “Plunging into Endless Difﬁculties: Medicaid and Coercion in National Federation of Independent Business v. Sebelius” in 93 Boston University Law Review 1 (2013) (with N. Huberfeld and K. Outterson); “A Response to Beyond Separation: Professor Copeland’s Ambitious Proposal for ‘Integrative’ Federalism” in 15 University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny 29 (2013); “Don’t Get No Respect: Deﬁning the Field of Public Health Law” reviewing “Deﬁning the Field of Public Health Law” by M. Berman in Health Law Jotwell, Dec. 17, 2013, available at http://health.jotwell.com/dont-get-norespect-deﬁning-the-ﬁeld-of-public-healthlaw/; and “Healthism, Health Care Rights, and the Affordable Care Act,” reviewing “Healthism: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform” by J. Roberts in Health Law Jotwell, July 1, 2013, available at http://health.jotwell. com/healthism-health-care-rights-and-theaffordable-care-act/.
Hillel Y. Levin Statutory Interpretation: A Practical Lawyering Course (West, 2014); “Tax Credit Scholarship Programs: A Model Statute for a Better Program” in 1 Education Law and Policy Review 59 (2014); “Tax Credit Scholarship Programs and the Changing Ecology of Public Education” in 45 Arizona State Law Journal 1033 (2013); and “A Reliance Approach to Precedent” in 47 Georgia Law Review 1035 (2013).
Timothy Meyer Goldilocks Globalism (Oxford University Press, forthcoming 2014) (with A. Guzman); book review of Economic Foundations of International Law by E. Posner and A. Sykes in 108 American Journal of International Law (forthcoming 2014); “From Contract to Legislation: The Logic of Modern International
Lawmaking” in 14 Chicago Journal of International Law 559 (2014); “The Role of Science in Adducing Evidence of Climate Change” in The Oxford Handbook of International Climate Change Law (C. Carlarne et al. eds.) (Oxford University Press, 2014); “Soft Law” in The Research Handbook on the Economics of Public International Law (E. Kontorovich ed.) (Edward Elgar Publishing, 2014) (with A. Guzman); “Energy Subsidies and the World Trade Organization” in 17 American Society of International Law Insights (Sept. 10, 2013); and “Epistemic Institutions and Epistemic Cooperation in International Environmental Governance” in 2 Transnational Environmental Law 15 (2013).
Joseph S. Miller “Error Costs & IP Law” in 2014 University of Illinois Law Review 175.
Lisa Milot “Ignorance, Harm, and the Regulation of Performance-Enhancing Substances” in 5 Harvard Journal of Sports & Entertainment Law (forthcoming 2014); and “Illuminating Innumeracy” in 63 Case Western Reserve Law Review 769 (2013).
Christina Mulligan “Technological Intermediaries and Freedom of the Press” in 66 Southern Methodist University Review 157 (2013); and “A Numerus Clausus Principle for Intellectual Property” in 80 Tennessee Law Review 235 (2013).
Lori A. Ringhand “Voter Viewpoint Discrimination: Reconsidering a First Amendment Challenge to Voter Participation Restrictions” in the Election Law Journal (forthcoming 2014); Supreme Court Conﬁrmation Hearings and Constitutional Change (Cambridge University Press, 2013) (with P. Collins); Constitutional Law: A Context and Practice Casebook (Carolina Academic Press, 2013) (with D. Schwartz); and “Functioning Just Fine: The Unappreciated Value of the Supreme Court Conﬁrmation Process” in 61 Drake Law Review 1025 (2013) (symposium) (with P. Collins).
Usha Rodrigues “A Conﬂict Primacy Model of the Public Board” in 2013 University of Illinois Law www.law.uga.edu
Recent faculty appointments and honors Woodruff Chair in International Law Diane Marie Amann was appointed an affiliated faculty member of UGA’s African Studies Institute. She is the first law faculty member to hold this position. Amann also took part in a workshop titled “Strengthening Implementation of the U.N.’s Children and Armed Conflict Agenda” held at Princeton University. She participated in the program as part of her role as the special adviser to the International Criminal Court prosecutor on children in and affected by armed conflict. Assistant Professor Kent H. Barnett was selected to present his paper “Codifying Chevmore” at the 2014 Southeastern Association of Law Schools Annual Conference. His paper is one of four selected as the winners of the 2014 SEALS Call for Papers Competition. Associate Professor Harlan G. Cohen was elected to serve as a member of the American Law Institute, an organization that is dedicated to producing scholarly work to help clarify, modernize and improve the law. He also served as an observer delegate at the 14th U.N. Open-ended Informal Consultative Process on Oceans and the Law of the Sea. The consultative process was created by the U.N. General Assembly in 1999 in order to facilitate an annual review of developments in ocean affairs and the law of the sea. Assistant Professor Jaime L. Dodge was selected for the Next Generation Program of the 2013 National Conference of Bankruptcy Judges. The group of 40 bankruptcy attorneys was selected based upon their professional accomplishments to date that have demonstrated the participants’ potential to become highly respected members of the bankruptcy bar in coming years. Dodge was the only scholar selected for inclusion within the group, nominated by bankruptcy judges and law firm partners. Distinguished Research Professor & Shackelford Distinguished Professor in Taxation Law Walter Hellerstein presented the paper “Jurisdiction to Tax in the Digital Economy: Permanent and Other Establishments” at the “Base Erosion and Profit Shifting: A Roadmap for Reform Conference” held at the Max Planck Institute for Tax Law and Public Finance in Munich, Germany. He was one of approximately 40 of the world’s leading academics and practitioners in the field of international taxation who were invited to advance the debate toward legislative solutions both at the national and international levels. Associate Professor Timothy Meyer was invited to testify before the U.S. Senate Committee on Foreign Relations regarding the possible ratification of the Convention on the Rights of Persons with Disabilities. Associate Dean for Faculty Development & Talmadge Chair Peter B. “Bo” Rutledge was invited to testify at the U.S. Senate Judiciary Committee hearing titled “The Federal
Review 1051 (symposium); “Exit, Voice, and Reputation: The Evolution of SPACs” in 37 Delaware Journal of Corporate Law 849 (2013) (with M. Stegemoller); “In Search of Safe Harbor: Suggestions for the New Rule 506(c)” in 66 Vanderbilt Law Review En Banc 29 (2013) (invited); and “Securities Law’s Dirty Little Secret” in 81 Fordham Law Review 3389 (2013).
Peter B. “Bo” Rutledge “Sticky Arbitration Clauses” in 62 Vanderbilt Law Review (forthcoming 2014) (with C. Drahozal); “An Empirical Assessment of Arbitration Clauses in Credit Card Agreements” in Access to Civil Justice (S. Estreicher ed.) (Cambridge University Press, forthcoming 2014); www.law.uga.edu
Three faculty members were recognized this year by Georgia Law students. They include: (from l. to r.) Associate Professor Erica Hashimoto with the Ellington Award for Excellence in Teaching, Associate Dean Lonnie Brown with the Student Bar Association Professionalism Award and Associate Professor Elizabeth Chamblee Burch with the O’Byrne Memorial Award for Significant Contributions Furthering Student-Faculty Relations.
Arbitration Act and Access to Justice: Will Recent Supreme Court Decisions Undermine the Rights of Consumers, Workers and Small Businesses?” Georgia Athletic Association Professor David E. Shipley, who also serves as a UGA faculty athletics representative, was recognized for his efforts to foster excellence among student-athletes as exemplified by 2013 National Football Foundation National Scholar-Athlete Aaron Murray. Law Library Director Carol A. Watson (J.D.’87) was honored by bepress as a 2013 Institutional Repository (IR) All-Star. She is one of four individuals who received this award for her demonstration of unique and replicable approaches to IR success. Watson also received the Southeastern Association of Law Libraries Service Award, which is presented to a chapter member who has made special, significant and sustained contributions to the group. Associate Professor Sonja R. West was selected as chair-elect of the Association of American Law Schools Mass Communication Law Section for the 2014–15 term. Professor Donald E. Wilkes Jr. was granted emeritus status. Wilkes taught in the areas of criminal procedure, capital punishment and postconviction remedies at Georgia Law for more than 40 years before retiring in June of 2012.
“From Custom to Cooperative Federalism: The Case of Judicial Assistance Treaties in the United States” in Treaties in American Law (G. Fox and P. Dubinsky eds.) (Cambridge University Press, forthcoming 2014); “With Apologies to Paxton Blair” in 45 New York University Journal of International Law and Politics 1063 (2013); “Contract and Choice” in 2013 Brigham Young University Law Review 1 (with C. Drahozal); “Arbitration, the Law Market and the Law of Lawyering” in the International Review of Law and Economics (2013) (with E. O’Hara); “Guerilla Tactics at Other International Institutions” in Guerilla Tactics in International Arbitration (G. Horvath ed.) (Kluwer 2013); “Schiedsgerichte in
Nordamerika” in Hamburger Handbuch des Exportwirtschaftsrechts, 2d ed. (2013) (with I. Hanefeld); “The Proportionality Principles and the (Amount in) Controversy” in American Illness (F.H. Buckley ed.) (Yale University Press, 2013); and “Forum Shopping in International Arbitration – Forum Non Conveniens and Lack of Personal Jurisdiction” in Forum Shopping in the International Commercial Arbitration Context (F. Ferrari ed.) (Sellier European Law Publishers, 2013).
Margaret V. Sachs Securities Litigation & Enforcement in a Nutshell (West, forthcoming 2014) (with D. Nagy and G. Russello).
FACULTY ACCOMPLISHMENTS Logan E. Sawyer III
Publishing, 2013); “Some Reﬂections on the Merits of the Property Tax” in Beyond Economic Efﬁciency in United States Tax Law (Wolters Kluwer, 2013); and “Property and Sovereign Power” in Property and Sovereignty: Legal and Cultural Perspectives (Ashgate Publishing, 2013).
Carol A. Watson (J.D.’87)
“Constitutional Principle, Partisan Calculation, and the Beveridge Child Labor Bill” in 31 Law and History Review 325 (2013); and “Legal History in Context” in 53 American Journal of Legal History 397 (2013).
Alexander W. Scherr
Thomas “T.J.” Striepe
Editor of and contributing author to Learning from Practice, 3d ed. (Thomson West, forthcoming 2015).
“Embedded Librarianship” in Law Librarianship in the Digital Age (Scarecrow Press, 2013) (with M. Talley).
“Reconciling Ofﬁcial Immunity with the Vindication of Rights” in the St. John’s University Law Review (forthcoming 2014).
Larry D. Thompson
Sonja R. West
David E. Shipley “The Empty Promise of VARA: The Restrictive Application of a Narrow Statute” in 83 Mississippi Law Journal 1114 (2014); “The Law Professor as Faculty Athletics Representative: Some Random Thoughts After Two Years” in 2 Mississippi Sports Law Review 287 (2013); and “Rulemaking” in South Carolina Administrative Practice and Procedure, 3d ed. (South Carolina Bar, 2013) (with R. Lowell).
James C. Smith The Law of Property: Cases and Materials, 3d ed. (Aspen Publishers, 2013) (with E. Larson and J. Nagle); Real Estate Transactions: Problems, Cases, and Materials, 4th ed. (Aspen Publishers, 2013) (with R. Malloy); editor of Property and Sovereignty: Legal and Cultural Perspectives (Ashgate
“In-sourcing Corporate Responsibility for Enforcement of the Foreign Corrupt Practices Act” in 51 American Criminal Law Review 199 (2014).
Travis M. Trimble (J.D.’93) “Environmental Law” in 64 Mercer Law Review 909 (2013).
Christian Turner “Origins of the Public/Private Theory of Legal Systems” in Private Law: Key Encounters with Public Law (K. Barker and D. Jensen eds.) (Cambridge University Press, 2014); and “State Action Problems” in 65 Florida Law Review 281 (2013).
Camilla E. Watson “Reﬂections on the Life and Times of Alan Watson” in 41 Georgia Journal of International and Comparative Law 717 (2013).
“Reference Services in a Law Library” in Law Librarianship in the Digital Age (Scarecrow Press, 2013).
Michael L. Wells
“Press Exceptionalism” in 127 Harvard Law Review (forthcoming 2014) (symposium); “The Stealth Press Clause” in 48 Georgia Law Review (forthcoming 2014) (symposium); and “First Amendment Neighbors” in 66 Alabama Law Review (forthcoming 2014) (symposium).
Cathleen S. Wharton (J.D.’83) A Practical Guide to Legal Writing and Legal Method, 5th ed. (Aspen Publishers, 2013) (with J. Dernbach et al.).
Rebecca Hanner White Cases and Materials on Employment Discrimination, 8th ed. (Aspen Publishers, 2013) (with M. Zimmer and C. Sullivan).
Colloquium series bring notable scholars to campus Georgia Law hosts two colloquium series each year where legal academics from around the globe come to campus and present their current research to faculty and students. These forums greatly enhance the scholarly atmosphere at the school and foster relationships with other institutions. With funding from the school’s Kirbo Trust Endowed Faculty Enhancement Fund and the Talmadge Law Faculty Fund, the following presenters came to Athens during the 2013–14 academic year.
William W. Burke-White, University of Pennsylvania Hannah Buxbaum, Indiana University – Bloomington Cinnamon Carlarne, Ohio State University Kristina Daugirdas, University of Michigan Jean Galbraith, Rutgers School of Law – Camden Chiara Giorgetti, University of Richmond Christopher A. Whytock, University of California, Irvine
Rashmi Dyal-Chand, Northeastern University Ted Eisenberg, Cornell University David Fontana, George Washington University Jeanne Fromer, New York University Sarah Barringer Gordon, University of Pennsylvania Mark Graber, University of Maryland Orly Lobel, University of San Diego Saule Omarova, University of North Carolina – Chapel Hill John F. Stinneford, University of Florida
These colloquia are made possible by the Kirbo Trust Endowed Faculty Enhancement Fund and the Talmadge Law Faculty Fund. 34
Advocacy Program has record year; Brings home four national titles
nder the leadership of Director of Advocacy Kellie Casey (J.D.’90), Georgia Law had one of its best advocacy seasons ever with four wins in national competitions. Records indicate that this feat has only happened one other time in school history – during the 1996–97 academic year. In addition to the national trophies, several regional titles and individual and team honors were earned.
64th Annual National Moot Court Competition Third-year students Steven Strasberg (right), Ben Thorpe and Emily Westberry represented UGA in the oldest and most prestigious moot court competition in the country – the National Moot Court Competition. The trio was undefeated and brought home the top trophy. Additionally, Thorpe was named the competition’s best oralist. This is the third time in school history Georgia Law has won this competition. The other wins were in 1992 and 1997. Held at the New York City Bar Association, more than 190 teams from law schools across the nation competed in this year’s contest.
Third Annual South Texas Mock Trial Challenge Overcoming approximately 30 teams from law schools across the country, third-year students David Dove (right), Adam Fitzsimmons, Maggy Randels and Emily Westberry (left) were undefeated and won the South Texas Mock Trial Challenge. The group also prepared the second-best brief. Director of Advocacy Kellie Casey (J.D.’90) said she considers this mock trial tournament to be the best in the nation. Previously, Georgia Law teams finished this tournament as quarterfinalists in both 2012 and 2013.
29th Annual Dean Jerome Prince Memorial Evidence Competition
Andrews Kurth Moot Court National Championship Georgia Law captured the national title in the Andrews Kurth Moot Court National Championship, which is an invitation-only tournament that had the top 16 moot court programs from law schools across the country, based on performances during the 2012–13 academic year, competing. Third-year students Maggy Randels and Utrophia Robinson were the only undefeated team through multiple rounds of competition. Additionally, Robinson was named the competition’s second best oralist, and the pair prepared the tournament’s third best brief. Photographed at the contest are: (l. to r.) Texas Supreme Court Justice Jeffrey Boyd, Texas Supreme Court Justice John Devine, Maggy Randels, U.S. Court of Appeals for the 5th Circuit Judge James Graves Jr., U.S. Court of Appeals for the 5th Circuit Judge Jennifer Elrod, Utrophia Robinson, Texas Supreme Court Justice Jeff Brown, and former Texas Supreme Court Justice and current Andrews Kurth Partner Scott Brister. www.law.uga.edu
Second-year students Nick Stanojevich (far left), Xon Hostetter (center right) and George Ray (far right) teamed up to win the Dean Jerome Prince Memorial Evidence Competition, which had more than 35 teams competing for the top spot. Stanojevich was named the best oralist in the final round of competition, and the team was coached by law school faculty member Thomas Burch and third-year student Kenny Bentley (center left). Georgia Law also won this national tournament in 2002 and 2006.
Georgia Law posts strong finishes in negotiation competitions
Second-year student Andy Shin (left) and third-year student Taylor Wilson finished as semifinalists in the Southeastern Regional Competition of the National Transactional LawMeet, which was hosted by the law school in Athens.
egotiation competitions provide another avenue for law students to develop essential and valuable skills they will need as lawyers. Each year, only eight second-year students are selected to join Georgia Law’s competitive negotiation team. In February, third-year student G. Taylor Wilson and second-year student Andy Shin teamed up to ﬁnish as semiﬁnalists in the Southeastern Regional Competition of the National Transactional LawMeet, which is designed to give law students a hands-on experience in developing and honing transactional lawyering skills. Notably, Georgia Law hosted this regional contest. Additionally, a pair of third-year students, Jerrod M. Lukacs and Maggie Schauﬂer, had a good showing at the Fordham National Basketball Negotiation Competition during March. They ﬁnished as quarterﬁnalists after negotiating several scenarios that an NBA player, coach, general manager, owner or franchise might encounter. 36
Students win national Tax Challenge
eorgia Law recently won the 13th Annual American Bar Association Law Student Tax Challenge, a nationwide contest where approximately 90 teams from law schools across the country competed in solving a cutting-edge and complex business problem that might arise in everyday tax practice. Third-year student Morgan L. Klinzing and second-year student Benjamin “Ben” Newell represented UGA, and the pair was coached by Professor Camilla E. Watson. According to Watson, this is the ﬁrst year Georgia Law has had a team in this competition. “When I announced this opportunity to my class, Morgan and Ben responded. The competition judges were highly complimentary of their performance.” Other law schools represented in the contest were from the University of Pittsburgh, the University of Kansas, Florida International University and Loyola Law School in Los Angeles. In the ABA Tax Challenge, two-person teams are given a real world complex business planning issue with tax consequences to solve. The pairs are judged on performance in two areas – a memorandum to a senior partner and a letter to a client explaining the result. Based on these written materials, the ﬁeld is narrowed to just six teams which are invited to defend their submissions before a panel of judges consisting of some of the country’s top Professor Camilla Watson (left) poses with the ABA Tax Challenge winners, third-year student Morgan tax practitioners and government ofﬁcials, Klinzing and second-year student Ben Newell. including judges of the U.S. Tax Court.
Appellate Litigation Clinic students gain victories This spring, Appellate Litigation Clinic students Victoria A. Cuneo and Steven L. Strasberg prevailed in a habeas corpus case in the U.S. Court of Appeals for the 4th Circuit. After the 4th Circuit appointed the clinic to represent the client, both students devoted significant time and effort to fully briefing the case, according to Associate Professor Erica J. Hashimoto, who leads the clinic.
This victory follows on the heels of another clinic success. In this earlier case, which was also argued before the U.S. Court of Appeals for the 4th Circuit, 2013 alumnae M. Paula Briceno, Brittany M. Cambre and Crystal M. Johnson represented a franchisee who had brought suit against his franchisor and its former chief executive officer.
Strasberg presented oral argument before the court in January.
Johnson argued the case in the spring of 2013 in front of a panel that included retired U.S. Supreme Court Justice Sandra Day O’Connor.
Agreeing with the arguments set forth by Cuneo and Strasberg, the 4th Circuit concluded that the client had established a presumption of judicial vindictiveness in sentencing and therefore was entitled to the grant of a conditional writ of habeas corpus.
The 4th Circuit certified the case to the Virginia Supreme Court, and the clinic partnered with a major Virginia law firm that presented the case to that tribunal. The state high court answered both certified questions in the client’s favor, and the case will now be reconsidered by the 4th Circuit in light of those rulings. www.law.uga.edu
Georgia Law students earn national and other notable honors
ver the past academic year, several law students performed well in national competitions and were recognized for their scholarly work. Some of the more notable accomplishments include: Third-year student A. Warren Adegunle won the Center for Alcohol Policy’s 6th Annual Essay Contest, which is intended to foster debate, analysis and examination of state alcohol regulation. The essay topic concerned the 80th anniversary of the 21st Amendment and whether or not the amendment has achieved its intended purpose. Third-year law student Kaitlin M. Ball served as president of the International Law Students Association, which is a worldwide organization dedicated to educating students and lawyers across the globe on the importance of international law through academic conferences, publications, student chapters and the administration of the Philip C. Jessup International Law Moot Court Competition. She also moderated a panel titled “Emerging Trends and Challenges in International Legal Education and Scholarship” at the joint American Society of International Law/International Law Association conference held in Washington, D.C., during April. Third-year student Ellen R. Clarke placed third in the International Association of Defense Counsel’s 2013 writing contest. Her paper titled “A Duty to Over Preserve? How Disregarding Foreign Data Privacy Laws May Keep Litigants Out of a Jam” was published in the October 2013 issue of the Defense Counsel Journal. Third-year student Megan A. Cox placed third in the nationwide competition for Phi Alpha Delta’s Frank E. Gray Outstanding Clerk Award. This honor recognizes Cox’s work with the law school’s chapter of the professional law fraternity. Only 15 ﬁnalists were recognized as part of the organization’s annual awards program. Third-year student Lindsay Sain Jones participated in a panel titled “Wilderness Planning” at the “Role of Planning in Federal Land Management Conference” at the George Washington University Law School during March. Of special note, Jones was the only law student serving on a panel at this academic symposium. Second-year student Nicolas M. “Nick” Stanojevich was awarded a Peggy Browning Fellowship. He will work for 10 weeks this summer at O’Donoghue & O’Donoghue in Washington, D.C., as part of his award. Applications were received from students from more than 140 law schools nationwide. www.law.uga.edu
Georgia Law Review launches online companion journal; Calls for submissions The Georgia Law Review has created an online companion journal, the Georgia Law Review Online, that features short, op-ed length essays by practitioners, judges and professors focused primarily on timely legal issues in the U.S. Court of Appeals for the 11th Circuit and legal issues raised by articles published in the print version of the journal. To accompany these focused essays, the Georgia Law Review’s website also features a new student-driven blog that summarizes relevant cases published by the U.S. Court of Appeals for the 11th Circuit. Editor-in-Chief for the 2013–14 academic year and third-year student Jerrod M. Lukacs said publishing the responses to printed articles online will provide a desired platform for expanded scholarly discussion about the important topics raised in the Georgia Law Review. “We look forward to continuing the journal’s tradition of advancing scholarly legal discussion, and we hope members of the legal community will take this opportunity to add their voice via our new online platform,” he said. Submissions are already being accepted for the Georgia Law Review Online, and essays are being published on a rolling basis. Pieces should be no more than 3,000 words and lightly footnoted. Please note essays chosen for publication will be edited by Georgia Law Review staff members and will be searchable on the WestLaw and LexisNexis research databases. For more information, please visit www.georgialawreview.org or email firstname.lastname@example.org.
ELLINGTON’S CASES AND MATERIALS ON GEORGIA M PRACTICE AND PROCEDURE Two generations of Georgia Law students have taken Georgia Practice from Professor Emeritus Ron Ellington using teaching materials he authored. Many alumni report they keep their “red books” in their law offices and still consult them. Last summer, a new up-to-date edition of these course books containing more than 1,000 pages of the leading cases and pertinent reference notes became available for sale to Georgia Law alumni. Proceeds go to the school’s Law School Fund in support of scholarships. The materials are three-hole punched for ease of use and placement in your own binders and will be shipped directly from the publisher for $124.95 plus shipping and handling. To order, please contact LAD Custom Publishing at (877) 318-8800 or email@example.com. Advocate 2014
Student Proﬁles Michelle Tang: An advocate for change
ising second-year law student Michelle L. Tang is not one to shy away from change, instead she is someone who embraces it. Tang’s passion for activism and change stems from her time spent as an undergraduate at the University of California, Berkeley, where the student body is often involved in social action on a variety of issues. “Everyone around me was involved at such an insane degree of activism, which really instilled in me the question of, ‘What can I do to make a difference?’” Tang said. While in Southern California, Tang had the opportunity to experience a series of protests against increases in the school’s tuition, known as Occupy Cal. She said it was hard to not want to immerse herself in the movement. “I felt almost inferior,” she said. “I wanted to be involved and make changes, but I am a rule follower and knew I could
never be as drastic as my fellow classmates.” Although activism had become an important piece of her identity, Tang wanted to ﬁnd a way to take the radical involvement surrounding her and conﬁne it to the precincts of the law. “I realized that practicing law would be a way for me to make everlasting changes while continuing to follow the rules within society’s guidelines,” she added. When deciding where to go for law school, Tang once again let change be her guide. As someone who had never set foot in the South, she viewed coming to Georgia Law as a challenge and a new way to grow. “Being from a big city in California, it was very easy to be a minority and ﬁt in because everyone is so different,” Tang, who is of Asian descent, said. “In Georgia, there is not as much diversity and being a minority really makes you stick out.” Tang wants to use the experiences she has gained from this situation as a way to better help and relate to people. “If I hadn’t ever come to the South, I would’ve had a huge gap in my knowledge and ability to relate to people who haven’t been easily accepted into the society they are a part of,” she said. Her passion for change and wanting to help people has culminated in her desire to go into ﬁnancial regulation. More speciﬁcally, Tang wants to help the population which often feels neglected and without a voice, particularly in regard to ﬁnancial services. “[My work] will affect more people and, while the effect might not be instantaneously noticeable, it’ll make a huge difference in the long run.”
Ben Thorpe: Once a debater, always a debater
ecent graduate Benjamin W. “Ben” Thorpe has always been one for a good argument, especially when it comes to debate. “I think in high school debate was a good outlet,” Thorpe said. “I wasn’t a very good traditional student. I cared a lot about learning but really struggled with the structure as a kid. It was a way for me to focus on learning, but on my own terms.” Realizing that he had a true love for debate, Thorpe continued to compete while he was an undergraduate at Dartmouth College. As a sophomore, Thorpe and his partner won the Copeland Award, which is a national honor given annually to the top two-person team before the National Debate Tournament. The following year, he and a different partner placed second in the contest. Although debate provided him with a positive outlet, Thorpe left college in his junior year. As he describes it, he had a lot of growing up to do. On what he calls “the scenic route to Georgia Law,” he made his way back to his hometown of Atlanta, where he ultimately earned his bachelor’s in economics from Georgia State University. “After leaving school my junior year, I really had to climb my way back to a productive www.law.uga.edu
Lee Deneen: A citizen of the world
rowing up in a multitude of places around the world, rising third-year law student Lee A. Deneen regards his well-traveled upbringing as a signiﬁcant part of who he is. After having lived in South Carolina and California, Deneen and his family moved to France when he was 10 years old. “Living in France deﬁnitely had a profound impact on shaping me into who I am,” he said. “The experience was unparalleled, and I would not trade it for anything.” While he found the language barrier to be challenging at ﬁrst, Deneen viewed the situation as a way to learn and grow. He believes this struggle played a role in giving him the traits he has today. “My time abroad taught me to persevere as well as be bold and diligent when approaching a daunting task,” Deneen said. “It is beneﬁcial to put young people into situations that may make them uncomfortable because it teaches them to challenge themselves and be more adventurous.” Deneen said traveling at a young age instilled in him an excitement for adventure. He also developed a love for seeing new places – learning a country’s culture and language and seeing how foreigners live. When a study abroad trip to Brussels, Belgium, working for the European Parliament, presented itself the fall semester of Deneen’s junior year of undergraduate school at Furman
University, he jumped at the opportunity to once again explore his passion for new experiences and people. “I was assigned to work with the Italian members of the European Parliament,” Deneen explained. “It was fascinating because I was able to interact with people of all nationalities. It was not uncommon for me to talk to a lobbyist from a big business in the Netherlands or a Swiss journalist.” Spending his life experiencing different cultures, Deneen has learned that no matter where he goes or what he does, it is important to always remain true to himself. In fact, he embraces this philosophy while immersed in yet another culture – law school. “I think a lot of people struggle with maintaining their identity outside of law school,” he said. “It is tough going in because so much is asked of you and, at times, it is hard to not let the work completely consume you. I never want to get to the point where I have lost sight of who I am and distance myself from the things that are important to me.” Deneen’s passions are at the heart of who he is. He hopes to one day integrate his two interests – the law and a need for different cultural experiences – into a career in international arbitration or litigation. “I want to be able to have a career that allows me to maintain my international interests by working with people from all over the world,” Deneen added. “It is a dream of mine to be able to use my background with France and the skills that I have developed to help different people in my everyday life.”
sense of moving toward a career and ﬁnishing my degree,” Thorpe said. It was during this period that he was able to see a correlation between his skills as a debater and a career in law. “Debate certainly made me realize that there were things about the law that I would like,” he said. “The writing, researching, arguing and the types of people that are attracted to it are in some ways similar to lawyers.” Thorpe’s argumentativeness may have helped him decide that law school was his next step, but his love for Atlanta and the support system of his family and friends he had there is what led him to study nearby at Georgia Law. Once in Athens, Thorpe again found a way to use his tremendous debate skills, this time as a member of the Advocacy Program. In fact, he and two fellow classmates brought home the National Moot Court Competition Championship in February. He was also named this prestigious tournament’s best oralist.
Although many view law school as an individualistic endeavor, Thorpe stresses the importance of working in collaboration with one another. “Law school has been, at its best, very much a team sport to me,” he said. “Though we all too often focus on individual accomplishments, the truth is that from 1L study groups to the Georgia Law Review and from the Appellate Litigation Clinic to the moot court team, all of my best experiences in law school have been about working with others.” Thorpe’s team-oriented approach to law school is what he believes has truly taught him how to be a successful lawyer. “My sense is that these collaborative pieces of the law school experience have been the best practical preparation when it comes to actually practicing law,” Thorpe added. After taking the bar, he will begin his career as a judicial clerk for Judge Frank M. Hull of the U.S. Court of Appeals for the 11th Circuit.
–All proﬁles by Stephanie Ackerstein Advocate 2014
CLASS of COMMENCEMENT Rives encourages graduates to have PRIDE Serving as the keynote speaker at this year’s Commencement was Jack L. Rives (J.D.’77), the executive director and chief operating officer of the American Bar Association. Rives congratulated the graduates on their accomplishment of earning a law degree and encouraged them to take “pride” in their careers as lawyers. He then defined the concept of pride as the “quiet satisfaction for knowing you’re prepared, knowing you did your best” through an acronym. P stands for professionalism, Rives explained, adding that lawyers must live by high standards. “You may be the only attorney some people work with, so they’re going to make a judgment on our entire profession based off your service.” R stands for respect, not just for superiors but in regard to living by the right standards. “What I would ask the class to do is work hard, always do your best and always treat everyone with dignity and respect,” Rives added.
Kenny Bailey smiles as the Class of 2014 completes its recessional through the crowd after Commencement.
Photo by Dennis McDaniel.
I stands for integrity, he said, stating that a person cannot be mostly honest or have a fair amount of integrity. “It’s not a compliment if someone tells you you’re honest most of the time, or you’ve got a fair amount of integrity. You either have it or you don’t. The assumption of your peers, your clients and your fellow citizens is [that] you have integrity. It’s yours to lose.” D stands for determination. “What makes a person successful is persevering. You’re not going to get lucky very often,” Rives said, adding that preparation will yield success. E stands for enthusiasm. “What’s not to love about the profession of law?” he asked. “We take pride in what each other does. The legal profession is a big team.” “I commend you In closing, Rives complimented the graduates. “I commend you to do it the right way, to work hard and to earn a sense of pride – a sense of quiet accomplishment for the things you do. … I commend you for choosing the University of Georgia School of Law. I commend you for staying with it.”
for choosing the University of Georgia School of Law.”
View more photos from this year’s commencement at www.law.uga.edu/photo-gallery.
Law school graduation was one of several shared moments for (l. to r.) Keri McCrary, Grace Conway, Kimberly Scott and Heather Percival, who all grew up in Albany, Ga., and graduated high school from Deerﬁeld-Windsor Academy before attending Georgia Law together.
Law School Life FFlags given to Georgia Law U Glanville (J.D.’87) presented Georgia Law with Ural AAmerican and university flags that were flown in a ccombat zone at Camp Phoenix in Kabul, Afghanistan, while Glanville was the commanding general of the w RRule of Law Field Force and the NATO Rule of Law Field SSupport Mission. Law Library Director and former cclassmate of Glanville’s Carol Watson (J.D.’87) (left) aand Foreign and International Law Librarian Anne BBurnett (J.D.’90) hang the framed flags and certificate iin the Louis B. Sohn Collection on International RRelations library.
Reunions bring alumni together Law school classes celebrating significant anniversaries were invited to a reunion reception at Georgia Law in November. Celebrating their graduation from law school 10 years ago were: (l. to r.) Dee Kennedy, Taylor Haley and Charla Hall, all members of the Class of 2003.
Homecoming 2013 For Georgia Law alums, this year’s Homecoming theme, “There’s No Place like Homecoming,” proved true, with the law school holding its annual BBQ on Herty Field. Enjoying time together at the day’s events, which included live music, food, refreshments and a pre-game visit from Uga, were: (l. to r.) Joel Wooten (J.D.’75), Steve Jones (J.D.’87) and his wife Lillian Kinsey, and Kathleen and Jeff (J.D.’82) Lewis.
Firm & Corporation Alumni Challenge winners named
Alumni attend reception for Georgia Superior Court judges
Julius Husley (LL.B.’63)
Georgia Law alumni and friends in the Athens area attended a law school reception i iin hhonor off th the state’s t t ’ SSuperior i Court C t judges, who were in Athens for their annual winter seminar. Lawton Stephens (J.D.’81) (left) and David Bell (J.D.’77) pause for a photo.
View more photos from this year’s law school events at www.law.uga.edu/photo-gallery.
Wiley Wasden (J.D.’84) 42
Georgia Law alumni competed in the Fourth Annual Firm & Corporation Alumni Challenge during the 2012–13 fiscal year. This contest seeks to achieve 100 percent participation in alumni giving from firms with five or more law school graduates. The annual competition is for firm-wide participation, with Georgia Law alumni making a minimum $100 personal gift to the law school during the university’s fiscal year. Last fiscal year, 15 firms reached 100 percent participation, with Husley, Oliver & Mahar taking home the trophy in the more than 10 Georgia Law graduates category, while Brennan, Wasden & Painter (formerly Brennan & Wasden) won the 5 to 10 Georgia Law graduates division. Julius Husley (LL.B.’63) and Wiley Wasden (J.D.’84) led their firm’s initiatives, respectively. www.law.uga.edu
Terry Franzén: Lending a helping hand
or as long as she can remember, Terry Franzén (J.D.’80) has always been committed to lending a helping hand. “I have been involved in various nonproﬁt organizations probably my whole life,” Franzén said. “I am a strong believer in giving back to others.” It was not until she was diagnosed with breast cancer for the second time, however, that she really became motivated to start taking action and getting more involved in philanthropy. “I was in for a routine check-up at the doctor when they found cancer in my other breast,” Franzén said. “After my diagnosis, I decided that if I was going to do something, I better get going and do it. You never know what can happen with cancer.” Once she was again in remission in 2002, Franzén, who always had an interest for mission work overseas, joined with her husband in going on organized trips to Juárez, Mexico, to build houses with an organization called Casas por Cristo. When that part of Mexico became too dangerous in 2007, she and her husband were given the opportunity to begin traveling to the Diocese of Haiti by partnering with an Episcopal church in that country. Now, Franzén carves out time in her busy schedule twice a year to travel back to the island nation on missions. “It has changed my whole perception of life in the U.S. and what is really important,” she said. “You hear people complain about the small things, but when you go to a place where people don’t even have clean water and their biggest concern is how they are going to feed their children, it makes you have a different attitude about things.” Franzén takes pride in the fact that the missions are making a difference by providing health care and education to people who would otherwise not have it. She believes that educating them is beneﬁcial because it teaches the people how to get themselves out of poverty.
“In regard to the medical and dental clinics, there are no other services where we are, so we have made tangible and impactful results within the community,” she said. “The ﬁrst time we went, it seemed like almost everyone had sexually transmitted diseases, but now it is rare to see any. It’s just the little bit that you do that can change people’s lives.” Like everything else in her life, Franzén has never let a challenge stop her from doing something she believes in. When the Atlanta mortgage and ﬁnance company where she worked as general counsel shut down 17 years ago, she turned a wall into a window and teamed up with a friend to start their own law ﬁrm, Franzén and Salzano. She currently manages the ﬁrm’s consumer ﬁnancial services litigation and regulatory enforcement practice. “Of the things I have done, opening my own ﬁrm has been the best professionally,” Franzén said. “It has given me so many opportunities and more control over my own destiny.” Franzén believes it is important for other attorneys to challenge themselves and take more risks when it comes to their careers. “I would really encourage lawyers to think about the business of law and to consider starting their own ﬁrm because it has been very rewarding,” she added. “I think a lot of lawyers are scared and not risk takers, but they need to step outside of themselves and really explore their options.” As she works toward retirement, Franzén knows that no matter what is in store for her next, she wants to continue to dedicate her time to helping others. “I am thinking about how I can take the skills I have developed over the years and use them in a different way,” she said. “I’m not exactly sure what that will look like, but I want to use that expertise to help people rather than help ﬁnancial institutions.” –Stephanie Ackerstein
“The ﬁrst time we went [to Haiti], it seemed like almost everyone had sexually transmitted diseases, but now it is rare to see any. It’s just the little bit that you do that can change people’s lives.”
Francys Johnson: A man with many hats
eorgia Law alumnus Francys Johnson (J.D.’04) has always felt a calling to social justice. “The church was the ﬁrst institution where I heard the gospel of social justice,” Johnson said. “It’s about feeding the hungry body and soul but also working to eradicate poverty through advocating for a living wage that encourages people to live their best lives now.” As an ordained minister in the Baptist Church for the past 18 years, Johnson uses the knowledge and experience he has gained to help him when it comes to practicing law. “My experience as a minister shapes my outlook on the role of the law,” he said. “The church and the law are important institutions in ordered society, and I appreciate how the law touches the lives of everyday individuals.” Johnson believes his religious work and his time spent working as a lawyer have been beneﬁcial because both establishments come together to help others. “In seeking to build the ‘Beloved Community’ on shared values, it is clear throughout human history that there can be no community without the abiding presence of justice, and there can be no justice without the love for the fellow man. I think they work hand in hand,” he said. Johnson also pursues social justice through his time as the president of the Georgia National Association for the Advancement of Colored People. His ﬁrst exposure to the NAACP was when he was an elementary school student and was wrongly placed in a special education class. “I was trapped in a system of tracking where AfricanAmerican boys, in particular, and low income students, in general, were pressed into special education classes because there were perverse economic incentives for the school systems to do so,” Johnson explained. “It was through the NAACP’s lawsuits and advocacy work that ended the system of tracking in Georgia that took me from a special education class to a gifted program. This was all possible because someone cared enough about what America was supposed to be to advocate for me.” Now, Johnson has taken on the responsibility of being an advocate for others, helping in the ﬁght for American justice and making sure people understand the NAACP’s mission.
“People often mistake the NAACP as an organization only concerned with black and white issues, but it was founded by a diverse group of citizens who believed that America could do better,” he said. “Demanding economic sustainability through equal opportunity and fair play, providing a world-class public education to our children, promoting safe and healthy communities and protecting the right to vote are red, white and blue issues. It is our time to make real the promises of America’s democracy.” Johnson has made it his goal to help people embrace diversity and eradicate race as an impediment in today’s society. “Diversity is not about taking from one and giving to another,” he said. “It is about producing an environment where we all beneﬁt and are more prosperous and truer to our values as a country because we are not burdened by meaningless things like the color of a person’s skin, gender, religious afﬁliation, sexual orientation or ethnicity.” As a man with many hats, when asked how he ﬁnds time to balance everything, Johnson explains he is just having fun doing what he loves to do and what he believes he has been called to do. “To be the youngest elected president of the Georgia NAACP signals a changing of the guard and a renewal of a sacred promise to make America a more perfect union. As a caretaker of the great legacy of freedom ﬁghters like Atlanta’s attorney A.T. Walden or Savannah’s legendary preacher Rev. Ralph Mark Gilbert, it is truly a dream come true,” he said. “If I can help somebody as I pass along then my living will not be in vain.” –Stephanie Ackerstein
“If I can help somebody as I pass along then my living will not be in vain.”
Chris Carr: A passion for politics
olitics has been a longtime interest and passion for Georgia Law 1999 alumnus Chris Carr. “Part of why I went to law school was my interest in policy and politics,” Carr said. “I knew that what I wanted to do with my life would have a foundation in the law, even if I wasn’t practicing it.” It was not until he began working for Georgia Paciﬁc, after earning his bachelor’s degree from UGA, that he truly decided he wanted to pursue a law degree. “I had gotten tired of school at the end of undergrad, so I wanted to gain some real world experience,” Carr said. “Once I was working, however, my desire to go to law school started to peak again.” While still with the pulp and paper company, he began to volunteer on thenstate Sen. Johnny Isakson’s U.S. Senate campaign. The next year, Carr obtained a full-time internship with the senator’s 1996 campaign, which was the summer before he started law school. With his law degree in hand, Carr went to work for Alston & Bird, but soon began to feel as though a career in trial and appellate litigation was not the right ﬁt for him. So, when a vice president and general counsel position at the Georgia Public Policy Foundation opened up in 2001, Carr took advantage of the opportunity. “I focused on policy and fundraising,” Carr said. “It felt great to be concentrating on the public policy aspect of the law.” In 2003, Carr once again reunited with Sen. Isakson as his campaign manager and four years later became his chief of staff. “I loved every minute of my 11 years with Sen. Isakson,” he said. “I got to know a lot of issues from a 50,000-foot level as well as both the challenges and opportunities facing the state.” Today, Carr serves as Georgia’s economic development commissioner, a post he assumed in 2013.
“Having the opportunity to continue public service in the form of economic development was very exciting and a great honor,” Carr said. He describes the Georgia Department of Economic Development “in a nutshell” as the marketing arm of the state. “It is our job to sell Georgia and to tell the story about why it makes sense to do business here,” Carr added. “Our mission is to increase jobs and investments and take an integrated approach to that by focusing on a lot of different areas.” Carr is devoted to helping the state thrive and be successful. “We have a great model in this state, and I want to continue to support the people who do that, but I also want to ﬁnd new ways to remain competitive and ways to further the growth of this state,” he said. One thing Carr has found really enjoyable about his current role is being able to help the residents of Georgia more directly and on a smaller scale. “What has been interesting for me going from the federal government to the state government is to really have a much more immediate impact on people’s lives,” he said. “We can make someone’s life better because they have a new job or opportunity. It is all very rewarding.” Carr’s passion for the state is apparent through his commitment to wanting to make his time as commissioner count. “When you are given opportunities to have a position like this, where you can make an impact, it is important not to waste any of it,” Carr said. “These chances don’t come along very often and when you look back on them, they go by very quickly.” –Stephanie Ackerstein
“We can make someone’s life better because they have a new job or opportunity. It is all very rewarding.”
Closing Argument Introducing the Verner F. Chafﬁn Society In our stewardship of the law, all we’ve got is a life estate interest. Senior Director of Law School Advancement Greg Sowell (J.D.’83) and Callaway Chair Emeritus Verner Chaffin (LL.B.’42)
Callaway Chair of Law Emeritus Verner F. Chafﬁn (LL.B.’42), who turned 95 years young in September 2013, taught me about life estates and about many other ﬁduciary law concepts. He tried to teach me about the Rule in Shelley’s Case, but that’s another story. I’ll come back to Dr. Chafﬁn in just a minute. A healthy program of fundraising for the law school includes three sources: annual gifts, major gifts and planned gifts – sort of like the co-equal legs of a three-legged stool. We are blessed with many alumni and friends who understand the critical need to invest in future generations of lawyers through our three sources of private giving. But, as state budgets continue to tighten, private gifts become all the more important. And, if we don’t provide for the quality education of future generations of lawyers, then who will? Who will be there to accept the baton to see that justice is served and to advocate for those in need of legal services when our life estate in the law ends? This brings me back to Dr. Chafﬁn. A native of Toccoa, Ga., Dr. Chafﬁn received his undergraduate degree from UGA in 1939. He then earned his law degree summa cum laude from the university in 1942. Following graduation, Dr. Chafﬁn served as a naval intelligence ofﬁcer in both World War II and Korea and then worked at the Justice Department in Washington. In 1947, he joined the faculty at the University of Alabama and began his distinguished teaching career. In 1958, Dr. Chafﬁn returned to Georgia Law as a full professor. Somehow, he found the time for graduate study and earned a J.S.D. from Yale Law School in 1961. He retired from the law school’s faculty in 1989, having established his specialties in the ﬁelds of wills and trusts, federal estate and gift taxation, future interests, estate planning and the administration of decedents’ estates. Although a proliﬁc legal writer and scholar, as evidenced by his induction as an Academic Fellow into the American College of Trust and Estate Counsel and his life membership in the
American Law Institute (to name just a couple of his honors), his ﬁrst and foremost interest was always his students. Ask any graduate of this law school from 1958 to 1989 to name his or her favorite professors and invariably “Shaky” Chafﬁn will be at the top of the list. Because of his loyalty to our law school and his strong interest in its students, Dr. Chafﬁn has been generous with both his time and his money. As an alumnus, he served for 29 years as secretary to the Law School Association, and he has been recognized with the law school’s Distinguished Service Scroll. He and his lovely bride of 71 years, Ethel, have also invested in the next generation of lawyers by providing student ﬁnancial support through the Verner F. Chafﬁn Endowment Fund and by providing for top quality teaching through the Verner F. Chafﬁn Distinguished Professorship in Fiduciary Law. This distinguished professorship will become the Verner F. Chafﬁn Chair in Fiduciary Law with his current planned gift. In recognition and appreciation of his service to our law school and his generous level of ﬁnancial support, we are pleased to announce the creation of the Verner F. Chafﬁn Society. Membership in the Chafﬁn Society is available for all those who make a planned gift to the law school. Planned gifts come in a variety of forms – from a last will and testament to naming the law school as beneﬁciary of a life insurance policy, from the creation of a charitable gift annuity to the assignment of a qualiﬁed retirement savings plan – to name just a few. Adjacent to this article, Alan Rothschild, immediate pastpresident of the Law School Association (and past chair of the Georgia Fiduciary Law Section and past chair of the ABA Section of Real Property, Trust and Estate Law), provides great information to help you in your planned gift thinking. All we ask is that you sign the one-page Statement of Future Gifts Form (available at www.law.uga.edu/ways-make-gift) so we will know that you qualify for the Chafﬁn Society and can talk with you about any speciﬁcs you may have for the use of your planned gift. Please join Dr. Chafﬁn, me and many fellow alumni as TOGETHER we make an investment in the next generation of lawyers who will, for an important season, hold the life estate interest in the critically important stewardship of the law and who will step up as the civil soldiers of our society. –Senior Director of Law School Advancement Gregory C. “Greg” Sowell (J.D.’83)
Ways to include your law school in your estate planning
hile many of my colleagues were called to the trial bar by To Kill A Mockingbird’s depiction of a small town southern lawyer, Callaway Chair Emeritus Verner F. Chafﬁn has always been my Atticus Finch. After taking his estate planning courses during my second and third years of law school, there was no doubt that I was destined for a career helping families plan for their wealth. I can think of no greater way to honor my mentor than by sharing with you ways that we, as loyal alumni of Georgia Law, can support the newlycreated Verner F. Chafﬁn Society. There are many other types of charitable planning tools, but these are some of the most common and effective ways to provide for ourselves and our families while still giving back to Georgia Law. Each of these gifts can be structured to pay tribute to a family member or a member of the law school faculty or be given anonymously. As Greg Sowell noted in his article on the adjacent page, Georgia Law is increasingly dependent upon our support to ensure the ongoing excellence of the school, its faculty and students. By considering a planned gift as part of your overall estate plan, you ensure your gifts to the law school are structured in a way that provides the maximum beneﬁt to both your family and Georgia Law. –Alan F. Rothschild Jr. (J.D.’85) Law School Association Immediate Past-president
Life Insurance Our need for life insurance changes through a variety of factors, such as the completion of our children’s education, an inheritance or the accumulation of wealth in a retirement plan. If you have outgrown the need for your existing life insurance, consider giving the policy to the law school by designating it as both the owner and beneﬁciary of the policy. If future premium payments need to be made on the contributed policy, those premium payments are also gifts to the law school and entitle you to charitable income tax deductions.
Retirement Plan Assets Most retirement plan assets, including IRAs, are exposed to double taxation – estate tax at the time of a person’s death and income tax when distributions are made from the account to the designated beneﬁciary. For anyone considering a charitable gift, thought should be given to your retirement plan as a source of this gift. The designation of the law school as the beneﬁciary of your retirement plan avoids both estate and income taxes, meaning that 100 percent of the plan beneﬁts are available to support the law school’s good work.
Charitable Gift Annuity A Charitable Gift Annuity is an agreement under which you transfer cash or securities to the law school in exchange for a ﬁxed income payment for life. You are entitled to an immediate charitable income tax deduction equal to the difference between the value of the annuity provided and the value of the property contributed. A slight variation on this concept is a deferred annuity where the annuity payment is deferred to a point in the future, such as planned retirement age. In today’s low interest rate environment, many people ﬁnd the returns offered by Charitable Gift Annuities, when combined with the upfront charitable income tax deduction, provide a generous tax beneﬁt, a secure income stream for life and a meaningful contribution to their favorite charity.
Outright Bequests Georgia Law has counted on our support annually through the Law School Fund during our lifetimes, what better way to ensure your continued support than an outright gift in your Will? This can be done through a ﬁxed dollar bequest, the bequest of a percentage of your estate (which provides for an adjustment up or down based on the size of your estate at the time of your death) or even a bequest of all or part of your residue after providing for other beneﬁciaries. This is a very straightforward way to beneﬁt Georgia Law and can generally be accomplished with a simple amendment, or codicil, to your Will. Advocate 2014
Morehead and Knox honored with DSS Award
Photo by UGA Photographic Services’ Robert Newcomb
A strong advocate for Georgia Law, Knox served GA President as a member of the school’s Board of Visitors from Jere W. 1974 to 1976. He also has served as vice president Morehead of UGA’s Alumni (J.D.’80) and Augusta Association as well as attorney Wyckliffe director of the UGA “Wyck” A. Knox Jr. Athletic Association and (LL.B.’64) are this year’s as a trustee of the UGA Distinguished Service Foundation, where he Scroll Award recipients. served as chairman of This accolade is the the ﬁnance committee highest honor given and treasurer for eight by the Law School years. Association and He has endowed recognizes outstanding scholarship funds at dedication and service both the School of Law to the legal profession and the Terry College of and law school. Jere Morehead (J.D. ‘80) Business. Morehead became Knox, who presently UGA’s 22nd president serves as of counsel at in 2013, having previously served as the senior vice president for Wyck Knox (LL.B. ‘64) Kilpatrick Townsend & academic affairs and provost since 2010. Prior to 2010, he served Stockton, was listed in UGA in various administrative capacities, including vice president 2008’s The Best Lawyers in America under two listings – for instruction, vice provost for academic affairs, associate provost and business litigation and health care law. He has been director of the Honors Program, and acting executive director of legal recognized in the “Most Inﬂuential Georgians” listings affairs. Morehead is the ﬁrst UGA alumnus to be named president appearing in Georgia Trend magazine and, in 2013, Junior since Fred Davison in 1967. Achievement inducted him into its Central Savannah River Morehead remains as the Meigs Professor of Legal Studies in the Area Business Hall of Fame for his pursuits in business and Terry College of Business, where he has held a faculty appointment philanthropy. since 1986. He is the co-author of several books and book chapters, After graduating from law school, Knox practiced law in and he has published scholarly legal articles on topics ranging from Augusta, and then in 1976 he co-established the ﬁrm Knox export controls to jury selection. He has served as editor-in-chief and in & Zacks. In 1994, Knox & Zacks merged with the ﬁrm other editorial board positions for the American Business Law Journal. Kilpatrick & Cody, which three years later merged with He directed the law school’s Advocacy Program from 1986 to Petree Stockton to become Kilpatrick Stockton. Knox was 1995, during which time the moot court teams he coached won elected to the executive committee of the ﬁrm and became international, national, regional and state championships, including chairman. Under his tenure, from 1998 to 2001, billing the National Moot Court Competition and the Philip C. Jessup increased 74 percent and the number of lawyers in the ﬁrm International Law Moot Court Competition. The school’s overall increased from 361 to 501. record during his leadership of the program was 288–103. Outside of the legal profession, Knox has served as CEO He has received several university-wide teaching awards, including of Knox Rivers Construction Company, as a member of the Josiah Meigs Award – UGA’s highest honor for teaching excellence, the Metropolitan Atlanta Olympic Games Authority, as the Richard B. Russell Award for Excellence in Undergraduate a founding director of the Georgia Lottery Corporation Teaching, the Teacher of the Year Award in the Terry College of and as a member of the Commission for a New Georgia Business and the Lothar Tresp Outstanding Honors Professor Award. in addition to holding many other civic and community After graduating from Georgia Law, Morehead served as an assistant leadership positions. U.S. attorney with the Department of Justice from 1980 to 1986. www.law.uga.edu
SATURDAY, OCT. 4, 2014
10:30 a.m.–1:30 p.m. (subject to change due to kickoff time) Ticket sales are offered beginning July 11 and end Sept. 19, 2014, at 5:00 p.m. There are no ticket sales after 5:00 p.m. on Sept. 19, 2014.
To learn more about the annual Law Dawg BBQ or to register to attend, please visit www.law.uga.edu/upcoming-alumni-events.
CO MING SPRING 2015
Classes without quizzes
Lunch on Herty Field
Gather your classmates for reunion dinners
Play golf, tour the Georgia Museum of Art, tour UGA’s special collections libraries, visit the State Botanical Garden of Georgia or shop Downtown Athens
If you’re interested in more information about Alumni Weekend or planning a class reunion dinner, please contact Kate O’Reilly at firstname.lastname@example.org or (706) 542-5190.
Non-Profit Org. U.S. Postage
PAID Permit No. 165 Athens, GA
Jere W. Morehead UGA President email@example.com Kelly Kerner UGA Vice President for Development and Alumni Relations firstname.lastname@example.org Rebecca Hanner White School of Law Dean email@example.com
Why I Support Georgia Law… Justice Thurgood Marshall famously said, “None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody ... bent down and helped us pick up our boots.” His words remind us that the quality education we enjoyed at the University of Georgia and the opportunities it has afforded were not earned by our merit alone. Those who came before us generously gave their time, energy and hard-earned money so our law school would continue to attract the best faculty and students, have thriving academic programs and maintain its outstanding reputation. By consistently giving to the Law School Fund we are able to do our part to help future generations of law students by ensuring they have the same opportunity to enjoy a first-rate legal education as we did, while simultaneously investing in the Georgia Law graduate’s reputation for excellence. Our investments are already paying off. This year Georgia Law is ranked as one of the top 11 public law schools in the country, our moot court and mock trial teams won four national championships, and we are as proud as ever to be graduates of the University of Georgia School of Law. We thank each of you who make the commitment to contribute to the Law School Fund each year, and for those who haven’t yet made that commitment, we encourage you to do so. Any amount, no matter the size, will help others, and that is what lawyers do best.
M.J. Blakely Jr. (J.D.’06) and his wife Jennifer S. Blakely (J.D.’08)
“We are as proud as ever to be graduates of Georgia Law.”
—M.J. Blakely Jr. (J.D.’06), Pope McGlamry Kilpatrick Morrison & Norwood, Atlanta, GA To join those who already support Georgia Law by making a gift to the Law School Fund, please contact Phyllis Cooke, director of law annual giving, at (706) 542-7637 or firstname.lastname@example.org or visit our website, www.law.uga.edu/giving, to make your gift online.