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The University of Virginia School of Law

Spring 2011

HEALTH CARE:

Reform and Rhetoric


from the dean  Paul Mahoney …

“Knowledge indeed is a desirable, a lovely possession, but I do not scruple to say that health is

The Complex Equation of Health Care

more so. It is of little consequence to store the mind with science if the body be permitted to become debilitated. If the body be feeble, the mind will not be strong.” — Thomas Jefferson

Health care reform dominated the news during late 2009 and early 2010. It is not difficult to see why the issue generates such deep passions. Every American has a stake in the quality of the nation’s health care system as patient, taxpayer, and, for millions of

Upcoming Alumni Events

doctors, nurses and others, provider. Any interested party in any health policy debate, from Medicare reimbursement policies to FDA approval procedures, can bring sick or injured individuals in front of the TV

June 9

Richmond Reception The Berkeley Hotel

June 22

October 6

Washington, D.C. Luncheon

October 13

The design of the health care system is substantively difficult as well

NYC Young Alumni Event

care system is

spend enormous sums on health care and yet have health outcomes

substantively

that lag many other wealthy societies. The facts and policy choices, not

Boston Reception

as emotionally charged. We have all heard the sound bite that Americans

surprisingly, are more complex. We spend so much in part because of the

Omni Parker House

difficult as well

Providence Luncheon

as emotionally

of health insurance—itself the legacy of hundreds of individual policies

charged.

embedded in the federal tax code, state insurance regulations, and other

substantial inefficiencies and distorted incentives created by our system

Los Angeles

laws. But in part we do so because we are a very wealthy country that

Breakfast: The Jonathan Club

engages in constant technological innovation. Our challenge is to work

Evening Reception: Craft November 9

current system.

the health

Location to be determined October 26

The design of

The Renaissance Mayflower Hotel

Public House October 12

cameras and argue that their plight is related to a drawback in the

Washington, D.C. Location to be determined

on the former while celebrating and preserving the latter. The link between our health care system and Americans’ health outcomes is also less close than one might imagine. In his book Health Care Half Truths, Dr. Arthur M. Garson, the University’s Provost and one of the nation’s leading health policy experts, observes that our public health system—including all our varied means of delivering and paying for medical services—is one determinant of health outcomes. A larger determinant, however, is personal behavior, including diet, exercise, and risky activities such as substance abuse and violent

For Latest on alumni events: www.law.virginia.edu/alumni


From the Dean …

The University of Virginia School of Law | Spring 2011

Several states have

of ACA and, not surprisingly, commentators have looked to members of the

crime. Genetics is also a substantial determinant. The health care debate

Feature Story

1

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centers on the first of these causes but sensible policy will recognize the role played by the others. Graduates of the Law School have played central roles in health care

From the Dean

policy. As we know, health care reform was one of the signature issues of

The Complex Equation of Health Care

the late Senator Edward Kennedy ’59. Former Senator Evan Bayh ’81 was

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one of the Senate’s health care experts and Senator Sheldon Whitehouse ’82

Health Care: Reform and Rhetoric

Law School News

was a vocal supporter of the ACA. In this issue of UVA Lawyer, we hear from Garry Carneal ’88, president and CEO of Schooner Healthcare

Law School’s

Services about the management of health care delivery; Bruce Kelly ’76,

faculty for

former director of government relations for the Mayo Clinic; and

opinions on the

Departments

Todd Zimmerman ’90, president of EmCare, a nationwide provider of outsourced hospital-based physician services. Professor Richard

constitutional

Bonnie ’69, one of the nation’s leading experts on mental health law,

questions.

describes the potential impact of the ACA on the availability of mental health treatment.

29

AP Photo/Jay Pickthorn

constitutionality

Scholars Corner 31

Faculty News & Briefs

the constitutional questions. In these pages, Professor Fred Schauer steps back from the Commerce Clause and taxing power issues and asks a more basic question: how likely is it that the Supreme Court will grant certiorari in any of the cases challenging the ACA now making their way through the federal courts? I hope you enjoy reading about the health care debate and the role that Law School alumni and faculty play in it.

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Accountable Care Organizations: The New Hope for Health Care Reform

38

Class Notes

Several states have challenged the constitutionality of ACA and, not surprisingly, commentators have looked to members of the Law School’s faculty for opinions on

The United States leads the world in state-ofthe-art medical technology, but delivers it using a legacy system cobbled together decades ago. Health care experts go beyond the rhetoric to chart a smarter path forward.

AP Photo/Charles Krupa

challenged the

60

In Memoriam 61

13

In Print

41

67

Opinion

The Special Challenges of Mental Health Care Reform

6 On the cover: A man protests against healthcare legislation as he attends a Tea Party protest against Democrats and President Barack Obama during an ”Americans for Prosperity November Speaks” rally on Capitol Hill in Washington, D.C., November 15, 2010. The group is urging Congress to avoid big government policies and curb spending following the wave of new Congressmen elected in the November midterm elections. (SAUL LOEB/AFP/Getty Images)

Spring 2011 Vol. 35, No. 1  |  Editor Cullen Couch  Associate Editor Denise Forster  Contributing Writer Rebecca Barns  Design Roseberries  Photography Tom Cogill, peggy Harrison, Rob Seal, Mary Wood

2  UVA Lawyer / Spring 2011


Law School News

Inside the Supreme Court

Instructors Argue Two Cases, Same Day

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he Supreme Court of the United States heard two cases argued by instructors from the Law School’s Supreme Court Litigation Clinic on March 21, a first for the five-year-old clinic. Professor Dan Ortiz argued Borough of Duryea v. Guarnieri at 10 a.m. and clinic instructor Mark Stancil ’99 took on Fox v. Vice one hour later. The Court receives approximately 10,000 case petitions each year, and grants and hears about 75 to 80 cases. Including upcoming arguments, the clinic has landed eight cases before the Supreme Court since the course began in 2006.

Members of the Supreme Court Litigation Clinic traveled to Washington, D.C., for arguments in two clinic cases.

worked on  Guarnieri  at the certiorari stage and Clinic student Wells Harrell ofThe Supreme is currently clerking fers this account of the day’s events. Court Litigation on the 11th Circuit, as The Supreme Court Litigation well as clinic instructors Clinic reached a milestone when, Clinic reached a John Elwood, David for the first time in its history, milestone when, Goldberg, and Toby the clinic argued two cases backHeytens ’00.  to-back. That morning, nearly for the first time At 10 a.m. sharp, the everyone involved in this year’s in its history, the marshal called the Court clinic could be seen either at to order, and the Justices counsel table or in the gallery. clinic argued took their seats. After Current clinic participants who two cases backadmitting new members attended the oral arguments to the Supreme Court were  Stewart Ackerly,  Steph to-back. Bar and announcing Cagniart,  Chris Cariello,  Will two opinions, the Court Carlson,  Martha Kidd, Sterling heard arguments for the LeBoeuf,  Brinton Lucas, Adam two clinic cases. Milasincic,  Noah Mink, Tristan Representing the petitioner in Borough of Morales, and myself. Also attending the Duryea v. Guarnieri, Dan Ortiz argued that arguments was one of last year’s clinic the petition clause does not protect a public participants, Sarah Robertson, who had

employee’s petition about a matter of purely private concern. He quickly drew questions about whether the proper test for petition clause claims by public employees might focus on whether the petition addresses government as employer or as sovereign. Following a short break, the Court heard from the petitioner in Fox v. Vice, who argued that a defendant against a frivolous federal civil rights claim cannot receive attorney’s fees if the plaintiff has asserted a factually interrelated, nonfrivolous state law claim. Mark Stancil argued for the respondent afterwards and immediately noted that “inclusion of even a frivolous section 1983 claim imposes significant additional burdens as part of the litigation.” Noting that “[s]ection 1988,” the fee-shifting statute at issue, “does not reference state law claims that may be factually overlapping,” [Stancil] stated that a party defending a frivolous

UVA Lawyer / Spring 2011  5


Law School News …

section 1983 claim is eligible to receive at least some attorney’s fees. [Ortiz] and [Stancil] performed spectacularly. Both spoke with confidence, clarity, and conviction. They showed a command of the factual and legal issues that made their analysis credible and persuasive. Nowhere was this command more evident than in their responses to difficult questions; I cannot recall a single instance in which either of them dodged a question, or made a misstatement of fact or law. Watching these skillful lawyers, and seeing first-hand reflections of our assistance in crafting their briefs and presentations, made observing the arguments immensely satisfying. After the Court had adjourned, the attending clinic instructors and participants enjoyed lunch at a restaurant in nearby Union Station. [Ortiz] invited a special guest: Eric Schnapper, the opposing counsel who argued for the respondent in Guarnieri. In addition to reflecting on how the clinic’s work affected his litigation strategy, Schnapper (and Ortiz) stressed the importance of credibility and camaraderie among lawyers. Seeing these two lawyers sitting side by side and amicably chatting just hours after arguing against one another really drove the point home, as did Chief Justice John Roberts’ reference to [Stancil’s] opposing counsel as “[y]our friend” during argument. The Supreme Court will hear four cases from the clinic this term, a school record. Professor Jim Ryan ’92 argued Kevin Abbott v. United States in October and clinic instructor John Elwood argued Nevada Comm. on Ethics v. Carrigan in April. Find videos and related stories about the Law School’s Supreme Court Litigation Clinic at http://bit./ly/grRvAZ.

6  UVA Lawyer / Spring 2011

Law School News …

Cynthia Kinser ’77, Virginia’s Chief Justice

Chief Justice Awarded | Rob Seal

Thomas Jefferson Foundation Medal in Law

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a t h e r t h a n b e i n g m e r e l y complex legal abstractions, the decisions made by the Virginia Supreme Court “truly touch the daily lives and affairs of everyone in all walks of life,” Virginia Supreme Court Chief Justice Cynthia Kinser ’77 said at the Law School April 14. Kinser, recipient of the 2011 Thomas Jefferson Foundation Medal in Law, spoke in Caplin Pavilion as part of events celebrating her award. Dean Paul G. Mahoney praised Kinser’s achievements, especially her appointment as the first female chief justice of Virginia. In 1997 then-Gov. George Allen ’77, a Law School classmate, appointed her to the state Supreme Court, and in 2010 her fellow justices elected her chief justice. “We are honored to be able to present her

the Jefferson Medal in Law,” Mahoney said. Kinser said she was pleased and surprised by the award. “I can tell you that when I graduated from the Law School in 1977, I never imagined that I would be back here giving a lecture as the Thomas Jefferson Medal in Law recipient.” Kinser was a noted jurist and attorney in her native Southwest Virginia long before she joined the state Supreme Court. She was raised—and still resides—in Pennington Gap, a town in Lee County only 10 miles from the Kentucky border. After graduating from the Law School, Kinser clerked for Judge Glen M. Williams of the Western District of Virginia before entering private practice in Southwest Virginia, where she was one of the only female practicing attorneys at the time. She was elected as Lee County’s first female commonwealth’s attorney in 1980 and later returned to private practice before being appointed a U.S. magistrate judge for the Western District of Virginia in 1990. The seven members of the state Supreme Court heard 2,600 cases last year and granted 187 appeals, Kinser said. This record

compared favorably with the 8,000 filings in the U.S. Supreme Court that resulted in only 73 opinions, she said. Even if the facts in a given appeal may seem to justify a particular ruling, Kinser said, appellate judges are bound by very specific rules in overturning a verdict. If judges are not strict in applying those rules, their decisions become dangerous, she said. As a result, appellate judges take their duties seriously, Kinser said. “It’s not unusual to spend many hours writing and editing just one part of an opinion to make sure that at the end of the day it says exactly what the court intended it to say,” she said. “All of us struggle with and worry about the unintended consequences of any decision. How is it going to play out in the next case?” Among the many rules that bind appellate judges, Kinser highlighted four: the litigant’s legal standing, the relevance of the error or argument to the original trial, the standards of review, and legal precedence. “I believe that if appellate judges regularly reverse factual findings or the discretionary decisions of the trial judges because we happen to disagree with them, we would be removing the people best suited to make those decisions from that role, and I believe that we would be undermining both our system of justice and the public’s trust in all courts’ decisions,” she said. The Thomas Jefferson Medal in Law and its counterparts in architecture and civic leadership are the highest external honors bestowed by the University, which grants no honorary degrees. The awards recognize the achievements of those who embrace endeavors that Jefferson excelled in and held in high regard. Sponsored jointly by the University and the Thomas Jefferson Foundation, the nonprofit organization that owns and operates Monticello, the annual awards are conferred during the University’s Founder’s Day celebrations, held around Jefferson’s birthday on April 13. In addition to receiving a medal struck for the occasion, recipients attended ceremonies in the Rotunda and a dinner at Monticello.

Brandon Garrett

convicting the Innocent? | Rob Seal

Book Explores Reasons Behind Wrongful Convictions

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alse confessions, invalid forensic analysis, eyewitness misidentifications, and other systemic flaws in the criminal justice system contributed to the wrongful conviction of the first 250 people exonerated by DNA tests, Professor Brandon Garrett writes in Convicting the Innocent: Where Criminal Prosecutions Go Wrong, a book published this spring by Harvard University Press. Garrett began with a list of 250 people who had been cleared by DNA tests after having been convicted of serious crimes— sometimes after decades in prison—and began studying their original criminal trial records. “The goal was to see what patterns there are,” he said. In a way, it would have been a comfort if the wrongful convictions had resulted from

idiosyncratic mistakes or even corruption, Garrett said. That would suggest that false convictions are exceedingly rare, as nearly all police officers, prosecutors, and judges conscientiously seek to convict the guilty and free the innocent, he said. “What I found, though, was that the errors that repeated over and over again across the 250 cases were the result of bad barrels, and not a few bad apples. They resulted from unsound but systemic practices that allowed well-intentioned people to contribute to convicting the innocent,” he said. Those practices included the use of suggestive eyewitness identification procedures, flawed forensic analysis, coercive interrogations, shoddy investigative practices, cognitive bias, and poor lawyering, he said. What was particularly haunting about the cases, Garrett said, was that at the time, before the DNA tests proved the convict’s innocence, many of the prosecutions appeared uncannily strong. Some cases included false confessions in which innocent suspects seemingly supplied police with details of a crime that police claimed could only be known by the perpetrator. The false confessions were typically the result of long, undocumented interrogations in which investigators may have planted details of the

UVA Lawyer / Spring 2011  7


Law School News …

witness testimony, focrime with the suspect, he said. “The errors that rensic errors, and false Garrett saw the reality of such repeated over and confessions—are not cases as a young lawyer in New exclusive to cases in York. After law school, he worked over again across which DNA samples are at a firm in which Johnny Cothe 250cases were available. “What I saw in chran was a partner, as were Peter these 250 cases gave me Neufeld and Barry Scheck, the the result of bad grave concerns about the founders of the Innocence Project, barrels, and not accuracy of other crimian advocacy group for overturnnal cases in which DNA ing wrongful convictions. a few bad apples. testing can’t give us the While there, Garrett was inThey resulted answers,” he said. volved in representing a young The criminal justice soldier who had been charged with from unsound but system is slow to reform, the rape of an elderly woman. The systemic practices in part because it is fragyoung man had been in a minor mented and made up of traffic accident near the scene of that allowed so many investigative the crime shortly after it occurred. well‑intentioned agencies and court sys“Detectives brought him in tems at the local, state, and interrogated him over many people to and federal level, he said. hours,” Garrett said. “Ultimately “You have to rememhe confessed, falsely, thinking contribute to ber that just because you that if he just parroted what they convicting the don’t get so many DNA demanded that he say, he could exonerations in recent finally go home. Instead, he was innocent.” cases, for a wonderful convicted by a jury and he spent reason—DNA testing 10 years in prison. DNA testing is now routine before eventually proved his innocence.” trial—it doesn’t mean that the same probGarrett’s new book is an extension of lems with forensics, with confessions, with previous studies he has done on the 250 eyewitnesses, or with the adversary process cases. He wrote a groundbreaking study, itself aren’t still serious ones,” he said.  “Judging Innocence,” on the appeals and Fortunately, he said, policymakers post-conviction process in cases in which are increasingly taking very seriously the the defendants were later cleared by DNA lessons that can be learned from the highevidence, and later examined forensic profile wrongful convictions that have come analysis and confessions in that group of the to light. In the last chapter of his new book, wrongfully convicted. Garrett describes a criminal procedure Garrett began thinking about writing revolution, as jurisdictions have begun a book after the National Academy of Scito gradually adopt improved eyewitness ences asked him about the role forensic identification procedures, mandatory interanalysis played in those cases. He realized rogation recording requirements, forensic the only way to know for sure was to study science reforms, innocence commissions the original trial transcripts. So he gathered and improved criminal discovery practices, more than 200 of them, with research supamong others.  port from the Law School and a two-year In part because the data may be of intergrant from the Open Society Institute. With est to researchers and policymakers, Garrett the help of a team of student research assishas also made available resources related to tants, he began meticulously reviewing the the book on a website hosted by the Law trials and coding their features. School: www.law.virginia.edu/innocence. Garrett fears that the types of errors that contributed to the convictions—unreliable

8  UVA Lawyer / Spring 2011

Law School News …

Is it Constitutional? | Tim Arnold

Recess Appointments Both Accepted, Controversial

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ecess appointments of federal judges, including Supreme Court Justices, have historical and legal precedent, but are not without controversy, says Judge Diana Gribbon Motz ’68. Motz, of the U.S. Court of Appeals for the Fourth Circuit, delivered the Ola B. Smith Lecture in Caplin Pavilion in March. Articles II and III of the Constitution are at the root of constitutional questions about recess appointments, Motz said. Article III provides for lifelong tenure and compensation for federal judges, while Article II deals with recess appointments, which are considered temporary pending Senate confirmation. Lacking tenure, will these judges also lack independence? Are such appointments constitutional? “The text simply doesn’t yield an obvious answer,” Motz said. However, legislative history provides assistance, she said. Records of the Constitutional Convention and documents such as the Federalist Papers indicate that selection of the federal judiciary was a major concern for the framers, Motz said. “The convention was split on where to vest the general appointment power, primarily because of the importance attached to the power to appoint judges,” she said. A compromise was reached to allow for executive nomination and Senate approval. But while Article III generated much debate, Article II was ratified with little debate, she said. The lack of debate is telling, Motz said. “Given their previous extensive debates as to the appointment of judges, it seems unlikely that they would have intended to exclude judges from the recess appointments

John Roll LL.M. ’90

Dedicated to the Craft | Rob Seal

Diana Gribbon Motz ’68

clause without discussing and explicitly indicating their intention,” Motz said. History also bears out the validity of recess appointments, as throughout American history  all three branches of government have accepted that recess appointments are constitutional, she said. “Beginning with George Washington, almost every president filled judicial vacancies by recess appointments, without suggestion from any quarter that the practice violated the Constitution,” Motz said. By 2000 U.S. presidents made more than 300 recess appointments and only 34 were not confirmed by the Senate. However, the constitutionality of recess appointments does not make them wise, Motz said. After President Dwight Eisenhower’s three recess appointments (Supreme Court Chief Justice Earl Warren, and Justices William J. Brennan and Potter Stewart), the Senate Judiciary Committee issued a report saying that recess appointment should only be made under unusual circumstances, Motz said. Given the political climate, “it seems

inconceivable that we will witness a recess appointment of another Supreme Court Justice at any time in the foreseeable future,” she said. The current problem is nominees for other judgeships.  “As of February, 100 judgeships to those inferior courts sit vacant and 47 judicial nominees remain in limbo,” Motz said. But recess appointments “might help break the logjam over pending nominees.” While controversy remains over recess appointments, Motz reminded listeners that these appointments have generally had good results. “Some of our most distinguished modern-day judges have been recess appointees by both Republican and Democratic presidents,” Motz said, citing Eisenhower’s appointees as examples. “Whatever your politics, these are not political hacks,” Motz said. “Rather, all seem to have had no trouble maintaining the appropriate judicial independence.” The Ola B. Smith Lecture is sponsored by the Student Legal Forum and the Virginia Law Review.

John M. Roll Remembered

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.S. District Court Judge John M. Roll LL.M. ’90, an alumnus of the Law School’s Graduate Program for Judges, was among the 18 shooting victims in the January rampage in Tucson, Ariz., where a gunman intended to assassinate a U.S. representative. Six were killed at the shooting. Friends and colleagues recall Judge Roll as a fair-minded jurist and advocate for his court. “Judge Roll was among the many distinguished judges who came to our Graduate Program for Judges to earn a master’s degree from the University of Virginia. Like all the participants in this program, he took his own vacation time to attend classes at the Law School for two summers, and then he spent countless hours writing a master’s thesis while he managed a full caseload as a judge on the Arizona Court of Appeals,” said Professor George Rutherglen, who taught

UVA Lawyer / Spring 2011  9


Law School News …

Law School News …

compensation. The panel, moderated by Professor George Rutherglen, also included Professor George Geis, director of the Law School’s Program in Law & Business; William P. Carmichael ’68, chairman of Columbia Funds; and Bardenwerper, vice president, general counsel, and secretary of Towers Watson and Company. The disparity between executive compensation has grown enormously over the past 20 years, according to Geis. One common measure of compensation compares “winner-take-all” philosophy perexecutive pay to that of the average worker. vading our culture has resulted in Twenty years ago, cordisproportionate executive comporate executives were pensation and has demoralized paid 140 times more Americans seeking to improve Twentyyears than their employees. their economic status, accordago, corporate Ten years ago, the numing to Walter Bardenwerper ’76, ber grew to 500 times a panelist at the Fifth Annual executives were that of employees, Geis Virginia Law & Business Review paid 140times said. “The question is, Symposium. ‘What are you getting The symposium, held at the more than their for what you pay?’” Law School in February, featured employees. Panelists discussed industry experts and scholars how the disparity is examining business ethics and Ten years ago, the particularly conspicucorporate responsibility. number grew to ous in light of the recent Panelists at a session on salary economic breakdown. and bonus formulas discussed the 500times that of Bardenwerper called the social, ethical, economical, and leemployees. salary disparity “a rendgal aspects of corporate executive ing of the social fabric.” Carmichael pointed to a decrease in morale From left: George Rutherglen, William Carmichael ’68, Walter Bardenwerper ’76, and George Geis. among employees and especially stockholders at the prospect of huge bonuses amid the collapse of several companies and a severe recession. Panelists agreed with Geis that legal remedies are problematic. “I don’t think that you can legislate a solution to the agency/ cost problem,” Geis said. “What would that look like? I just don’t think there’s an easy answer, at least not in the eyes of the law.” “You can lecture to people on ethics, but you can’t make them be ethical,” Carmichael said. Company boards must restrict or direct executive behavior and compensation, he said. The panel discussion can be heard at http://bit.ly/gSu8Fr. the judges in the Class of 1990 and later became director of the Judges Program. Roll was subsequently appointed to the U.S. District Court for the District of Arizona by President George H. W. Bush. His thesis became the basis for an article, “Merit Selection of Judges: The Arizona Experience,” which appeared in the Arizona State Law Journal. “‘Merit’ sums up the career of Judge Roll, whose dedication to the craft of judging was evident in everything he did throughout his judicial career,” said Rutherglen. “His participation in our program is typical and the program itself benefited from his presence, as did everyone who came to know him here at our law school—the faculty, his classmates, and other graduates of the program. With the rest of the nation, those of us associated with the University of Virginia mourn his death and the loss that it represents—for the judicial system, for the legal profession and for our country.”

10  UVA Lawyer / Spring 2011

Law & Business | Tim Arnold

Master teacher | Rob Seal

High Executive Pay Ethically Problematic in Poor Economy

All-University Teaching Award

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rofessor Risa Goluboff is a winner of the University of Virginia’s 2011 All-University Teaching Award, an annual award given to a select few faculty members in recognition of teaching excellence. “Risa has mastered two of the most difficult tasks in law teaching,” said Dean Paul G. Mahoney. “She inspires second- and third-year students to put aside the distractions of job searches and extracurricular activities to devote themselves thoroughly to her courses. She also successfully teaches topics to which the students have strong emotional responses, such as race and sex discrimination, while neither ignoring ideological disagreements nor letting them overwhelm analysis of the legal issues.” Goluboff, who is the Caddell & Chapman Professor of Law as well as a professor of history, joined the faculty in 2002. She earned her law degree from Yale Law School and her Ph.D. in history from Princeton University. “I am incredibly humbled by this award. Ever since I came to UVA Law School, I have been impressed by how seriously my colleagues take teaching,” Goluboff said. “The faculty discuss it over lunch, in each other’s offices, in the halls. I have always been proud to be part of an academic community that really thinks about pedagogy and cares deeply about the students. To be honored for the part I play in that enterprise means so much to me.” After law school, Goluboff clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and then for Justice Stephen G. Breyer of the Supreme Court of the United States. Both current and former students praised Goluboff ’s teaching ability. Carrie Apfel ’05 took Goluboff ’s Civil Rights Litigation course in 2003. “From the first day of the class, Professor Goluboff connected

Risa Goluboff

Schwartzman said with her students with an energy “She was calm, his own experiences and enthusiasm that made the class unabashed, and teaching constitutional both interesting and engaging,” law have given him an Apfel said. respectful of even deeper appreciaA current student, Max Twine, disagreement, and tion for Goluboff ’s skill praised Goluboff for creating a “vias a teacher. “It is rebrant, supportive atmosphere for the class followed ally hard to do what she dialogue and critique” inside the her example.” does,” he said. context of the socially charged isGoluboff said one sues of 20th-century constitutional of the best parts of the history, such as abortion rights awards process has and affirmative action. “Professor been the chance to reflect on her teaching. Goluboff did not shy from the risks that the “I’m not sure that I have ever, or will ever, material posed,” Twine said. “She was calm, live up to the kind words of my students and unabashed, and respectful of disagreement, colleagues, but I am truly touched by them,” and the class followed her example.” she said. “Maybe even more importantly, Professor Micah Schwartzman ’05 is both hearing others describe my teaching has a former student and a current colleague. enabled me to be more self-conscious about In 2004 he was a student in her Civil my goals as a teacher and how I can better Rights Litigation class. “It was a tough achieve them.” crowd and this was early in Risa’s teaching Previous winners of the award include career,” Schwartzman said. “But if she had law professors Jim Ryan ’92, Caleb Nelson, any concerns, Risa certainly didn’t show J. H. “Rip” Verkerke, John C. Harrison, it. She was great in the classroom—rigor Barry Cushman ’86, Kenneth S. Abraham, and precision with respect to the law goes Anne M. Coughlin, and Paul G. Mahoney. without saying, but she also had a huge amount of energy, vitality and—of equal importance—sympathy, since it is not always easy to understand the law.”

UVA Lawyer / Spring 2011  11


Law School News …

Law School News …

MULTIMEDIA NEWS OFFERINGS @ www.law.virginia.edu/news Morality of Criminal Law Florida State University law professor Dan Markel discussed the role of morality in criminal law during the inaugural Virginia Journal of Criminal Law symposium. Judicial Inactivism Nadine Strossen, former president of the American Civil Liberties Union, delivered the 13th annual Henry J. Abraham Distinguished Lecture. CLS v. Martinez: When Fundamental Rights Collide Professor Douglas Laycock joined Kim Colby, counsel for the Christian Legal Society, and Scott Ballenger ’96, counsel for Martinez, to discuss the recent Supreme Court case CLS v. Martinez, in which the Court held that a public college does not violate the First Amendment by refusing to officially recognize a student organization. Susan Wormington

Citizens United Impact on 2010 Elections Panelists Marc Elias, former general counsel to the John Kerry 2004 presidential campaign; Trevor Potter ’82 , former general counsel to the John McCain 2008 presidential campaign; and John Samples, director of the Center for Representative Government at the Cato Institute, discuss the impact of the Citizens United decision on 2010 elections. Economic Uncertainty and the Role of the Courts Panelists Dean Paul Mahoney and Professor Paul Stephan ’77 joined Professor Todd Zywicki of George Mason University School of Law for a panel discussion on the role of the courts in an uncertain economic climate as part of the Federalist Society’s 30th Annual Student Symposium.

Susan Worthington

Are Bailouts Inevitable? Dean Paul Mahoney and Randall Guynn ’84, head of Davis Polk’s Financial Institutions Group, debate the inevitability of bailouts. Friendly, J. Dissenting Judge Michael Boudin delivered the McCorkle Lecture, “Friendly, J. Dissenting.”

DeMaurice Smith ’89 (video available at: http://bit.ly/hdv3mk)

The Role of Security Forces in Promoting Rule of Law Panelists Colette Rausch, Lt. Comm. John B. Reese, and Professor Thomas Nachbar discussed the role of security forces in promoting the rule of law at the J.B. Moore Society of International Law’s 60th Anniversary symposium. Professor John Setear moderated.

Owners v. Players | Mary Wood

U.S. Attorney: Public Service Offers Chance to Make Impact Public service offers a kind of satisfaction that only comes from working for the greater good, says U.S. Attorney Timothy Heaphy ’91. Law Should Encourage Marriage, Sears Says American law and public policy must encourage marriage, former Georgia Supreme Court Chief Justice Leah Ward Sears LL.M. ’95 said. Nicholson Named 10th Powell Public Service Fellow Third-year Peggy Nicholson is the 10th Powell Fellow, an honor that will fund her work on behalf of children in the juvenile justice system in North Carolina. Harris, Roth Receive Skadden and Independence Foundation Fellowships Two third-year students have been named recipients of prestigious, nationally competitive public service law fellowships. Two receive equal Justice Works Fellowships Two third-years will advocate for children’s education rights. http://bit.ly/hpN503

12  UVA Lawyer / Spring 2011

NFL Players Want Equitable Share Editor’s Note: At press time, the N.F.L. and its players were ordered back to mediation.

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FL players turned down the “worst deal in professional sports” last month and are now bearing the brunt of the owners’ lockout strategy, said NFL Players Association head DeMaurice Smith ’89 during a talk at the Darden School of Business on March 31. When negotiations over a new collective bargaining agreement between NFL players and owners broke down in March, Smith and the players moved to decertify the

union and filed an injunction in federal district court in Minnesota to stop the lockout imposed by team owners. “Over the 15 days, we met with the owners for probably less than seven hours,” Smith said. The decision to decertify as a labor union “was necessary.” “If you root for the players and we win the injunction, we have football. If the owners win, we don’t,” Smith told a crowded Abbott Auditorium. “This work stoppage that the owners chose is a lockout that they chose— not the players.” In the meantime, 1,900 players, former players, and their families are without health insurance and the game they love “has been taken away from them,” he said. Although the conflict between the two parties has been contentious, “that’s the nature of business sometimes,” Smith said. Smith, who was elected executive director

of the association in 2009 after a 26-year term by former NFL player Gene Upshaw, said he knew going into the role that a lockout was likely and that it would call for a “different leadership model.” During his presentation Smith calculated the deal being offered to players on a white board display. The NFL has weathered the recession with flying colors, enjoying $9 billion in revenue two years ago. Currently players get a 50 percent share of revenue, but under the new owners’ proposal, “By the time we got to the 15th year of a deal, you could see players getting shares of revenue that were in the 30-percent range,” he said. Smith jotted “NOT GOOD!” on the board, earning chuckles from the audience. Smith pointed to a former player in the audience who said he had 19 screws in his body due to injuries.

UVA Lawyer / Spring 2011  13


Law School News …

“Is that fair to a city like Baltimore, a city “While the 30 percent or the 40 percent like Cincinnati, or a city like Cleveland? No.” of all revenue might still mean that playSmith said it was “special” to see the NFL ers are making a tremendous salary—and players step up as leaders during the negothey would—the fundamental question has tiations. Although he has been under fire to be, what’s the fair distribution of equity during the process, Smith said nothing fazes given the limited timetable for which they him in light of his wife’s own successful fight play, the risk that they live with, and you’ll against breast cancer or the struggles of the have those 19 screws with you for the rest of victims he helped as a your life,” he said. prosecutor. “I don’t care He defended the players’ opwhat I go through at the position to a rookie wage scale, “If you’ve played negotiating table.” noting that the average player is in the National Although the ownonly in the league 3.2 years, and ers would like to move that many of the league’s top playFootball League two games from the ers are still under rookie contracts. you know that preseason to the regular “If you don’t want to pay him season, Smith said play$50, $60 million dollars—guess the idea of two ers are concerned over what? Don’t,” he said in response to preseason games the impact an 18-game owners’ complaints, pointing out that Tom Brady was a sixth-round being equal to two season will have on their health. draft pick. But no owner would end-of-the-season “If you’ve played in propose a system in which rookies the National Football have one-year contracts, he said. games is wrong. League you know that Smith said the players would The end-of-thethe idea of two preseason have been happy to continue games being equal to under the deal first negotiated in season games are two end-of-the-season 1993 and since extended. games where your games is wrong,” he said. “Our guys want to play football, “The end-of-the-season and that’s all we’ve ever said,” he body has been games are games where said. “We’d rather not be locked out.” completely beaten your body has been completely beaten up Smith said his request for auditup and broken.” and broken.” ed financial statements from the Cur rent ly pl ayers owners for the past 10 years was don’t qualify for postnot an ultimatum, but a logical career health coverage move considering the investment until they have worked three years in the players would be making. league—around the same amount as the Smith said the players were willing to league average. With extra games affecting take lower salaries in exchange for an equity the potential for injuries, the average time position in the NFL in the form of Class B in the league might drop below three years, ownership shares. Under the association’s Smith suggested, leaving them without any proposal, no one would be allowed to coverage when their careers end. exercise those shares for 10 years, but the Smith began his legal career as a prosowners would not agree to the terms. ecutor in the U.S. Attorney’s Office for the “Is it about money?” he said. “It’s about District of Columbia. He then served as control.” counsel to then-Deputy Attorney General Smith estimated that if the lockout continEric Holder in the Department of Justice. ues, it will cost every team city $160 million He later became a partner with Patton Boggs in lost revenue, a substantial hit to many citin Washington, D.C., where he focused ies under stress from a nationwide recession.

14  UVA Lawyer / Spring 2011

Law School News …

on white collar criminal defense and tort liability. Although Smith never played in the NFL, he did have some experience with organized sports before joining the NFL Players Association—he served as chairman of the Law School’s North Grounds Softball League. “Any time I’m at the University of Virginia, I feel like I’m home,” Smith said. “I met my wife down here, got married down here, had some of the best times of my life, and I owe a tremendous debt of gratitude to the University of Virginia because without [it] I’m pretty sure I wouldn’t be here.” After his talk, Smith answered a few questions about his time at the Law School and the prospects for football in the fall. How do you feel your legal education prepared you for your career and your current job? I’ve always believed that the best gift that a law school can give its graduates is to teach them a way to think. My wife will be the first person to say “stop thinking like a lawyer.” But the ability to analyze and pull apart a problem, to be able to look at all of the pieces distinctly, but also knowing how they relate, then to be able to put it back together in a way that makes sense is something that is not a gift, it’s a learned trait. Its value is limitless. How do you use your legal training as head of the NFL Players Association? Every day. People put too much emphasis on problem solving. We spend a lot of time on problem analysis, because you have to first come to a conclusion about whether it’s a problem or not. Look, we have at any given time various stages of major league, high profile bet-the-company litigation. I’d like to say that I’ve stepped away from the day to day lawyer activities, but the lawyers who work for us know that’s not true. In fact, we’re filing our damages briefs today, so right before I came in here I was sitting down in the parking lot doing the lastminute touches on the brief. But that’s just the litigation side of it. The media, the way

that I ever thought I would have. At every in which we try to make sure that players turn, I spend a lot of time trying to make understand our message and the way that sure it’s something that I would enjoy. For fans understand their messages, it’s probably me, it’s got to be somenot a whole heck of a lot differthing that’s challenging, ent than the way in which I tried something that is high cases. I love crowds and people “Do what you dig. stakes, something that who think, and I think a person’s If you don’t dig it, almost puts you in a ability to think along with a group situation where you of people to reach a conclusion or don’t do it.” can’t coast. If someone analyze a problem is the way in had said in 1989 when which you should do it. That natuI graduated that I was rally fits into the Socratic method, going to be the head of the NFL Players Asbut it’s also a trial lawyer way of doing it. But sociation, I would have looked at you and the other pieces are equally clear—asking for gone, “Clearly you’re absurd. I mean, that’s the financial information and justifications just insane”—never played the sport, never for players taking any number of options. been involved in sports marketing. What I I’m not sure you can ever divorce anything would say for students who, whether they of what I do everyday from sort of the core want to get involved on the sports side or training of being a lawyer. whether they want to get involved in any other profession, [is this]: your ability to What law classes or professors influenced you? analyze a problem and inspire people to [Peter] Low was my criminal professor. come up with solutions—that’s what leaderIt’s the process of the analysis; whether it’s ship’s about. Where schools like Virginia a crim law class or a civil procedure class, excel is giving you the opportunities and the core thread that runs through it—espethe confidence to know you can get the job cially at this university and this law school; done. UVA’s never been a blackletter/hornbook law school—was analyzing why and tryAre we going to have NFL football in the fall? ing to understand why. Regardless of what I hope so. class you’re in, that’s the process of this law school. Like I said, it left with me something What would a successful resolution to the that you can’t put any sort of monetary standoff between players and owners look value on. like? An equitable share of revenue. We have What advice do you have for law students players who play for an extremely short interesting in practicing in the area of profesperiod of time. We have owners who own sional sports? teams for decades and have the ability to I always answer the question this way, and will or leave or grant that business to their it’s on purpose. “Do what you dig. If you successors. One of the most pivotal, inspidon’t dig it, don’t do it.” The reason is, a rational parts of the mediation was Mike lot of people make decisions about what Vrabel—a linebacker who played with the profession to go into without really underNew England Patriots, won three Superstanding what it is. You’ve got to figure out bowl rings, now plays with the Kansas City what about it you love. For me, working at Chiefs. You know Mike’s already played the U.S. attorney’s office, being a criminal three, four NFL careers—and he looks prosecutor is probably one of the best jobs across the table at the owners and he says, I’ll ever have; being a partner in a great law “There’s one critical difference between you firm—best job I’ll ever have; right now, best and me. I can’t will my linebacker spot to job I’ll ever have. I’ve been lucky enough to my son. The only thing I can do, the only have three jobs where they’re the best jobs

thing I can pass on, is a safer, fairer game to the player who is going to come after me.” And you know, that’s cool. What kinds of concerns are players talking about at this stage? They care about and they’re concerned about their ability to play the game that they love. But at the same time they also know that the decisions that they made weren’t ones that were made in a vacuum, they weren’t ones that were made with the flip of your fingers. This was a two-year process. One of the things that concerns the players the most is when they see documents—internal NFL documents, for example—that show that back in 2008 that the owners were more interested in locking them out. That’s a tough thing for a player to take because they engaged in the collective bargaining process seriously. To see that two years ago owners were gaming the TV contracts to give them cash during a lockout, that’s a stark reality for a lot of players that I’m not sure they knew or expected. Players live in a world where they understand competition. They understand teamwork, you don’t have to teach them about sacrifice. For them to look back and see that the people that they work for took positions that had nothing to do with sacrifice, had nothing to do with competition and had nothing to do with team—it’s tough for them. Because they believed that they were all engaged in an enterprise together and I think that for many of them this was the first time that they realized that the owners were not a part of their team. What are the next steps for the NFL Players Association? There is a remedies hearing in the TV case that we won in mid-May and there are collusion cases out there. At the end of the day, we’re working as hard as we can to try to ensure that football’s going to be played in the fall, and that remains our focus.

UVA Lawyer / Spring 2011  15


16  UVA Lawyer / Spring 2011

UVA Lawyer / Spring 2011  17

AP Photo/Charles Dharapak

By Cullen Couch Demonstrators in favor of the health care reform bill chant outside of the U.S. Capitol as the House prepares to vote on the bill in Washington, D.C.


18  UVA Lawyer / Spring 2011

“The added

burdens of history and of cultural and political contingency will virtually assure that simplicity is an early casualty in all health care planning wars.

“A critical component of any populationUPI/Kevin Dietsch

F

or more than two years the country

has been hotly debating the availability and cost of health care. Facts and figures continue to be selectively argued, leaving the impression that universal coverage is either a necessary government obligation or an unaffordable social program. If only the policy considerations were so simple. Health care has been politically divisive for decades. Today, it controls a $2 trillion piece of the economy. Health insurance revenues alone top $500 billion a year. It is an enormously complex issue subject to a host of competing ethical demands. Congress needed several thousand pages to try to get a handle on the health care reform bill passed in 2010 (the Patient Protection and Affordable Care Act, or the Affordable Care Act), which President Obama signed into law last year. Though critics complain about the Act’s complexity, Michael Graetz ’69, a professor of tax law at Columbia Law School and expert on health care reform, writes that such is the fate of any legislation targeting health care. “The more uncertain or compromised the choices among values,” he writes, “the more likely [it] will exhibit high levels of institutional complexity.… If trade-offs among … ethical perspectives were not enough to induce institutional complexity, the added burdens of history and of cultural and political contingency will virtually assure that simplicity is an early casualty in all health care planning wars.” (Ethics, Institutional Complexity and Health Care Reform: The Struggle for Normative Balance, with Jerry L. Mashaw, 1994). To the scholars and health care professionals who have exhaustively researched the issue, health care reform offers any number of policy choices that would contain costs, improve delivery, and save lives. The solutions they propose involve combinations of government oversight (insurance exchanges, payment review boards, price structures), free market principles (using deductibles, co-pays, Health Savings Accounts), and rational delivery (electronic records, episode payments). They acknowledge four core realities: one, the

Michael Graetz ’69, professor of law at Columbia Law School, testifies before a Senate Finance Committee hearing on America’s tax system on March 8, 2011.

federal government already accounts for almost half of health care spending in the nation; two, it is virtually impossible to correlate health care expenses with results; three, there will never be a perfect universal health care system, anywhere; and four, without reform of some kind, the nation’s health care system will collapse.

The Health of American Health Care The United States is indisputably the world leader in lifesaving medical technology and research, especially in cancer care, specialized surgery, and ground-breaking new drug treatments. The U.S. health care industry is also making huge strides in developing technologies that will refine the delivery of care to patients. “The science and art of medicine continues to improve in many areas,” say Garry Carneal ’88, president and CEO of Schooner Healthcare Services, a consulting company that helps design medical management systems, health care communications, and technology. “For example, the case management community is doing fantastic

based program in health care is to move away from a fragmented and siloed environment to one that is integrated and promotes smooth transitions of care.

treatment plans. “The ACA is further supporting these innovative practices through a number of enabling provisions in the law,” he says. “Of course, many of the details still need to be sorted out at the regulatory level. A primary goal is to promote better clinical outcomes while saving costs at the same time.” Carneal hopes that attending physicians and others can leverage more clinical information and other data elements to promote quality-based interventions. “A critical component of any population-based program in health care is to move away from a fragmented and siloed environment to one that is integrated and promotes smooth transitions of care.” Some micro-models in the U.S. also manage to provide high levels of care at low overall cost. These models correlate closely with local non-profit health care providers that use salaried doctors, coordinated care, and a patient-centered apGarry Carneal ’88, President & CEO, Schooner Healthcare Services proach, like the Mayo Clinic and the Cleveland Clinic. These clinics put the patient in the center of a coordinated team approach, offering every type of service under one roof. Since salaried things in terms of managing individuals with chronic illnesses, doctors provide the care, they have no financial incentives to push which is a major cost driver for the U.S. health care system.” unnecessary services and procedures. Over the past 20 years, according to Carneal, the medical manAccording to Richard Bonnie ’69, the Law School’s Harrison agement system has evolved from traditional utilization review Foundation Professor of Medicine and Law, other good models functions into complex, condition management programs. The exist in the states and in the private sector, and the reform legislacombination of evidence-based medicine along with emerging tion supports them. “They are all moving ahead, and I don’t think technology-based applications is empowering clinicians to support anybody has a political problem with encouraging innovations in patients with co-morbidities through more comprehensive care delivery of care aiming to improve outcomes and lower costs.” The experts in the health care sector are well aware of the successful models. In fact, THE CONSTITUTIONAL QUESTION many in the industry see acquisition opportunities for systems and technologies that While most legal analysts agree that overturning the Affordable Care Act in the Supreme Court will be difficult, the arguments for and against the law deserve work. “Many of the innovations in health more careful analysis than we can present here. Readers can listen to an interesting care emerge from the private sector. The panel discussion on the topic, Health Care Reform: What it Means for the Market, the consensus is that if it’s already built, don’t Constitution, and You, at http://bit.ly/h1DBdO, or, Making Real Health Reform Work, at http://bit.ly/dJgwY7. rebuild it—buy it,” says Carneal. “From a public policy perspective, we need to mainFurther, we have included in Scholar’s Corner (page 29) a pertinent excerpt from Fred Schauer, the Law School’s David and Mary Harrison Distinguished Professor of Law and tain the right equilibrium between private one of the panelists in that discussion. Schauer says the Supreme Court, on average, and public sector initiatives. What venue or hears only about 70 appeals a year, and that the Affordable Care Act fits a case profile combination of approaches will work best? that the justices historically have chosen to avoid. For instance, the new state-based insurance exchanges were originally expected to cover

UVA Lawyer / Spring 2011  19


“They are all moving ahead, and I don’t

think anybody has a political problem with encouraging innovations in delivery of care aiming to improve outcomes and lower costs.

Richard Bonnie ’69

about 25 million Americans, but people forget that most Americans are going to continue buying their insurance through the private sector. We need to make sure that any reform prevents adverse risk selection into any publicly-funded or subsidized risk pool.” Policymakers are ultimately concerned with balancing feasibility and coverage. The U.S. currently spends almost two to three times as much per capita on national health care (by government and private providers) than other developed nations. At the same time, the U.S. ranks 49th in the world in life expectancy and 46th in infant mortality (CIA Factbook). The country’s insurance model either doesn’t insure or under-insures those who need it most, the indigent and working poor. It tends to over-insure those who need it least, the fully-employed without preexisting conditions (something the Affordable Care Act is designed to correct beginning in 2014). The U.S. model also causes “job lock” for those afraid of losing their employer-based health care. According to studies conducted for the National Bureau of Economic Research (NBER), it reduces job mobility by as much as 25%, which lowers overall U.S. labor productivity. It encourages too many expensive procedures that yield few measurable results. It insulates consumers from the real cost of their health insurance by cloaking it within tax schemes and salary structures (e.g., the Milliman Medical Index reports that the actual

medical cost in 2010 for a typical American family of four was $18,074, 59% of which came from employer subsidies). It “costshifts” onto taxpayers and insurers an estimated $30 billion a year in “uncompensated” mandatory hospital care for those who cannot pay. “No one thinks that this is a market that actually works,” says Professor Margaret “Mimi” Foster Riley. “Everyone agrees there has to be some regulation, but a dichotomy exists between what each side’s political base is hearing and what the policymakers are saying.” Bonnie agrees. “Regardless of the differences of opinion that experts might have about health care in the long run and the best approach to these problems, everybody knows that the system has to be changed. It is absolutely inefficient. What we now have evolved over time, as so many things do, and completely lacks coordination and integration. If we were starting over, no one would propose the system we now have.” “Our national health care system works differently than other nations,” says Bruce Kelly ’76, recently retired director of government relations for the non-profit Mayo Clinic (sharing his personal opinion, not any official position of his former employer). “Here, the more stuff you do and the more stuff you order, the more money you make.”

“deadweight loss” of insurance coverage (receiving more insurance than necessary, or buying too little because of price) is anywhere from $125 to $400 billion in today’s health economy. Further, a RAND study found that higher patient co-payments reduced significantly the use of medical care, but without affecting average medical outcomes. It also showed that total costs fell as copayments rose. In fact, contrary to complaints that higher copays reduce access to doctors and increase the likelihood of more expensive hospital care, the reverse occurred. More primary care, not less, led to higher hospital costs, without producing any measurable health benefits.

Accountable Care Organizations: the New Hope for Health Care Reform By Denise Forster Two of the largest criticisms of the American

share in the Medicare savings it

groups to provide emergency

health care system, according to a PERSPECTIVES

achieves,” states the NEJM.

department, anesthesiology,

article in the New England Journal of Medicine

What constitutes “good” health care is not always obvious. Spending does not guarantee wellness, and may produce no clear benefit. An MRI for a suspicious headache may find nothing that would change the treatment plan, or it might reveal an inoperable brain tumor. Either way, the MRI itself did not alter the ultimate result. This may seem pedantic, but it is at the root of the “Goldilocks” problem in health insurance: how to create a “just right” insurance policy that covers a person’s real needs, and no more. It further complicates the Affordable Care Act’s mandate to examine “relative health outcomes, clinical effectiveness, and appropriateness” of medical treatments. The tenuous connection between medical cost and benefit complicates that research. As a result, Americans are usually under-insured for necessities or over-insured for incidentals. That has enormous consequences for health care. According to one study from the NBER, the

hospitalist and radiology staffing,

place on January 1, 2012, and

management, and related services

paid for. “Because in many settings no single

the industry has been anxious

to more than 500 health care facili-

group of participants—physicians, hospitals,

for guidance. On March 31 the

ties. The EmCare business model

public or private payers, or employers—takes full

Department of Health and Human

means they adapt to the needs of

responsibility for guiding the health of patient or

Services finally released guidelines

their clients, thus they focus on

community, care is distributed across many sites,

that will hopefully dispel some of

things like core measures, efficient

and integration among them may be deficient.”

the uncertainty. While helpful, they

The lack of integration can lead to duplication of

are proposed regulations, with final

effort, wasted time, and high cost to the system

rule expected later this year. “The

and the patients, and, in the case of Medicare

relative lack of definition and detail

beneficiaries, to the U.S. taxpayers.

about ACOs can lead to some misperceptions or

company with multiple specialties is that we are

overgeneralizations that we find ourselves having

uniquely positioned to draw upon ‘best practices.’

Care Act is one of the first heath care delivery-

to combat,” says Todd Zimmerman ’90, president

We track and analyze several of the key metrics

reform initiatives establishing accountable care

of EmCare, a nationwide provider of outsourced

that will impact hospital revenue and patient

organizations (ACOs). Under the Medicare Shared

hospital-based physician services. “For example,

care in the coming years and use our national

Savings Program, doctors, hospitals, and other

I often hear people voice the belief that hospitals

experience to improve those metrics in individual

organizations are encouraged to create ACOs,

need to move to an employed physician model,

hospitals,” Zimmerman said.

through which care to large groups of Medicare

rather than an outsourced model, in order to enjoy

patients will be delivered. Under the law, an ACO

the benefits of an ACO.”

will assume responsibility for the beneficiaries’

means of delivering care, reducing Todd Zimmerman ’90 President, EmCare

variability of care, and coordinating care across specialties. “One of the benefits of being a national

According to Zimmerman, the reason companies like EmCare exist and have been successful

While ACOS are only mandatory for Medicare

over the years is that they demonstrate they can

care—meaning multiple doctors treating a patient

patients, many in health care see the benefit of the

effectively and efficiently manage the provision

will coordinate their care and patient information

coordinated model of delivery for all populations.

of physician services at hospitals. “The presence

will always be available at the point of care, not

And as the benefits to patients and businesses

or absence of health care reform, and specifically

with some other practice.

alike are easily identifiable, Zimmerman is seeing

the presence of ACOs, does nothing to change

a lot of activity across the industry, even with the

that fundamental concept,” he says. “If anything,

health care delivery and has the potential to be

Establishing ACOs make sense for improved

relative lack of guidance pertaining to ACOs. “There

it magnifies the importance of the benefits we

lucrative for practices and hospitals. If the ACO

is tremendous uncertainty in the industry right

provide with an outsourced model that brings into

succeeds “in both delivering high-quality care

now, much of it surrounding ACOs. Nobody wants

the hospital best practices and analytics from our

and reducing the cost of that care to a level below

to be caught unprepared.”

other locations across the country.”

what would otherwise have been expected, it will

20  UVA Lawyer / Spring 2011

ACOs are expected to be in

(NEJM), are the way health care is delivered and

Tucked into Section 3022 of the Affordable

Matching Expenses with Results

Using NBER data alone, the optimal insurance policy would have the individual pay medical costs within some affordable range (perhaps using pre-tax Health Savings Account or Flex programs), and then pay in full when the costs became unaffordable. According to free market principles, individuals would choose only those procedures that offered real and transparent benefit, reducing their overconsumption of “premium care” and lowering costs for everyone. Of course, these problems can’t be solved using economic analysis alone. Instead, politics will guide the process.

EmCare contracts with hospitals and physician UVA Lawyer / Spring 2011  21


22  UVA Lawyer / Spring 2011

This page from top: American Medical Association officers at the Senate Committee hearings on the Wagner Health Bill in Washington, D.C., in 1939. Dr. Edward H. Cary, Chairman of the Legislative Committee, AMA, (left) introduced the speakers to the committee, and Dr. Leland; Franklin Roosevelt at one of his “fireside chats”; Franklin Pierce (Library of Congress)

Historynyc.com

The photograph above shows retired senior citizens carrying pro-medicare signs, as they picket outside the Hotel Americana during the American Medical Association’s 114th annual convention in1965. Below: President Lyndon B. Johnson signing the Medicare Bill in Independence, Mo., on July 30, 1965, with honorary guest former President Harry S. Truman.

Americans long ago accepted the need for universal access to emergency health care; ambulances must pick up the sick and dying, and hospitals must take care of them. Further, there will always be individuals who, for some reason or another, fall outside of the system. But providing primary care for them through emergency rooms is ponderously inefficient and shockingly expensive. “We have accepted that you have to have a safety net,” says Bonnie, “but the problem remains that unRelying on the insured people can’t afford care emergency that would prevent many of those department as crises from occurring in the first the sole portal to place. Relying on the emergency health care is not department as the sole portal to good for the patient health care is not good for the and it’s not good for patient and it’s not good for the system because we end up paying the system. for it one way or another.” Every health care model has that problem, but other countries have built systems that provide that care more efficiently than the U.S. “What you want is to provide free or low-cost access to community clinics to provide preventive and urgent care for both physical and mental health problems,” says Bonnie. “Whatever else is done, the system needs a safety net that provides everyone reasonable access to medical care.” Bonnie counts three challenges to health care reform; access, quality, and cost. The Affordable Care Act took a big step to broaden access, and some steps toward improving quality. “However, there’s not much in the bill designed to solve the cost problem,” he says. “Nobody is willing to step up to the plate and deal with the big problems, but we’re going to have to do that one day.” Given the historical opposition to health care reform from the traditionally conservative AMA, why did it change its mind and support the Act? Perhaps it was responding to a restless membership. A Robert Wood Johnson Foundation poll found that over 70% of doctors nationwide supported either a public health care system (62.9%) or a public option in an insurance-based system (9.6%). AMA members responded by roughly the same margins. It was also partly good politics by the Obama administration, which “carved off interest groups one at a time,” says Riley. “The AMA and others saw that if they didn’t establish some equilibrium in the system they had greater risk. The hospitals, the pharmaceutical companies, even the physicians saw these changes coming and saw that they could do well in the system. They were willing to accept regulation to the extent it limited their risk. Where they don’t see risks to their own interests, they’re going to be unwilling to play.”

by a public relations firm hired by the AMA and put into public play using the mouthpiece of several hundred civic organizations around the country). Someone, likely the PR firm, created a pamphlet that claimed Vladimir Lenin “believed socialized medicine is the keystone to the arch of the socialist state.” This quotation was deeply provocative in the days of the “red scare.” Political opponents of health care reform continue to invoke it. In 1965 President Lyndon Johnson, wielding the enormous political power he had at the time, overcame AMA lobbying and signed into law Medicare to cover the nation’s seniors and disabled citizens. The one constant in health care reform was AMA opposition, according to Graetz. Further efforts by presidents Nixon, Carter, and Clinton to institute universal health care were stymied by more political miscalculations, missed opportunities, and AMA lobbying muscle.

AP Photo

began offering health care coverage to individuals. Health care costs at the time were relatively modest, and risk premiums reflected that. In the 1930s President Franklin D. Roosevelt tried to include publicly-funded health care programs in the Social Security legislation he was pushing through as part of the New Deal. That effort failed when the American Medical Association (AMA) lobbied successfully against it, objecting to what it claimed was government-mandated “compulsory health insurance.” During World War II the government issued wage and price controls to tackle inflation, while allowing employers to offer fringe benefits to attract workers. Employer-subsidized health insurance was one of them. In a move that still shapes the health care system to this day, the federal government then allowed tax deductions on the amounts employers spent on health care. Today, according to an NBER study, employer-based insurance dominates the market with a tax subsidy worth about $200 billion annually. After World War II it was President Harry Truman’s turn to call for universal health care legislation. He cast the issue as a moral imperative, but failed in the face of fierce lobbying efforts, again primarily from the AMA. According to historian James Morone in a talk he gave this spring to the University of Virginia’s Miller Center of Public Affairs in Charlottesville, the AMA campaign was the first to frame universal health care as “socialism” (a term coined Library of Congress

In spite of the inefficiencies that would seem to attract creative solutions, and general agreement that the system is broken, the public debate about health care reform continues to be, in the main, one driven by ideology rather than by reasoned argument. “A political system crafted by the founders to resist large-scale reforms,” writes Graetz in Rethinking American Social Insurance: True Security (1999), “coupled with public and politicians’ fears of a ‘government takeover’ of health care, has entrenched our health insurance patchwork in the face of obvious inequities and absurd levels of expenditure.” The first stitches on this patchwork began over 150 years ago. In 1854, Congress passed and sent to President Franklin Pierce’s desk the first federal effort to offer health care, a “Bill for the Benefit of the Indigent Insane.” Pierce vetoed it, claiming that such “social welfare” was the responsibility of the states, not the federal government. It would be many decades later before the issue arose again, and it was driven by an epic development that would change medicine forever. In 1928, Scottish scientist and Nobel laureate Alexander Fleming discovered penicillin. Before that, doctors performed routine surgeries and emergency care, but could offer only palliative care for almost everything else. Health care occurred mainly in the home, and costs were low. But with penicillin, doctors could cure patients of ailments that had previously killed and maimed. Vaccines and other medical breakthroughs followed. Technology and the growth of cities fueled the need for more and bigger hospitals. In time, health care took on an entirely new meaning and an ever larger role— and expense—in the daily lives of Americans. In 1929, feeling the brunt of the Great Depression and seeking revenue to keep itself afloat, a hospital in Dallas created a non-profit organization called Blue Cross that allowed 1,300 local teachers to finance up to a 21-day stay in the hospital by pooling small monthly payments. The idea replicated rapidly across the country. Soon doctors followed suit, offering employers the first Blue Shield plan for their workers in logging camps in the Pacific Northwest. In 1934 private for-profit insurers, sensing the market potential,

Patient Protection and Affordable Care Act

Library of Congress

A Short History

UVA Lawyer / Spring 2011  23


30%

Federal Revenues

Other Domestic Defense

(if recent tax cuts are extended)

Medicaid

g

20%

Medicare 10%

Social Security 0%

2006

2017

2028

2039

2050

a big provision funding this type of research,” Kelly recalls. “That Even though its many longtime opponents—the AMA, the pharbrought in the earlier rhetoric about end of life discussions that got maceutical industry, health insurers—supported the Affordable Care blown into the ‘death panel’ issue. None of those issues had anything Act, the new legislation still did not avoid criticism from the political to do with universal health insurance.” right, historically allergic to government intrusion; or the left, which Carneal agrees that the rhetoric took over. “My disappointment wanted a larger public role, mainly single-payer insurance. is that when things get politicized or when people over-emphasize Riley sees two debates going on. “One is the political rhetoric to a particular stakeholder rally the base, right and left. The other is the inside-the-Beltway perspective, the debate often battle between technocrats over privatization versus regulation. becomes subjective and biThat debate actually is reflected in the Affordable Care Act— None of those issues ased,” he says. “Among other which is essentially the plan Nixon proposed four decades had anything to do challenges, any health care ago—where it contains provisions that intersect between those with universal health reform initiative needs to groups. The base doesn’t hear any of this. The public debate is insurance. address a myriad of technical hyper-politicized and yet it has very little relevance to what’s issues and funding challenges actually taking place in Washington.” that do not always have straight-forward solutions. Public policyKelly, a veteran of legislative battles over health care, was in the makers also need to find the right balance between incremental and middle of the Senate discussions. “For all the legislation I have ever comprehensive reforms.” had anything to do with, and I have been doing this for over 20 years, No public official wants to use the word “rationing,” but health the Affordable Care Act was the most difficult,” he says. “It became care cannot be reformed without acknowledging the need for an very big and turned totally partisan at the end. There were attempts overall health care budget that requires caps on expenditures for to bring some Senate Republicans into the fold. There were a lot of procedures and services. Some will cost consumers more. Some will private conversations about finding a compromise position. That’s not be fully covered, and others will be excluded entirely. “People the normal legislative process, give and take, but that compromise can’t have everything they want when they want it,” says Bonnie. never materialized.” “How you make those decisions based on evidence is the challenge According to Kelly, if the legislation had focused solely on that we now face. At least the seeds for it have been planted in universal health care insurance, Congress might have produced a the legislation, and it has to slowly trickle into the culture from a bipartisan bill. But the bill began to cover other aspects of reform political standpoint.” that invited dispute. “The scope was too broad,” he says. “Everybody Ultimately, given the real disagreements about the details of thinks it was a bill designed to provide every American with health reform, its politics, and the unique cultural and fiscal constraints on insurance. That was the main thrust, but only a part of it. There were providing universal health care, Bonnie believes the Act was a good many other moving parts relating to Medicare and Medicaid and bill. “Many experts in the field would have preferred something else, research. A lot of those became controversial.” but they are generally supportive of the Act. I think that is telling. For example, the economic stimulus package in 2008 contained The experts know the political constraints within which Congress funds for comparative research analyzing the efficacy of experimenwas operating. We’re not going to be single payer, we’re maintaining tal medical procedures. At the time, opponents of the idea argued the health insurance industry, and we’re not fundamentally changthat such research was an attempt by the government to ration ing Medicare and Medicaid. That removes a lot of options. But at health care, getting “between you and your doctor.” That dispute least, we can begin to solve some of the problems.” carried over into the 2010 health care reform debate. “The bill had

24  UVA Lawyer / Spring 2011

Four Health Care Models Both sides of the debate cite health care systems around the world to point out what is right or wrong about health care in America. The irony is that these other models are hardly “foreign,” according to journalist T.R. Reid, author of The Healing of America. Americans already use versions of each of them. The National Health Insurance model (Canada, Australia, Taiwan, South Korea) uses private care providers working within a government-run, non-profit insurance plan (singlepayer, or one entity acting as administrator) that citizens pay into on a monthly basis. It uses its superior marketing power to negotiate lower prices. It limits covered procedures to those that meet efficiency guidelines. It is notorious for long waiting times. In Canada, it’s called Medicare, just like it is here for Americans who turn 65. In the Beveridge model, named after the British social reformer William Beveridge who designed it (UK, Italy, Spain, Scandinavia, Hong Kong), the government uses taxes to finance and provide health care for all. Most care providers work for the government, while some are private. All are subject to government cost controls and fee structures. Patients pay no medical bills. Here in the United States, native Americans, and military personnel and veterans, enjoy the same coverage. The Bismarck model named after Prussian Chancellor Otto Margaret “Mimi” Foster Riley Von Bismarck (Germany, France, Japan, Belgium, Switzerland, Latin America), uses private payers and providers to deliver health care. It sets fees and tightly regulates several hundred private, non-profit insurance plans (or “sickness funds”) to make The public debate is hyper-politicized and sure they cover everyone. Except for the “covering everyone” yet it has very little relevance to what’s part, this is the primary model in this country for working actually taking place in Washington. people under the age of 65. In the Out-of-Pocket model (most of the undeveloped world), it is pay-as-you-go if you can afford it. 47 million uninsured Americans live under this model, unless they can find a Profit, of course, is not a bad thing, though the non-profit health free clinic, get admitted to the emergency room at a public hospital, care models incur only a fraction of the administrative costs of foror suffer from a covered condition and be poor enough to qualify profit providers in the U.S. Further, Bonnie sees the “lines between for Medicaid. the two models getting awfully blurry when you look at providers of services.” The Affordable Care Act offers incentives to providers to be efficient, offer high quality, and achieve patient satisfaction. It also fosters competition between providers to allow patients meanIn the End, Politics ingful choice. “When you take all those factors into account, I’m not sure how big a difference there is between organizations that are The Beveridge, Bismarck, and NHI models have their own advantages basically non-profit and those that are not,” he says. and drawbacks. Each struggles with rising health care costs. Each It is a leap, then, to suggest that the free-market individualism reflects unique cultural standards. But all of them share two important so ingrained in American culture would pursue a broad non-profit characteristics: they are largely non-profit, and they cover everyone. model. In fact, a variety of business interests and state’s Attorneys Not so in the U.S. According to data collected by Yahoo Finance, the naGeneral are working to undo the Affordable Care Act. But rising tion’s health care sector reaps tidy profit margins, about 21.5% overall. costs, endless tweaking, and fiscal mismanagement in the present Insurance and hospital profits are only about 4%, but pharmaceuticals system only underscore the gravity of the problem. The U.S. model (23%) and medical devices (12.6%) pull up the average.

UVA Lawyer / Spring 2011  25


“When you start changing the way you

deliver and pay for care, somebody’s income is going to go down, and everybody gets into full battle mode to protect their particular turf.

Bruce Kelly ’76 was director of government relations for the Mayo Clinic.

cries out for reform, yet there are too many competing visions to yield an easy solution. But doing nothing is not an option. Many on the left argue that health care is a civil right; a basic need that government should provide. Many on the right disagree, seeing too much moral hazard in a system that they believe would reward bad behavior and invite abuse. At bottom, universal health care challenges a host of ancestral beliefs deeply embedded in the culture. People resist arguments that conflict with those beliefs. Health care policy is already hard enough to understand without having to hurdle that obstacle as well. “It’s a question of first principles,” says Riley. “As one who comes from a liberal tradition, I typically use the metaphor that the Affordable Care Act was a train that needed to be started. Without that train moving a big framework into place, we will get nowhere. We can adjust it as experience requires. My friends at the Heritage Foundation would say we didn’t need the Act, that it contains layers of unnecessary regulations, and better to tweak health care slowly and go only as far as we need to go. Interestingly enough, we’re not that far apart, since we all recognize that the delivery of health care has serious problems.” Kelly watched the bill’s negotiations devolve into a basic philosophical issue of government control. “No matter how people started

26  UVA Lawyer / Spring 2011

out looking at it,” he recalls, “at the end, it boiled down to the question of who do you want running your health care—the government, or you and your doctor? That’s not an accurate portrayal of what the whole thing was about, but that’s what it became instead of a ‘how-do-we-make-this-work’ issue.” Kelly also cites one other key problem: the sheer size of the health care economy. “There’s a lot of money at stake for the providers,” he says. “When you start changing the way you deliver and pay for care, somebody’s income is going to go down, and everybody gets into full battle mode to protect their particular turf.” But the health care industry is moving forward, no matter what, says Bonnie. “It’s hard to imagine as a practical matter how you would now repeal this. The insurance industry, which supported the bill, is adapting to the changes that have already taken effect and is planning for the next round. Many states, notwithstanding the litigation, are taking steps to move forward, and the Obama administration is giving them greater flexibility as it promulgates proposed regulations. Many provider groups are reorganizing themselves to take advantage of incentives created by the Act. At this stage, outright repeal seems more like a political slogan than a real option.” However, Carneal would prefer a “go-slower” approach from a purely practical standpoint. “The federal agencies are moving forward too quickly to fully vet the best policies to implement. The devil is often in the details. The over-reliance of ‘interim’ rulemaking procedures over the past year has short-circuited traditional feedback loops that are usually required by the administrative rulemaking process. When you rush, you make assumptions which can compromise the end result. In a similar vein, the cost estimates keep changing. Do we really know how much this is going to really cost?” For example, most everyone agrees that the insurance exchange concept is a good model, but the path to implementation sets forth many nuances that must be resolved, according to Carneal. “Each state needs to figure out how the exchange models in their respective jurisdictions need to be adopted and run. How will the private insurance market interface with the state-based exchanges? How many health plans can participate in the exchanges? What technological interfaces are needed to track eligibility as individuals move in and out of the exchanges? And so on. As a result, my sense is that many state regulators are feeling rushed due to the Act’s timelines and mandates.”

Kelly also sees the medical profession moving away from the solo and small group practices that have traditionally dominated AMA membership. “There are growing numbers of salaried doctors in multispecialty clinics, like Mayo,” he says. “That’s the dominant model for health care delivery in the Pacific Northwest, in the upper Midwest, and other areas. That model is spreading.” Given the political confines in which health care reform must function, Bonnie is hopeful. “I think that the Congress did a reasonably good job putting a plan in place. Things are moving along. You’ve got administrative structures that are hopefully going to continue to

make it work. There may be tweaks that Congress needs to make from time to time, but that’s the way things work. I think that this is a reasonable reform that has a realistic prospect of being successful.” “Ultimately, I have faith in the political process even though it appears to be very partisan these days,” adds Carneal. “We need to work through all of the key decision points in an objective and systematic manner. The current health care reform debate has created an important national dialogue. It is imperative that we take the time to effectuate meaningful change that promotes higher quality care and more consistent coverage for all Americans.”

Patient Protection and Affordable Care Act—Summary Cost: $940 billion over ten years. Deficit: Would reduce the deficit by $143 billion over the first ten years. That is an updated CBO estimate. Their first preliminary estimate said it would reduce the deficit by $130 billion over ten years. Would reduce the deficit by $1.2 trillion dollars in the second ten years. Coverage: Would expand coverage to 32 million Americans who are currently uninsured. Health Insurance Exchanges: The uninsured and self-employed would be able to purchase insurance through state-based exchanges with subsidies available to individuals and families with income between 133 percent and 400 percent of the federal poverty level.

Medicare: Closes the Medicare prescription drug “donut hole” by 2020. Seniors who hit the donut hole by 2010 will receive a $250 rebate.  Beginning in 2011, seniors in the gap will receive a 50 percent discount on brand name drugs. The bill also includes $500 billion in Medicare cuts over the next decade. Medicaid: Expands Medicaid to include 133 percent of federal poverty level which is $29,327 for a family of four.  Requires states to expand Medicaid to include childless adults starting in 2014.  Federal Government pays 100 percent of costs for covering newly eligible individuals through 2016.  Illegal immigrants are not eligible for Medicaid. Insurance Reforms:

Separate exchanges would be created for small businesses to purchase coverage—effective 2014.

Six months after enactment, insurance companies could no longer deny children coverage based on a preexisting condition. 

Funding available to states to establish exchanges within one year of enactment and until January 1, 2015.

Starting in 2014, insurance companies cannot deny coverage to anyone with preexisting conditions. 

Subsidies: Individuals and families who make between 100 percent–400 percent of the Federal Poverty Level (FPL) and want to purchase their own health insurance on an exchange are eligible for subsidies. They cannot be eligible for Medicare, Medicaid and cannot be covered by an employer. Eligible buyers receive premium credits and there is a cap for how much they have to contribute to their premiums on a sliding scale. Federal Poverty Level for family of four is $22,050 Paying for the Plan: Medicare Payroll tax on investment income —Starting in 2012, the Medicare Payroll Tax will be expanded to include unearned income. That will be a 3.8 percent tax on investment income for families making more than $250,000 per year ($200,000 for individuals).

Insurance companies must allow children to stay on a parent’s insurance plans until age 26. Individual Mandate: In 2014, everyone must purchase health insurance or face a $695 annual fine. There are some exceptions for low-income people. Employer Mandate: Technically, there is no employer mandate. Employers with more than 50 employees must provide health insurance or pay a fine of $2000 per worker each year if any worker receives federal subsidies to purchase health insurance. Fines applied to entire number of employees minus some allowances. (courtesy of cbsnews.com)

Excise Tax—Beginning in 2018, insurance companies will pay a 40 percent excise tax on so-called “Cadillac” high-end insurance plans worth over $27,500 for families ($10,200 for individuals). Dental and vision plans are exempt and will not be counted in the total cost of a family’s plan. Tanning Tax —10 percent excise tax on indoor tanning services.

UVA Lawyer / Spring 2011  27


Scholars Corner

Fred Schauer hardly needs introduction; he is one of the world’s most prominent and influential legal scholars. He analyzes issues of first-order importance to the design of a well-functioning legal system. Schauer made his name as a First Amendment scholar, soon broadened his focus to include jurisprudence, and has also written extensively on Constitutional law more generally. Schauer’s current work incorporates his interest in the psychology of cognition and decision making that ties in nicely with his longstanding fascination with the role and functioning of rules in society. Thirty-six years after joining the academy, his scholarship remains innovative and protean. In the following excerpt, Schauer evaluates how the Supreme Court chooses which cases to review. He argues that the Court generally decides either low controversy or low salience issues and avoids issues that are both high controversy and high salience (such as health care, bailouts of banks and auto companies, and the wars in Iraq and Afghanistan), which helps the Court retain a degree of legitimacy and respect.

Court has addressed important issues of gun control, campaign finance, capital punishment, punitive damages, presidential power, detention of enemy combatants, sexual orientation, and religion in the public sphere, among others, it has decided no cases determining the authority of a president to commit troops to combat outside of the United States. Nor has it directly decided cases involving health care policy, federal bailouts of banks and automobile manufacturers, climate change, and the optimal rate of immigration. And nothing the Court has decided for years is even in the neighborhood of addressing questions involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, and the creation of new jobs. The latter list is not randomly chosen. Rather, it is a list of the issues that dominate public and political discourse, a list surprisingly removed from what the Supreme Court is actually doing. Three years ago I noticed this gap between what the public cares about and what the Supreme Court does, and updating the data does not change the picture. When asked in non-prompted fashion to name the most important issues facing the country, Americans overwhelmingly name the economy, health care, wars in Iraq and Afghanistan, jobs, immigration, and education, as they have for the past eight years. Indeed, the list resembles those for much of the past three decades. Crime occasionally breaks into the top ten, but the most recent lists capture not only the long-standing importance of basic foreign policy and economic issues, but also the persistent non-appearance in the top ten (and usually even in the top twenty) of abortion, sexual orientation, race, gender, and the other issues that represent the salient part of the Court’s docket. When importance is measured by what the public and their Fred Schauer elected representatives think is important, therefore, and by what the government actually works on, the Supreme Court’s docket seems surprisingly peripheral. That is not to say that what the Court does is not important, but it is to say that its actual business

Is it Important to Be Important?: Evaluating the Supreme Court’s Case-Selection Process Yale Law Journal Online 77 (2009)

A

s the Supreme Court’s caseload shrinks, from about 150 cases per year in the 1980s and early 1990s to about 70 now, concern has grown over whether the Court is leaving too many important cases undecided. But the extent to which the concern is justified depends in part on what we mean by “important,” and in part on whether it is important that the Supreme Court decide important cases. That the Court has traditionally taken on important cases and issues is a commonplace, but whether the commonplace is true depends on how we phrase the question. Whether what much of what the Supreme Court does is important is very different from whether much of what is important is done by the Supreme Court, and without knowing which we are asking, we cannot intelligently evaluate the Court’s case selection process. The difference between how much of what the Court does is important and how much of what is important the Court does emerges upon even a casual glance at the daily newspapers. Although the

UVA Lawyer / Spring 2011  29


Scholars Corner …

Faculty News & Briefs

30  UVA Lawyer / Spring 2011

Management of Intellectual Property: Lessons from a Generation of Experience, Research, and Dialogue, which published the report: “Managing University Intellectual Property in the Public Interest,” in October. In January she moderated a panel on “Bilski and the Supreme Court—A New Frontier?” at the Global Forum on Intellectual Property in Singapore. She also taught an intensive course in International Patent Law and Policy as visiting professor at the National University of Singapore. In February Bagley delivered as keynote speaker, “The Future of Gene and Biotech Patents,” at a symposium on Hot Topics in IP at Duke University School of Law.

Ken Abraham has been appointed an advisor to the American Law Institute’s project, “Principles of Liability Insurance Law.” He also published “Lessons Learned from the History of Corporate Liability Insurance in the United States” in Geneva Papers on Risk and Insurance.

In November Kerry Abrams participated in a symposium sponsored by the Michigan State Law Review entitled “Modernizing Marriage through E-Marriage.” The paper she presented was a legal history of marriage by proxy as a method of circumventing immigration quotas. In February Abrams presented another paper, “Marriage Fraud,” at the Vanderbilt Law School faculty workshop.

Margo Bagley is a member of the National Academy of Sciences Committee on University

Grace Benson Photography

Court’s cases have been similarly unrepresentative and its decisions is less important to the public and to the public’s representatives similarly unhelpful. And thus if frequency of litigation in the lower than lawyers and law professors tend to believe. And it is hardly courts combined with unanswered questions about the state of the clear there is anything wrong with this. By dealing either with lowlaw is some indication of legal importance, then the Court’s record controversy issues or with high-controversy low-salience issues, and of taking legally important cases is little stronger than its record of thus by generally avoiding high-controversy high-salience issues, taking socially important cases, but with far less justification. the Court may retain public confidence and empirical legitimacy The Court’s weak record of deciding legally important cases necessary to secure at least grudging acquiescence in its most is likely a function of its inability systematically to gain needed controversial decisions. information about legal importance. When appellate courts make It is one thing to recognize the strategic value of avoiding most decisions, they determine the outcome of the dispute between the publicly important issues, but quite another to see much value in parties and set forth a rule that governs large numbers of other acts the Court’s avoidance of legally important issues, one measure of and events. In order to perform the latter task adequately, however, which would be the extent to which the issue appears in lower court courts need a sense of the array of events that some putative rule litigation. If that is the measure, however, then there is evidence or standard or policy or test will control. The problem, that the Supreme Court is little more inclined however, is that courts find themselves suffering from a to take on legally important issues than publicly structural inability to obtain just that kind of information. important ones. The Court’s First, courts are of course not well situated to go out It is impossible here to offer full empirical weak record of and actually research the field of potential application of analysis and support for this claim, but consider some rule. Occasionally one of the parties might do this as an example litigation under the First Amenddeciding legally in a brief, but it is rare, and even at the Supreme Court ment’s speech and press clauses, a great deal of important cases is level amicus briefs seldom serve this function. Second, which is represented by free speech issues arising everything we know about the availability heuristic and in public employment and the public schools. likely a function related phenomena tells us that a court trying to make Indeed, issues involving student and teacher of its inability a rule in the mental thrall of the particular case before speech, employee speech, organizational memit will likely assume, often inaccurately, that the case bership, and related topics vastly overwhelm the systematically before it is representative of the larger field. Finally, and quantity of lower court First Amendment issues to gain needed most importantly, the selection effect—the process by dealing with obscenity, indecency, incitement, which cases with certain characteristics get to appellate press freedoms, and the numerous other topinformation about courts and other cases with different characteristics do ics that dominate the casebooks. Yet although legal importance. not—provides further distortion of information. Whenschools and public employee cases far surpass ever the Supreme Court—or any court—sets forth a other categories of First Amendment litigation rule, standard, principle, or test, it creates the possibility in the lower courts, the Supreme Court takes of three different forms of behavior on the part of those surprisingly few such cases. In forty years it has the rule addresses. One is compliance, another is violation, and the taken only four involving speech in the public schools, three dealthird is “dropping out,” ceasing to engage in the behavior the rule ing with speech in colleges and universities, and twelve on the free seeks to regulate. So when the Court decided Miranda v. Arizona, speech rights of various public employees. it created a world in which some police officers complied by givThat the Supreme Court takes few cases in a number of highing the required warnings, others violated by conducting custodial litigation areas would be of less moment if the cases it did take were interrogations with giving warnings, and some stopped conducting representative, and the decisions it issued useful in terms of providcustodial interrogations. ing guidance. But in fact neither of these occur. In Morse v. Frederick, The selection problem arises because the courts will never see for example, the “Bong Hits 4 Jesus” case, the Court, in deciding the dropout cases, and rarely see the compliance cases. By seeing only its fourth student speech case ever and the first in more than only the violations, courts find themselves subject to severe infora decade, took and decided a case that was highly unrepresentative mation distortion. And because this phenomenon is exacerbated of the student speech cases that bedevil the lower courts. And havas litigation ascends the appellate ladder, the Supreme Court, even ing taken the case, even the majority issued an opinion that was taking into account the information provided by amicus briefs, the so narrow, so case-specific, and so idiosyncratically about alleged research done by the Justices and their clerks, and the fact that the encouragement of drug use as to provide virtually no guidance to Justices read the newspapers, will be at an informational disadvanthe courts that have to deal with the issue. tage in deciding which cases to decide and how broadly or narrowly Morse is hardly unusual. On a large number of issues of reguto decide them. latory law, constitutional law, criminal procedure, and others, the

Richard Bonnie ’69 is directing a multi-year project funded by several foundations designed to promote use of advance directives by people with mental illness. Use of advance directives is a major feature of the reforms enacted by the Virginia General Assembly in accord with recommendations of the Commission on Mental Health Law Reform, chaired by Bonnie. Earlier this year, he spoke about this project on January 20 to the Robert Wood Johnson Public Health Law Research Conference, in Tempe Ariz., on March 1 to the UVA Psychology Department, and on May 4 to the Annual Conference of the Virginia

Association of Community Services Boards in Williamsburg. This spring Bonnie also spoke about the role of asylums in the history of mental health treatment at the UVA School of Architecture, on mandatory outpatient treatment at the University of Maryland Law School, and on the challenges of mental health law reform at Duke University’s Department of Psychiatry During this period, Bonnie made several contributions to the National Research Council of the National Academy of Sciences. He is serving on a committee charged with developing a blueprint for reforming juvenile justice and is also a member of a governing board that oversees research in behavioral, cognitive, and sensory sciences. He also

Alumnus and former UVA Law Professor, William J. Stuntz ’84, lost his three-year battle with cancer on March 15. He was 52 years old. A native of Maryland, Stuntz received a B.A. from the College of William & Mary in 1980 before coming to the Law School. As a student Stuntz was notes editor of the Virginia Law Review and received several honors, including the Alumni Association Award for Academic Excellence, given to the member of the graduating class with the highest academic standing, and the Roger and Madeline Traynor Prize for the best student written work. Following law school, Stuntz clerked for U.S. District Judge Louis Pollak and Supreme Court Justice Lewis F. Powell, Jr. After his clerkships he returned to the Law School to teach torts, criminal law, civil rights litigation, remedies, and criminal procedure. He was a frequent lecturer to police audiences at the FBI Academy in Quantico, Va., and an occasional speaker for other groups, including federal and state judges, state prosecutors, and students at the Center for Christian Study. In 1993 he was awarded the First-Year Student Council Teaching Award. He spent the 1996–97 academic year as a visiting professor at Yale Law School. In 2000 he moved to Harvard Law School, where he won the student teaching award in 2004 and became the Henry J. Friendly Professor of Law in 2006.

UVA Lawyer / Spring 2011  31


Faculty News and Briefs …

coordinated the scientific review of a report on improvement of intelligence analysis through greater use of behavioral and social sciences, with colleague Barbara Spellman serving on the NRC panel that produced the report. He published an article on “The Transformation of Forensic Psychiatry” in the Journal of Psychiatry and the Law, as well as two opinion pieces on the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act.

Tomiko Brown-Nagin published Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford University Press); and “Hollow Tropes: Fresh Perspectives on Courts, Politics, and Inequality,” in the Tulsa Law Review journal issue. She was an invited reviewer in Tulsa Law Review of Martha Minow’s In Brown’s Wake (Oxford, 2010); Paul Frymer’s Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton, 2007); and Julie Novkov’s Racial Union (Michigan, 2008). In February Brown-Nagin began contributing to the Legal History Blog and gave an on-air interview on Courage to Dissent to a Tulsa NPR Affiliate; gave a

32  UVA Lawyer / Spring 2011

Faculty News and Briefs …

lecture on the book at the Atlanta History Center; and gave the Buck Franklin Memorial Civil Rights Lecture at University of Tulsa College of Law. In March she gave the Courage to Dissent book lecture at the Smithsonian American Art Museum at the National Portrait Gallery in Washington, D.C. and at Washington and Lee School of Law. She served as a panelist at the Virginia Festival of the Book on “Civil Rights, Women’s Rights, Human Rights” in Charlottesville; and was on a book review panel at the Law School (with readers Risa Goluboff, Ken Mack, and Anthony Alfieri). She also gave an on-camera interview on Courage to Dissent on C-Span Book TV. In April Brown-Nagin was a panelist on “The Jurisprudence of the Student Movement,” at the Ella Baker Day Symposium at UVA; a presenter at the Law and Politics Workshop at Washington University in St. Louis; and gave the Courage to Dissent book lecture at Furman University.  In May Brown-Nagin presented a U.S. Supreme Court Review to the Virginia Judicial Conference; and was a panelist on “South Meets North: Creating A New Narrative of the Civil Rights Movement” at Northwestern University.  In June Brown-Nagin will be the summer institute presenter of Bush v. Orleans Parish School Board, at the “Federal Trials and Great Debates in United States History,” at the Federal Judicial Center in Washington, D.C.; and a panelist at the Association of American Law Schools

Mid-Year Workshop, “Women Rethinking Equality,” also in Washington, D.C. In July Brown-Nagin will be a visiting professor at the University of Münster in Germany, teaching “Current Issues in U.S. Constitutional Law.”

In February Jon Cannon gave the keynote address on watershed governance at an ABA Water Law Conference in San Diego. In March Cannon participated on a panel with the current U.S. Environmental Protection Agency general counsel and two other former EPA general counsels at the ABA’s 40th Annual Conference on Environmental Law in Salt Lake City. The panelists discussed the development of environmental law over the last 40 years and prospects for the future. Cannon has an article forthcoming on environmental enforcement in Regulation and Governance and is beginning work on a book on environmentalism and the Supreme Court under agreement with Harvard University Press. 

Narratives of Undocumented Lives, about undocumented immigrants in the U.S. Ford served as legal advisor and an assistant editor on that book, and one of his Immigration Law Clinic clients provided her story.

In April George Cohen conducted a workshop at Case Western Reserve University School of Law. The tentative title of the resulting paper is “The Financial Crisis and the Forgotten Law of Contracts.” Cohen also led a panel presentation on “Ethical Obligations of Government Lawyers” for the ABA section on Administrative Law at its meeting in Charlottesville.

Doug Ford was associate editor for Hope Deferred: Narratives of Zimbabwean Lives, published this spring, for which he provided field research in South Africa, editing, and legal advising. The book, reviewed favorably in the March issue of Harper’s magazine, is part of a series called Voice of Witness “illuminating human rights crises through oral history.” In March Ford joined the main editors for a presentation on the release of the book at Busboys and Poets in Washington, D.C. Ford previously helped with an earlier book in the series, Underground America,

Harvard University Press published Brandon Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, which examines what went wrong in the first 250 DNA exonerations in the United States. Garrett spoke about the book at the Virginia Festival of the Book in March and at Duke Law School in April. Garrett also posts data and resources relating to the book at www.law.virginia.edu/innocence. Garrett testified about the wrongful conviction data presented in the book at hearings in State of Texas v. John E. Green regarding the constitutionality of the Texas death penalty in Houston in December. A multimedia project exploring several of the wrongful conviction cases described in the book and their causes, as well as criminal procedure reforms, will be titled “Getting it Right” and will be hosted on the Innocence Project’s website this Spring. Garrett authored a short piece related to the book, “The Contamination

of a False Confession,” for the ABA Litigation Journal. Another short article, titled “Understanding Eyewitness Identifications” was published on the Harvard University Press blog. A piece titled “Preventing Wrongful Convictions” will appear in the Boston Globe. Garrett’s book chapter, “Collaborative Organizational Prosecutions,” is forthcoming in Prosecutors in the Boardroom, published by NYU Press.  In January Garrett presented a draft, forthcoming in the Virginia Law Review, titled “Globalized Corporate Prosecutions” at the UVA Faculty Retreat. In February he testified before the D.C. Council concerning legislation that would create an independent forensic crime laboratory, and presented a draft article titled “Eyewitnesses and Exclusion” at Vanderbilt Law School and at George Washington Law School (in March).

Risa Goluboff won an All-University Teaching Award from UVA this spring (see Law School News in this issue for more information). Last October she presented “Building and Sustaining Grassroots Movements for Economic and Racial Justice” in the Class Matters Lecture Series at University of Virginia. In March Goluboff was a commenter on a Law School panel

discussion on Tomiko BrownNagin’s Courage to Dissent; and chaired the panel, “Civil Rights, Women’s Rights, Human Rights” at the Virginia Festival of the Book in Charlottesville. In May she will present “Policing the Police: The ACLU and Vagrancy Law in the 1950s” at the Cardozo Law School Faculty Workshop.

A. E. Dick Howard ’61 gave the Class of 1965 Lecture at the University of Richmond’s International Studies Center. Newly opened last fall, the center began its first year with a lecture by Thomas Friedman, and Howard’s lecture closed out the inaugural year. He spoke on “Revolutions and Constitutions: From the Bastille to Tahrir Square.” Howard traced the kinds of constitutions that have flowed from major revolutions, beginning with the American and French revolutions, then considering the 1848 revolutions in Europe, the Mexican Revolution, Ataturk’s Turkey, and post-communist Central and Eastern Europe, and, finally, musing on what a post-Mubarak constitution might look like in Egypt. In Charleston Howard gave the Pinckney Lecture, named for Charles Pinckney, one of the

more important members of the Philadelphia Convention of 1787. Howard’s subject was the place that American ideas, especially those of Pinckney’s era, have had in constitutional developments on other countries and cultures. James Madison’s Montpelier organized a seminar for members of the General Assembly of Virginia. Howard lectured on the constitution of Virginia and moderated a discussion among the legislators, Republicans and Democrats, on current constitutional issues in Virginia. In Washington, D.C., Howard appeared on National Public Radio’s “Diane Rehm Show.” The subject of discussion was the Bill of Rights.

In January Douglas Laycock spoke on “Rabbinical Courts in American Law” to the Section on Jewish Law, and on “Rebirth of the Irreparable Injury Rule?” to the Section on Remedies, at the Annual Meeting of the Association of American Law Schools in San Francisco. His talk to the Section on Remedies keynoted a program devoted to the 20th anniversary of his book, The Death of the Irreparable Injury Rule. In February Laycock spoke on “Recent Developments in Religious Liberty” to the national convention of the J. Reuben Clark Law Society in Dallas; moderated

UVA Lawyer / Spring 2011  33


Faculty News and Briefs …

a panel on “R3RUE and Contract” at a conference at Washington & Lee Law School “rolling out” the Restatement (Third) of Restitution and Unjust Enrichment; and moderated a panel on “Conscience Protections? Smart Medicine or Dereliction of Duty?” at the 12th Annual Conference on Public Service and the Law at the Law School. In March he gave the Philip J. McElroy Lecture on Law and Religion, on “Sex, Atheism, and Religious Liberty,” at the University of Detroit Mercy School of Law. In April he spoke on Andrew Koppelman’s forthcoming book, Religious Neutrality in American Law, at a conference of The Future of Equality at the University of Texas Law School. In May Laycock spoke on Abington School District v. Schempp, the famous case on school-sponsored prayer, in the chamber of the Supreme Court of the United States as part of the Supreme Court Historical Society Lecture Series; and on “The Establishment Clause and Financial Aid to Religious Institutions” at the 5th Annual Bill of Rights Course of the State Bar of Texas, in Austin. He recently published “A Conscripted Prophet’s Guesses about the Future of Religious Liberty in America” in the journal Fides et Libertas. Laycock will represent a religious school before the U.S. Supreme Court in a First Amendment case scheduled for the October term. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment

34  UVA Lawyer / Spring 2011

Faculty News and Briefs …

Opportunity Commission centers on whether the school can be sued for employment discrimination for its dismissal of a teacher, or whether it is protected from such lawsuits by the First Amendment.

In January David Martin returned to full-time teaching at the Law School after a two-year leave serving as principal deputy general counsel at the Department of Homeland Security in Washington, D.C. Martin was a speaker on a panel addressing “Due Process in the Era of Mass Immigration Detention,” at the Association of American Law Schools annual meeting in San Francisco. In February he was the dinner speaker, sharing tales from his government service, at the Virginia Law Review Banquet in the Rotunda. In March Martin was a panelist for feature program at the 17th Annual Edward Brodsky Legal Conference of the AntiDefamation League in New York City: “American Immigration and Border Security: Should the Golden Door Still Swing Open?” He was also a panelist addressing “U.S. Immigration Reform Proposals,” at the Conference on Immigration Reform sponsored by the Center for Migration Studies, with Special Reference to New York City (a conference at which

Mayor Bloomberg also spoke) at State University of New York’s Levin Institute in New York City. Martin was also an invited member of Roundtable on International Law and Security, established by the American Society of International Law in Washington, D.C., and participated in the first meeting (of a planned six) of the roundtable. That meeting addressed “Geographic Scope of an Armed Conflict,” with a focus on such issues as whether the United States or allied forces, as part of the authorized conflict in Afghanistan, may target with lethal force Al Qaeda leaders residing in countries far from the conflict. Martin also spoke on his leadership experiences during his tenure at DHS, to the Week in Review foreign policy discussion group at UVA’s Frank Batten School for Leadership and Public Policy; and participated in the Roundtable on Deportations and National Security at Princeton University, convened by the Princeton Center for Migration and Development.

At the annual meeting of the Association of American Law Schools in January, Greg Mitchell was a panelist discussing the legal implications of research on unconscious bias. This winter Mitchell also published (with Hart Blanton of the University of Connecticut Psychology Department)

an article in the North American Journal of Psychology that reported the results of an investigation into prior research on unconscious bias which discovered that fabricated data had been the source of results previously reported in the same journal. This spring Mitchell (along with Mary Baker of ERS Group, Hunter Hughes of Rogers & Harden, and Philip Tetlock of the University of Pennsylvania) will publish an article on “Proactive Approaches to SecondGeneration Risks in Labor and Employment Cases” in the Employee Relations Law Journal.

John Monahan (with Larry Walker) published “Twenty-Five Years of Social Science in Law,” in Law and Human Behavior; and (with Jennifer Skeem) “Current Directions in Violence Risk Assessment” in Current Directions in Psychological Science. Monahan will also be publishing (with editors Thomas Kallert and Juan Mezzich) Coercive Treatment in Psychiatry: Clinical, Legal, and Ethical Aspects (London: Wiley-Blackwell); (with Gregory Mitchell and Larry Walker) “Beyond Context: Social Facts as Case-Specific Evidence” in the Emory Law Journal; “Mandated Psychiatric Treatment in the Community: Forms, Prevalence, Outcomes and Controversies,” (with Kallert and Mezzich) in Coercive Treatment in Psychiatry:

Clinical, Legal, and Ethical Aspects (London: Wiley-Blackwell); and (with Henry Steadman) “Extending Violence Reduction Principles to Justice-Involved Persons with Mental Illness,” (with Joel Dvoskin, Jennifer Skeem, Ray Novaco, and Kevin Douglas (eds)) in Applying Social Science to Reduce Violent Offending (New York: Oxford University Press).

John Norton Moore recently authored the foreword to a new book by James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics (2010, Oxford University Press) and wrote the foreword to the forthcoming U.S. Institute of Peace, a new book documenting the history of the institution (Moore was appointed the first president of USIP by President Reagan). Moore also contributed the foreword to volume seven (forthcoming 2011) of the landmark series entitled the United Nations Convention on the Law of the Sea 1982: A Commentary. This series was published under the auspices of the Center for Oceans Law and Policy, which Moore directs at UVA. It is the most authoritative reference on the Third United Nations Convention on the Law of the Sea (1973–1982). In December the Center co-sponsored a major conference in conjunction with the Korea Maritime Institute on themes

of globalization and oceans law, as well as sponsoring its own 34th annual conference last June on the importance of ratification of the United Nations Convention on the Law of the Sea. A selection of papers from both conferences will be published together this summer under the title The Law of the Sea Convention: U.S. Accession and Globalization. In April Moore chaired the 2011 Sokol Colloquium Committee. The topic this year is “International Arbitration: Prospects and Problems.” The Center for National Security Law, which Moore also directs, is planning its annual National Security Law Institute, a two-week intensive series of instruction held each June. It provides advanced training for professors of law and political science who teach or are preparing to teach graduate-level courses in national security law or related subjects. Government attorneys in the national security community often enroll in the program. Moore is also Judge for the Jessup Moot Court Team, chairman of the Monroe Leigh Fellowship Award Committee, a member of the International Court of Justice’s Traineeship Committee, maintains a busy speaking schedule and is working on a couple of extended book projects and other publications.

In October 2010 Foundation Press published Caleb Nelson’s casebook Statutory Interpretation.

A book by Jeffrey O’Connell and his brother, Thomas O’Connell, president emeritus of Berkshire (Mass.) Community College, Five 20th Century College Presidents, is scheduled for publication later in 2011 by Carolina Academic Press. The book has chapters on Nicholas Murray Butler of Columbia, Robert Hutchins of Chicago, James Bryant Conant of Harvard, John Sloan Dickey of Dartmouth, and Derek Bok of Harvard ( plus a coda on Laurence Summers).

Dan Ortiz, one of the directors of the Law School’s Supreme Court Litigation Clinic, argued before the Supreme Court the case Borough of Duryea v. Guarnieri (see Law School News in this issue for more information), one of three cases the clinic argued before the Court this spring (in addition to one last fall).

In December Riley presented “Electronic Health Records and Family History: Ethical, Legal and Social Issues in Family Data-Sharing” at the Fourth National Conference on Genomics and Public Health in Washington, D.C. In March she participated on a panel at Longwood University: “Federal Health Care Reform: It’s the Law, Now What?” In April she participated on a panel at the Food and Drug Law Institute’s annual meeting in Washington, D.C., considering the science, law, and ethics of using genetically engineered animals as models of human disease. Riley has an article forthcoming this summer in the Harvard Law & Policy Review entitled “Federal Funding and the Institutional Evolution of Federal Regulation of Biomedical Research.”

Mildred Robinson published this spring “The Current Economic Situation and its Impact on Gender, Race, and Class: The Legacy of Raced (and Gendered) Employment” in the Iowa Journal of Gender, Race & Justice.

Margaret “Mimi” Foster Riley (with Ruth Gaare Bernheim) presented “Family Data Sharing and Ethical Norms” at the American Public Health Association’s Annual Meeting in Denver in November.

UVA Lawyer / Spring 2011  35


Faculty News and Briefs …

In October Jim Ryan ’92 argued a case before the United States Supreme Court, as part of the Supreme Court Litigation Clinic. The case, Kevin Abbott v. United States of America, centers on federal firearms laws that allow additional charges with mandatory minimum prison sentences for certain crimes involving guns. Ryan has given a number of talks about his book, Five Miles Away, A World Apart, including talks at Virginia Commonwealth University, the University of Richmond, Yale Law School, and UVA’s Curry School of Education. His book has been reviewed in the Richmond Times-Dispatch, the Washington Times, and The New Republic. He has co-authored an article, “Race and Response-to-Intervention in Special Education” (with Angela Ciolfi ’03) for a symposium on race and education sponsored by the Howard Law Journal. Ryan’s piece, “Laying Claim to the Constitution: The Promise of New Textualism,” was recently accepted for publication by the Virginia Law Review. In January Ryan received the State Council on Higher Education of Virginia Outstanding Faculty Award. The award is the Commonwealth’s highest honor given to faculty and celebrates recipients for “excellence in teaching research, knowledge integration, and public service.”

36  UVA Lawyer / Spring 2011

Faculty News and Briefs …

In February he was appointed by U.S. Secretary of Education Arne Duncan to serve on the Equity and Excellence Commission, which is examining school funding in the United States. In April Jim and his wife, Katie ’92, ran the Boston Marathon. He will publish this summer a casebook, Education Policy and the Law, co-authored with Mark Yudof, Rachel Moran, Betsy Levin, and Kristi Bowman.

In April Fred Schauer edited and provided an extensive introduction to The Theory of Rules, by Karl Llewellyn, written in 1938 and not previously published, which was published by the University of Chicago Press in April. The South Asia edition of Schauer’s book, Thinking Like a Lawyer, A New Introduction to Legal Reasoning, was published by Universal Law Publishing in New Delhi. The book was originally published by the Harvard University Press in 2009. “Positivism Before Hart,” a paper Schauer delivered at University College London in December 2009, will be published in July in the Canadian Journal of Law and Jurisprudence. “Bentham on Presumed Offenses,” previously presented at McMaster University in Hamilton, Ontario, will be published this summer in Utilitas. In March Schauer gave talk on neuroscience and lie-detection at

Robert Sayler and Molly Shadel released a book called Tongue-Tied America: Reviving the Art of Verbal Persuasion, and published a guest blog (http://wapo.st/gTGr5u) in the Washington Post about verbal presentation skills for college students. Sayler was also interviewed on the local CBS affiliate about the impact of Facebook entries on lawyer juror selection and conducting examination.

a National Academies of Science conference in Irvine, Calif., and again at a conference on Law and the Brain in New York. He lectured in April on “The Concept of Precedent” and “Legal Defeasibility” at the Faculty of Jurisprudence, University of Genoa, Italy; and spoke on “Is Legality Political?” at a conference on Constitutional Transformations at the William & Mary Law School, with the talk to be published as an article in the William and Mary Law Review. In May Schauer lectured at Oxford University on the “The Continuing Importance of Hart’s Questions” as part of series of lectures commemorating the 50th anniversary of the publication of H.L.A. Hart’s The Concept of Law. In June he will deliver lectures on “Law and Coercion” at the Max Planck Institute in Bonn, and at the Albert Ludwigs University in Freiburg, Germany.

Rich Schragger published three articles over the past three months: “The Relative Irrelevance of the Establishment Clause” in the Texas Law Review; “Decentralization and Development” in the Virginia Law Review; and “Does Governance Matter? The Case of Business Improvement Districts and the Urban Resurgence” in the Drexel Law Review. In January Schragger attended a conference at the Cardozo Law School entitled “Twenty Years After Employment Division v. Smith.” A symposium piece from that conference entitled “The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the ‘War on Terror,’ and Religious Freedom” will be published in May. Schragger also presented that paper at the Law School Faculty Retreat. In April Schragger attended a conference on “Equality in the 21st Century” at the University of

Texas School of Law. In May he will be attending a conference on “Spatiality and Justice: Interdisciplinary Investigations on a Political Philosophy of the City,” in Montreal.

In April Lois Shepard published two articles in the Wake Forest Law Review in connection with a conference she co-organized on Patient-Centered Health Law and Ethics at Wake Forest Law School: “Patient-Centered Health Law and Ethics” (with Mark A. Hall), and “Different Ways to Understand Patient-Centered Health Law.”

In March Gil Siegal was course director of the second Course in Genetics, Ethics, and the Law at the European Genetic Foundation in Bologna, Italy. In May he will present “Globalization of Health Care in the Information Technology Era—Opportunities and Legal Challenges” at Harvard Law School. In June he will chair the organizing committee of the

Second National Conference on “Genetics, Ethics and the Law” at the Law School. The conference is co-sponsored by the American Society of Human Genetics. Siegal also published (with Michael Glikson, et al) “European Heart Rhythm Association Expert Consensus Statement on the management of cardiovascular implantable electronic devices in patients nearing end of life or requesting withdrawal of therapy” in Europace; (with Neomi Siegal) “Leadership and the Road to Personal Responsibility to Healthy Behavior—Between Autonomy and Paternalistic Interventions,” (Bruce Rosen, ed., 2010, forthcoming); and “Legal Aspects of Health Technology Assessment and Management” (Joshua Shemer, ed.,) (forthcoming).

Paul Stephan ’77 presented in February a paper entitled “The Political Economy of Jus Cogens” as part of Vanderbilt Law School’s Conference on Sovereign Immunity at Home and Abroad. In March Stephan participated in a panel discussing a new book by André Nollkaemper, Domestic Courts and the International Rule of Law, hosted by Hebrew University in Jerusalem, and took part in a panel on International Human Rights and the Obama Administration at Fordham Law School. In April Stephan taught international civil litigation at the Peking University School of Transnational Law in Shenzhen,

China. In May Stephan taught Emerging Markets to the law faculty of the University of Sydney, and delivered a talk to the International Fiscal Association in Sydney on Russian tax law and the Yukos case.

Siva Vaidhyanathan recently published his fourth book, The Googlization of Everything and Why We Should Worry (University of California Press, 2011). His book was recently profiled on the CNN show Reliable Sources. 

In February Ted White participated on a panel at the Federalist Society’s annual National Student Symposium. The subject of the panel was “Economic Theory, Civic Virtue, and the Meaning of the Constitution.” An article based on his remarks, entitled “The Political Economy of the Original Constitution,” will subsequently appear in an issue of the Harvard Journal of Law and Public Policy. In April White delivered an address at a symposium on “Supreme Mistakes,” notorious decisions of the Supreme Court of the United States, at Pepperdine University School of Law. An article based on his address, entitled “Mistakes by the Supreme Court: Fashioning Evaluative Baselines,”

will subsequently appear in an issue of the Pepperdine Law Review. White’s article, “Recovering the Legal History of the Confederacy,” appeared in the Washington & Lee Law Review. That article is based on the Hendricks Law and History Lecture White delivered at Washington & Lee Law School in October. White’s book, Law in American History: Volume One, From the Colonial Years Through the Civil War, is scheduled to be published by Oxford University Press in the fall of 2011.

In March, the Virginia Tax Study Group, organized by Thomas R. White met at the Law School. This is the 20th year in which the group has met after Professor Emeritus Ed Cohen ’36 organized and held the first meeting for the VTSG. This year the VTSG discussed important administrative issues for the Internal Revenue Service. IRS Chief Counsel William Wilkins, Associate Chief Counsel (Corporate) William Alexander, and Joint Tax Committee Chief of Staff Tom Barthold were among the presenters.

UVA Lawyer / Spring 2011  37


Class Notes We welcome submissions for inclusion in Class Notes. Online, submit them at www.law.virginia.edu/alumni; E-mail them to lawalum@virginia.edu; mail them to UVA Lawyer, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903; or fax them to 434/296-4838. Please send your submissions by September 15 for inclusion in the next issue.

1940

gave their candid assess-

wide range of community

of Revenue for two years.

was born at the University

ments of the effectiveness

roles, including director of

He was named an assistant

of Virginia, as well as his

Mortimer Caplin estab-

of central banking policies

the Children’s Aid Associa-

attorney general in 1955

liberal religious beliefs

lished the endowment

through time. The Caplin

tion, the Legal Aid Bureau,

and was elevated to first

through his association

that launched and sustains

Conference afforded an

the State Communities Aid

assistant attorney general

with the Unitarian Univer-

the annual Mortimer

opportunity to discuss and

Association, the Buffalo

four years later. In 1968 he

salist Church.

Caplin Conference on the

further understand how

Council of World Affairs,

served Kentucky as

World Economy at the

monetary policy influ-

the Buffalo Salvation Army,

Commissioner of Finance

of the board of trustees

University’s Miller Center

ences our economic and

and the Buffalo and Erie

and Revenue and from

of George Mason

for Public Affairs, now

political future.

County Historical Society.

1964 to 1968 as Attorney

University from 1983 to

After retirement, he and

in its third year. Leading bankers and economists gathered to discuss key

1948

global economic questions

Adams was a member

General of Kentucky. In

1992, as well as chairman

his wife, Patricia, divided

1968 Matthews joined

of the advisory board for

their time between Buf-

Greenebaum, Barnett,

the Institute for Conflict

falo, N.Y., and Venice.

Doll, and Matthews, where

Analysis and Resolution at

of our time for “Banking

Charles G. Blaine passed

They enjoyed traveling

he practiced for 30 years

George Mason University

on Central Banks?” at

away on December 2 in

together, especially their

before retiring as a senior

from 1985 to 1991. He

the National Press Club

Venice, Fla. Blaine earned

trips to Europe.

partner.

was active for many years

in Washington, D.C. on

his law degree after

October 11.

serving in the U.S. Navy

One panel featured

with Burgundy Farm

1949

during World War II. He

Country Day School and the Burgundy Center for

four of the world’s leading

practiced with Phillips

Wildlife Studies. He was

economists, including

Lytle in New York for more

a member of the Virginia

Charles Goodhart of

than 40 years, where he

Council on Human Rights

the London School of

focused largely on banking

and an active member of

Economics, Alice Rivlin

and banking regulation.

the Unitarian Universalist

of the Brookings Institu-

As a managing partner at

Church of the Shenan-

tion, Christina Romer of

Phillips Lytle put it, “Charlie

University of California-

was among the most

Robert F. Matthews, Jr.,

His professional life

Berkeley, and John Taylor

influential partners in our

died in November at the

spanned over 60 years

of Stanford University.

firm’s 176-year history …

age of 87. Matthews, a

in Virginia, from the law

They discussed the role

He is fondly remembered

lifelong resident of

Carl Douglas Adams died

practice that he started

of monetary policy in

for his larger than life

Shelbyville, Ky., took his

peacefully in his home the

in 1949 in Annandale, to

times of crisis. A second

personality and his pas-

law degree after serving in

evening of January 30 in

Winchester, where he was

featured central bankers

sionate commitment to the

the U.S. Navy for three

Winchester, Va., surrounded

President of Adams-Legge

representing the U.S.

success of his clients, the

years during World War II.

by his family. He was 85.

Development Group, a

Federal Reserve Bank,

success of his law firm, and

Matthews began his career

the Bank of England, the

the development of the

in state government in

in the heart of Washington

People’s Bank of China,

many young lawyers that

1948, when he served as a

D.C., just doors from

the Bank of Japan, and the

he trained in the fine art of

special assistant attorney

the home of Frederick

European Central Bank.

exceptional lawyering.”

general for the Department

Douglass, in Anacostia.

They reflected on the current financial crisis and

39  UVA Lawyer / Spring 2011

Blaine retired from the firm in 1993. He served in a

doah Valley.

He was born and raised

His passion for civil rights

family-owned real estate development firm.


Class notes …

Class notes …

1959

1964 PullingTogether, Past Politics andWar–EngemanandIraqi Crew

ues to be active in the

vived by his wife, Eugenia,

Richmond Bar Association.

sons, Greg and Walter,

Shant J. Harootunian

“May 2010 was the first

daughters, Gwen Mason

has retired with his wife,

Bill Engeman ’64 pulled his first strokes rowing crew in

reunion I have missed

and Nancy Davies, nine

Louise, to a continuous

high school. After some classmates told him he wasn’t

since 1949,” he writes, “but

grandchildren, and three

care facility in the moun-

tough enough for the sport, he showed up for the team

I plan to attend in 2011.”

great-grandchildren. The

tains of north Georgia.

and proved them wrong. He loved the physical and

He enjoys the scenic drive

family respectfully suggests

to Charlottesville to watch

that memorial contribu-

James H. Harvell III is

Cavalier football, baseball,

tions may be made to the

president of the Lifelong

Richard L. and Eugenia K.

Learning Society at

became captain of the varsity crew. He was eventually

Williams Scholarship Fund

Virginia’s Christopher

inducted into the school’s athletic hall of fame, the first

at the Law School.

Newport University, an

oarsman to be so honored.

and basketball. U.S. District Judge Richard

Williams was a Virginia

Frank Warren Swacker’s

L. Williams passed away at

circuit judge from 1972

legal drama, Who

his home in Richmond, Va.,

to 1976. He practiced

Murdered Mom?, is now

on February 19. He was

as a trial lawyer, repre-

in its second edition. The

the oldest and the longest-

senting clients such as

book, available online or

serving active judge in a

directly from the publisher,

mental challenge, the exacting demands, the beauty of

organization of ap-

gliding on the water. At Brown University he rowed from 1957–61 and

After attending law school, he practiced employment

proximately 500 retired

and labor law for three decades at Taft Stettinius & Hol-

people who take courses

lister in Cincinnati, Ohio. Rowing remained a passion,

General Electric, Aetna,

and attend lectures at

and he encouraged others to try it, coaching them in his

federal district spanning

and Westinghouse. He

On December 31 Janet

CNU. The society offers

spare time. He helped establish a number of rowing clubs

James A. Rock & Company,

from Alexandria to

was a founding member

L. Blakeman retired from

more than 50 courses per

and was instrumental in organizing 15 national collegiate

is described by Swacker as

Norfolk. He worked until

of the firm now known

Patterson Belknap, where

semester and numerous

rowing championships.

“a comic didactic mystery.”

the end of his life, and in

as McGuireWoods. In

her practice focused on

field trips.

recent months worked

1980 Judge Williams was

trusts and estates. “My firm

from his house overlook-

appointed by President

gave me a wonderful re-

ing the James River.

Jimmy Carter as a U.S.

tirement party,” she writes.

1951

1957

Dave O’Toole

Judge Williams is sur-

James S. Cremins contin-

Members of the Iraqi rowing team on the water near Cincinnati.

Three years ago Engeman read about a young Iraqi man who risked his life to row on the Tigris River in war-torn Iraq. At night that rower was

1961

one of thousands of security guards who have made Baghdad a safer place. That kind of determination got Engeman’s attention. Though he

District Judge for the

“I had been with the firm

was half a world away and the logistics were daunting, he set his sights

Sidney G. Dillon

District Court bench were,

Eastern District of Virginia.

for almost 43 years!”

on meeting that fellow and helping him.

writes that his wife of

in a word, consequential,”

He heard a dispute be-

62 years, Dorothy, died

noted an editorial in the

tween DuPont and Dutch

on September 16. Sidney

Richmond Times-Dispatch.

resides in Gladstone, N.J.

“His decades on the U.S.

Judge Ronnie A. Yoder,

Iraqi rowers trained in Boston; in Princeton, with the U.S. national team; and in Cincinnati, Bill Engeman’s home turf. In between training sessions there was time for the Iraqis to connect with Americans in ways that transcend the numbing effects of war. On the Charles River they crewed eight-man sculls with U.S. veterans of the war in Iraq and taught the Americans the basics of the sport. At an

Chief Administrative Law

“It wasn’t just that the young man was rowing in difficult circumstanc-

elementary school near Cincinnati, the athletes showed students how

Judge at the U.S. Depart-

es,” says Engeman. “It’s the attitude of these guys and what they have

they train on an erg and participated in a two-way question and answer

competitor Akzo N.V. in

Benjamin Allston Moore, Jr., writes that he’s still

ment of Transportation,

shown us.” Inspired by the film Invictus, which told the story of a South

session, mostly about sports. The children wrote down wishes for the

“A review of his decisions

1986 over the bulletproof

working, but not very hard.

has created a website

African rugby team that helped a country to heal, Engeman thought

athletes, folded them into origami boats, and gave them all away with

gives little clue to his

material Kevlar.

“I’m helping grandchildren

honoring his father,

rowing could help Iraqis pull together, past the politics and war that

handshakes.

with prep schools and

Raymond Abraham “Ray”

dominated their lives.

colleges. Times are tough!”

Yoder, a graduate of

In 2003 Williams

Margaret Gordon Seiler

political leanings, but says

and her husband, Bob,

much about his dedication

ruled that Virginia’s ban

live at Westminster

to the impartial applica-

on late-term abortion

Canterbury, a retirement

tion of the law.”

was unconstitutional, a decision that has been

Weeks later rower Haidar Hamarasheid took home Iraq’s first-ever

He traveled to the 2009 World Rowing Championships in Poland,

medal in the Asian Games with a bronze in the men’s single scull. Haidar

Goshen College and the

where he met with Iraqi rowing officials, and they began to put together

Nawzad and Hamzah Hussein Jebur are considered the team’s best hope

Myron J. Poliner writes

University of Virginia, and

the resources needed to bring coaching and support to the Iraqi ath-

to compete at the London games. (Iraq has participated in 12 Olympics

that he is pleased to

a nationally known art

letes. With assistance from the U.S. State Department, the International

and has only one medal in any sport—for weightlifting in 1960.)

home in Richmond, Va.,

Williams was born on

where they have many

April 6, 1923, the son of

affirmed twice by the

report that his grandson

educator, award-winning

Olympic Committee, and the International Rowing Federation, he and

Nawzad and Hussein returned to training on the Tigris River, crossing

friends and enjoy a range

a police officer and farm

4th U.S. Circuit Court of

Ariel graduated from the

watercolorist, and

Bruce Smith, head of Community Rowing in Boston, Mass., traveled to

multiple security checkpoints to and from their homes. Sometimes their

of interesting programs

wife. He enlisted in the

Appeals. In 2009 he ruled

University of Virginia’s

professional painting

Lake Dokan, 200 miles north of Baghdad, a relatively serene place to train

training area is so restricted that they have to row in tight circles if they

throughout the year.

Army at the age of 17 and

that the State of Virginia

School of Architecture in

instructor for over 30 years.

compared to the Tigris.

row at all. But they are determined. Nawzad, often the spokesman for the

was serving as a signalman

violated the voting rights

2009 and his grandson

Photos of Ray Yoder’s

at Pearl Harbor when the

of military personnel and

Adam is a third-year

artwork, as well as the text

their differences for the chance to improve their skills. They went through

base was attacked by the

other Americans overseas

student, also in the School

of Judge Yoder’s com-

their paces on the lake and practiced with indoor rowing machines called

Engeman was recently honored as the 2010 U.S. Rowing Association

Japanese on December 7,

by sending absentee

of Architecture. Their

mencement address to

ergometers, or “ergs.” Over the course of several days Engeman, Smith,

Man of the Year for his contributions to the sport. He humbly accepted

1941. He attended the

ballots too late for the

father Michael ’80 and

Goshen College on

and Abdul Salam Dawood of the Iraqi Rowing and Canoe Federation

the honor, but true to form immediately shifted focus back to his intrepid

Law School on the GI Bill

votes to be counted in the

mother Deborah are also

April 26, 2010, may be

assessed the skill and physical condition of the Iraqi national team. The

Iraqi friends. He will travel to Iraq again to see the Rowing Championship

and earned his law degree

2008 election.

UVA graduates.

found at www.rayyoder.com.

rowers’ skill level received high marks; their fitness level needed work.

on the Tigris River in May. “My wife, Nancy, is quite a fan, too,” he said.

40  UVA Lawyer / Spring 2011

Sunni, Shia, and Kurdish rowers came from near and far, setting aside

group, points out the most compelling thing about the challenge. “Being at your best at something gives a man hope.”

She’s making plans for us to attend the London 2012 Olympics.”

without completing an

Engeman and Smith helped bring six of the rowers and two coaches

undergraduate degree.

to the U.S. last fall to help them train for the 2010 Asian Games in China,

With more hard work and a bit of luck, the Iraqi team will be there, too.

and looking beyond that, the London Olympics in 2012. For six weeks the

—Rebecca barns

UVA Lawyer / Spring 2011  41


Class notes …

1962

Class notes …

1965

1966

Washington, D.C. In 1978

which Murphy reflects

Custody Act, which

he founded Rural Legal

on the many rewarding

addresses deployment

Mandeville A. Frost has

Peter A. Arntson writes that

G. William Birkhead

Services of Tennessee,

aspects of a career in

issues for military parents,

been very ill. He recently

he has had the pleasure,

reports that he is finally an

which he directed until it

the banking industry. He

visitation rights, electronic

suffered a heart attack and

as one of the four trustees

empty nester; his last child

merged with other firms to

revels in the difference

testimony for those who

has been making progress

of the Claude Moore

graduated from college in

form the Legal Aid Society

he and his colleagues

are unable to be in court,

in rehab.

Charitable Foundation,

May. He’s looking forward

in 2002.

can make in a client’s life

and expedited hearings

of making the founda-

to a great reunion in

by offering experience,

so that service members

tion’s contribution to the

2011. He is a partner with

Edward Lowry has been

sound advice, straight talk,

can get their affairs in

University of Virginia Claude

Vandeventer Black in the

J. Rutledge Young, Jr. ’68, holds grandson, Benjamin,

Chief Justice of the

named to the Virginia

and by always keeping

order before deploying. He

Moore Medical Education

Norfolk, Va., office, where

on his baptism day. Sons, Simons and Rutledge

Supreme Court of

Business Legal Elite, the

the client’s best interests

was appointed as advisor

Building, which was

he concentrates his law

(both UVA graduates), and grandson, Henry, gather

Pennsylvania Ronald D.

seventh year he has been

in mind. He discusses

to the committee by the

dedicated on October 9.

practice in commercial

close by. Young and Rutledge practice law together

Castille was recently

recognized with this honor.

the biggest challenge in

family law section of the

transactions and maritime

at Duffy & Young and Simons is an architect with

elected to the board of

He practices with Michie

banking (regulation), the

American Bar Association.

matters.

1963

1971

Thompson Young Design, all in Charleston, S.C.

directors of the

Hamlett in Charlottesville,

transition to international

Sullivan is a retired Army

been appointed by the

Young concentrates his practice on complex civil

Conference of Chief

where he focuses his

banking under his leader-

JAG colonel practicing

Tennessee Supreme

litigation and business disputes.

Justices. The conference,

business on statewide

ship, and the rewards of

family law in Raleigh, N.C.

which includes chief

commercial litigation.

his deep involvement in

Michael E. Callaway has

Court to again serve on

1968

justices from the United

the community of South

Professional Responsibility.

Robert Pannell is an

Thomas H. Bottini has been

States, Puerto Rico,

Bend.

Thad G. Long has been

Callaway has also served

adjunct professor at Emory

inducted as an honorary

American Virgin Islands,

named a 2011 Birmingham

on the Board of Law

Law School, teaching

of the pro bono services

education. He is a lecturer

member of Saint Louis

Guam, and the Northern

Mark E. Sullivan testified

Lawyer of the Year in

Examiners since 1989.

venture capital transac-

she has provided to the

and teacher in the areas

University’s Alpha Kappa

Mariana Islands of the

by phone during the New

antitrust law by Best

tions and lecturing on legal

poor and disenfranchised

of trial practice and family

Epsilon-Zeta Chapter in

Pacific Ocean, discusses

Mexico legislature’s Armed

Lawyers. Long, a partner at

opinion practice. He is a

throughout her career.

law, and served on the Law

recognition of his

issues of local judicial

Services Committee in

Bradley Arant Boult

partner with Nelson Mullins

She recently became a

School’s Alumni Council.

contributions to interna-

concern and advocates

September in support of

Cummings, was the one

in Atlanta, Ga., where he

certified master naturalist

tional business in the St.

before the federal

legislation involving mili-

Ronald Tweel has been

lawyer in Birmingham to

practices corporate and

and celebrated her 45th

for inclusion in North

Louis, Mo., community.

government on issues of

tary personnel, custody,

named to the Virginia

receive the designation in

securities law.

wedding anniversary.

Carolina Super Lawyers

Alpha Kappa Epsilon is an

federal-state coordination

and visitation. In the same

Business Legal Elite. It is

Starling Marshall has also

2011 and was named

international business

concerning state judicial

month he served as an

the seventh year he has

issues.

the Tennessee Board of

antitrust. Long focuses his

Diehl has been selected

practice on high-stakes

Bob Pearson retired

been selected for inclusion

among the Legal Elite by

honor society organized

advisor for the Military

been recognized with this

litigation and transaction

from the Foreign Service

in 2011 Best Lawyers in

Business North Carolina

for educational, scientific,

Christopher J. Murphy III

Custody Committee of the

honor. He practices with

work. He was also selected

after serving as U.S.

appellate law.

2011. He is a partner with

and charitable purposes.

was the subject of a cover

Uniform Laws Commission

Michie Hamlett in

for inclusion in Alabama

Ambassador to Turkey

James, McElroy & Diehl

Bottini is a partner in the

story feature in the

in Minneapolis, Minn.,

Charlottesville, where he

in Charlotte.

international practice

February Hoosier Banker

which was meeting to

concentrates mainly on

group at Armstrong

magazine. The piece traces

draft a model law for

matters involving

Teasdale where he advises

his path from law school to

states, covering all aspects

domestic relations.

clients on manufacturing

Harvard Business School

of custody and visitation

Super Lawyers 2010 for

Martin E. Simmons has

and director general of

business litigation and in

joined Stites & Harbison as

the Foreign Service. He

Best Lawyers in the areas of

counsel in the Nashville,

is president of IREX, an

alternative dispute

Tenn. office, where he is a

international charity in

resolution, commercial

member of the real estate

Washington, D.C., with a

In recognition of William K. Diehl Jr.’s support

and high-technology

to a career in banking in

when one parent is de-

litigation, franchise law, and

and banking service

focus on education, civil

and generous gift to

Neil McBride has been

investments in other

South Bend, Ind. He was

ployed. Sullivan also made

land use and zoning law.

group. He focuses his

society, and free media

the Central Piedmont

named Ashley T. Wiltshire

countries, establishing

David R. Johnson has been

barely 30 years old when

a presentation on military

practice on representing

development.

Community College

Public Service Attorney of

representations and

elected president of the

he rose to a top leadership

custody legislation to the

W. Edward Bailey has

Paralegal Program, the

the Year by the Tennessee

distributorships abroad,

board of directors of the

position at 1st Source

Department of Defense

joined Wiggin and Dana

State Liaison Office.

as counsel in the litigation

owners, developers,

42  UVA Lawyer / Spring 2011

1969

1970

1973

lenders, contractors, and

Gail Starling Marshall

program bears his name.

Bar Association. The award

and in the legal, tax, and

Brightmusic Society of

Bank, where he is today

architects of complex real

of Rapidan, Va., has been

The William K. Diehl, Jr.

honors an attorney who

practical business details

Oklahoma, Oklahoma

chairman and CEO.

estate projects. He was

named as the recipient of

Paralegal Program, ranked

works with an organiza-

of international trade and

City’s residential chamber

Murphy is also chairman,

assisted in completing the

City, where he focuses

previously a partner with

the 2011 Powell Pro Bono

among the top programs

tion that provides legal

investment.

music ensemble. He is a

president, and CEO of

draft of the Uniformed

his practice in intellectual

Dearborn & Ewing.

Award by the Virginia

in the nation, served 720

services for the poor.

retired partner with

1st Source Corporation.

Deployed Parents’

property litigation. He

State Bar in recognition

students this year. Diehl

McBride began his legal

Gibson, Dunn & Crutcher

has a keen interest in

career with Ralph Nader in

in Washington, D.C.

The article is an extended interview in

More recently, Sullivan

department in New York

formerly practiced at Hogan Lovells.

UVA Lawyer / Spring 2011  43


Class notes …

Class notes …

1978 law school deanmorant inspiring citizenlawyers

Jonathan Kane partici-

Ed Modell has been

Luther T. Munford

counseled college and

number of the world’s

grad), he worked for UVA

pated in a seminar on

elected president of

chaired, at the request

university clients on

leading hotel brands in

Law Associate Dean Lane

reaching agreements on

the International Coach

of the chief justice of the

a range of regulatory

complex cross-border

Kneedler ’69 and was

first labor contracts

Federation, an association

Mississippi Supreme Court,

compliance issues in the

transactions. Prior to

known to many of our

featured as part of the

of executive coaches, lead-

the court’s Mississippi

context of the EPA Region

joining Goodwin Procter

classmates,” Ed writes.

Dean Blake D. Morant ’78 received

American Bar Association’s

ership coaches, and life

Code of Judicial Conduct

2 Regulatory Compliance

as partner, he practiced

Phil was with Sands

Equal Justice Works’ 2010 John R.

4th Annual Section of

coaches with 17,000 mem-

Study Committee, which

Initiative at institutions of

with Heller Ehrman for

Anderson in Richmond

Kramer Outstanding Law School Dean

Labor and Employment

bers in 103 countries. He

reported to the court in

higher education.

17 years in their San

and was the subject of a

Award. The award honors a dean who

Law Conference in

also serves as ombudsman

2010. He also chaired the

Francisco and London

tribute in the January 2011

Christopher D’Angelo was

demonstrates leadership in building

Chicago, Ill., in November.

for the Maryland Judiciary,

state’s Judicial Campaign

Rob Morgan retired in

offices.

Richmond Bar Newsletter.

moderator for a program

and maintaining a strong spirit of public

His talk covered how

providing confidential

Intervention Committee,

November after 20 years

Smith combined

He is survived by Jay, his

entitled “Ethics: The

service.

employers or unions use

assistance to court users

on which he served along

with Perot Systems and

pro bono work with his

wife of 30 years, and his

Erosion of the Attorney-

Dean Morant was nominated for the

power in negotiating first

and judiciary employees.

with Mike Wallace.

one more with Dell, which

love of the outdoors,

daughters, Emily and Kate.

Client Privilege and the

award by a student executive board of

bought Perot in November

providing counsel to

Work Product Doctrine

Wake Forest Law’s Pro Bono Project for

and Its Effect on In-House

contracts, how to

Wake Forest University School of Law

encourage cooperation

Frank Riggs is chair of

2009. He plans to spend

non-profit organizations

between unions and

the construction practice

more time on pro bono

dedicated to preserving

Counsel” at the 2010

management, and how to

group at Troutman Sanders

work as general counselor

open space and natural

Federation of Defense

public interest lawyers. “Citizen Lawyers

reach first contracts, from

in Atlanta, Ga. His son,

for the National Wildlife

resources. He is survived

and Corporate Counsel’s

are attorneys who give of their time and talents for the betterment of society,”

an employer’s point of

Brock, is a second-year

Refuge Association, as well

by his partner, Josefina

Corporate Counsel

said Morant. “That has been the historic role of lawyers, and that essential role

view. Kane is a partner in

student at the Law School.

as more time traveling and

Jimenez. A memorial

Symposium held in

becomes lost in the more stereotypical view of our profession. Wake Forest

seeing friends.

service is planned for June

Philadelphia, Pa., in

University has as its motto, ‘pro humanitate.’ The combination of the university’s

3 in San Francisco. In lieu

September. The program

mission to help humankind, together with the need for lawyers to uplift society, compels the legal academy to emphasize to our students this noble ambition.”

the Philadelphia and Berwyn, Pa., offices of

1976

his efforts to foster public service values and the opportunities created for future

Doug Schoettinger was

of flowers, donations in

addressed key topics,

he is chair of the labor and

recently promoted to

Brian’s memory may be

including protecting

employment group.

deputy general counsel of

made to The Brian and

privilege globally and the

Bill Stutts has been

Dow Corning Corporation.

Josie Charitable Gift Fund,

Cantor Stoneburner Ford

impact of business versus

community outreach. The Community Law and Business Clinic and the Inno-

Fredrick R. Tulley has

admitted into membership

Doug joined Dow Corning,

Fidelity Charitable Gift

Grana & Buckner founding

legal roles for in-house

cence and Justice Clinic have been added to the four clinics already in existence

been selected for inclusion

of the American Law

a global manufacturer of

Fund, PO Box 770001,

partner Irvin V. Cantor has

counsel. D’Angelo is a

for public interest law. The Washington, D.C. Metropolitan Externship Program

in Louisiana Super Lawyers

Institute. He is a partner

silicone and silicon-based

Cincinnati, OH 45277-0053.

been named to Virginia

partner in the litigation

and the Journal of Law and Policy, which promotes scholarship in the field of

2011 in the area of

with Baker Botts in

materials, in 1994.

Lawyers Weekly’s “Leaders

department of the

public interest law, have also been established.

business litigation. He is a

Austin, Tex., where his

Joseph B. Tyson, Jr.

in the Law” Class of 2010.

Philadelphia office of

partner with Taylor Porter

practice focuses on

writes that “the tradition

Cantor has spent his entire

Montgomery McCracken.

in Baton Rouge.

corporate finance, bank

continues.” He and his wife,

31 year career dedicated

He is also chairman of the

public interest by connecting law students to job opportunities, leaders in the

Don Graeter has been

regulation, and corporate

Renee, met in Law School

to families who have

products liability and risk

field of public interest, volunteer work, grants and fellowships, and mentors. The

ranked sixth among the

reorganization.

Pepper Hamilton, where

1974

Since 2007, the year Morant began his tenure, he has guided the law school in a strengthened commitment to pro bono service, public interest careers, and

The Pro Bono Project places students on pro bono cases, hosts service events, and plans service trips. The Public Interest Initiative promotes careers in the

and now their son, Ben,

suffered serious injuries or

management section and

law school’s recently established Public Interest Retreat connects Wake Forest law

top bank-based invest-

and his wife, Katherine,

death. He has successfully

vice chairman of its sports,

students with alumni who serve in the public interest.

ment advisors in the nation

are both 1Ls.

tried over 1500 plaintiff’s

entertainment, and

injury or death cases, in-

amusements practice.

to help society,” said Morant. “With the assistance of our dedicated staff, the

brain injury cases. Cantor

Michael P. Haggerty has

to include pipeline programs to inspire K–12 students to achieve and become

1977

“The status quo, though laudatory, will not be enough to meet the obligation

Douglas Branson LL.M. is

for 2010 by Bank

the W. Edward Sell Chair

Investment Consultant, the

in Law at the University

industry’s leading trade

Barry R. Kogut has been

of Pittsburgh. His 15th

publication. Graeter is

named by Best Lawyers

is one of only 31 Virginia

been named in Texas

engaged citizens.” He also hopes to broaden outreach programs through his

book, The Last Male

director of investments for

2011 in the area of

Super Lawyers 2010. He is

work on the ABA National Pro Bono Summit Planning Committee.

Bastion: Gender and the

Central Bank in his

environmental law. Kogut

Brian D. Smith died

Edmund T. Baxa, Jr. ’78, LL.M. ’80 reports the passing of

attorneys to receive the Leaders in the Law honor,

a partner and head of the

Dean Morant received this honor at the Equal Justice Works annual awards

CEO Suite at America’s

hometown of Louisville, Ky.

is in the Syracuse, N.Y.,

suddenly of a brain

his brother, Phil Baxa, on

and was recognized at

finance practice group at

dinner, held on October 21 in the District of Columbia. The dinner, one of the

Public Companies, was

office of Bond, Schoeneck

hemorrhage on March 2.

November 23. “Though

an October reception at

Jackson Walker in Dallas.

published in 2010 by

& King, where he focuses

Smith led the London

Phil did not receive his

the Science Museum of

Routledge Press. (See In

his practice on federal and

office of Goodwin Procter

law degree from Virginia

Virginia in Richmond.

Print.) Branson is a nation-

state regulatory compli-

and was co-chair of the

(he was a Tennessee law

ally known authority on

ance and enforcement

hotel and hospitality

corporate governance.

matters. He has recently

practice. He advised a

44  UVA Lawyer / Spring 2011

1978

faculty, and students, we hope to expand the humanitarian reach of our efforts

cluding over 350 traumatic

largest gatherings of supporters of public interest law in the U.S., honors men and women who have made exceptional strides toward achieving equal justice on behalf of the underserved. The past two recipients were Larry Kramer of Stanford Law School and Elena Kagan of Harvard Law School.

—Rebecca barns

UVA Lawyer / Spring 2011  45


Class notes …

Laura G. Kuykendall has

Class notes …

1979

1980

been named secretary

work developing women

Greiner in Haddonfield,

leaders at the firm. “As

N.J. Fox joined the firm in

1981 uncommon portrait photographer tina ravitz

written a book entitled

David Schaeffer has

of the Ohio State Bar

James Finn is head of the

Stephen Bornstein

Mary Ellen Powers has

1981 and has been a

Association Antitrust

litigation department at

recently started his own

risen to the top of her pro-

shareholder since 1989. He

Law Section Council for

Schwabe Williamson &

practice in New York

fession, she’s made sure to

concentrates his practice

2012. She is a partner and

Wyatt in Portland, Ore. He

aimed at hedge fund and

bring other women along,”

in corporate and commer-

After practicing with a law firm, serv-

Kilimanjaro, Aconcagua,

member of the litigation

is listed in Best Lawyers for

asset managers who are

said the award citation.

cial banking law with an

ing as chief counsel to Newsweek, and

and Vinson, published by

practice group at Vorys,

his work as a commercial

seeking general counsel

“The partner-in-charge

emphasis on mergers and

holding other jobs in new media, Tina

Mercer University Press.

James P. Cox III was induct-

Sater, Seymour and Pease

litigator, has been identi-

services on an outsourced

of one of Jones Day’s

acquisitions, commercial

Ravitz has turned to a new line of work

Schaeffer’s account reveals

ed into the 2011 class of

in Columbus. Her practice

fied as a “litigation star”

basis. See his Web site at

largest offices—more than

lending transactions, and

that combines her skill as a photogra-

the grit and determination

fellows for the Virginia Law

focuses on antitrust and

by Benchmark Litigation,

www.sab-at-law.com.

400 lawyers and staff in

general corporate services.

pher and her love of animals. Animate

it takes to make it to the

Foundation at the Virginia

trade regulation and other

and since 2006 has been

Washington—Powers has

He lives in West Deptford.

Photography is a portrait studio in New

top of some of the highest

Bar Association’s annual

complex business litigation.

named in Oregon Super

Peter E. Keith was

played a key role in help-

York City that specializes in dogs, cats,

peaks in the world. Jim

meeting in Williamsburg

Lawyers.

elected as a fellow of the

ing other female attorneys

Gary L. Francione, a

other domestic animals along with their human companions.

Ewing joined him on the

on January 20. He was

Five Big Mountains: A Regular Guy’s Guide to Climbing Orizaba, Elbrus,

Silver Labrador Connor is a popular pup.

American College of Trial

assume leadership posts.

noted expert on animal

Tina was always drawn to photography. She started out as a young shut-

ascent of Mt. Elbrus, the

also named to the Virginia

Porter, Wright, Morris &

Aubrey Ford III has been

Lawyers. He is a partner

At her firm, women now

rights theory, presented

terbug with the classic equipment: a Brownie box camera, a Kodak Instamatic,

highest peak in Europe.

Bar Association Board

Arthur in Columbus, Ohio,

selected for inclusion in

with Gallagher Evelius &

lead five offices.”

“Animals: Our Moral

then, in the ’60s, a Polaroid Land Camera. By 13 she had a dark room and set out

(See In Print.)

of Governors during the

is serving as president

Best Lawyers 2011 in the

Jones in Baltimore, Md.,

Schizophrenia” as the 2011

to capture just about everything that caught her eye. When her uncle loaned

of the International

areas of bet-the-company

where he concentrates

Beat Steiner was named

Boswell Distinguished

her his fine Zeiss-Ikon camera, that did it—photography became a passion.

Association of Defense

litigation, commercial

his practice in trial and

by Best Lawyers as Lawyer

Lecturer in Philosophy at

Counsel. At the IADC

litigation, labor and

appellate litigation in state

of the Year for Denver area

Hobart and William Smith

ago, Tina was struck by how many people mentioned their pets and how im-

mid-year meeting in

employment law, and legal

and federal courts. Keith

real estate. Steiner is the

College in March.

portant their bonds with them seem to be. That was the spark she needed to

Mark W. Merritt is in his

estate with Michie Hamlett

Pebble Beach, Calif., Joe’s

malpractice law. He is with

has taught civil litigation

administrative partner at

open a photo studio in her Manhattan apartment.

28th year with Robinson

in Charlottesville.

son, Joby ’05, a lawyer at

Cantor, Stoneburner, Ford,

as an adjunct professor at

Holland & Hart in Boulder

first academic to teach

Hogan & Lovells, will be a

Grana, and Buckner in

the University of Maryland

and the chair of its resorts,

animal rights theory in an

panelist discussing issues

Richmond, Va.

Law School since 1990.

lodging, and leisure group.

American law school. He

differences in the practice

Michael Kuhn has been

Richard J. Pocker was

of law. Daughter Caitlin,

named in Texas Super

selected for inclusion in

graduate of the College

Lawyers 2010 and selected

Best Lawyers 2010 and 2011

of Arts & Sciences in 2001,

for inclusion in Best Lawyers

for commercial litigation.

received her Ph.D. at Ohio

2011 in real estate law. He

He is the administrative

State University and is a

is a partner with Jackson

partner for the Nevada

in the New York office,

abolitionistapproach.com.

when you’re with them,” she notes. “The past doesn’t matter, or the future, just

professor of education at

Walker in Houston.

office of New York-based

where he will focus his

Francione is the Nicholas

the here and now.” Her delight in that quality makes it easier to be flexible if

East Carolina University.

Boies, Schiller & Flexner. In

practice in the areas of

deB. Katzenbach Scholar

a dog balks at her strobe lights and she needs to cart everything outside to

Ryan’s wife, Mary Pat, also

2009 Pocker successfully

compensation and benefits,

of Law and Philosophy

Central Park.

a UVA graduate, recently

passed the New York State

corporate and securities,

at Rutgers School of

retired as manager of

Bar Examination and was

and tax planning.

Law-Newark. In his most

social work at Nationwide

admitted to practice in

Children’s Hospital.

New York in May 2010.

Joe Ryan, a partner at

“So much of law depends on the left side of the brain,” she says. “I always wanted to explore the creative right side of my brain.”

1982

ning and administration,

Bradshaw & Hinson in Charlotte, N.C., where he

Her best work demands a combination of patience, flexibility, and uncom-

focuses his practice on

mon photographic skill. Before a shoot begins, her subjects have to get to know

business litigation. He is the

rights and the law for 20

her a bit, and vice versa. The pet’s “person” (legally, pets are property, but Tina

chair of the North Carolina

years and has lectured

tries to avoid the term “owner” because it doesn’t convey the family connec-

State Bar Ethics Committee

on the topic throughout

tion) is there with familiar treats and toys, and can help Tina get the kind of

and also serves as chair

Edward Bright has joined

the U.S., Europe, and

photograph they’re both after.

of the Lawyers Assistance

Arnold & Porter as partner

Canada, and blogs at www.

1981

the areas of estate planestate litigation, and real

has been teaching animal

regarding generational

46  UVA Lawyer / Spring 2011

Francione is the

When she volunteered to put her law class newsletter together three years

meeting. Cox practices in

Tina thoroughly enjoys being around animals. “They are so in the present

Program, which, he notes, he enjoys a great deal.

Hugh M. Fain III was sworn in as president-elect of the

1983

Her own beloved cat, Sasha, a white cat with smoky blue eyes, was the

Virginia Bar Association at the VBA’s annual meeting on January 22 in

subject of many of Tina’s photographs. People always commented on how

Paula Campbell Millian

Williamsburg. He is

recent book, The Animal

youthful Sasha seemed for her age, so at her sweet 16 birthday celebration

continues to work as a

managing director at

Rights Debate: Abolition or

guests received Sasha’s 16 secrets of long life as party favors. Sasha’s tips

legal search consultant

Spotts Fain in Richmond.

Regulation? he debates the

were such a hit that a book illustrated with Tina’s photographs will soon

with Finn & Associates in

Mary Ellen Powers is

abolitionist approach to

be published.

McLean, Va. She specializes

Deborah Farmer Minot

partner-in-charge of

animal rights with a leading

in partner, associate, and

has been appointed

Ely A. Leichtling has been

Jones Day’s European and

defender of animal welfare

recent client needed a portrait of herself for her business, warning Tina in ad-

in-house placements in

District Associate Judge for

selected for inclusion in

Middle Eastern operations,

reform. (See In Print.)

vance that it was going to be difficult if not impossible to make her look good.

the Washington, D.C., area.

the Sixth Judicial District

Wisconsin Super Lawyers

based in the Washington,

2010 in employment and

D.C. office. In 2010 Powers

labor. He is a partner

received InsideCounsel

Terence J. Fox has been

with Quarles & Brady in

magazine’s Transformative

elected to the board of

Milwaukee.

Leadership Award for her

directors of Archer &

Meanwhile, word of Tina’s skill in photographing people has been growing. A

When Tina showed her the results of the shot, the woman said it was like “going

of Iowa. She presides

out to buy potholders and coming back with a diamond necklace.”

over criminal and juvenile

Check out Tina’s Web site at www.animatephotography.com. —­Rebecca Barns

court in the Johnson County Courthouse. Minot

UVA Lawyer / Spring 2011  47


Class notes …

Class notes …

practiced law in Baltimore

N.C., real estate transac-

Joseph H. Varner III was in-

K.C. Green has joined

his extensive judicial and

Joseph M. Leccese, of New

my daughter, Lucy, is a

for eight years before

tions department since the

ducted into the American

Ulmer & Berne as a partner

legislative experience to

York City, has been elected

sophomore at Portland

moving to Iowa, where

merger of his former firm,

College of Trial Lawyers

in Cincinnati, Ohio,

advising and mentoring liti-

chairman of Proskauer

High School. Finally, since

she served as an assistant

Helms, Mulliss & Wicker,

at the college’s annual

where he concentrates

gation attorneys, focusing

Rose, where he is a partner

waking up not long ago

Johnson County attorney

and McGuireWoods in

meeting in Washington,

his practice on product

on appellate litigation for

in the corporate depart-

to the fact that the official

for 18 years prior to her

2008. The current depart-

D.C., held in September.

liability. Green was

Moore & Van Allen clients in

ment, a member of the

version of the events of

appointment to the bench.

ment has 97 lawyers,

He was also named as

previously with Dinsmore

the Research Triangle Office.

executive committee, and

She and her husband,

professional agents, and

one of the Top 10 lawyers

& Shohl. He was included

George, live in Iowa City

paralegals throughout

by Florida Super Lawyers,

in Ohio Super Lawyers

and have two sons: Tanner

15 of the firm’s U.S. and

named to the Florida

(22), a 2010 graduate of

European offices.

the University of Arizona

In May Simmons

September 11, 2001, is a

co-head of the sports law

E. Ford Stephens has been

monstrous hoax, I have

Wendy Wysong is relocating

group. He is the young-

inducted as a fellow of the

been active in the 9/11

2011 and was selected for

to Hong Kong for a couple

est elected chairman

Virginia Law Foundation.

Truth Movement and am

Trend Legal Elite Hall of

inclusion in Best Lawyers

of years, where she will be

in Proskauer’s 135-year

Fame, and selected for

2011 in mass tort litigation/

opening a U.S. white collar

history.

He serves as chair of the

continually astonished

U.S. Air Force Colonel Thomas J. Hasty, III ’86, was

Committee on Continuing

that more attorneys and

currently attending the

received the 2010

inclusion by Best Lawyers

class actions-defendants

practice at Clifford Chance’s

honored with an Air Force retirement ceremony in

Legal Education, which

law professors are not

University of Iowa College

Mecklenburg County

in the bet-the-company

and mass tort litigation/

Hong Kong office. She will

Washington, D.C., in October. Through his 29+ year

oversees the non-profit

similarly involved.”

of Law, and Walker (17),

Bar Pro Bono Attorney

litigation and commercial

class actions-plaintiffs,

also be working with the

military career, Hasty held a number of positions at all

educational division of the

an Iowa City High School

of the Year Award, which

litigation categories.

product liability litigation.

firm’s offices in Singapore,

levels of command, including Civil Design Engineer;

Virginia Law Foundation,

senior awaiting college

recognized his work over

Varner is with Holland &

Best Lawyers also named

Beijing, Shanghai, and

Assistant Staff Judge Advocate; Military Criminal

is a Leadership Metro

application decisions.

more than a decade for

Knight in Tampa, where he

him Cincinnati Mass Tort

Tokyo.

Defense Counsel; Associate Professor of Law at the

Richmond graduate (class

Litigator of the Year 2011.

the Children and Family

specializes in commercial

William Fish has been

Services Center. He has

litigation. Most important-

named 2011 Lawyer of the

served as general counsel

ly, he says, he either stays

Year by Best Lawyers in the

and a board member since

areas of bankruptcy and creditor-debtor rights and

U.S. Air Force Academy; and Staff Judge Advocate at

of 2010), and is active in

Tracy Rickett (UVA M.A.),

the installation and headquarters level. The colonel

providing pro bono legal

James W. Huston’s most

were expecting their first

completed his career as the Director of the Air Force

aid. Stephens is a partner

young or ages rapidly by

recent novel, Falcon

grandchild in January.

Commercial Law and Litigation Directorate in Ross-

at Christian & Barton

co-founding the center

chasing his young sons,

Seven, was published by

Charles V. McPhillips has

lyn, Va. He is currently an Associate General Counsel

in Richmond, where

in 2000, and served as

Evan (4) and Eric (2 ½),

St. Martin’s Press in 2010.

been selected by the

for Lockheed Martin Aeronautics Company.

he focuses his practice

William R. Denny was

selected for inclusion in

president from 2004–06.

around the house.

(See In Print.) Huston is a

on insurance, telecom-

recently featured in a Jaffe

Connecticut Super Lawyers

During the agency’s fiscal

2011. He is with Hinckley,

year ending June 30, 2009,

Allen & Snyder in Hartford.

he contributed more than

Fulton County Superior

Wendy and her husband,

1985

Virginia Law Foundation to

Hasty is admitted to practice before the D.C. bar,

partner in the San Diego

its fellows class of 2011. He

the U.S. Court of Military Appeals, and U.S. Court

munications, commercial

Legal News Service article,

office of Morrison Foerster,

is a partner and executive

of Federal Claims. He is the proud father of four

litigation, and appeals.

“The Lawyer’s Speech.”

where he is chair of the

vice president of practice

daughters, Katherine (19), Tori (14), Thomasa (12),

150 hours of volunteer

trial practice group. He

management at Kaufman

and Judith (12).

legal services.

focuses his practice on

& Canoles in Norfolk. His

1984

In October Simmons

The piece shares

1987

Denny’s travails with severe stuttering since

product liability matters,

practice focuses on

C. Russell of the Atlanta

received the 2010 North

contract disputes, and ap-

commercial transactions;

David E. Bauer works as a

Determined to be able to

judicial circuit was hon-

Carolina State Bar Distin-

peals. He was selected for

government contracts and

tax policy analyst for the

speak fluently, he tried

ored with the 2010 Judge

guished Service Award,

inclusion in Best Lawyers

construction; and mergers,

Center, a non-profit public

Ohio Advisory Committee

State of Maine Bureau of

a number of different

Thelma Wyatt Moore

which honors current

2010 in the area of product

F. Sheffield Hale has been

acquisitions, and strategic

interest law and advocacy

to the U.S. Commission

Revenue Services after

therapies before finding

Legacy Award. The award

and retired members of

liability litigation.

elected to serve as a

alliances.

firm serving the poor.

on Civil Rights. His latest

having served for many

one that helped him

was given by the Gate City

the North Carolina State

member of the National

Carter is associate general

academic book, A Distinct

years as the agency’s

retrain the muscles he uses

Bar Association, the oldest

Bar throughout the state

Lisa D. Eldridge has joined

A portrait of former

Trust for Historic

counsel of International

Judicial Power: The Origins

general counsel. He writes,

for speech.

African American Bar

who have demonstrated

Martin Banks as an

North Carolina state

Preservation’s board of

Paper at its Memphis

of an Independent Judiciary,

“I am an avid contra

Denny is a partner with

Association in Georgia, to

exemplary service to the

associate in Philadelphia,

representative, senator,

trustees. Hale is chief

headquarters.

1606–1787, will be pub-

dancer and play two

Potter Anderson & Carroon

honor “phenomenal public

legal profession. In 2010

Pa., where she concen-

and Supreme Court

counsel of the American

lished by Oxford University

different types of button

in Wilmington, Del., where

servants representing high

Simmons was named to

trates her practice on

justice Willis P. Whichard

Cancer Society in Atlanta,

Scott Douglas Gerber,

Press in May. A symposium

accordion. My oldest son,

he focuses his practice

professional standards.”

Business North Carolina’s

workers’ compensation

LL.M. ’84, S.J.D. ’94 was

Ga. He has served as chair

a law professor at Ohio

was held on the book at

Edward, graduated from

in the areas of electronic

Legal Elite, was included in

law. She previously

presented in a ceremony

and trustee for a number

Northern University, spent

Harvard Law School on

Wesleyan University in

commerce, information

Robert Simmons

North Carolina Super Law-

practiced workers’

at the Campbell University

of organizations dedicated

the 2009–10 academic year

March 29. Scott’s third legal

2008 and is an actor (and

licensing, and commercial

was named chair of

yers, and named Charlotte

compensation law with a

School of Law in October.

to historical preservation.

on sabbatical at Brown

thriller, Mr. Justice, also

waiter!) in New York City;

litigation. He speaks

McGuireWoods’ real estate

Real Estate Lawyer of the

defense firm.

Whichard served as

and land use department

Year by Best Lawyers.

Court Judge Constance

in January. He had been co-chair of the Charlotte,

48  UVA Lawyer / Spring 2011

1986

he was a young boy.

University. He was recently

scheduled for publication

my second son, Peter, is

extensively on technology

dean of the school from

Carl Q. Carter has joined

appointed to a second

in May, will be published

a sophomore at the New

and business issues.

1999–06. He now applies

the board of directors of

two-year term on the

by Sunbury Press.

England Conservatory

the Tennessee Justice

of Music in Boston; and

UVA Lawyer / Spring 2011  49


Class notes …

Class notes …

1987 keenanbecomes general counsel ofthe naacp

Paul Enzinna has joined

chaired the firm’s land use

taught appellate judges.

The book, co-authored

law section. He was

Brown Rudnick as a

practice group for the past

Following retirement from

with his father, Louis J.

recently elected vice chair

partner in Washington,

six years. Wagner and his

the Wisconsin Supreme

Finger, was originally

of the Air and Waste

The NAACP recently named Kim M. Keenan ’87 as general counsel, making

Washington, and served as council chair. The organization also trained

D.C., where he practices

wife, Mary, and children,

Court he became a partner

published in 1994 and

Management Association

her the youngest person to hold that position and the second woman to

jobseekers to find and land jobs.

in the newly established

David and Sarah, live in

with Michael, Best and

went out of print in 1998.

Odor Committee, which

white collar defense and

Rockville, Md.

Friedrich in Madison.

After a 12-year hiatus, The

assesses technical and

serve as the organization’s top lawyer.

Keenan was also a founding member of the Equal Rights Center, which

Founded in 1909, the National Association for the Advancement of

bypassed bureaucracy by making it possible to bring concerns involv-

government investigations

Colored People is the oldest and largest civil rights organization in the

ing disability rights and housing and employment discrimination to one

group. Previously, Enzinna

United States.

central place.

practiced white collar

“This is a once-in-a-lifetime opportunity to use my legal experience

As president of the Washington Bar Association from 2001–03, she

to make a lasting contribution to our society,” Keenan said. “Looked at

set her sights on encouraging promising, yet disadvantaged, students

1988

defense at Miller Cassidy

Delaware Trial Handbook

legal air pollution control

Alison Cooper Chisolm

has been updated. (See

issues involved with odors

writes that she and her

In Print.)

emitted by industrial and

husband live happily in

other facilities. He is a

Larroca & Lewin and

Former Wisconsin Supreme

northern New Hampshire

partner with Fox

Baker Botts.

Court Justice William A.

where she has an indepen-

Rothschild in Princeton,

helped start a fund for scholarships for law

Bablitch LL.M. passed away

dent college admissions

where he focuses his

Prior to joining the NAACP, Keenan

students and for up-and-coming students at

Jeffrey P. Guyton practices

February 16 at his winter

consulting practice. She

practice on environmental

was the principal of The Keenan Firm in

the Thurgood Marshall Academy, a charter

law in Nevada City, Calif.,

home in Kailua-Kona,

works with students

and energy matters,

Washington, D.C., and focused on complex

school in southeast Washington, D.C.

in the Sierra Nevada

Hawaii. He served on

in the U.S. and abroad,

including development,

foothills, where he enjoys

the Wisconsin Supreme

assisting them through

permitting, compliance, recycling, and reporting,

another way, I could not imagine saying ‘no’

to seek a career in law. To this end she

to Justice [Thurgood] Marshall’s old job.”

medical malpractice litigation, mediation

In 2004 she served as the 62nd president

and arbitration, litigation consulting, and

of the National Bar Association, the larg-

the great opportunities for

Court from 1983–2003.

the admissions process. “It

public speaking.

est and oldest bar association of lawyers,

recreation.

Following graduation from

suits me much better than

Richard A. Forsten was

as well as health law and

the University of Wisconsin

law practice ever did!”

recently selected as the

real estate matters.

“Every day as I enter my office on Mount

judges, and students of color in the world. In

Hope Drive, surrounded by the history

her term as president she worked with other

Neil McKittrick is one of

he served in the Peace

Wilmington Land Use &

created by Charles Hamilton Houston,

minority bars to promote the outreach of

four founding sharehold-

Corps in Liberia for two

Zoning Lawyer of the Year

Justice Thurgood Marshall, and Judge

lawyers into communities to help people

ers of the Boston, Mass.,

years before returning

for 2011 by Best Lawyers.

Robert Carter, my goal is to build on their

understand the changes in voting proce-

office of Ogletree, Deakins,

to attend law school. He

He is a partner in the

legacy of service,” she said.

dures in the wake of the 2000 presidential

Nash, Smoak & Stewart.

was district attorney for

project and resource

Mark Brzezinski has been

election.

He continues to practice

Portage County, Wisc.,

development group and a

appointed as a member

NAACP President and CEO Benjamin Todd Jealous said in a release that he is excited to

Keenan is immediate past president of the

1991

in the areas of employ-

and a Wisconsin state

member of the transac-

of the J. William Fulbright

District of Columbia Bar, the second-largest

ment and labor law and

senator from 1972–83; for

tional real estate practice

Foreign Scholarship

“Kim’s experience and commitment to

jurisdictional bar in the nation. In this posi-

commercial litigation.

seven of these years he was

group in the Wilmington,

Board by President Barack

public service make her a valuable addition

tion she used her mediation and trial lawyer

Democratic majority leader.

John M. Cooper has been

Del., office of Saul Ewing.

Obama. Brzezinski was

to our staff,” Jealous said. “She is a leader, a

skills to clarify and streamline the process of

Fred Wagner has been

Key legislation during this

elected Virginia Trial

trailblazer, and a clear voice for the cause of

bar members moving to mandatory IOLTA

appointed chief counsel

time included ground-

Lawyers Association

justice and equality. Her exceptional skills as

accounts, through which interest from law-

of the Federal Highway

breaking sexual assault

district governor for the

a litigator will strengthen NAACP’s ability to

yer trust accounts builds funds for legal aid.

Administration by

legislation, reorganization

second district. He was

for Constitutionalism in

work with Keenan.

a Fulbright Scholar in

1990

Poland 1991-93 and wrote the book The Struggle

continue our historic role of using the law to advance the goals of social

The process had been particularly challenging to manage for small firms

President Barack Obama.

of the state court system,

also listed in Virginia Super

Poland. He is a partner

justice and transform our nation for the better.”

and solo practitioners in the D.C-Virginia-Maryland area, where different

Wagner, a principal in

divorce reform, mandatory

Lawyers 2010 in the area of

with McGuireWoods in

rules for ethical procedures applied.

Beveridge & Diamond’s

reporting of child abuse,

personal injury law. He is a

Washington, D.C., where

Keenan set her sights on a career in law early in life, in part because she saw in it a potential combination of discipline and creativity. Her mother

Keenan is on sabbatical from teaching duties at George Washington

Washington, D.C. office,

and Wisconsin’s Open

partner with Shapiro,

he specializes in anti-

was a social worker and often recounted how lawyers arguing cases in

University Law Center, where she has taught pretrial advocacy and trial

had been with the firm

Meeting Law. He wrote

Cooper, Lewis and

corruption law.

court had made a difference in the lives of many children. Her father

advocacy as an adjunct faculty member since 1999.

since 1991. His practice

the first campaign finance

Appleton in Virginia Beach.

taught her how competition can bring out the best in people.

In June, the Washington Lawyers’ Committee for Civil Rights Under

involved counseling and

reform law that placed

Alexander Macaulay has

In her third year at UVA, Keenan took a course in trial advocacy, which

Law will honor Keenan with the Wiley A. Branton Award for Civil Rights

litigation in a wide variety

restrictions on campaign

David L. Finger, a partner

been selected for inclusion

she described as her high point in Law School. She clerked for the late

Under the Law. The award is named for a civil rights lawyer who cham-

of land use, environmental

funding and established

with Finger & Slanina

David Restaino has been

in Best Lawyers 2011 in

Judge John Garrett Penn of the U.S. District Court for the District of Co-

pioned the cause of school desegregation in the 1950s and black voter

impact analysis, and

public financing.

in Wilmington, Del.,

appointed to the

the area of government

lumbia, then went on to practice with two law firms, gaining 18 years of

registration in the South in the 1960s.

public land matters,

has made his book, The

Renewable Energy,

relations law. He is with

experience, mainly in civil litigation. Over the years Keenan focused on what she calls “macro pro bono”

—­Rebecca Barns and Rob Seal

After earning his LL.M.

focusing on the National

from UVA, he joined

Delaware Trial Handbook,

Cleantech, and Climate

Macauley & Burtch in Richmond, Va.

Environmental Policy Act

the faculty of New York

available for free online at

Change Committee by the

cases, in which she works to further justice on behalf of large groups

and related federal natural

University Law School,

www.delawgroup.com/dth.

New Jersey State Bar

rather than individual clients. She investigated claims of employ-

resources statutes. He

Institute of Judicial

Association and is chair of

Education, where he

the NJSBA’s environmental

ment discrimination through the Fair Employment Council of Greater

50  UVA Lawyer / Spring 2011

UVA Lawyer / Spring 2011  51


Class notes …

Class notes …

1993

1995

Steven Okun has been

efforts of KKR’s portfolio

has been named to the

appointed director of

companies in the region.

industry advisory panel

public affairs in the Asia

Previously Okun served as

of the SP Jain Center of

In October California

but puts his UVA law

Jeffrey Heninger is serv-

Pacific region for Kohlberg

chairman of the American

Management.

Governor Arnold

degree to work as the

ing as attorney-advisor

Kravis Roberts & Co. He

Chamber of Commerce

Schwarzenegger named

co-executive producer and

with the commercial and

will be responsible for

in Singapore and,

Jeff Stredler is serving as

Christopher R. Bowen to

writer of the CBS drama

intellectual property law

overseeing public affairs,

until October, was vice

president of the Norfolk

the bench in the Contra

Dana Young was elected to

series, The Good Wife. He

practice group in the office

corporate citizenship, and

president for public affairs

and Portsmouth Bar

Costa County Superior

the Florida House of

lives in Los Angeles, Calif.,

of general counsel for the

external communications

for UPS in Asia Pacific.

Association this year. Jeff

Court. Bowen has served

Representatives on

with his wife and children.

National Aeronautics and

in Asia Pacific, where he

He has been elected to

is the litigation counsel for

as a county deputy public

November 2. She and her

Space Administration in

will be based, as well as

a two-year term on the

Amerigroup Corporation

defender since 1994.

husband, Matt (Darden ’93),

Washington, D.C.

supporting the public af-

council of the Singapore

in Virginia Beach, Va.

fairs and communications

Business Federation and

Greg Willis has been

Ted Humphrey left the practice of law years ago,

live in Tampa with their

Lorie Almon

Cate Stetson

Helgi Walker

1994 Three fromthe class are amlaw’s best under 45

Last fall, Bill Kincaid was

two daughters, Alex and

Seiichi Shimizu LL.M. writes,

co-chair of the grand

Carson. Dana encourages

“It has been 15 years since I

reopening of the his-

any alumni to please stop

graduated from UVA. I miss

toric Washington County

by and visit her legislative

the wonderful and exciting

Courthouse in Arkansas.

offices in Tampa or

days in Charlottesville, and

Multiple 1994 classmates wrote to let us know that Lorie Almon, Cate Stetson,

The building is a stately

Tallahassee; the Florida

I hope to visit in the near

and Helgi Walker were named to American Lawyer’s Best “45 under 45” in January.

structure dating from

legislature is in session

Richard L. Winston was

future to see teachers and

Candidates were nominated by industry sources, after which AmLaw reporters inter-

1905 and has undergone

from March through May

recently named among

classmates.”

viewed clients and opposing counsel before honing the list. Lorie, Cate, and Helgi

extensive renovations over

in Tallahassee.

Latin Business Chronicle’s

the past few years.

elected criminal district

1994

made the final cut, earning the distinction “best of the best.”

“Top 30 Foreign Lawyers in

In a recent case, John H.

Latin America.” The

Zacharia and an Assistant

group and is co-managing partner of the firm’s New York office. Her practice focuses

Chronicle also includes him

U.S. Attorney successfully

on employment litigation, especially complex litigation and collective and/or class

Lorie Almon co-chairs Seyfarth Shaw’s national wage and hour litigation practice

attorney of Collin County,

Jay K. Musoff has joined

Tex. (just north of Dallas).

Loeb & Loeb in New

in “Who’s Who in Latin

sought conviction for a

proceedings. In the past five years she has led or co-led the defense of no fewer than

He resigned his judgeship

York City as a partner in

American Business.”

ring of counterfeiters who

50 employment class or collective actions brought against Fortune 500 and other sig-

to run for DA. Greg is

the white collar criminal

Winston is a partner with

reproduced thousands

nificant companies. Almon has been instrumental in building Seyfarth Shaw’s labor

married to Jill Willis, a state

defense, corporate

K & L Gates in Miami,

of CDs and DVDs to sell

& employment practice. American Lawyer cited her keen ability to persuade juries in

district judge in Collin

compliance, and investiga-

where he focuses on

through retail stores. A

challenging cases and her ability to work with co-defense counsel and across the aisle

County. They have two

tions group. He represents

complex cross-border

federal grand jury in-

in a motions-heavy practice. “I was thrilled to learn that two other ’94 graduates were

children who gave their

corporations and their

transactions that primarily

dicted 13 defendants who

included … Like many of our female classmates, Cate and Helgi have built enormously

parents much practice

senior executives in

involve Latin America and

were allegedly involved,

successful careers and I am so proud to be listed with them.”

refereeing disputes.

high-profile investigations,

Brian R. Booker has been

Europe.

charging them with

including those relating

appointed to the board of

to insider trading, tax

directors of the Wellness

shelters, Foreign Corrupt

Community, a non-profit

Practices Act issues,

organization that provides

1992

Cate Stetson is a partner and director of Hogan Lovells appellate practice group

copyright, trademark, and

in Washington, D.C. She has argued in most of the federal courts of appeals and in

Matthew M. Wolf has

counterfeit label offenses.

multiple state appellate courts, more than 30 appellate arguments in all. American

joined Arnold & Porter in

The criminal copyright

Lawyer noted her remarkable appellate record, including a victory in a Ninth Circuit

Washington, D.C., where

infringement charge car-

en banc case and subsequent defeat of certiorari in the Supreme Court of the United

emotional support and

his practice focuses on

ries a maximum sentence

States. D.C. Circuit Judge David Tatel notes that Stetson is “one of the finest lawyers”

Neil H. MacBride ’92, Timothy J. Heaphy ’91, and Zane David Memeger ’91 (left to right), current United

Amy E. Stewart has been

government contractor

elected to membership in

fraud, and securities and

education for cancer

patent, trade secret, licens-

of five years in prison per

who appears before the U.S. Court of Appeals for the D.C. Circuit. “I’m honored to be

States Attorneys and former Law School roommates

the Fellows of the Texas

accounting fraud. He was

patients and their loved

ing, and business tort

count. The defendants

on any list with these wonderful women,” says Cate, “and I am particularly proud of the

(’89–’90), shown here while attending the United

Bar Foundation. Fellows

previously with Orrick,

ones. Booker is a partner

issues in the medical and

could be fined up to

showing of the Law School Class of 1994.”

States Attorneys’ Conference in Washington, D.C., in

are selected for their

Herrington & Sutcliffe, and

with Quarles & Brady in

biomedical technology

$250,000 on each count.

November. Memeger is U.S. Attorney for the Eastern

professional achievements

prior to that served as a

Phoenix, Ariz., where he

sectors, and the computer

District of Pennsylvania, Heaphy is U.S. Attorney for

and their commitment to

federal prosecutor.

focuses his practice on

hardware and software

U.S. Department of

Court of Appeals for the D.C. Circuit. The case involved the FCC’s authority to regulate

the Western District of Virginia, and MacBride is U.S.

improvement of the justice

commercial litigation with

industries. He was previ-

Justice Criminal Division’s

Internet broadband service providers. Judges ruled against the FCC and found that

Attorney for the Eastern District of Virginia. Their

system throughout Texas.

an emphasis on commer-

ously with Howrey.

Computer Crime and Intel-

the agency did not have the authority to regulate Comcast’s network management

fourth roommate, Michael W. Oyler ’91, was a for-

Stewart is shareholder of

cial and professional

lectual Property Section.

practices. In the American Lawyer article Walker’s clients remarked on her “staggering

mer law partner of the current U.S. Attorney for the

Amy Stewart Law in Dallas.

liability, real estate,

intellect” and “incredible judgment.” Walker says she appreciated the timing of the

securities fraud, and

article. “I just barely made it under the 45-year-old bar, thank goodness!”

Western District of Kentucky.

product liability.

52  UVA Lawyer / Spring 2011

Zacharia is with the

Helgi Walker is co-chair of Wiley Rein’s appellate practice in Washington, D.C. American Lawyer noted her recent victory on behalf of Comcast Corporation in the U.S.

—­Rebecca Barns

UVA Lawyer / Spring 2011  53


Class notes …

Class notes …

1999

Cohen Gardner, was in the

the Virginia Entertainment

Jason M. Sneed has been

Peter Bowden was recently

news often during 2010,

Law Journal (now the

named group leader for the

promoted to managing

most notably in its

Virginia Sports &

trademarks and copyrights

director at Morgan Stanley

Antone Melton-Meaux has

representation of the sea

Entertainment Law Journal)

group at Alston & Bird in

in Houston.

been named a partner in

captains from Deadliest

during law school, after

Charlotte. He was named

Catch during their dispute

which he joined the

with Discovery Communications, a negotiation that pitted the

and later served executive

Judge Charles F. Baird LL.M. ’95 received the 2010

small Beverly Hills

Bowden is an energy

the Minneapolis, Minn.,

by Business North Carolina

investment banker who

office of Jackson Lewis,

business affairs depart-

as a Legal Elite in intel-

provides mergers and

where he concentrates his

ment of PolyGram Films

lectual property law for

acquisitions advice to, and

practice on employment

Laura Deddish Burton has

2010, and was designated

leads financings for, energy

litigation disputes.

terms at Universal and Fox,

been elected partner in

a 2010 Rising Star in North

companies. His client base

Carolina Super Lawyers.

Civil Libertarian of the Year Award from the Central

boutique against

before co-founding Cohen

the Greensboro, N.C.,

includes exploration and

Bill Baroni ’98 is deputy executive director of the

Michael Rakower writes

Texas chapter of the ACLU. Baird led the justice

Washington, D.C., firms

Gardner in 2002.

office of Smith Moore

production companies,

Port Authority of New York and New Jersey, a job

that he recently had the

system in his work defending the innocently incar-

Williams & Connolly and

Leatherwood, where her

as well as providers of

in which he is responsible for the management of

pleasure of working on a

cerated and finding restorative justice solutions. He

Arent Fox. Gardner also

practice focuses predomi-

midstream and oilfield

five airports, four Hudson River bridges, the Lincoln

case with his friend and

favors rehabilitative efforts for nonviolent offenders

negotiated seven-figure

in order to give them a chance to succeed in life, but

deals for the sale to Lions

also to decrease the burden on society and taxpayers.

1998

services. Bowden is also a

and Holland Tunnels, the Port of New York and New

classmate, Logan Johnson,

international law. She has

Ann Ayers was recently

recognized expert in mas-

Jersey, and the PATH transit system. He is also leading

“a lawyer who is making

Gate of the film Buried at

been named one of the

named Volunteer of the

ter limited partnerships,

the project to rebuild the World Trade Center site,

his mark in Texas.” Logan

He was the first judge in Texas, and second in the na-

Sundance, and for French

Vanessa Chandler has

top professional women in

Year by the Women’s Vision

having led more than 50

which includes making sure the 9/11 memorial and

and the boutique litigation

tion, to preside over a posthumous exoneration.

director Patrick Jean in the

been appointed director

the Triad Area based on

Foundation of Denver,

equity financings for MLPs

museum, 1 World Trade Center (formerly called the

firm he co-founded sought

sale of his viral sensation

of communications and

her professional success

Colo., an organization that

over the past few years.

“Freedom Tower”), and the transit hub are completed

assistance from a New York

Travis County in December. He previously served for

Pixels to Columbia Pictures

senior policy advisor by

and involvement in her

promotes and supports

according to schedule.

lawyer on a matter that

eight years on Texas’ highest criminal appellate court.

for Adam Sandler to star.

Missouri’s state auditor.

community, and was

women as leaders of

Aaron Kanter is in-house

In January he established the criminal law section of

Gardner’s interest in

She previously served as

honored at the 2010

corporations. Ayers began

counsel for Forté, a

Trade Center site to Department of Homeland Se-

and extended to a federal

the Fowler Law Firm in Austin.

entertainment law was

general counsel for two

Business Leader’s Women

her volunteer work with

sponsor group to USTC

curity Secretary Janet Napolitano ’83. Building of

court in New York. “I was

evident when he founded

defense contractors.

Extraordinaire Awards

Women’s Vision on the

Holdings, an investor

1 World Trade Center is rising at one story per week.

pleased to play a support-

luncheon in Winston-

management council,

consortium that acquired

ing role and work alongside

Salem. She has been

overseeing events

Xe Services in December.

my Law School buddy, who,

selected for inclusion in

planning and helping

Xe Services is a leading

by calling me, illustrated

2011 Best Lawyers.

to generate more than

provider of training and

$500,000 in revenues. She

technical services focused

She is a member of the

James F. Neale has

hallmark of our law school and the envy of our peers.”

Judge Baird retired from the 299th District Court of

Brian M. Zimmet has been

1997

1996

nantly on immigration and

promoted to counsel

On September 10, Baroni gave a tour of the World

began in Texas federal court

the camaraderie that is a

at Hunton & Williams in

The film adaptation of

has served the foundation

on worldwide diplomatic

corporate department

co-authored Food Safety

Richmond, Va. He is a mem-

Emily Giffin’s novel,

as board secretary,

security operations.

at Robinson Bradshaw &

Law, a definitive guide for

ber of the regulated markets

Something Borrowed,

treasurer, and executive

Hinson, where her practice

food producers concerned

team, and his practice spans

starring Kate Hudson,

committee member. She is

Benjamin S. Lippard has

includes a range of com-

about liability or plaintiffs

federal regulation and

John Krasinski, and Emily

credited with establishing

been promoted to partner

mercial transactions with

stricken by a food-borne

restructuring of the electric

(in a cameo role) opens in

a finance committee and

with Vinson & Elkins in

a focus on mergers and

illness. (See In Print.)

Marc A. Cohn has joined

utility industry. He focuses

theaters on May 6. Giffin

a timely budget for 2011

Washington, D.C., where

acquisitions, private equity

Neale is a partner in the

Arnold & Porter in

on regulation of regional

will attend the world pre-

that allowed for strategic

he focuses on environ-

investments, and general

Charlottesville office of

Washington, D.C., as

mier at a gala ceremony in

planning. Ayers is senior

mental matters, including

corporate law.

McGuireWoods, where he

counsel in the intellectual

Hollywood on May 3.

strategic communications

civil litigation, civil and

is co-chair of the food-

property practice group,

transmission organizations

2000

and independent system

Hollywood trade magazine

Rob Masri ’96 launched Cardagin Networks in

operators, investor-owned

Variety named Jonathan

Charlottesville on January 18, with Charlottesville

consultant in the

criminal enforcement

Paul M. Navarro has been

borne illness litigation

where he focuses on

electric utilities, indepen-

Gardner one of its

Mayor Dave Norris declaring the day “Cardagin Day.”

Jeffrey B. Hubbard

Denver office of Mission

defense, site remedia-

named a 2011 Rising

group. He has been

medical device litigation

dent power producers, and

“Dealmakers of 2010.”

Cardagin is a mobile advertising and loyalty solution

recently established

Minded, a marketing

tion, and administrative

Star by North Carolina

selected for inclusion in

and arbitration, including

power marketers under the

Gardner told Variety he

that local businesses use to reduce their reliance

Putney & Hubbard in

communications firm for

proceedings.

Super Lawyers. He is a

Best Lawyers 2011 in the

patent infringement,

Federal Power Act, Public

“always strives for fairness

on traditional local advertising. Headquartered in

Bedford, Va.

non-profits.

partner in the labor and

area of product liability

contract, and business tort

Utility Regulatory Policies

in negotiations,” adding,

Charlottesville, Cardagin is now in 12 other markets.

Kelly Luongo Loving has

employment department

litigation.

cases. He was previously

Act, and the Electricity Title

“[t]he truth is always the

Rob and his wife, Natalie, are enjoying life with their

been selected for the

in the Charlotte office of

of the Energy Policy Act of

strongest argument.

other startups, twins Felix and Xavier (11 months),

Charlotte Business Journal’s

McGuireWoods.

2005.

Professionals recognize it

and Mira (almost 3).

annual “40 Under 40” list.

with Howrey.

immediately.” His firm,

54  UVA Lawyer / Spring 2011

UVA Lawyer / Spring 2011  55


Class notes …

Class notes …

2001

Michael J. Hendershot

Justin Sizemore has joined

focuses his practice on

Samuel Sheldon has joined

Haynsworth Sinkler Boyd

Epstein Becker Green as

has earned certification

Reed Smith as an associate

corporate representations

Gunster in Miami, Fla.,

in Columbia, where he is a

a member in the national

from the Ohio State Bar

in the commercial litigation

for public and private

where he will concentrate

member of the public

labor and employment

Association as an appellate

group in Richmond, Va.

companies, investors, and

his practice in the area of

finance team, helping

practice in Washington,

specialist. He is an associ-

entrepreneurs.

business litigation.

counties, municipalities,

D.C., where he will lead

ate in the Columbus office

Eric Conn has joined

and school districts issue

2002

Matthew Houtsma is an

bonds as a means to

adjunct professor in the

finance various capital

William W. Bos has been

University of Denver’s

projects.

group. He focuses his prac-

promoted to partner

graduate tax program.

Ben Block has been

tice on appellate issues,

with Vinson & Elkins in

He also litigates tax court

Robin Zimmerly mar-

promoted to partner at

amicus work, products

Houston, Tex., where he

cases on behalf of the

ried Jason Meidhof on

Covington & Burling in

liability, and insurance law.

concentrates his practice

Guy Maurice ’02 reports that his baby is no longer

Internal Revenue Service.

October 17, 2009, and left

commercial litigation

Washington, D.C. He has

Hendershot was named an

on commercial lending

a baby—her second birthday has come and gone.

group, where he focuses

extensive experience in

Ohio Super Lawyers Rising

and financial transactions.

Gigi enjoyed cake and a baby piano. “Next year,” he

on contract, construction,

civil litigation, including as

Star in appellate law in

notes, “she’ll probably appreciate another child being

corporate governance, and

a first-chair litigator in

2010 and 2011.

there!” Guy has joined Baker Martin Capital, a bou-

employment disputes.

state and federal court

Klele also has expertise in

trials and appeals, and in

Brian Keyes has been

wrongful termination and

arbitrations. He regularly

elected partner with

non-compete actions.

advises the NFL regarding

Wilson Sonsini Goodrich

issues relating to its

& Rosati in Seattle, Wash.,

Kandice J. Giurintano

collective bargaining

where he practices corpo-

has been selected as

agreement, as well as in

rate and securities law.

the Dauphin County Bar

other matters. Block

elected partner at Baker

Association Pro Bono

clerked for Judge A.

Botts in Dallas, Tex., where

Attorney of the Year.

Raymond Randolph of the

he focuses his practice on

She is a member with

U.S. Court of Appeals for

McNees Wallace & Nurick

the District of Columbia

in Harrisburg, Pa. She co-

Circuit.

efforts to provide occupa-

of Vorys, Sater, Seymour

tional safety and health

Khaled John Klele has

and Pease, where he is a

services to the firm’s

been elected partner with

member of the litigation

clients. He was previously

Riker Danzig Scherer

a partner with McDermott

Hyland & Perretti in

Will & Emery.

Morristown, N.J. He practices in the complex

private practice to work in the Office of Enforcement,

2004

Division of Investigations

Tigerron “Tiger” Wells

at the Federal Energy

tique merchant bank in New York City, as a managing

Jared J. Garner recently

received the 2011

Regulatory Commission.

director.

joined Carlson Hotels as

Jonathan Jasper Wright

The couple met while

associate general counsel

Award from the University

racing bicycles and return

in Carrollton, Tex.

of South Carolina’s Black

to Charlottesville every

Law Students Association.

March for the Jefferson

Ben Oxley left K & L Gates

The award, named for the

Cup Road Race.

to open his own real estate

first African American to

Cynthia Orchard has two

investment company,

practice law in South

young children and has

EcoRentals, which will be

Carolina and the first

lived in El Salvador since

making environmental

African American elected

commercial leasing and

August 2007, where she is

upgrades to properties

to any appeals court in the

Christopher Calsyn has

real estate acquisition and

mostly a full-time mother,

and renting them out

nation, is given to an

been promoted to counsel

development.

though she also made

in the Washington, D.C.

outstanding member of

in the labor and employ-

chairs the appellate and

time to serve as a program

metro area.

the South Carolina legal

ment group with Crowell &

post-trial practice group

officer with the Center for

community. Wells is with

Moring in Washington, D.C.

and is part of the litigation

Exchange and Solidarity’s

and transportation,

Jeremy Gott has been

Justice Jan P. Patterson LL.M. of the Texas Court

Joshua N. Silverstein has

International Election

distribution and logistics

Amy Shaw and her

been admitted to the

Observation Mission from

Chad Romey and his wife,

of Appeals was recently

groups. Under her leader-

husband, Tony, welcomed

partnership of Stradley

October 2008 to October

Carly, announce the birth

elected to membership

ship, 75 attorneys and

their first child, Bradford

Ronon Stevens & Young in

2009. Orchard plans to

of their first child,

in the American Law

staff members at McNees

Lloyd, on July 3. Bradford

Cherry Hill, N.J. He is a

move to Kazakhstan in

Catherine June, on

Institute. The institute

participated in various pro

was born at 27 weeks, 2

September, where her

August 19. The family

is composed of lawyers,

bono projects in 2010.

days. He weighed

Ryan Coonerty is currently

practice group, where he

Nicole M. Murray has been

husband will be working

resides in Fort Wayne, Ind.,

judges, and law profes-

2 pounds, 11 ounces, and

serving as the mayor of

concentrates on mergers

named a Rising Star in

at a British school, and will

where Chad is with

sors and is the leading

measured 14 ¾ inches. He

Santa Cruz, Calif. He is also

and acquisitions, contract

Illinois Super Lawyers 2011.

continue to be a full-time

Blackburn & Green.

independent organization

was in the neonatal

the co-founder and chief

negotiations, and general

She is an associate with

mother for a while longer.

intensive care unit at Good

strategist for NextSpace

corporate counseling. Prior

Quarles & Brady’s

Samaritan Hospital in

Coworking + Innovation,

to joining Stradley Ronon,

intellectual property

Cincinnati, Ohio, for two

which was named the

he was a licensed

group in Chicago and

and a half months. “We

2010 Santa Cruz Small

insurance producer for

focuses her practice on

Geoffrey D. Fasel was

has been an appellate

welcomed him home on

Business of the Year.

Allstate Insurance

intellectual property

promoted to shareholder

judge for 12 years.

Company.

litigation.

with Polsinelli Shughart

September 13,” Amy writes, “and he is thriving.”

56  UVA Lawyer / Spring 2011

member of the business

2005

in the U.S. producing

2003

scholarly work to clarify, modernize, and improve the law. Justice Patterson

in Kansas City, Mo. He

UVA Lawyer / Spring 2011  57


Class notes …

Class notes …

Guy E. Carmi LL.M. ’05, S.J.D. ’10

In 2009 Corwin Levi left

based on their demon-

children and advocate for

in the Greensboro office of

women’s group in which

has been awarded the

an associate position

stration of outstanding

changes in the District of

Smith Moore Leatherwood

she could share her

2010

Gorney Prize for Young

at Wilmer Hale to focus

leadership qualities and

Columbia’s laws, policies,

in the litigation and real

traditional cultural and

James B. Bailey has joined

Researchers in the field of

on his career as a visual

service to their communi-

and programs. She is an

estate practice groups,

political values. The

Bradley Arant Boult

public law by the Israeli

artist. His work has been

ties. The forum prepares

associate with McKenna

where he focuses primarily

organization has grown

Cummings as an associate

Public Law Association.

featured in a number

Mississippi lawyers for

Long & Aldridge, where

on land use.

from a book group to 24

in the Birmingham, Ala., of-

Carmi was awarded the

of shows, including

future opportunities in

she focuses her practice

chapters on campuses

fice, where he is a member

prize for his doctoral

one in September at

leadership roles. Graves

on appellate, federal

Sinead N. O’Doherty has

across the country.

of the bankruptcy,

dissertation, “Dignity

Second Street Gallery in

practices in the Jackson

regulatory, and adminis-

joined Robinson Bradshaw

restructuring, and distressed

Minoo Sobhani has joined

and Liberty: Differing

Charlottesville that sprang

office of Corlew, Munford

trative matters.

& Hinson as an associate

investing practice group.

Jackson Walker as an

Approaches to Free

from the artful doodling

& Smith, concentrating on

Speech in Germany, the

on his law school notes.

litigation.

United States, and Israel.”

A number of shows are

His dissertation examines

scheduled for 2011. Levi

the question of whether freedom of expression is

in the Charlotte, N.C.,

associate in the litigation

Stephanie Ullman Grau

office. She clerked for the

section in Dallas, Tex.

Ignacio Salvarredi LL.M. ’06 married Cecilia Diaz

and her husband, Eric Grau,

Honorable Richard L.

Juan Manuel Pinzon LL.M.

de Souza on December 6, in Buenos Aires, Argentina.

welcomed their first baby,

Williams ’51, U.S. District

works from time to time

recently left Citibank-

In attendance at the wedding were Patricio Pablo

Willow, on October 25.

Court for the Eastern

as counsel in the Clarity

Colombia, where he was

Pantin LL.M., Lars Rueve LL.M., Fabian Osswald

Willow weighed 7 lbs.,

District of Virginia, and for

primarily based on the

Law Group, a virtual law

vice presidente assistant,

LL.M., and Hector Calero Ramirez LL.M.

11 oz. and measured 19¾

the Honorable Robert B.

value of human dignity or

firm with a conference hub

to join Proteccion de

inches long.

King, U.S. Court of Appeals,

Allison Davis has joined

the value of liberty. It also

in Washington, D.C. Find

Riesgos PR Asesores de

Fourth Circuit.

Dinsmore & Shohl as an

addresses the question of

out more about Corwin’s

Seguros as a partner.

how relying on either of

latest endeavors at www.

Proteccion de Riesgos PR

these values affects the

radiosebastian.com.

is dedicated to insur-

management consulting

ance brokerage and risk

for individuals and

perception of freedom of

2007

2008

associate in the Cincinnati,

2009

Ohio office. She is in the

Christopher Harding has

mass tort practice group

joined Tonkon Torp in

William J. Stowe has

and represents a broad

Portland, Ore., as an

joined Jackson Walker as

expression and its protec-

Robert E. McGrail is

Kelly A. Booker has joined

Karin Agness and a

range of complex civil

associate in the business

an associate in Houston,

tion. Carmi is an associate

director of legal affairs

Blank Rome as an

conservative campus

litigation matters,

department.

Tex., where he focuses his

in the litigation depart-

at DUMAC, a profession-

John Sherman is graduat-

associate in the real estate

organization she

including pharmaceutical,

ment at Lipa Meir & Co.

ally staffed investment

ing from Darden in May

group in the New York City

founded called Network

real estate, and energy

Andrew L. Howlett is an

litigation, including

He teaches Holocaust and

organization controlled by

and moving to Charlotte,

office. She focuses her

of Enlightened Women

litigation. She was

associate in the tax depart-

product liability defense,

the law at the Radzyner

Duke University. He lives

N.C., to join Wells Fargo

practice on domestic

(NeW) were featured

previously with Baker

ment of Debevoise &

insurance defense, and

School of Law of the

in Cary, N.C., with his wife

Securities Investment

corporate real estate

in the blog POLITICO in

Botts in Houston, Tex.

Plimpton in New York City.

health care litigation.

Interdisciplinary Center in

and child.

Banking Division in their

transactions, including

March. In NeW’s annual

“Every morning,” he writes,

new industrials group.

commercial real estate

Frankie T. Jones, Jr., was

online contest, women

“I do wind sprints across

development, leasing,

recently selected for the

nominate men who act

the 59th Street bridge in

Virginia Thomas McKibbens has joined

After finishing his

mortgage releases,

first class of the North

like gentlemen in the

preparation for when I can

Bradley Arant Boult

play softball again.”

Cummings as an associate

companies in Colombia.

Herzliya, Israel.

Brian T. McLaughlin

practice on commercial

Sarah M. Hall serves

has been promoted to

on the advisory board

counsel in the government

purchases and sales, UCC

Carolina Bar Association’s

traditional sense, opening

contracts and litigation

Diego I. Blanco Carrillo LL.M. ’06 and

six-month internship in

of the Children’s Law

the European Commission

foreclosures, fund

Leadership Academy. He is

doors for women, helping

in Birmingham, Ala., where

Center in Washington,

groups with Crowell &

Alejandra Bartlett had

data protection unit,

formations, and loan

also on the executive

them carry things, holding

she is a member of the tax

D.C. The center partners

Moring in the Washington,

their first son, Diego,

Olivier Winants LL.M. has

financing and restructur-

board of the Friends of

umbrellas over them

practice group.

with pro bono attorneys

D.C. office.

on January 3. Carrillo

started work as a political

ing. She was previously

Center City Park and the

in the rain. Agness told

to offer comprehensive

continues to work

advisor for the United Left

with Skadden, Arps, Slate,

executive council of

POLITICO that NeW aims

Colin LeCroy has joined

W. Thomas Worthy has

legal services for at-risk

as a senior associate

Group in the European

Meagher & Flom.

synerG, an organization of

to encourage gentlemanly

Jackson Walker as an

joined Bradley Arant Boult

for Ritch Mueller,

Parliament in Brussels.

that promotes social and

behavior on campus. It’s

associate in the litigation

Cummings as an associate in Birmingham, Ala., where

children and advocates

2006

www.ritch.com.mx, a

He is mostly active within

Elisabeth “Lisa” Shu serves

professional networking

about “appreciating men

section in the Dallas, Tex.,

of Columbia’s laws,

Tiffany M. Graves was

Mexican law firm spe-

the committee for civil

on the advisory board

and leadership opportuni-

who are respectful and

office.

policies, and programs.

selected as a member

cializing in finance,

liberties, justice, and home

of the Children’s Law

ties. In 2010 Jones was

courteous,” says Agness.

Samir Najam has joined

litigation and governmen-

She is an associate in the

of the inaugural class

securities, and merg-

affairs, and the committee

Center in Washington,

recognized by Triad

She founded NeW while

Jackson Walker as an

tal affairs practice groups.

litigation practice group

of the Mississippi Bar’s

ers and acquisitions

for internal market and

D.C. The center partners

Business Journal in their

an undergraduate at UVA

associate in Houston, Tex.

of Covington & Burling’s

Leadership Forum.

transactions.

consumer protection.

with pro bono attorneys

annual “40 Under 40”

because she wanted to

His practice focuses on

Washington, D.C., office.

Candidates were chosen

to offer comprehensive

Leadership Awards. He is

be part of a conservative

international and real

for changes in the District

legal services for at-risk

58  UVA Lawyer / Spring 2011

he is a member of the

estate transactions.

UVA Lawyer / Spring 2011  59


In Memoriam

In Print

Edward C. Summers ‘32 Bainbridge Island, Wash. February 17, 2011

C. Douglas Adams, Jr., ‘49 Winchester, Va. January 30, 2011

Theodore A. Boyce ‘55 Norfolk, Va. November 24, 2010

Richard G. Joynt ‘61 Richmond, Va. February 26, 2011

Philip L. Chabot, Jr., ’76 Nellysford, Va. December 10, 2010

George M. Cochran ‘36 Staunton, Va. January 22, 2011

Robert N. Bloxom ‘49 Melfa, Va. February 22, 2011

Robert G. Black ‘56 Conway, S.C. September 17, 2009

Edward O’Regan ‘62 Waterford, Conn. January 31, 2011

Brian D. Smith ‘77 London, England March 14, 2011

Bernard Protzel ‘36 Miami, Fla. August 29, 2010

Arthur B. Davies III ‘49 Millboro, Va. January 22, 2011

George D. Brodigan ‘56 West Hartford, Conn. September 14, 2010

Crawford McDonald ‘63 Memphis, Tenn. February 26, 2011

Mark A. Ash ‘78 Raleigh, N.C. February 21, 2011

Maurice Steingold ‘41 Virginia Beach, Va. October 15, 2010

John L. Miller ‘49 Pompton Plains, N.J. November 7, 2010

Henry W. Clark, Jr. ‘56 Oxford, Md. December 26, 2009

John A. Sabanosh ‘63 Scottsdale, Ariz. August 21, 2010

Lisa A. Barbour ‘82 Avon, Colo. December 2, 2010

Richard K. Hawes, Jr., ‘42 Westport, Mass. January 29, 2011

Benjamin F. Sutherland ‘49 Mooresville, N.C. February 13, 2011

Richard B. Bland ‘57 Tracys Landing, Va. November 14, 2010

Paul N. Sameth ‘63 Timonium, Md. April 29, 2010

Robert Huber ‘82 Washington, D.C. August 18, 2010

Robert E. Browne III ‘47 Spartanburg, S.C. November 8, 2010

Wilbur C. Allen ‘50 Richmond, Va. January 18, 2011

Christopher G. Stoneman ‘57 New London, N.H. January 3, 2011

William Ernest Norcross ‘64 Cordova, Tenn. January 1, 2011

Charles B. Hecht ‘83 Denver, Colo. October 30, 2010

Charles G. Blaine ‘48 Buffalo, N.Y. December 2, 2010

Edward M. Selfe ‘50 Birmingham, Ala. November 30, 2010

Albert Teich, Jr., ‘57 Norfolk, Va. October 24, 2010

Laurence C. Leafer ‘66 Ormond Beach, Fla. September 30, 2010

Jeanne Hodges Coulter ‘84 Roanoke, Va. January 2, 2010

Edward W. Cooch, Jr., ‘48 Newark, Del. September 23, 2010

Robert L. Cooley ‘51 Crawfordsville, Ind. December 17, 2010

Richard E. Carter ‘58 Riverside, Conn. December 7, 2009

John H. Ariail, Jr., ‘67 Alexandria, Va. January 20, 2011

John M. Scheb LL.M. ‘84 Sarasota, Fla. November 17, 2010

William T. Diamond, Jr., ‘48 Jackson, Tenn. September 16, 2010

Richard L. Williams ‘51 Richmond, Va. February 19, 2011

Nicholas W. Oakley ‘59 New Orleans, La. September 16, 2010

M. Blair Corkran, Jr., ‘67 Washington, D.C. October 30, 2010

William J. Stuntz ‘84 Belmont, Mass. March 15, 2011

Marshall Burwell Hardy, Jr., ‘48 Louisville, Ky. November 2, 2010

Robert Coe ‘52 White Plains, N.Y. November 2, 2010

Richard S. Callaghan, Jr., ‘60 Coeur D Alene, Idaho January 28, 2011

Thomas H. Wood ‘67 Verona, Va. January 14, 2011

William A. Bablitch LL.M.‘88 Presque Isle, Wisc. February 16, 2011

Frederic A. Nicholson ‘52 Norfolk, Va. October 3, 2010

Thomas A. DeLong ‘60 Southport, Conn. July 12, 2010

T. Cullen Gilliland ‘68 Atlanta, Ga. September 12, 2010

Gary L. Holmes ‘89 Los Angeles, Calif. January 1, 2011

James Sollers Oneto ‘53 Washington, D.C. June 5, 2010

John M. Carter ‘61 Portsmouth, Va. October 23, 2010

F. Pendleton Gaines III ‘69 Phoenix, Ariz. January 5, 2011

John M. Roll LL.M. ‘90 Tucson, Ariz. January 8, 2011

Edward M. Schotz ‘54 Wyckoff, N.J. December 29, 2010

Robert E. Eicher ‘61 Midlothian, Va. October 2, 2010

James R. Henderson IV ‘74 Richlands, Va. October 9, 2010

Marc E. Guerette ‘01 New York, N.Y. August 1, 2009

Non-Fiction The Last Male Bastion: Gender and the CEO Suite in America’s Public Companies Douglas M. Branson LL.M. ’94

Robert F. Matthews, Jr., ‘48 Shelbyville, Ky. October 30, 2010 Orin Douglas Stenstrom ‘48 Lake Mary, Fla. June 23, 2010 Howard O. Woltz, Jr., ‘48 Wilmington, N.C. January 2, 2011

60  UVA Lawyer / Spring 2011

Routledge Women have made great inroads into the world of politics as senators, representatives, governors, and cabinet secretaries. They’ve taken leadership positions in non-profits as CEOs overseeing budgets of billions of dollars, taken the helm of a number of colleges and universities, and sit on the bench of the Supreme Court of the United States. But only three percent of Fortune 500 CEOs are women. While women account for nearly 40 percent of MBA graduates and 50 percent of law graduates, why do so few reach the CEO suite? Branson takes on the task of evaluating why women have not achieved at the same level in the corporate world. “In business,” he explains, “there is a ‘leaky pipe,’ with a great flow of women at the intake, but just a trickle at the outfall 20 or so years later.” The author traces the careers of 15 women CEOs and presents portraits of some of the women CEOs who made it to the top of some of the largest organizations, including Jill Barad at Mattel Toy, Andrea Jung at Avon, and others. Details about education, career moves, and family lives, as well as revealing personal reflections are examined.

Branson discusses the pros and cons of the plowhorse versus the showhorse CEO, how CEOs are selected, and describes the “glass ceilings, floors, walls, and cliffs” women run into along the way. He surveys lessons learned and sheds new light on how more women could make it to the chair in the CEO suite. Douglas M. Branson is the W. Edward Sell Professor of Law at the University of Pittsburgh School of Law.

Defining Moments: Historic Decisions by Arkansas Governors from McMath Through Huckabee Robert L. Brown ’68

University of Arkansas Press Faced with decisions that could prove destructive to a political career, politicians show their true mettle. Robert Brown shows how decisions made by ten Arkansas governors have shaped their terms in office, their legacies, and even history. Sid McMath had to decide whether to support President Harry Truman’s civil rights platform or the rising Dixiecrat tide against it. Francis Cherry had to decide whether to label his opponent as a Communist. Orval Faubus made a stand on desegregation of public school that brought the issue to national attention. Winthrop Rockefeller’s public response following the assassination of Martin Luther King, Jr., had an impact on race relations. Dale Bumpers grappled with redistricting in a turbulent time in Arkansas politics. David

Pryor made a decision on whether or not to dam the Strawberry River. Frank White dealt with the controversial issue of religion in schools. Bill Clinton pushed through the issue of testing teachers. Jim Guy Tucker wrestled with a divided legislature in a Medicaid financing crisis. Mike Huckabee walked the line on consolidation of public school districts. Brown examines pivotal moments in the careers of these Arkansas governors, who served over a period of 60 years. When an important decision had to be made, some of the governors he profiles let ambition get the best of them, while others took risks to do the right thing. In his forward to Defining Moments, Mack McLarty, who served as advisor to three presidents of both parties and as White House chief of staff for President Bill Clinton, praises Brown, saying he writes with “the objectivity and intellect of a Supreme Court justice, the scholarship of a political historian, the engaging style of a professional storyteller.” Robert L. Brown has known nine of these governors at least casually, worked for two as an aide, and supported two others either

UVA Lawyer / Spring 2011  61


In print …

financially or through work in the precincts. He is an associate justice of the Arkansas Supreme Court and has been involved with Arkansas politics for 40 years.

In print …

American Factoring Law David Flaxman ’64 with David Tatge and Jeremy Tatge

BNA

The Animal Rights Debate: Abolition or Regulation? Gary L. Francione ’81 and Robert Garner

Columbia University Press The Delaware Trial Handbook David L. Finger ’88 and Louis J. Finger

www.delawgroup.com/dth The Delaware Trial Handbook, a treatise on trial practice and procedure in Delaware state courts, was originally published in 1994. After a change in ownership of the original publishing company, publication of the book ceased, and the copyright transferred to David Finger after his father’s death. Finger has updated The Delaware Trial Handbook and has made it available for free online at www. delawgroup.com/dth. The handbook offers novices and experienced attorneys alike invaluable information concerning procedural issues that arise during a trial. It includes coverage on the role of the attorney, pre-trial motions, selection of juries, different types of evidence, rules of evidence, order and burden of proof, opening and closing arguments, methods of examining witnesses, privileged communications and hearsay, measures of damages, jury instructions, verdicts, post-trial motions, and other topics as well. The 500-page book is annotated throughout with citations to judicial rulings in the State of Delaware. David Finger is a partner with Finger & Slanina in Wilmington.

62  UVA Lawyer / Spring 2011

This is the first comprehensive treatise on factoring law in America. It offers a detailed, practical analysis of legal and business issues faced by factors, their clients, account debtors, guarantors, third-party lenders, and taxation authorities. American Factoring Law is unrivalled in its coverage and analysis of asset-based lending and commercial finance. “Factoring is one of those things that most commercial lawyers know a little about,” begins the foreword. “The problem is that a little knowledge is a dangerous thing.” The authors, experts in the field, provide an excellent reference, a comprehensive look at factoring from its historical development to its use in tax planning. American Factoring Law presents an indepth analysis of the relationship between factoring and the Uniform Commercial Code, an explanation of the concept of security, detailed checklists on due diligence, and discussion of circumstances in which factors can exercise their own discretion. Other topics include credit risk and variations of factoring arrangements, from non-recourse to partial non-recourse to partial recourse to full recourse, to split risk, discussion of fees, even bankruptcy of clients or factors themselves. Armed with extensive knowledge and experience in factoring matters, the authors are nevertheless able to explain the ins and outs of the complex subject in a clearly comprehensible way. David Flaxman is general counsel of Rosenthal & Rosenthal, Inc., commercial old-line factors in New York City, founded in 1938.

In his latest book, Gary L. Francione speaks out about his abolitionist approach to animal rights: as long as animals are property, laws and industry practices requiring humane treatment will never provide meaningful protection. He maintains that there is no moral justification for using them for our own purposes. Francione’s coauthor, Robert Garner, defends a protectionist or welfare approach. He argues for animal rights that work toward

minimizing or eliminating animal suffering. He maintains that even though the traditional animal welfare ethic is philosophically flawed, it can contribute in a meaningful way to achieving animal rights ends. Each of the debaters delves into the moral status of non-human animals and the pros and cons of animal welfare reform. In their debate on the animal protection movement in the U.S. and abroad, Francione and Garner assess organizations such as PETA (People for the Ethical Treatment of Animals) that support improving the methods of animal slaughter. They also discuss American and European laws and

campaigns from both the animal rights and animal welfare perspectives. “This is a subject of extremely heated debate in animal studies and society at large, and Gary L. Francione and Robert Garner address it as no others can,” notes Gary Steiner, professor of philosophy at Bucknell University. Gary Francione is distinguished professor of law and Nicholas deB. Katzenbach Scholar of Law and Philosophy at Rutgers University School of Law-Newark.

“Thorough yet succinct, Justice in Blue and Gray is the best book so far to bring together all the legal conflicts that shaped the Civil War,” writes Michael Vorenberg, Brown University. Stephen C. Neff is Reader in Public International Law at the Edinburgh Law School.

food-borne illness litigation practice group. He has substantial mass tort and class action litigation experience and has argued before the Virginia Supreme Court and the U.S. Court of Appeals for the 4th Circuit.

Justice in Blue and Gray: A Legal History of the Civil War Stephen C. Neff ’76

Food Safety Law

Harvard University Press

James F. Neale ’98 and Angela M. Spivey

Law Journal Press As many as 76 million food-borne illnesses are recorded in the United States each year, and the mass production of food, widespread distribution, and new ways of tracking outbreaks have led to unprecedented litigation. Food Safety Law is the definitive guide to this complex and rapidly growing area, a reference source to navigate the many agencies, statutes, regulations, and case law involved. Food Safety Law delves into complex administrative areas, concentrating most on the FDA and USDA. From prevention and compliance to an outbreak and resulting litigation, the book takes readers through key topics, including: food safety threats, inspections, foreign objects in food, detection of outbreaks, recall strategies, causes of action and defenses, proving causation, insurance coverage, labeling requirements, and the latest legal issues as well, including, among others, obesity, cloning, and bioengineering. James F. Neale is a partner with McGuireWoods in Charlottesville, where he is cochair of the firm’s

Of all wars throughout history, none equals the Civil War in the role played by law and the number of legal issues and disputes decided in courts. In Justice in Blue and Gray: A Legal History of the Civil War, Stephen C. Neff offers the first comprehensive study of the array of legal issues that arose from America’s deadliest war. Many of these— sovereignty, civil liberties, pardons and amnesty, detention, the limits of executive powers—are just as relevant today. Justice in Blue and Gray delves into the most fundamental questions, such as the lawfulness of secession: was the Civil War a war in the true legal sense (the Confederate side thought so) or an exercise in law enforcement (the North thought so). The book also goes into less well-known legal aspects of the conflict—the use of the socalled “iron-clad” oath in which people had to swear not only to their present and future loyalty but also that they had always been loyal. Under such an oath many could commit perjury and be prosecuted for such. The book goes beyond the Civil War period to show how legal systems are tested in times of crisis. “Law is a constantly living, evolving subject,” writes Neff, “with the past gliding its way into the present (and the future) with a silence that is as deceptive as it is inexorable. Many—in fact virtually all— of the issues that faced the policy-makers of the 1860s are still with us today, in a more or less recognizable form.”

Social Innovation, Inc.: 5 strategies for Driving Business Growth Through Social Change Jason Saul ’96

Jossey-Bass Social Innovation, Inc. is not about corporations doing good for the sake of doing good. It’s about a new era in which corporations profit from social change. “The simple truth is that corporations don’t have a conscience, only people do. If we want to motivate business to solve social problems, we have to start from the assumption that companies

will only ever care about the bottom line.” The key is to find creative means of combining social change with market forces.

UVA Lawyer / Spring 2011  63


In print …

Social innovation requires solving problems through business strategy, not philanthropy and compliance. Saul argues that current standards for labeling a company as “socially responsible” are flimsy at best. Saul gives practical examples from the field to show the way GE, Travelers, Wellpoint, and Wal-Mart use social innovation to revolutionize the very way we think of the role of corporations in society. He details five strategies for social innovation, offering step-by-step guidance for how to get started, and makes a clear case for how social values can drive business strategy to tap one of the greatest remaining business opportunities. Jason Saul is on the faculty of Northwestern University’s Kellogg School of Management, where he teaches corporate social responsibility and non-profit management. He is founder and CEO of Mission Measurement, a data-driven strategy consulting firm that helps public sector, non-profits, and corporations measure and improve their social impact.

The End of Fundraising: Raise More Money by Selling Your Impact Jason Saul ’96

Jossey-Bass Why does it cost nonprofits on average $20 to raise $100, while it costs companies only $4? The answer, says Jason Saul, is that we need to raise money from sources that have a real stake in the results. He wrote The End of Fundraising for executives and fundraisers, board members and funders, academics and practitioners, graduate students and undergrads, socially conscious thinkers and hard-nosed business people. Traditional fundraising depends on the unpredictable donations of people whose reward is the warm, fuzzy feeling they get

64  UVA Lawyer / Spring 2011

In print …

from their philanthropy. No one has to donate, so if they don’t feel like donating, they won’t. In the traditional model, non-profits have no leverage, explains Saul. In The End of Fundraising, he shows non-profits how to stop rattling their cups and start marketing their impact. With 15 years of experience advising the world’s leading non-profits, foundations, and corporations, Saul has come up with the formula that makes it possible for non-profits to attain reliable financial sustainability. The End of Fundraising is a guidebook for professionals in the world of non-profits for how to understand the role of social change in today’s economy; get across the value of impact in a compelling way; identify potential sources of funding; and create dynamic, persuasive pitches to audiences. The book includes all the tips needed to frame and market a non-profit organization’s impact and step-by-step guidance for creating dynamic new opportunities with potential funders. Jason Saul is on the faculty of Northwestern University’s Kellogg School of Management, where he teaches corporate social responsibility and nonprofit management. He is founder and CEO of Mission Measurement, a data-driven strategy consulting firm that helps public sector, non-profits, and corporations measure and improve their social impact.

Five Big Mountains: A Regular Guy’s Guide to Climbing Orizaba, Elbrus, Kilimanjaro, Aconcagua, and Vinson David Schaeffer ’81

Mercer University Press A gloveless hand going numb in a frigid wind at 17,000 feet, crampons coming loose on a vertical climb—all in a day’s work if you

he writes, “my head and my soul were still blowing in the winds high up in the Andes.” Schaeffer never sees a snow-capped mountain without wondering if he could make it to the top. But, he writes, “I’m a husband, father, and lawyer first, and a mountain climber on the side.” He offers practical advice for would-be climbers: plan the climb carefully, do your homework, acquire the right equipment, train well, and find an experienced guide. He also recommends taking on such adventures before you get married. His wife doesn’t stand in the way of his mountain quests, but he decided that Everest and Denali were just too risky to attempt. David Schaeffer is a partner with Chilivis, Cochran, Larkins & Bever in Atlanta, Ga. want to make it to the summit of one of the world’s highest peaks. The author, who dubs himself a “somewhat crazy, regular guy,” balances his legal career with challenging climbing expeditions and shares the thrill (including close calls) and exhilaration of mountain climbing. David Schaeffer climbed as a child, but his real climbing quest began when he climbed Mt. Whitney, at 14,494 feet the highest peak in the continental U.S. He and his brothers slogged their way up 97 switchbacks, with Boy Scouts and a few octogenarians passing them by, but they made it to the summit. Schaeffer was hooked, and decided to seek a bigger challenge. In the next eight years he made five major climbs. His first high-altitude climb was Orizaba, a steep, glaciated Mexican volcano. Then he conquered four of the Seven Summits, the highest peaks on each of the continents: Elbrus (Europe), Kilimanjaro (Africa), Aconcagua (South America), and Vinson (Antarctica). His candid narrative describes each journey in detail—the danger, the passing doubts, the triumphs. He also reflects on the challenge of re-entry into everyday life each time he returns. He expected the warmth of coming home to his wife and children in Atlanta, but there were also odd after-effects. For days after returning from Aconcagua,

Fiction

mutilated bodies of his victims at religious sites throughout Manhattan. On the trail of the killer, Alex discovers a bizarre link between martial arts, fist fighting, and worship, just one of the fascinating threads of behind-the-scenes religious history discovered by Linda Fairstein in her background research for Silent Mercy. At St. John’s, Alex and her longtime sidekick, NYPD homicide detective Mike Chapman, study six magnificent stained glass windows originally meant for another chapel, when they get an insight into the mind of the killer and a clue to where he might strike next. For two decades Linda Fairstein was Chief of the Sex Crimes Unit for the Manhattan District Attorney’s office. In that position she became a legal expert on crimes of sexual assault and domestic violence. For her 13th novel, Fairstein draws on the rich history and architecture of New York City, which, as always, provides a fascinating backdrop for her thrillers.

Silent Mercy Linda Fairstein ’72

Falcon Seven

Dutton

James W. Huston ’84

St. Martin’s On the opening pages of Silent Mercy, New York City Assistant District Attorney for Sex Crimes Alex Cooper scrambles to get to a fire on the steps of Harlem’s Mount Neboh Baptist Church at 114th Street and Seventh Avenue. She finds the body of a woman, brutally disfigured and set aflame. Why on the steps of a church? Did religion play a part in this and in the string of homicides at other churches throughout the city? Alex’s race to learn about the role of women in different religions and their institutions throughout New York leads her to St. John the Divine, Old St. Patrick’s Cathedral, and other places of worship as the serial killer makes his moves, leaving the

Several years ago, President Bush signed a bill authorizing the president of the United States to use whatever means necessary to extract Americans being held by the International Criminal Court. James Huston wondered what would happen if the ICC charged Americans with war crimes and the president had to decide whether to use the power claimed in the controversial act. The result is Falcon Seven, his latest thought-provoking thriller. The plot unfolds as two Navy F/A-18

pilots, intending to bomb a meeting between al-Qaeda and Taliban leaders in Pakistan, mistakenly hit innocent civilians instead. Their plane is shot down and the flyers are secretly taken to The Hague in the Netherlands, where they are charged with war crimes.

The National Security Council assigns Jack Caskey, a criminal defense lawyer and former Navy SEAL, to defend the pilots. He travels to Pakistan on a dangerous mission to find witnesses. At the same time, the NSC wants President Barack Obama to use a little-known act that authorizes the use of force to extract Americans held by the ICC. At first Obama gives a special ops team the go-ahead, but changes his mind and cooperates with the ICC. Incensed at this turn of events, Caskey begins his defense but works behind the scenes to get the men free before they are imprisoned indefinitely. High drama in the courtroom and forays into the world of international intrigue make Falcon Seven a compelling read. “Huston provides an intriguing look at international law, current American policies, and modern war,” notes Publishers Weekly. James Huston, a former F-14 pilot, graduate of TOPGUN, and experienced trial lawyer.

UVA Lawyer / Spring 2011  65


Opinion

The Special Challenges of Mental Health Care Reform Richard J. Bonnie ’69

O

ne in four adults in the United States experiences a diagnosable mental disorder in a given year, and about 6% have serious, chronic mental illnesses, such as bipolar illness or schizophrenia. One in ten children has a serious emotional disorder. When these conditions are untreated or inadequately treated, they exact huge social costs in emergency interventions, hospitalization, social services; distressingly, large numbers of people with acute mental illness are being caught up in the criminal justice system. The stresses of coping with the symptoms of these disorders cause tremendous suffering not only for the troubled individuals but also for their families and communities. Use of alcohol or other drugs can exacerbate the symptoms of mental illness and this can increase the risk of violence (even though people with mental illness are not otherwise significantly more likely to be violent than other people). One government commission after another has urged states and localities to establish a stable infrastructure for providing services and supports to help people with serious mental illness cope with and recover from their conditions and to ameliorate the effects of crises when they arise. Unfortunately, however, many states and localities have not created or adequately funded this safety net of mental health services. Epidemiological studies show that at any given time, only half of the people who need treatment services for serious mental illness are receiving them. Virginia’s Commission on Mental Health Law Reform found that 40% of the people evaluated for mental health emergencies in June 2007 were uninsured. This number is probably higher now. Poor access to mental health services is especially troubling for young adults exposed to the stresses of schooling, financial need, unemployment, military deployment and re-entry, and parenting. Many are especially susceptible to acute disorder due to underlying vulnerabilities and substance abuse, which peaks in prevalence at this age. The problems being faced by veterans of the wars in Iraq and Afghanistan have received attention in the media, but many aspects of the problem have been overlooked. To take one highly

pertinent example, young adult students in the nation’s community colleges are more likely to be uninsured or underinsured than their peers in the workplace or in four-year colleges, which means they are less likely to be receiving mental health treatment, even though their need for these services may be comparatively higher than it is among their peers. Although no one can know for sure, greater mental health counseling capacity at the Pima Community College or better linkages between the college and the county’s mental health services agency might have increased the likelihood that Jared Loughner would have been referred for and received the services he needed before the tragic shootings in Tucson on January 8. Unfortunately, the already tattered safety net of public mental health services (typically funded by state general fund dollars) is fraying even more in the aftermath of the recent recession. With the disappearance of federal stimulus money, states have cut more than two billion dollars from their mental health budgets over the last two years. More than one-quarter of the states have cut their mental health budgets by at least ten percent. Meanwhile, as Medicaid enrollment and Medicaid costs continue to rise, state after state is curtailing projected Medicaid expenditures as well as direct state funding for public mental health services. Already lengthy waiting lists are growing longer. Housing and community support services for chronically ill patients are also scarce. All of this inevitably increases the pressure on the emergency services system, hospitals and jails—and heightens the risk of tragedy. All of us, collectively, pay the price for untreated mental illness. About this, there can be no doubt. A stronger, more effective system for delivering mental health services to people who lack adequate insurance is sorely needed. How might the Patient Protection and Affordable Care Act (ACA) affect this bleak picture? For one thing, Congress has required insurance companies to cover mental illness and substance abuse disorders on the same terms as medical conditions. That “parity” law went into effect in 2010, and began to address the problem of “underinsurance” for mental illness even among families with

All of us,

collectively, pay the price

for untreated

mental illness.

About this,

there can be no doubt.

UVA Lawyer / Spring 2011  67


Opinion …

health insurance. The ACA extends the parity requirement to the subsidized insurance plans that will be sold on state-run exchanges beginning in 2014. This could make a huge difference, as will the expansion of Medicaid to cover people who are poor but able to work. The number of people needing mental health treatment who are uninsured should decrease markedly. However, many people, including undocumented immigrants, will still be uninsured after these changes go into effect, and many people with chronic mental illness need support services that are not covered by health insurance (although many of them are covered by Medicaid). Thus, a strong publicly funded safety net for crisis intervention services and outpatient mental health services and supports will still be needed even after the ACA is fully implemented. Unless it is repealed or substantially modified, the ACA is likely to increase access to care for people with mental illness. However, to achieve a major increase in treatment utilization (and in public health), non-financial barriers to treatment participation must also be removed, including the stigma and discomfort that deter people in need of services from seeking them while making family members and friends fearful and reluctant to intervene. Much can be learned

from the efforts that have been undertaken by numerous grassroots organizations to promote public education and outreach on the nation’s residential campuses since the Virginia Tech tragedy in April 2007. In addition, desired treatment outcomes are now impeded by a fragmented delivery system that segregates medical care from mental health care. In sum, the ACA takes an important step forward in increasing access to mental health care, but increased treatment participation and better outcomes will require a transformation of the delivery system to bring mental health care within the mainstream of an integrated, patient-centered system of care.

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Richard J. Bonnie ’69 is Harrison Foundation Professor of Law and Medicine, Professor of Psychiatry and Neurobehavioral Sciences, Professor of Public Policy and Director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. Since 2006, he has served as Chair of Virginia’s Commission on Mental Health Law Reform.

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On the back cover: Protesters against President Barack Obama’s health care plan cheer at a rally at Lincoln Park in Grand Junction, Colo. (AP Photo/Ed Andrieski)

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