UVA Lawyer Spring 2012

The University of Virginia School of Law

Spring 2012

Citizens United

“If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” —Thomas Jefferson

Upcoming Alumni Events September 19

D.C. Young Alumni W Hotel, Studio 1

September 27

Norfolk, Va., Reception Towne Pointe Club

October 3

N.Y.C. Young Alumni TBD

October 4

Philadelphia Alumni Luncheon R2L

October 18

Chicago Alumni Reception Westin Chicago River North

November 14

D.C. Alumni Reception Metropolitan Club

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

from the dean Paul G. Mahoney …

Campaign Finance Debate In November 1975, Ralph K. Winter, Jr. (who would later be appointed to the 2nd Circuit and for whom I was privileged to clerk) argued before the Supreme Court for the appellant, Senator James Buckley, in Buckley v. Valeo. Winter began his First Amendment challenge to the Federal Election Campaign Act’s expenditure and contribution limits in what might seem an odd place. He brought to the Court’s attention an obscure provision exempting from the expenditure limits the cost of preparing materials sent “under the frank.” The effect of the provision, he noted, was to give incumbent members of Congress the right to spend funds without limit to communicate with constituents on matters of public concern while limiting the ability of a challenger to communicate with the same voters on the same issues.

By arguing that the statute facially discriminated against certain speakers, Winter connected the question of the FECA’s constitutionality to that of its uneven treatment of incumbents and challengers. He also identified ways in which the statute would advantage candidates nominated by a party over those running as independents and advantage established advocacy organizations over those created to advocate for a particular issue.

One strand of the intellectual (as opposed to the political) debate over the desirability of campaign finance reform has largely followed the script set by that day’s argument. Opponents of campaign finance regulation argue that because such regulation is enacted by incumbents, it is inevitable that the drafters will take their own interests into account and put greater limits on their challengers’ speech than on their own. Proponents argue that an unregulated system creates still greater ills by discriminating in favor of the corrupt or opportunistic candidate willing to privilege the interests of donors over those of the public.

The conversation with Bob Bauer ’76 and Trevor Potter ’82 in this issue fits into that strand of the debate. Bauer and Potter, as readers of the UVA Lawyer know, are two of the

From the Dean …

By arguing that the statute facially discriminated against certain speakers, Winter connected

most experienced and respected political law practitioners in the nation.

Many of their observations about the Citizens United case concern the details of modern campaign finance and its regulation. They discuss the likely impact of various forms of regulation on the marketplace in political ideas. In that sense, the discussion is very much in the spirit of the Buckley argument.

the question of the FECA’s constitutionality

A separate strand of the debate puts aside the practical effect of campaign finance regulation and contends that an answer to its constitutionality can be found in bedrock First Amendment principles.

Professor Lillian BeVier’s essay is a thoughtful example. As she notes,

to that of its

judges and scholars have long identified the prevention of government

uneven treatment

interference with political speech as the core of the First Amendment.

of incumbents and challengers.

Proponents of regulating campaign finance argue that spending is not speech. Professor BeVier and others would respond that any effective form of speech is preceded by an expenditure, if only the purchase of paper and pen, and a clever draftsman can therefore turn any ban on speech into a ban on spending money to engage in that speech.

The rejoinder, according to Professor Deborah Hellman, who will join our faculty next year, is that spending money is a vital component of many constitutional rights but we do not allow that argument to void regulation generally. Proponents also draw a sharp line between individual and corporate speech. Opponents note that much, if not most, political speech today comes from organizations rather than individuals. Courts have usually looked askance at paternalistic arguments that voters need to be shielded against particular types of speech. The point has particular relevance for us as it stems directly from Jefferson’s argument that “errors of opinion may be tolerated where reason is left free to combat it.”

I hope you enjoy reading about the campaign finance debate and the role our alumni and faculty have played in it. n

2 UVA Lawyer / spring 2012

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Departments

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Arthur Rackham

From the Dean

Campaign Finance Debate

© Lebrecht Authors/Lebrecht Music and Arts/Corbis/AP Im

The University of Virginia School of Law | Spring 2012

24 35

38

Law School News Features

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Faculty News & Briefs 49

Class Notes 70

In Memoriam

20 Citizens United: First Amendment Protection or Pandora’s Box?

24 A Conversation with Bob Bauer ’76 and Trevor Potter ’82

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In Print

Citizens United Vindicates Fundamental First Amendment Principles

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Opinion

Lower the Licensing Barriers So We May Serve

Is Citizens United an “historic” decision?

Some Answers from a Constitutional Perspective

38 Cover: On the eve of the second anniversary of the Citizens United ruling, activists with the Other 98% and Backbone Campaign put giant light projections on the Supreme Court building.

Spring 2012 Vol. 36, No. 1

The Supreme Court’s Shift Away from Protecting Voters to Promoting Free Expression

Editor Cullen Couch Associate Editor Denise Forster Contributing Writer Rebecca Barns Design Roseberries Photography Tom Cogill, warren craghead, brian mcNeill, Eric Williamson, Mary Wood

Letter to the Editor

Editor’s Note: The following letter from Tim Heaphy ’91, Neil MacBride ’92, Joyce Vance ’85, and Brendan Johnson ’01, U.S. Attorneys in Virginia, Alabama, and South Dakota, respectively, is in response to UVA Lawyer’s coverage of criminal justice in the United States.

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s United States Attorneys, we work to ensure that justice is done in federal courts across the country. The work of our offices gives us a unique and informed perspective on the effectiveness of the criminal justice system. We are concerned that alumni and other readers of the Fall 2011 edition of UVA Lawyer will get the mistaken impression that the system is afflicted with repeated instances of professional misconduct and unfair, one-sided rules of procedure, all of which lead to unjust outcomes. We write with a contrary perspective—one much more optimistic about the state of criminal justice in this country.

The cover of the Fall 2011 magazine sets the tone for its contents, as it bears the title Criminal “Justice.” The quotation marks surrounding the second word reflect the magazine’s central thesis— the suggestion that true criminal justice in America does not exist. The four articles included in the magazine’s contents reinforce the notion that our nation’s system of investigating crimes and adjudicating criminal charges is fundamentally unjust.

The first article, “Criminal ‘Justice’: Demanding Certainty in an Uncertain World” is a survey of various issues of current practice, from police procedures to eyewitness identification to plea bargaining to rates of incarceration. The article consistently suggests that the system is populated by unethical lawyers who produce unjust outcomes. It includes statements as baldly cynical as “[a]nyone who spends a day in criminal court has to wonder how the system can work at all,” which reflects the article’s central thesis of system dysfunction.

The next several articles in the magazine do little to counteract the suggestion that the system is broken. We read about the unfortunate experience of a junior public defender who recounts instances of lengthy pretrial delays and unduly harsh sentences imposed upon her clients. We also read about the work of the Law School’s Innocence Project, which recently won a state habeas case in the Eastern District of Virginia based on allegations of prosecutorial misconduct. The issue concludes with an essay by a criminal law professor who suggests that police have unfettered discretion to abuse people of color given the Supreme Court’s tolerance of detention for minor traffic offenses.

We don’t question the validity of the specific concerns expressed in these articles. As our boss Attorney General Eric H. Holder, Jr. has observed, “[w]hile I believe this [criminal justice] system is worthy of praise, I also recognize that it is not without problems.” Mistakes do occur within the system, and its practices and rules are worthy of continual reexamination. Given the liberty interests at stake in criminal cases, we must and do strive to improve its procedures and ensure its effectiveness. Law schools have a role to play in that process of critical reevaluation.

Our objection to the magazine is the absence from its pages of any meaningful counterpoint to the consistent skepticism about the current system. While the issue does include quotes from several current prosecutors, their perspectives are barely audible in the cacophony of harsh criticism of the criminal justice process. The single article about prosecutors is a short human interest piece about the Law School’s Prosecution Clinic, which highlights the role that clinic experience played in the job searches of the featured young alumni. There is no thoughtful narrative of the practice of a

4 UVA Lawyer / spring 2012

prosecutor to contrast the perspective of the young public defender, and there is no discussion of the issues facing prosecutors and their important role in the pursuit of justice.

Where is the perspective of the victim? There is literally no reference at all to crime victims and the voice they deserve within the process. What about the judges, who would be far more qualified to opine on the current state of criminal justice in America? And what of agents and investigators, who work to gather facts and bring forth actual evidence, rather than opinion and conjecture?

We hear none of those voices, which severely undercuts the reliability of what purports to be a thoughtful survey of criminal justice in America.

Our view from the trenches of the criminal justice system is much more optimistic than that presented by the magazine. The process by which we investigate criminal offenses and adjudicate criminal charges in this country is far from broken. It is characterized by procedural rules that are scrupulously fair and consistently enforced. It is perpetuated by a range of hard-working, ethical professionals on all sides who work hard every day to ensure that justice is achieved in ways large and small. The outcomes of the system are overwhelmingly accurate and reliable. Indeed, we agree with Professor Stuntz’s conclusion in his final book that prosecution strategies of the last few decades have led to steeply declining urban crime rates, in turn making vulnerable communities safer.

To be sure, we need to learn from the aberrational mistakes and endeavor to make the system more fair, humane, and just. We believe that process unfolds every day in American courtrooms, and we will do our part to ensure that the evolutionary arc of criminal justice continues to tilt toward the good. This obligation has been reinforced by Attorney General Holder, who has indicated that “we, as stewards of our nation’s criminal justice system … all share a responsibility to ensure the fairness and integrity of that system.”

The Fall 2011 magazine is dedicated to the memory of Professor William Stuntz, who died too young earlier this year. Several of us were fortunate enough to learn from Professor Stuntz during his tenure at the Law School. While Professor Stuntz was known for being a skeptic, his conclusions were extremely deliberate and thoughtful. Indeed, all of us learned that every legal problem has two sides, and that we are most effective as advocates when we understand and respect the arguments of our adversaries. The magazine devoted to Professor Stuntz shrinks from his tradition of careful deliberation and fails to provide any meaningful contrary perspective from that reflected in its sarcastic title.

We hope alumni, faculty, students and others who care about criminal justice in this country will consider our contrary views and skepticism of the perspective expressed in the UVA Lawyer magazine. We look forward to working with the Law School and others interested in a serious and productive discussion of system effectiveness. Like the Attorney General, we share the goal of perfecting the criminal process and ensuring that it provides real justice for all.

Our view from the trenches of the criminal

justice system is much more optimistic than that presented by the magazine.

Timothy J. Heaphy ’91 United States Attorney Western District of Virginia

Brendan V. Johnson ’01 United States Attorney District of South Dakota

Neil H. MacBride ’92 United States Attorney Eastern District of Virginia

Joyce White Vance ’85 United States Attorney Northern District of Alabama

UVA Lawyer / spring 2012 5

Law School News

Rare books | Brian McNeill

Library Hunts for Books Handpicked by Thomas Jefferson

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aw School librarians are working to recreate a collection of rare law books­—some dating back to the 1500s— that Thomas Jefferson personally selected for the university’s library.

The titles of the law books are listed in the “Catalogue of the Library of the Univer-

“If you look at the titles he picked, you see the classicist, lawyer, philosopher, politician, and historian that he was. These books helped shape the man.” sity of Virginia,” a list compiled in 1828 by UVA’s second librarian, William Wertenbaker, who relied on a manuscript prepared

by Jefferson.

Taylor Fitchett, director of the Arthur J. Morris Law Library, said the collection of the books listed in the 1828 catalogue provides scholars with valuable insight into the mind of the university’s founder, whose 269th birthday was celebrated April 13.

“If you look at the titles he picked, you see the classicist, lawyer, philosopher, politician, and historian that he was,” she said. “These books helped shape the man.

6 UVA Lawyer / spring 2012

Those doing research on Jefferson ask to see the particular edition of a work that he owned or that the writers of the Constitution would have used, to further their understanding of him and his colleagues.”

To date, the library has acquired 317 of the books and is continuing to hunt down the remaining 58.

“Some of these books are hard to find or very expensive, but little by little, over a period of 40 years, we have been trying to acquire these books,” said Cecilia Brown, a special collections archivist. “Jefferson wanted to have everything from [books] explaining canon law to English law to maritime law and English reports. We try to get the edition that he specified. When something comes onto the market, we try to buy it.”

The 1828 catalogue collection is stored in the law library’s rare book room, located on the third floor, just past a display case

filled with various Law students’ artifacts from the 1800s and another containing U.S. Supreme Court Chief Justice Earl Warren’s custom-made 16-gauge shotgun.

Many of the law books originally in the university’s library were lost in the 1895 fire that consumed the Rotunda. “We would love to have all the books that Jefferson said we should have,” Brown said. “Many of them were here until the fire.”

The law library’s most recent acquisition for the collection, the 1739 text “Jus parliamentarium; or, The ancient power, jurisdiction, rights and liberties, of the most high court of Parliament, revived and asserted,” was purchased in October for $750 from Meyer Boswell Books, a San Francisco-based dealer specializing in antiquarian law books.

In addition to buying the books when they come onto the market, the law library also picked up a significant portion of its 1828 catalogue collection from a transfer from the university’s Alderman Library in 1996.

Law School News …

Also, Baltimore lawyer, E. Nicholson Gault Jr. ’71, donated a number of the books, including 11 titles in 2011. Gault, who has been collecting early English law books since his first year in law school, said Professor Hardy Dillard’s common law class sparked his fascination.

“It is an affliction that I have,” he said, laughing. “To call it a hobby would be a disservice. I spend literally thousands of hours a year looking, researching, chasing, tracing, and so on these books.” Gault said the library’s effort to collect all of the books in the 1828 catalogue could allow scholars to one day “back-to-front, inside-out, glue it all together and understand how Mr. Jefferson’s mind worked.”

“It’s a way of understanding the way his brain operated, what he appreciated, what he put stock in, in the writings of another person,” he said. “Smarter people than I could size up these works, their content, their authors, their philosophy—everything about them, everything they have to say— and reconstruct the legal thought process of Mr. Jefferson. Why did he single these books out?”

Gault added that he would love to know why Jefferson chose one specific volume of a law book and not another. “A number of these books, he specifies very early imprints, from the 1500s for example, where there are literally scores of editions through the 1600s and the 1700s,” he said. “In a lot of these cases, he could have included much more recent editions. In many others, he could have had older editions. Why the mish-mash? Why the potpourri of earlier and later imprints?”

Jefferson might have seen something notable in that specific edition, Gault said, or maybe one particular volume over another was simply what was handy when Jefferson drew up his list.

Gault praised the law library’s project, likening it in a certain sense to the antiquities collections of J.P. Morgan or Andrew Carnegie. “What a gift they’ve made to the modern world by collecting what they collected when they did,” he said. n

judicial discretion | Eric Williamson

Judge Known for Federal Sentencing Reforms Says More Progress Needed

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.S. Judge Raymond A. Jackson ’73, whose district court decision in a drug case led to a U.S. Supreme Court ruling clarifying how judges may impose sentences for crimes involving crack cocaine, said that statutory federal sentencing requirements remain a problem for judges.

Jackson, who was appointed by President Clinton to the U.S. District Court for the Eastern District of Virginia in 1993, explained the Kimbrough decision, which affirmed district judges’ right to exercise discretion in drug cases beyond federal sentencing guidelines, as

well as some of the case history that preceded that 2007 Supreme Court ruling.

He said anti-crime legislation that Congress passed in the 1980s robbed judges of judicial discretion. Improvements only came recently, Jackson said. In Kimbrough and other decisions in the past decade, he said, “the Supreme Court was attempting to give federal judges the authority they need to do one of the primary things they’re responsible for doing, and that’s to sentence people fairly. But the problem is this is still a work in progress.”

But consecutive sentences and mandatory minimums continue to be a problem, he said. “They circumscribe the court’s authority in more cases than you will ever suspect,” he said.

The Comprehensive Crime Control Act of 1984 (and its related Sentencing Reform Act) abolished the federal parole system, established the U.S. Sentencing Commission and moved to increase consistency in federal sentences. Two years later, the AntiDrug Abuse Act of 1986 enacted mandatory minimum sentences for drug offenses.

“The purpose of mandatory minimums is to control the judge,” Jackson said.

U.S. District Court Judge Raymond A. Jackson ’73

UVA Lawyer / spring 2012 7

Law School News …

“It transfers discretion from a seasoned judge to a prosecutor who has no, or little, experience.” The Supreme Court’s 2005 decision in United States v. Booker was the first major decision to restore some power back to judges, Jackson said. In the original sentencing, “the judge found he [Booker, the defendant,] distributed 566 more grams of cocaine than the jury found,” he said.

As a result, Booker received a dramatically increased sentence, which he appealed on Sixth Amendment grounds that he should only be punished based on what the jury found beyond a reasonable doubt.

Booker won, and the Supreme Court decision made the federal sentencing guidelines advisory, not mandatory, while still instructing federal appeals courts to review criminal sentences for “reasonableness.”

Jackson said federal prosecutors feared district judges would “go nuts” following the decision, a fear that turned out to be unfounded. “Every time you impose a sentence, you’re always looking over your shoulder to see that you’ve imposed a sentence that’s not going to get reversed,” he said.

In Jackson’s own lower-court decision for Kimbrough, which went to the Supreme Court two years after Booker, the Supreme Court confirmed specifically that district judges have the right to impose sentences outside of the federal sentencing guidelines for cases related to the possession, distribution, and manufacture of crack cocaine.

Jackson had originally imposed the minimum federal sentence of 15 years, which was still more than what Kimbrough would have received if he had only involved himself with powder cocaine, rather than both crack and powder cocaine.

The 4th U.S. Circuit Court of Appeals vacated the sentence on the grounds that it was unreasonable because it fell outside of the guidelines range, but the Supreme Court upheld the sentence.

“Kimbrough was facing, under the advisory guidelines, 19 to 22 years,” Jackson said.

“The same sentence, had you considered it was powder cocaine, would have been 8 to 8.8 years, and so even with the mandatory

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minimum, we already had what I believed was sufficient.”

Jackson said when a clerk brought him the Supreme Court’s opinion in Kimbrough, he “went old school.” “I went into my chambers, I whipped out a cassette tape, and I threw it in the boom box I had—and I played a bar of the ‘Hallelujah’ chorus! n

Founder’s Day Medal | Brian McNeill

George Mitchell, 2012 Jefferson Medal Recipient, Praises Rule of Law as Key to Free Society

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eorge J. Mitchell, a former U.S. Senate majority leader and peace negotiator in Northern Ireland and the Middle East, received the 2012 Thomas Jefferson Foundation Medal in Law on April 13 as part of the University of Virginia’s Founder’s Day activities.

Mitchell, who spoke at the Law School, described his views on the Middle East peace process, the hyper-partisanship and lack of collegiality among politicians in Washington, and the importance of law and lawyers in the United States.

“Lawyers play a special role in American society in the preservation of liberty and the protection of individual rights,” he said.

“So the education you’re receiving here is important for you individually, but also for the future of our society.”

Speaking on Jefferson’s 269th birthday, Mitchell praised the efforts of the nation’s founders in crafting the Declaration of Independence and the Bill of Rights, and for

achieving independence in self-governance.

“From the very beginning, our ideals distinguished our nation,” he said. “And they instantly, and to this day, continue to appeal to people around the world. Our economic strength and our military power, which have now become overwhelming, are necessary and important. But our ideals are, and always have been, the primary basis of American influence in the world.

No American should ever forget that the United States was a great nation long before it was a great military or economic power.”

American ideals, he said, include sovereignty of the people; primacy of individual liberty; opportunity for every member of society; and an independent judiciary enforcing the rule of law, applied to all citizens and the government.

“There is, of course, a never-ending tension between the preservation of order and the rights of the individual,” he said. “That is especially true in these dangerous times when it can be difficult to find the right balance between collective security and individual liberty.”

Losing sight of ideals and the rule of law, he said, led to the rise of Nazi Germany. “In my lifetime, a great, civilized and cultured nation descended suddenly into the abyss of lawlessness, a lawlessness that resulted in the Holocaust and the deaths of millions of innocent people,” he said. An entire nation was degraded, a whole continent stained.

So, in the final analysis in every society, including ours, it’s the rule of law that stands against that fateful descent.”

Mitchell challenged the students in the audience to work toward making the 21st century an era in which the nation’s ideals and the rule of law are upheld. “The 21st century may be like so many in history—a time of war, of injustice, of oppression, of famine,” he said. “But it could also be a time when the dominant power uses its strength carefully and commits its people and its prestige to a great and noble vision—a world largely at peace, with the rule of law and freedom, education, opportunity, and hopefully prosperity, extending to more and

more people in our country and throughout the world.”

A Democrat, Mitchell entered the Senate in 1980 and served as Senate majority leader from 1989 until 1995. He led the 1990 reauthorization of the Clean Air Act, wrote the first national oil spill prevention and cleanup law, led the Senate in its passage of the first child care bill, and was principal author of the low-income housing tax credit program. He played a key role in the passage of the Americans with Disabilities Act, as well as the ratification of the North American Free Trade Agreement and creation of the World Trade Organization.

Prior to his appointment to the U.S. Senate in 1980, Mitchell served as a federal judge in Maine. That position, he said, was the only job he ever held that had any actual power. “The majority leader of the Senate only has the opportunity to go around and beg people to do things that they ought to be doing without being asked,” he said.

“When I chaired the peace talks in Northern Ireland and the Middle East, I had no power to tell anybody to do anything. But when I was a federal judge, I had the au-

“There is, of course, a never-ending tension between the preservation of order and the rights of the individual.”

thority to order people to do things, and I’m pleased to tell you that, in every instance, they followed it to the letter. I really loved that part of the job.”

His favorite part of being a judge, he said, was the opportunity to conduct naturalization ceremonies, at which he would administer to immigrants the oath of allegiance to the United States and make them American citizens. Mitchell’s mother was an immigrant from Lebanon and his father was the orphan son of Irish immigrants.

Courtesy UVA News Services/Dan Addison

Law School News …

George Mitchell, recipient of the 2012 Thomas Jefferson Foundation Medal in Law, was U.S. Senate majority leader from 1989 until 1995.

“It was always a very emotional ceremony for me,” he said. “[My parents] had no education. My mother couldn’t read or write. She worked nights in a textile mill. My father was a janitor. But because of their efforts, and, more importantly, because of the openness of American society, I, their son, was able to get the education they never had and was able to become the majority leader of the United States Senate.”

After each ceremony, Mitchell said he would always speak with the new citizens and their families, asking them about their fears, their hopes, their dreams and how they came to America. “Most of us are Americans by an accident of birth,” he said “Every one of them is an American by an act of free will, often at great risk and cost to themselves and their families.”

Mitchell told the story of how he once asked a young Asian man who had just become a naturalized American citizen why he came to the United States. “He replied in slow and very halting English,” Mitchell said. “’I came,’ he said, ‘because in America everybody has a chance.’” This man, he said, who could barely speak English, was able to summarize the true meaning of the United States in a single sentence.

“America is freedom and opportunity,” he said. “Although we now face very serious challenges at home and abroad, I’m confident that we’ll meet those challenges, as we have before, and emerge a stronger and better nation.” Despite its imperfections, he said, the United States is the “most free, the most open and the most just society in all of history.”

Mitchell, who served as President Barack Obama’s Special Envoy for Middle

UVA Lawyer / spring 2012 9

Law School News …

East Peace from 2009 to 2011, expressed optimism that an agreement will be eventually reached between the Israelis and Palestinians. “While we were not successful in getting a peace agreement in the Middle East in the latest effort, I do believe that it’s very much in the self-interest of both Israelis and Palestinians to conclude their conflict with an agreement and I think that self-interest will be recognized and will prevail, in large part because I think the alternative is more painful.”

Mitchell was also asked if he believes members of Congress will ever be able to put aside their partisanship and start working together. “I don’t think the situation will be improved any time soon, except if some major scandal or unexpected problem occurs that arouses the interest and commitment of the American people,” he said.

Contributing to the problem, he added, is a media environment that pays attention to those politicians who are the most ideological and negative. “Watch the news, who gets on? The most extreme statement.

The most ideological statement. The most negative statement,” he said. “If you’re not extreme, you’re not negative, then it’s like a tree falling in a forest with no one around.

No one hears anything.”

Sponsored jointly by the university and the Thomas Jefferson Foundation, the nonprofit organization that owns and operates Monticello, the annual Thomas Jefferson Foundation awards are conferred during the University’s Founder’s Day celebrations, held around Jefferson’s birthday. In addition to receiving a medal struck for the occasion, recipients attend ceremonies in the Rotunda and a dinner at Monticello.

Mitchell received his award at a ceremony alongside fellow recipients Rafael Moneo (architecture) and Jessica Tuchman Mathews (citizen leadership). n

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Close decisions | Mary Wood

Supreme Court Recognizes Key Role of Plea Bargaining in Criminal Justice System

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wo close decisions in the U.S. Supreme Court this spring could shake up how plea bargains work and secure more rights for defendants, said Law Professor Darryl Brown ’90.

The Court said in 5-to-4 rulings Lafler v. Cooper and Missouri v. Frye that criminal defendants have a constitutional right to effective lawyers during the plea-bargaining process. Justice Anthony M. Kennedy wrote for the majority that that the Sixth Amendment right to counsel extends to plea negotiations because plea bargaining has become so pervasive in the modern criminal justice system.

Professor Darryl Brown ’90

Brown, the O.M. Vicars Professor of Law and an expert in criminal law and criminal procedure, explains the two decisions and how they may change how plea bargaining works: The Supreme Court held in Cooper, in effect, that when a lawyer’s bad advice leads a defendant to turn down a prosecutor’s plea bargain offer that he would have taken if his lawyer had given him competent advice, then the defendant is entitled to that plea bargain. And in Frye, it said the same thing is true if a defendant’s lawyer fails to tell him about a prosecutor’s plea bargain offer at all, so that he never has a chance to accept it.

What’s significant about Frye and Cooper is that the Court recognized for the first time that defendants have a legitimate interest in plea bargain offers that they would have accepted—and that courts would have approved. Previously, all the rules have been concerned with questions such as whether the defendant entered his guilty plea voluntarily, or whether the parties both lived up to the promises each made in the plea agreement.

In recognizing defendants’ interest in plea bargain offers, the Court is in a sense acknowledging reality for the first time: The reality is that defendants get very different

Law School News …

convictions and sentences depending on whether they plead guilty or go to trial, independent of the facts of the case or their moral guilt or anything else.

The dissenters in these cases, and the prosecutors who argued the other side, said that defendants who are convicted in a fair trial have nothing to complain about: They were guilty of the crime, the trial was fair, the long sentence they got was completely lawful. But the fact is that a plea bargain is always going to result in a lesser sentence than a sentence following a “guilty” verdict at trial. There are in a sense two prices for every crime—the plea price and the trial price. Plea bargains are not just an alternative process to trials for reaching the same correct outcome—convicting the guilty.

They are alternative practices that always produce alternate outcomes.

Cooper and Frye state very clearly that defendants do not have a constitutional right to a plea bargain—prosecutors do not have to make plea offers if they don’t want to. Cooper and Frye say simply that, when a prosecutor makes a plea offer, the Constitution protects defendants from losing the chance to accept that offer because his lawyer failed to tell him about it, and gave him incompetent advice that misled him to turn it down on the false hope of winning at trial.

Still, the decisions could be significant.

About 95 percent of all criminal convictions are the result of guilty pleas rather than trials, so prosecutors offer bargains in nearly every case. So, as the majority in Cooper says, plea bargains are not an exception to the criminal justice system; they are the system. Cooper and Frye take another step in defining the minimal things that defense lawyers have to do for the modern-day criminal process to be fair. Criminal process these days is all about pleas. After Cooper and Frye, bad lawyers shouldn’t be the cause of defendants who fail to plead guilty on terms that are determined by prosecutors and judges but still very much in their selfinterest. n

DeMaurice Smith ’89, executive director of the NFL Players Association, spoke at a sports law symposium at the Law School on March 16.

Sports Law | Brian McNeill

NFL Players Association Chief Calls for Better Treatment of Athletes

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thletes should be “good sports” in how they act toward each other, but good sportsmanship should also oblige professional sports organizations to treat their athletes well, National Football League Players Association head DeMaurice Smith ’89 said at the Law School.

“Athlete to athlete, there’s an obligation to be a good sport,” he said. “But I also believe there’s an obligation from, indeed, the sport to the athlete.”

Smith—who led NFL players in 2011 through a 134-day lockout by the league, culminating in a 10-year collective bargaining agreement—was the keynote speaker at a Law School symposium, “The State of Sports Law,” sponsored by the Virginia Sports and Entertainment Law Journal and the Virginia Sports Law Society.

Smith, who was elected the NFL Players Association executive director in 2009, laid out a number of troubling signs that he said indicate a sport is on the wrong track.

First among these, he said, is when athletes are treated as athletes first, and human beings second. “If we start off as viewing the participants in that sport as something less

UVA Lawyer / spring 2012 11

Law School News …

Smith pointed to how NFL players have been treated medically by people who are not doctors. Plus, there are few requirements guaranteeing that players undergo important medical testing on an ongoing basis. “While we have moved tremendously since 2009 on the issue [of] concussions, when we are in a world where there are people who are not medically qualified [making] decisions about whether a player can play, I know we have not arrived at that world where we know that we are engaged and perpetuating a good sport.”

An organization’s level of sportsmanship can be judged in part by how it treats its athletes after they are no longer playing, he said. “If we believe or if we accept any sport, any university, any college, or any governing body “When doctors prescribed Vicodin like the NCAA, that believes it like you would hand out Chiclets to a no longer has an obligation to that person after they are done child, no one thought or wanted to competing in that sport, I know put themselves in a position to say that we have not arrived or have accepted an obligation of being a that’s wrong.” good sport,” he said.

Until last year’s collective bargaining agreement, NFL players were not eligible for post-career health care Prior to the agreement, he said, it was until after they had played for three years, commonly thought that a “football exhe said. Heading into negotiations last year, ception” existed for the players’ medical the league wanted to add two regular season treatment, meaning that the players would games to the current 16-game format. Most be treated in such a way that would best help discussion about the idea focused on what the team, rather than what was best for each the fans thought, he said, and ignored the player. “So when doctors prescribed Vicodin physical toll that the current schedule is like you would hand out Chiclets to a child, already taking on the players’ bodies. no one thought or wanted to put themselves “At every turn, the only discussion in a position to say that’s wrong,” he said. amongst the media, the only discussion Another sign that a sport is on the path amongst the owners, even the only discusto becoming “no longer a good sport” is sion amongst the fans was, what? Well, you when athletes are treated as disposable, know, fans don’t like two preseason games,” Smith said. “The one time that [my temper] he said. “To me, the problem of an 18-game is guaranteed to get kicked off is when they schedule, and worse yet, the paradigm of refer to our men as gladiators,” he said. “I that discussion was that no one pulled back will do my best to twist your head off like to ask the question—except us—what’s a top when you refer to our players as happening to our men under a 16-game gladiators. Because they are not. What is a schedule as it is?” gladiator? A reference to old Rome where Smith said his talk was not motivated people fought to the death for the amuseby the NFL’s ongoing “bounty” scandal, in ment of people who weren’t fighting.” than people, then we have failed in our obligation of ensuring that we are engaged in being a good sport,” he said.

As an example, Smith noted that last year’s collective bargaining agreement required all NFL medical professionals to conform to professional and ethical standards. “Certainly that was a good day for those players who will all become former players,” he said.

“But if it is 2011 and that is the first time in history that it has been codified that [NFL] medical doctors have to obligate themselves to the same federal, state, local, professional, and ethical standards as every other doctor in the country? I think we can all agree that was about 100 years too late.”

12 UVA Lawyer / spring 2012

which players were allegedly rewarded for injuring other players. Rather, he said, his talk was intended to raise questions about how professional athletes and sports in general are perceived.

“I don’t pretend to have any of the answers, but I do believe that our job, or our role, obligates us to push people to ask the right questions,” he said.

Also at the symposium, a panel discussed the realignment of NCAA conferences. The panel featured Christian Dennie, an attorney with Barlow Garsek & Simon; Mark Levinstein, a partner in Williams & Connolly; Michael McCann ’02, professor of law and director of the Sports Law Institute, Vermont Law School; Bernadette McGlade, commissioner, Atlantic 10 Conference; and was moderated by J. Gordon Hylton ’77, a professor Marquette University Law School. n

Faculty Q&A | Brian McNeill

Schauer on Whether There Are (Enough) Political Risks to Breaking the Law

W

hether a policy is legal appears to play only a minor role in the decision-making process of the American public officials who implement it, Law Professor Frederick Schauer writes in a new paper.

In the article, “The Political Risk (If Any) of Breaking the Law,” Schauer suggests that a number of recent examples show how constituents, the media, and others reward public officials for what they consider good policy decisions and sanction them for poor

Law School News …

Professor Frederick Schauer

ones. The policy’s legality, he argues, makes little difference.

In your new paper, you consider whether politicians will obey the law just because it is the law. What did you find?

I have not yet conducted an extensive and systematic study, but numerous examples suggest the possibility that obeying the law­—following the law just because it is the law, and not because you think the law happens to be right as a matter of substance—may be less important to officials and to their constituents than a great deal of popular “rule of law” rhetoric suggests.

In that context, what are some real-world examples that show this pattern of behavior?

The best recent example comes from the bombing of Libya [in 2011]. Because the War Powers Resolution places limits on the ability of the president to involve the United States in “hostilities” without congressional approval, the administration, against the

legal advice of even its own Office of Legal Counsel, claimed that no hostilities were involved because no American soldiers were in danger. This claim was widely mocked as legally implausible by commentators and political figures across the political spectrum, and got some press attention for a day or two. But in the end a bad regime was overthrown and there were no American casualties, and the fact that American involvement was unlawful under American law turned out not to matter.

Things were similar with respect to the disregard by the Bush administration of the constraints of the Foreign Intelligence Surveillance Act, or with respect to the mayors of San Francisco and New Paltz, N.Y., several years ago in performing same-sex marriages in contravention of the law at the time.

People who agree with the substance of an act do not care about its legality, and people who disagree note its illegality only to underscore their substantive disagreement.

Are you really just describing Machiavellian politics?

I don’t think it’s about power for power’s sake. It is about policy and political substance. But the illegality of a substantive policy seems to matter less than many have thought.

Do you think it is necessarily a bad thing that public officials are not always constrained by laws? Why? Obviously there are times when civil disobedience is justified. But if all that matters is the rightness or wrongness of a policy in all cases, then we are losing some sense of why law, as law, is important.

really matter for all citizens, or whether we should do more to make them matter?

Do you think any reforms are needed?

Political figures react to the preferences of their constituents, so official behavior may say something about the inability or unwillingness of the population to worry about law for its own sake. And this suggests that sanctions and coercion may be more important to law than some people think, because when formal sanctions are not available there may be less obedience to law than is often assumed.

Why did you decide to look at this issue?

I’ve been thinking and writing about this from a bunch of different directions for a few years now, perhaps largely as a reaction to a number of public events, such as the ones mentioned above.

How does this paper fit into your larger body of research?

With respect to constitutional law, it is noteworthy that the Constitution, which is supposed to constrain officials, may not do so when there are no penalties, as there are not, typically, with legislators, prosecutors, judges, and presidents. So this research agenda is part of my larger concern with constitutionalism and the conditions for its effectiveness. And in thinking and writing about jurisprudence and the nature of law, I have been writing about the importance to law of coercion, which, surprisingly, goes against the grain of much contemporary jurisprudential thought.

What will you be working on next?

A book titled The Force of Law, [that] will explore exactly these issues, especially the coercion part. n

In looking at this issue, do you draw any larger conclusions about whether laws

UVA Lawyer / spring 2012 13

Law School News …

FIND OTHER

FACULTY Q&As ONLINE

www.law.virginia.edu/html/ news/faculty_qa_archive

Alumni Q&A | Richard Crawford ‘74

Brad Handler on eBay, Founding a Travel Empire, and Luck

George Yin on the State of President Obama’s Tax Reform Proposals

Interview with Brad Handler ’95, former associate general counsel of eBay, co-founder of Exclusive Resorts, LLC, and co-founder and chairman of Inspirato, LLC. Handler established the Law and Technology Initiative Fund in 2000 to support research, scholarship, and entrepreneurial activity at the Law School.

George Cohen on the Financial Meltdown and the ‘Forgotten’ Law of Contracts

How did you decide to go to UVA Law and what attracted you to it?

Kerry Abrams examines Legal Implications of Marriage Fraud

Thomas Nachbar on a New Shift U.S. Detention Policy Kenneth Abraham on How BP Oil Spill Revealed Insurance Gaps Richard Schragger on Debt Crises Facing States, Localities Thomas Hafemeister addresses Omission of Medical Malpractice Reform in Health Care Law

I was working at Apple Computer in Reston, Va., but I’d always wanted to go to law school. I applied to Stanford, Yale, Chicago, and Penn. I told the lawyer for Apple in the Reston office that I hoped I could trust his discretion but that I was thinking of leaving Apple and going to law school. He said, “Oh, that’s great. Where’re you thinking of going?” I gave him the list and he said, “Well, what about Virginia?” He had gone to Virginia himself. I said, “Virginia has a law school?” And he said, “Absolutely. One of the best in the country,” and I said, “Good to know.” So I applied to Virginia and was accepted. Because I’m paying for it myself, once it became clear that I could go in-state, pay a much lower rate, and get as good—or better—an education, it was a very easy decision.

What did you like about your Law School experience and what did you not like about it?

I had a great time at Virginia, and a very different experience from my friends who

14 UVA Lawyer / spring 2012

went to Yale and Harvard and even Stanford. None of them talk about the great time they had at law school. My friends who went to Chicago had a miserable time. They all talked about “surviving” law school. I enjoyed law school even more than I enjoyed undergrad at Penn. Law school was much more fun, much more social, and much more interactive than college.

I liked the respect that the Law School gives to the students in the single-sanction [honor] system and having the ability to take your exams whenever you want and to set your own schedule. They know that you’re going to do the right thing when you take the exam and that for the people who don’t, they’re going to get booted and not get a second chance. I like them pushing down [to the students] that responsibility and personal accountability.

I also liked the approachability of the professors, which is something that my friends at other schools didn’t have. I liked the fact that I could go and ask professors questions and not have to worry about being scheduled in between their five consulting gigs and their appearance on Court TV. They would make time for you and if you didn’t understand, they would help you with it.

What I didn’t particularly like was that technology was not something integrated into the curriculum or embraced by the faculty. I worked on the Newton project at Apple. Newton was iPad Version 0. I brought my Newton with me and I would take notes on it. Nobody else took notes on a computer then. I ended up as the managing editor of the Law Review. I ripped out its computers because they were 10 years old and put in brand-new computers and a network. We even had Internet access. In fact, I remember downloading Mosaic 1.0 via FTP from the Law Review office. The Law School eventually integrated technology into the curriculum and I think now has really embraced the technology.

I was frustrated that there weren’t more classes on business. I took a corporations class, a tax class, and a corporate governance class. But I wanted to learn about

Law School News …

examples in the course. Now, as a consumer of legal services at eBay, Exclusive Resorts, and now at Inspirato, I get really irritated if the law firm sends me someone, or if it’s my own internal resource, who doesn’t know the underlying business. I’m not going to pay for them to learn that.

It’s pretty obvious you were heading in the direction of technology law, but how did you end up at Cooley?

Because Apple doesn’t hire lawyers out of law school, I knew I needed to go to a firm. Cooley, Fenwick, and Wilson Sonsini were among the California firms that interviewed at UVA. Because I was on Law Review, Cooley interviewed me. I had offers from other firms in northern California but ended up at Cooley for a variety of reasons.

Brad Handler ’95

the business world from a business side. It wasn’t easy to take Darden classes, so nobody did it. But I already had the Wharton background, so tax was a lot easier for me than those without an accounting background. I was also very interested in intellectual property, and eventually practiced primarily in that area. Other than Lillian BeVier, there was no one who taught intellectual property. I took all of Lillian’s classes.

“My hope was that we could create a system for graduates who are counsel at a company or associates coming into a law firm and out meeting with clients, that they have a basic understanding of how business works …”

Does the Law & Business Program address those issues?

Yes, absolutely. I’ve been very happy since we started the Law & Technology Program Initiative in 2000. My hope was that we could create a system for graduates who are counsel at a company or associates coming into a law firm and out meeting with clients, that they have a basic understanding of how business works, what a term sheet looks like and what it means, what the difference is between a pre- and a post-money valuation, and how a stock option plan works.

The thing that really brought this to the forefront for me was an antitrust class I took. We were talking about the Hart-ScottRodino Act and its different documents. I raised my hand and asked, “What kind of documents?” And the professor said, “Here’s the definition, here’s what the statute says.”

“Okay, I get what the statute says, but what does that mean in a company’s existence, what does it look like?” Nobody knew. Well, it became important to know a year later when I was an associate at Cooley, I was doing a merger between two companies, and they got a Hart-Scott-Rodino review from the FTC and I had to go pull documents.

It would’ve really helped if we had better

How did you go from Cooley to eBay? Again, incredibly lucky. I was a second-year associate at Cooley. Every other Friday I had to be there at 8 am for an associates meeting. On one of those Fridays my private line rang at 7:45 in the morning. I picked up the phone, because the only person who has the number is my wife. This woman says, “Hi, are you Brad Handler?” She was a recruiter for eBay. One of the other associates had given her a list of everybody’s private number. She said, “They want to hire someone to run their business development group and they want that person to be a lawyer. Would you be interested?”

I met with her and the eBay team, then only about 20 people. Afterwards, they said, “We want to make you a job offer.” I said “Great. What is it?” They said “We want you to run business development.” I said “Thank you for the offer, but you don’t need me to run business development. You actually need a lawyer in house. You guys are going to get crushed if you don’t have a lawyer in house.” They said, “No, we don’t need a lawyer. We have Heller Ehrman.” I said, “That’s not going to cut it. You actually need an in-house lawyer.” They said “No, we

UVA Lawyer / spring 2012 15

Law School News …

don’t.” I said “Well, it was nice to meet you.

Thank you and good luck.” And we went our separate ways.

A few months later, I get a call from the same recruiter for eBay. She said “Would you be interested in a job if you were both the attorney and [ran] business development?” I said, “As long as I had the opportunity to make sure from a legal standpoint everything was good, I could do that. I’d need some resources on the business development side.” She told me that I could hire for that and that I would have a budget to keep Heller to do some of the stuff I couldn’t otherwise do since legal wouldn’t be full time. So I said, “Okay, great. So, when do I start?”

“You can’t control whether or not you will succeed because too many other variables get in the way. But you can control whether or not you put yourself in a position where you have a chance to succeed.”

I started in October 1997 and one of the first things I learned was that the recruiter had tried to recruit a number of other and more senior associates at Cooley. When that didn’t work she had gone to Wilson Sonsini.

She found a guy who was going to take the job, but then his wife got pregnant and eBay didn’t have health insurance. He told eBay he couldn’t take the job. So they called me back, and that’s how I got to eBay. On my very first day there, Onsale [a rival business-to-business auction site] spammed the database of eBay users to launch their own person-to-person auction site. So on day two, we had to pursue legal action against them and as a result, I never had to worry about splitting my time between business development and law. I was always law.

16 UVA Lawyer / spring 2012

How long were you at eBay? I started in October of ’97 and I left in December of ’01, and then stayed on as a consultant for another 18 months to help them transition.

You obviously worked through the whole tech bubble. What did you find most enjoyable in those eight years and what was your nemesis on the dark side?

What I enjoyed most was that we got to create the law. Now eBay is probably the biggest private law system in the world using rules that govern the behavior of hundreds of millions of people. I wrote that user agreement. I wrote the privacy policy, which is still a very unique privacy policy. I created a way of displaying privacy rights that’s visual as opposed to having to read everything you’re doing. That was a lot of fun; we didn’t have to worry about what happened before because there was no “before.”

I also started a government relations group at eBay. Silicon Valley companies didn’t have government relations and I felt pretty strongly that we needed to have a presence with policymakers on issues regarding the Internet and tax and liability and all that kind of stuff, so we had a seat at the table for things like the CDA and the DMCA. In six years you had a lifetime of legal experience. Then you decided to become an entrepreneur. How did that happen?

I have three daughters. Our 11-year-old was born in March of 2000. If you look at the financial press in March of 2000, there was one big story—the merger between Yahoo! and eBay, which never happened. I missed a lot of the first couple of weeks of my daughter Bailyn’s life because of that. So with my second kid I was going to take six months off and work half time. Two days before we’re set to announce that arrangement, the

leadership of eBay says, “We can’t let you go half time.” I said “I’ve made other commitments. I committed to teach at Virginia. I’m going to teach at Stanford. I can’t do that.”

EBay was not prepared for me to actually leave, so I had to consult for a period of time.

I wasn’t really sure what I was going to do. My brother and I took our families to Hawaii on vacation. We stayed in the nicest suites at the nicest place, and bitterly complained about the accommodations. Then it hit us—why are we doing this? We can solve this problem. My dad was an entrepreneur, and we grew up in an environment of owning your own business. So my brother and I spent May of 2002 in Maui mapping out a business to fill a need that my brother and I had within our own family—how to vacation. That business became Exclusive Resorts, where you have collaborative use of a house with a real kitchen, you send in a grocery list beforehand and get there with all the groceries you need stocked in the fridge. That was the breakthrough idea.

Exclusive Resorts and now Inspirato are the answers to real problems that we had.

Having been a lawyer and being an entrepreneur, what did you like and not like about being a lawyer, what do you like and not like about being an entrepreneur, and how would you distinguish the two?

What I liked about being a lawyer was that every problem was different. Every company had different issues. It’s like a little story and each one is different. I didn’t particularly like the law firm hierarchy, though Cooley treats their associates very well. And I didn’t like the fact that you couldn’t control your own schedule.

On the entrepreneurial side, I like controlling whether or not you have a chance to succeed. You can’t control whether or not you will succeed because too many other variables get in the way. But you can control whether or not you put yourself in a position where you have a chance to succeed.

Law School News …

I can’t think of any aspect of being an entrepreneur that I don’t like. I don’t necessarily embrace every aspect of it—I don’t like telling people that they don’t understand the vision and this might not be the best fit for them, but I don’t hate it, either.

I like mentoring people. I’m a big believer in walk-around management. When I started at eBay, I was the only lawyer. When I left, there were 50 people in the department and every day I would walk around and talk to every single person. How are you doing? What are you working on?

What can I help you with? I’m doing the same here at Inspirato. I always hire people who know more than I do about whatever it is we’re hiring for. You can learn a lot from the people you hire. Always hire someone better and smarter than you. No matter how smart you are, you can’t know everything and you certainly can’t know it in context.

We have students in the Law School who are interested in entrepreneurial law as well as some of whom think they would like to be entrepreneurs. Any advice you would give them?

I think that the best entrepreneurs are those who’ve been through law school, not business school. Law school teaches students how to evaluate critically lots of different options, but they are not great risk-takers by nature. It’s not what they were taught. But if we could just teach them to be a little better at taking risks they would make much better entrepreneurs. That said, law school

OTHER

students or lawyers thinking about “The folks who start nonprofits and becoming entrepreneurial need charities are very entrepreneurial, to really believe in what they’re doing. If they don’t, the only just as entrepreneurial as the way they’ll succeed is through guy who starts the next new pure luck.

For example, I would be a social network. All successful terrible entrepreneur for, say, a entrepreneurs have a passion about new router. If someone asked me to go and be a founding partner what they’re building.” on a new company that makes routers, I would say I don’t know that area and am not passionate about it. But the companies that pregnant. That’s how it happened for me.

I’ve started, Exclusive Resorts and Inspirato, You can’t plan that. So the other thing I are all about traveling with your family. I always tell entrepreneurs is to put yourself understand that. in a position to get lucky, so that you can It’s not enough just to want to be an take advantage of it if it happens. And never entrepreneur. The question is, what do you believe that you did it based just on your want to do? Whatever that is, is it someown skill, because it was as much luck and thing you can make entrepreneurial? The happenstance as anything else. folks who start nonprofits and charities are There were 10 other person-to-person very entrepreneurial, just as entrepreneurial auction companies that started before eBay. as the guy who starts the next new social Any one of them could have won the space, network. All successful entrepreneurs have but it happened to be eBay that did it. So the a passion about what they’re building. The other advice I give to entrepreneurs is when people who are not successful entrepreit fails (and 90 percent of entrepreneurial neurs are those who do it just because they ventures do fail) it doesn’t mean you are a think it’s the easiest way to get rich. One or failure. A lot of entrepreneurs take it very two of them might succeed, but as a group personally when their project fails. They inthey are not going to be successful. ternalize it and think that whatever they did Look at my story. It’s lucky that I went didn’t work. It may be that they made bad to Virginia. It’s luckier that I got on the Law decisions, but there is really no way to know, Review, so it’s lucky that I got to Cooley. It’s so you can’t blame yourself for the failure of unbelievably lucky that I got a call from the business. You can only blame yourself if eBay and then it’s even luckier that the guy you failed to put your all into it. n who’s supposed to take the job gets his wife

Alumni Q&As ONLINE

http://www.law.virginia.edu/html/news/alumni_qa_archive.htm Burcak Unsal LL.M. ’03 Leads Google’s Legal Team in Turkey Jeffrey Kerr ’87 Fights on Behalf of Animal Rights as PETA General Counsel Mary Rouvelas ’96 Uses Her J.D. to Take on ‘The Big C’

Mary Rouvelas ’96 is senior counsel for the American Cancer Society Cancer Action Network.

UVA Lawyer / spring 2012 17

Law School News …

Find Multimedia News Offerings at www.law.virginia.edu/news

A sample of videos and podcast offerings: Lambda Deputy Legal Director Hayley Gorenberg, deputy legal director for Lambda Legal and lead counsel in the civil rights organization’s New Jersey marriage equality case, spoke to students about her career in public service. Lambda is the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and people with HIV. The Rhetoric of the 2012 Presidential Primary Oral advocacy Professor Robert Sayler spoke about the public speaking blunders politicians have made during the 2012 presidential primary season and how they relate to Aristotle’s tools of ethos, pathos, and logos.

Health Care Industry Exec Advises Students to Avoid Silos As law students enter their legal careers, they should strive to understand, respect and work with other “tribes,” health care industry executive Earl M. “Duke” Collier ’73 said.

Free Speech and Guilty Minds Law Professor Leslie Kendrick ’06 explores why a speaker’s state of mind matters in First Amendment jurisprudence.

18 UVA Lawyer / spring 2012

Syria and the Arab League With daily reports of attacks on civilians and internal strife, Syria represents the next phase in the Arab Spring. The plight of the nation, as a crossroads of international politics, has implications for the greater Middle East and the globe.

Professor William B. Quandt, of the UVA Department of Politics, and Professor John Norton Moore discuss the current state of upheaval against the Assad regime.

The Criminal Procedure Revolution Law Professor Risa Goluboff, an expert on the history of civil rights, discusses crime control methods in the 1960s versus today in a lecture titled “The Criminal Procedure Revolution.”

Legislative Advocacy Claire Guthrie Gastañaga ’74, the new executive director of the American Civil Liberties Union of Virginia, spoke about her legislative advocacy work at the General Assembly on behalf of Equality Virginia, the Virginia Coalition of Latino Organizations, and the Virginia Sexual and Domestic Violence Action Alliance, among others.

Private Military Contractors and the Fight for Accountability for Human Rights Abuses A panel discussion on the role and responsibility of military contractors in conflicts, including an examination of specific cases brought against contractors for human rights violations. Panelists included Katherine Gallagher, senior staff

attorney at the Center for Constitutional Rights, and Gabor Rona, the international legal director of Human Rights First. Law Professor Deena Hurwitz moderated.

Affirmative Action Revisited: Fisher v.

University of Texas The Federalist Society presented a debate between Ward Connerly, the founder and president of the American Civil Rights Institute, and Law Professor Kim Forde-Mazrui on the legality of affirmative action in higher education. Professor Alex Johnson moderated the debate.

The President’s Contraception Mandate: A Basic Necessity or a Violation of Religious Liberty?

Professors Douglas Laycock, Micah Schwartzman ’05, and Lois Shepherd discussed the legal implications of the President’s decision to require coverage of contraception in all health insurance.

Professor Margaret Foster Riley moderated the discussion.

LGBT Rights Are Human Rights: Securing the Next Frontier in Human Rights Mark Bromley ’95, chair of the Council for Global Equality, spoke about advancing an American foreign policy inclusive of sexual orientation and gender identity.

Law School News …

Retired Judge Discusses His Life and Practice of Law James Benton Jr. ’70, a former judge on the Virginia Court of Appeals, spoke to students about his life, his influences, and his practice of law, particularly the litigation of civil rights and civil liberties cases.

Benton grew up in a segregated Virginia.

Religion and Public Reasons: Making Laws and Evaluating Candidates Kent Greenawalt, a Columbia University law professor, delivered the Meador Lecture on Law and Religion at the Law School.

The Rule of Law Federal appeals judge J. Harvie Wilkinson III ’72 delivered the inaugural Lillian BeVier Lecture on the Rule of Law. Criminals Are New Priority for U.S. Immigration Enforcement The U.S. Immigration and Customs Enforcement agency is “redefining” its approach to enforcing the nation’s immigration laws by targeting its efforts at specific groups of illegal immigrants—most notably those with a criminal record, ICE Director John Morton ’94 said.

The Final Days of Martin Luther King, Jr. Michael Cody ’61 and civil rights leader and UVA history professor Julian Bond shared their personal stories about Martin Luther King, Jr.

Applied Problem Solving Law Professor George Geis and McKinsey & Co. management consultant John Esterhay ’06 introduce students to “Applied Problem Solving,” a January term short course that offers a structured approach to problem solving.

Greater Disclosure Would Boost Political Speech While conventional wisdom holds that mandatory disclosure of political activities chills political speech, Law Professor Michael Gilbert argues that greater disclosure could actually lead to an increase in political speech.

A Debate on Citizens United A Debate on Citizens United, featuring Brad Smith, former FEC chairman, and Joseph Birkenstock, former chief counsel of the Democratic National Committee, and moderated by Law Professor John Harrison.

Pro Bono and Professionalism: Keys to a Winning Career Kim Keenan ’87, general counsel of the NAACP, spoke as part of a conference on increasing diversity in the legal profession.

The Value of Diversity on the Bench Virginia Supreme Court Justice S. Bernard Goodwyn ’86 spoke at the Law School as part of a conference on increasing diversity in the legal profession.

Justice? Unlikely!

Justice Cleo Powell ’82, the first AfricanAmerican woman to serve on Virginia’s Supreme Court, spoke as part of a conference on increasing diversity in the legal profession.

What Every Lawyer Should Know About Client Relationships Goldman Sachs managing director and Law School adjunct professor Jim Donovan is a trusted advisor to some of the world’s most sophisticated organizations. He shared his insights into the effective management and cultivation of client relationships.

UVA Lawyer / spring 2012 19

On the eve of the second anniversary of the Citizens United ruling, activists with the Other 98% and Backbone Campaign put giant light projections on the Supreme Court building.

20  UVA Lawyer / spring 2012

Citizens United First Amendment Protection or Pandora’s Box? n Cullen Couch

S

ince the earliest days of the Republic, money has given voice to politics, but it wasn’t until the Buckley decision in 1976 that the Supreme Court acknowledged that limiting spending limits speech itself, a fact that everyone this side of a voting booth already knew. Politics has always been about raising money to get votes, whether through bribery, providing “services” to politicians, or building powerful national campaigns. Andrew Jackson’s patronage system in the 1830s, political boss Mark Hanna’s corporate assessments in the 1890s, and Richard Nixon’s Committee to Reelect the President (with its ironic acronym, CREEP) all shared the same goal: raising money. Lots of it.

With a restive public suspicious of corporate wealth, the 59th Congress in 1907 began its first halting attempts to prevent the corrupt influence of money. It passed the Tillman Act, prohibiting direct contributions to federal campaigns by corporate and banking interests.

In 1910 Congress passed the Federal Corrupt Practices Act (FCPA) imposing campaign contribution limits and disclosure requirements. In 1925 Congress broadened contribution limits and increased disclosure requirements. In 1947, the Taft-Hartley Act extended the corporate ban on contributions to unions. But without effective enforcement mechanisms and defanged by loopholes, all these efforts (and others) were largely symbolic.

Finally, in 1971, Congress took another stab at campaign finance reform by repealing FCPA and passing the Federal Election Campaign Act (FECA) designed to increase disclosure of contributions to federal

UVA Lawyer / spring 2012 21

campaigns. FECA also established public funding for presidential primaries and elections.

Then came Watergate. The scandal’s lurid tale of bundled cash and petty burglary caused a public uproar. In 1974 Congress responded by adding amendments to FECA that created campaign contribution limits and a new Federal Election Commission with authority to enforce the Act. Almost three decades later, reacting to the oversized roles of “soft money” and “issue ads” in campaigns, Congress passed the Bipartisan Campaign Finance Reform Act of 2002 (McCain-Feingold) that banned “soft money” to political parties, prohibited certain advertising within 60 days of an election that mentioned a candidate for federal office by name, and restricted the use of “sham issues ads” by political parties, corporations, and unions.

According to prize-winning legal historian Ted White, a David and Mary Harrison Distinguished Professor, “the primary constitutional rationale for Citizens United goes back to a line of decisions beginning with Buckley v. Valeo (1976), in which the Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them.” [see page 35] Starting with Buckley, the Court has tread a fine line between permitted regulation and constitutionally protected speech: * • Buckley v. Valeo (1976, upheld the constitutionality of individual contribution limits, but not the limits on independent expenditures, 7-1), • Austin v. Michigan Chamber of Commerce (1989, upheld a prohibition on independent corporate expenditures, 6-3), • McConnell v. Federal Election Commission (2003, upholding McCain-Feingold, 5-4), • Federal Election Commission v. Wisconsin Right to Life (2007, striking down as applied a McCain-Feingold regulation on political advertisements, 5-4) Notice the trend? The majority supporting legislation regulating corporate speech has been slowly draining away. In Citizens United, it finally went dry. A new 5-4 majority (in fact, the same justices who decided Wisconsin Right to Life) gave full-throated First Amendment protection to corporate and union “independent expenditures” on behalf of political candidates.

Swatting away the anti-corruption rationale at the heart of their earlier jurisprudence, Justice Kennedy, writing for the majority,

*Here’s a tip for understanding campaign finance law: keep clear the distinction between

contributions to a campaign and independent expenditures on behalf of a campaign.

Contributions have always been subject to statutory limits because of the real possibility of and public interest in preventing quid pro quo corruption. In contrast, independent expenditures have enjoyed broader First Amendment protection, especially since Citizens United, because the anti-corruption rationale does not apply.

22 UVA Lawyer / spring 2012

overruled Austin and parts of McConnell and declared, “This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the public to lose faith in this democracy.”

In a stinging dissent, Justice Stevens pointedly disagreed with Kennedy. “The majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA [McCain-Feingold], a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices.”

While Citizens United leaves intact certain disclosure requirements and limits on campaign contributions (where quid pro quo corruption is a clear threat), it allows corporations and unions independently to spend unlimited amounts from corporate or union treasuries to support or attack candidates for federal office.

A few months after Citizens United, the D.C. Circuit Court of Appeals, in Speechnow.Org, ruled that contribution limits to independent expenditure groups were also unconstitutional, setting up what came to be known as Super PACs. Whereas the PACs originally permitted by FECA limited individual contributions, the new Super PACs can accept unlimited contributions from individuals and corporations, and spend as much as they want on “uncoordinated” political advocacy.

What has actually changed? The Court concluded that there was no logical basis for distinguishing “corporate” from “individual” independent expenditures since, by the Court’s definition, neither kind can cause corruption (which, in turn, gave rise to the generally inaccurate claim that the Court gave corporations the same constitutional rights as individuals). Extending the Court’s reasoning, the D.C. Circuit concluded that since individuals can give advocacy groups unlimited amounts, so can corporations.

And since those advocacy groups themselves are non-profit corporations, they can spend unlimited amounts promoting their views.

No one can say if the Court anticipated the de facto coordination between Super PACs and their candidates that occurred in this year’s Republican presidential primaries. The leading Republican candidate did not deny it, and President Obama, with an eye toward the general election, has not condemned it. But even if the Court did foresee the role of Super PACs, it is unclear whether it would have mattered.

Nor do the disclosure requirements that the Court upheld have much bite. The FEC remains deadlocked; the three Republicans on the six-member panel oppose enforcement. And individual donors

REUTERS/Jonathan Ernst

Election Commission and general counsel of the McCain presidential campaign, now heads Caplin & Drysdale’s political law practice. He says, “There were five justices who wanted to make this decision and they were going to turn this case into the one to do it. They had been four in McConnell and gained a vote with the retirement of Justice O’Connor and the arrival of Justice Alito. One of the distressing things was their rush to this decision. There were many things in the case that they didn’t understand, weren’t briefed on, and didn’t have time to ask questions about. Those are coming back Police arrest demonstrators after they tore down a barricade and took to the steps of the U.S. Supreme Court building, on the anniversary of the Citizens United decision, in Washington, January 20, 2012. to bite us now.”

“I thought it was badly misguided,” adds Bob Bauer ’76, former White House Counsel and now general counsel of the Obama campaign. “As can remain anonymous if they simply funnel their contribuconstitutional decision-making goes, it’s more aggressive than it tions to a Super PAC through a 501(c)(4). Even if donors are needed to be, and ultimately what we are left with isn’t satisfactory.” disclosed, it often occurs after the election when it doesn’t really No national campaigns have been waged since the Court matter anymore. decided Citizens United, so it is hard to predict the nature and Supporters of Citizens United claim vindication after long extent of its actual effect on an election, its historical importance in arguing that campaign finance regulation is, on its face, an unconstithe Court’s jurisprudence, or whether the “unfettered discourse” so tutional violation of free speech imposed by incumbents interested treasured by the Court and made possible by a new flood of money only in protecting their seats. They demanded a clear, uncomplibecomes an unbearable distraction, further reinforcing public cated, bright line defending political speech, and they got it. cynicism about the political process.

“I believe that the First Amendment guarantees freedom to From a purely partisan perspective, most Republicans support speak about politics and about candidates for office,” says Lillian the decision. Most Democrats don’t. That’s not surprising given BeVier, a First Amendment scholar and retired David and Mary their different views on government regulation. But it remains to Harrison Distinguished Professor of Law. “The Amendment stands be seen whether Citizens United will favor or disadvantage either as a substantial though not impenetrable barrier to legislation side. If nothing else, the enormous individual contributions to that limits political speech. Free political speech is valuable both Super PACs in the Republican primaries have kept candidates because freedom is good in itself and because permitting incumgoing long after they would have had to bow out before Citizens bent legislators to regulate political speech—by regulating what can United. That alone has changed the game. be said and who can pay for speech about candidates—carries a To place Citizens United in context, we asked White to discuss genuine risk of shielding incumbent office-holders from the efforts its historical importance to Supreme Court jurisprudence. We of challengers to unseat them.” also asked Potter and Bauer to talk about the Court’s possible James Stern ’09, former clerk to Justice Kennedy and now at response to the coordination issue that emerged in the Republican the Law School as a research assistant professor and Olin Searle primaries, as well as to drill down into the decision’s political and Smith Fellow in Law, says the clarity of a straightforward First practical implications. Finally, we invited Bevier, long a critic Amendment analysis detracts from the more nuanced arguments of campaign finance regulations, to argue why Citizens United for regulation. “It’s fairly easy to articulate the principle that a vindicates fundamental First Amendment principles. democratic government shouldn’t be trying to re-engineer the Money—who has it, who doesn’t, and whether government market for political speech,” he says. “I think opponents have a should even care—has become a national irritant. That won’t end harder time because there’s no clear sense of where the lines should with Citizens United, and perhaps that’s a good thing. There are, be drawn.” after all, worse things than money, which is exactly the point of Critics call Citizens United an ideological assault on the public’s the debate. n right to prevent political corruption and maintain the integrity of elections. Trevor Potter ’82, former chairman of the Federal

UVA Lawyer / spring 2012 23

In my view, there were five justices who wanted to make this decision and they were going to turn this case into the one to do it.

Trevor Potter ’82

24  UVA Lawyer / spring 2012

A Conversation with

n Cullen Couch

UVA Lawyer first profiled Bob Bauer ’76 and Trevor Potter ’82 in a Spring ’09 story about their experiences as general counsel for the Obama and McCain presidential campaigns, respectively. Today, both remain heavily involved in the national political scene, Bauer again

I think they wanted to take a blunderbuss approach and that’s exactly what they did.

as general counsel of the president’s re-election campaign, and Potter as head of Caplin & Drysdale’s political law practice and the founding president and general counsel of the Campaign Legal Center, a Washington, D.C. based nonprofit focused on campaign finance issues in the courts and before the Federal Election Commission.

With the Citizens United decision bringing election law back into the news, we joined them in Bauer’s office at Perkins Coie in Washington to discuss the decision. The following is the lightly-edited transcript of that conversation.

Bob Bauer ’76

UVA Lawyer / spring 2012 25

What is your overall impression of Citizens United?

Trevor Potter: It’s a great case for law students. It is Supreme Court civil procedure at its oddest in some ways. Both Bob and I could easily spend an hour describing why the Court shouldn’t have reached this issue, that there were other ways to deal with it, how the majority overturned traditional notions of stare decisis, and procedurally how they got to this series of special briefings and arguments.

In my view, there were five justices who wanted to make this decision and they were going to turn this case into the one to do it. They had been four in McConnell and gained a vote with the retirement of Justice O’Connor and the arrival of Justice Alito. One of the distressing things was their rush to this decision. There were many things in the case that they didn’t understand, weren’t briefed on, and didn’t have time to ask questions about. Those are coming back to bite us now.

What actually is an “uncoordinated expenditure”? The Court in Buckley says it’s something that, by definition, is “wholly independent” of a candidate or a party committee. In Buckley, there was no history of trying to figure out what’s coordinated and uncoordinated. But by Citizens United a 30 year history of regulatory attempts to define coordination existed. If the majority had focused on that record and the FEC rules and statutes, they might have concluded that the line was not where they thought it was, or was not easily drawn.

Then there’s the whole section of the opinion that talks about how, for the first time, corporate spending will now be allowed but it will be fully disclosed. I know they didn’t have any briefing on that issue. They didn’t know what the FEC had done to foil disclosure. They didn’t know about the regulatory battle over the meaning of the existing disclosure provisions in McCainFeingold. There was no briefing about how their thinking didn’t apply to some organizations. I think this rush to make a major decision with very large consequences has backfired.

Bauer: In keeping with our long-standing rivalry, may I disagree with Trevor? A majority had decided to very sharply trim Buckley,

26 UVA Lawyer / spring 2012

AP Photo/Eric Gay

Bob Bauer: I thought it was badly misguided. Had the Court been inclined to reach the decision it did, it could have reached it by a number of other routes. Instead it chose to take on this long introduction explaining why it can’t avoid confronting the Austin case, which it then proceeds to overrule. As constitutional decision-making goes, it’s more aggressive than it needed to be, and ultimately what we are left with isn’t satisfactory.

Supporter of Republican presidential candidate former Pennsylvania Senator Rick Santorum, Foster Friess, during a meet and greet campaign stop at Pizza Ranch, January 2, 2012, in Altoona, Iowa.

particularly the distinction between contributions and expenditures, to as sharp and narrow a set of lines as possible to give the concept of independence the most robust form of protection.

There is a remarkable set of passages in the opinion itself in which the Court talks about how complicated the law has become; that to some degree the constitutional offense of our campaign finance laws resides in the proliferation of very complicated rules that are elaborated in pages and pages of FEC pronouncements. I think they were so bent on delineating clear and simple boundaries that they wouldn’t have been terribly interested in drawing complex distinctions between types of coordination that candidates might engage in with independent spending groups. I think they wanted to take a blunderbuss approach and that’s exactly what they did.

If they had known of the de facto coordination that has happened in the Republican primaries, you think they would have come to that conclusion?

Bauer: That’s my view.

Potter: I’ll use the same caveat as Bob. It’s very hard to know what’s in the justice’s minds on this stuff. It may be that they’re in a different place now than they were then, meaning that at the time they wouldn’t have much cared about it and were seeking bright

lines. It is possible that having seen this play out for the last two years they may be in a position, some of them at least, of saying this isn’t what we intended or expected would happen. We didn’t think that an independent non-coordinated expenditure, which by their definition had no possibility of corruption, was going to be a $10 million contribution given to a Gingrich Super PAC run by the candidate’s closest aides who say they get their instructions on television from the candidate.

So I think Bob is absolutely right that there is in Citizens United, and in the Wisconsin Right to Life opinion before it, a very angry tone at the mention of regulation. To the majority, this is First Amendment protected speech and you can’t have what they were told was a cumbersome regulatory structure that is impossible for normal people to navigate. I think that Bob’s right; they were trying to sweep all that away.

Do you think they believe First Amendment protection trumps corruption concerns?

is less access-driven than it is ideological in character. Consider the casino magnate underwriting Gingrich’s PAC and the Texas businessman underwriting the Santorum PAC. They’re the largest donors, the ones without whom those PACs would have probably faded away. These are people who are very vocal about their views and why they’re supporting these particular candidates, but it is said that they don’t fit into the classic model of donors providing money to candidates for the purpose of buying government policy.

So the Court, faced with the suggestion that this is all leading to corrupt conduct, may say, “Well, it’s really not presenting a risk of corruption. What we see are individuals with ideological views supporting candidates who share those views, not corruption aimed at the heart of government. This looks like the crux of the kind of ideologically motivated speech that demands First Amendment protection.” We’ll see how this develops. Others, like Rick Hasen at UC Irvine, argues that this is very much activity that threatens corruption.

Potter: And I would differ on a portion of that. For instance, I think the Gingrich PAC has had a different fundraising model from some of the other PACs. The Romney PAC, instead of Bauer: I think they disagreed with some of the arguments made having one billionaire who says he cares about a foreign policy by the reform community and by people who support the more issue, is a more traditional collection of donors, many corporate robust level of protection. They disagree about what constitutes interests. They may be giving because they think Romney’s the the kind of corruption that is sufficient to trump First Amendment only candidate who understands the economy, or Romney is the concerns. only person who understands capitalism. The reality is if you’re Here’s one question that has arisen and remains highly conin the hedge fund community and you’re giving to Romney, you tested. Some argue that much high-profile giving in this campaign may well also hope that he’s going to share your views on the controversial carried interest tax In this September 2009, file artist rendering, U.S. Solicitor General Elena Kagan, right, argues provision. If you and your company have given her first case before the Supreme Court, Citizens United v. Federal Election Commission in Washington. him a million dollars, that may give you some opportunity to interact with him in the campaign and down the line. That is what Buckley said was the appearance of corruption and therefore could be limited.

AP Photo/Dana Verkouteran

Under Buckley that would have been a violation?

Potter: This is one of the interesting things to me about it and we’ll see what Bob thinks. One of the developments post-Citizens United—and there’s a whole controversy over whether it’s really a Citizens United development or whether it’s in some ways separate in the SpeechNow case—but one of the things that’s happened is that we’ve gone from talking about an independent expenditure, to a contribution to an independent expenditure committee. If you UVA Lawyer / spring 2012 27

Or signaling Montana how to proceed? In effect saying, don’t skirt around Citizens United in claiming it really didn’t apply?

Bauer: That’s essentially what Justice Ginsburg

REUTERS/Jonathan Ernst

says. Ginsburg essentially suggests that the issue is really about whether it was rightly or wrongly decided, not whether Montana is a special case that they need to distinguish.

A demonstrator dressed as Uncle Sam wears a ‘For Sale’ sign during a protest on the grounds of the U.S. Capitol, on the anniversary of the Citizens United decision, in Washington, January 20, 2012.

go back to Watergate and Buckley, the issue was giving money to Richard Nixon which, of course, meant giving money to his committee. If we’re now in a position where you’re giving a million dollars or more and it’s indeed corporate money to what Romney calls ‘my’ PAC, which is closely associated with his campaign, is that more like a contribution, or is that more like the independent expenditure that they were talking about in Buckley and presumably in Citizens United? To me, it’s a little murky and I don’t think falls squarely within the Citizens United jurisprudence.

If the Montana case [Western Tradition Partnership v. Bullock, upholding regulations that Citizens United expressly disallowed] actually gets plenary review, how do you think the Court will respond?

Bauer: I strongly suspect that if this is litigated the Court will be briefed on the threat that many see in the current environment, and they’ll be briefed on the realities that have developed since Citizens United was decided. If the Court were to take the case, it would not address an issue at the margins, like what coordination really is taking place, but more a fundamental question based on Montana’s claims of whether Citizens United was simply incorrectly decided as a matter of constitutional law.

In fact, that’s what Ginsburg and Breyer have suggested: That we got it wrong the first time around, that the Court should return to and confront the decision that it originally made, either validating it or reversing it based on the core constitutional question at issue.

Potter: To me, the Ginsburg-Breyer statement* was a surprise.

It’s a very public statement. Are they doing this to nudge their colleagues? Are they doing it because they’re sure they are going to reverse anyway and they’re laying down a marker? I have no idea.

28 UVA Lawyer / spring 2012

If they take the case and uphold Citizens United, what’s next? Will legislatures try to come at it from another direction with tighter disclosure requirements, or some other method that would not invoke a First Amendment challenge?

Potter: Sure. I think that what we are already seeing across the board are responses to this, or put more accurately, attempts to respond. You’re seeing legislatures trying to require the disclosure that Citizens United praises but isn’t really there. You’re seeing a discussion about whether legislatures should change their rules for corporations, because corporations are largely chartered by states, to prohibit them from spending money in politics or to require shareholder approval; all those issues. You have the SEC being asked to change its rules. You have the battles in corporate stockholder meetings over whether shareholders will be notified and what will they be notified of and so forth, and that’s just on the corporate side.

What about the non-profit corporate ideological groups?

Potter: That’s a whole different world. There I think you’re talking about disclosure. That’s where you get to this big fight at the FEC over whether non-profits that engage in electioneering communications under the McCain-Feingold statute should be disclosing who gave them the money to do that. You could also see a whole battle on the definition of coordination for the Super *“Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay: Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.”

don’t know, but until now, almost all the money in the Super PACs has all been spent for Republicans. Maybe that’s because that’s where the passion was from the mid-term election, but there have been no Democratic equivalents to the big Republican groups like American Crossroads in raising that much money in this cycle.

So not surprisingly, Republicans are saying if we’re going to have reform, let’s have it after we’ve spent all this money.

PACs. Congress can change the statute. The FEC can change the regulatory language. The courts could, again, tell the FEC they have to rewrite their regs. So even if Montana comes to nothing, I think there is a battlefield there in all of these areas.

Why is this a partisan issue? It seems more of a Pandora’s Box than it is some sort of bright line about a First Amendment issue. Republicans in this primary campaign are seeing some of the darker side of what might happen, aren’t they?

Bob, if Citizens United stays with us what long term effect will that have on the American political system, and how might that change your role as GC for the Obama campaign?

Bauer: Well, it’s partisan in this sense. Trevor is Republican and John McCain’s a Republican and so there are clearly differences over this issue within the Republican Party, but by and large the Republican Party institutionally has long been highly skeptical of campaign finance regulation. It has viewed it as a questionable undertaking by the majority to limit the political rights of the minority, or alternatively, just as a flat-out offense against the First Amendment.

I remember when I first started practicing, the Republican National Committee published a newsletter called First Monday, shortly after the Watergate reform was passed, in which they were thundering away against campaign finance regulation. This view was reflected in the statements of the leading Republican legislators and politicians; it was reflected in the character of a number of Republican-supported nominees to the Federal Election Commission, Trevor being a notable exception. So there has always been this divide between the two parties on what it means for the government to step in and regulate the flow of political money.

Bauer: Well, you raise an important question, by the way, which is the difficulty of taking stock of what all this means while it’s happening. There will be a lot of data collected about this experience. It’s going to take some time to gather and assess, and so the judgment about how much sway Super PACs did have on this election is very hard to make conclusively in the heat of the battle.

For years people have been studying questions like the effect of PAC contributions and expenditures, or forms of corporate “issue advertising”—sham issue advertising as it continues to be called— and there’s going to be new, intensive attention paid to Super PACs. The experience is so limited, though, that I think some of the conclusions to be drawn have to be highly tentative.

I do believe that many are prepared to say that it has had a real effect on the winnowing of primary fields. If a candidate’s camp

Citizens United President David Bossie meets with reporters outside the Supreme Court in Washington, January 21, 2010.

streak in the Republican party at all levels. Beyond that, there is maybe a division between Washington Republicans, meaning the party leadership, and the core of the party out in the country. One of the interesting things going on out there is if you look at polling, Tea Party Republicans have a more populist bent. They may not like government regulation but they don’t like corporations or labor unions buying elections either, and if you look at some of the polling, they’re also not happy with Citizens United. The party leadership is reflecting both the libertarian streak and the practical reality that Citizens United enabled groups who wanted to spend money to elect Republicans to do so directly and openly and with larger sums then they could do before. We’ll see how the partisan world plays out this year now that it looks as if the Democratic-leaning Super PACs are going to be more active and have encouragement from the president and the party leadership. Will that even the playing field? Will it change it? I

AP Photo/Lauren Victoria Burke

Potter: I think there has always been a strong libertarian

UVA Lawyer / spring 2012 29

has enough substantial support from the Super PACs, then defeat after defeat in circumstances that would normally dry all their money does not necessarily end things, if a Super PAC is prepared to stay the course. Perhaps that is one impact—on the primary selection process.

Potter: Right. And I think we’re still having trouble grappling psychologically with the reality that one outside person, or more or less an outside person, is able to keep an entire presidential candidacy going. The normal cycle is you win some primaries, your fundraising spikes, and you have money for the future.

You start losing primaries, you run out of money, no one will give you more because you’re not winning primaries, and you’re not winning primaries because you don’t have money, and then you’re gone. That’s been true for 30 years. If anything, that cycle accelerated over the last couple of elections and now suddenly it’s ancient history. If somebody is willing to give the Super PAC money to keep you going, the primary candidates end up thinking about things very differently. If you had a budget that required a lot of money for TV advertising, and now the Super PAC is going to do it, you don’t have to spend as much.

It also changes the dynamics. Fundraising for Republican candidates is down this cycle compared to last time; in fact, shockingly down in January where you would’ve thought it would be up as people are getting energized. Well, yes, that makes great sense because all their fundraisers who four years ago would’ve been working their tails off getting 50 donors in a room to raise money have left the campaign. They’ve gone to work for the Super PAC and they’re raising million-dollar contributions with a couple of phone calls.

Bauer: The difference in our party affiliation probably counts for something, but Trevor sees the decline in Republican giving as a migration of fundraisers away from the party to the Super PACs whereas I see this diminished giving as more a reflection of the lack of enthusiasm for the Republican field. [Laughter]

Potter: I understand, but the answer to that, Bob, is that many Republican donors are keeping their powder dry. They’re not deeply invested in any of these candidates, yet when they know who the nominee is in June, then we’ll produce our money. The point I’m making, of course, is that the money goes down if the pressure is off, and the pressure is off. If instead of raising $2,500 increments and having to work really hard at it, you can make a couple of phone calls and raise it for the outside group. So instead of saying they’ve raised less money, why not just combine what the Super PACs have raised with what the campaigns they support have raised? Then you’ll have a better sense of what they’re actually able to raise and spend. It’ll be interesting to see how this election turns out, but since the story last time was the power of the small 30 UVA Lawyer / spring 2012

donor, particularly in the Obama campaign, suddenly this year the story so far seems to be the power of the billionaires on the Republican side.

It seems also that disclosure isn’t preventing anybody from making huge donations, $5 million, $10 million.

The disclosure isn’t really limiting anything.

Potter: Bob’s right. There’s a distinction here to be made. It’s a really important one between the issues spenders who are proud of their issue, like their candidate, and have no stake in this except to make a point or want someone to win an election. That’s very different than the sort of lobbyist money that is more likely to be given through LLC structures where the press is rooting around because they can’t figure out who this is.

Bauer: As I suggested, when the Court must address the question of the link to corruption in independent spending, it may hear argument that the most visible of the Super PAC donors are people who are associated with ideological commitments. And conservative critics of campaign finance regulation will argue that ideological speech is ultimately what the Court should be protecting with decisions like Citizens United. Now I happen to believe that is incorrect, and an oversimplification of what is at issue here.

Yet we will see what results from the Court’s striking impatience with any sort of a balanced regulatory regime and its belief that what’s required here for regulatory controls is too complicated, and therefore in and of itself constitutionally offensive.

Trevor and I have had disagreements about this in the past about how well the balance between speech and association, on the one hand, and regulation, on the other, has been struck, but now a majority on the Court seems close to dismissing the entire balancing exercise.

Are you struck by the rancorous tone between the dissent and the majority in these cases?

Bauer: The 5-4s on major issues can become quite testy in the Court. This area isn’t unusual in that respect. At the same time, the majority opinion by Roberts and the dissent by Kagan in the Arizona public financing case was remarkably illuminating, featured some biting prose, and really showed where the philosophical fault lines lay.

Potter: The other issue that comes to mind is the abortion issue; Planned Parenthood v. Casey, the O’Connor role, etc., where Justices who were getting frustrated in not getting their way, or who think the other side is doing a sleight of hand, can get pretty

direct at saying so. I think some of the dissents here remind me of the passions in those cases where, again, you had a 5-4 and a dispute over the legitimacy of the views of the other side.

employ this angry tone because they’re absolutely convinced of their position.

Remember the phrase from the Wisconsin Right to Life case, in the opinion authored by the Chief Justice, where Roberts says of further expansion of the regulatory regime, “Enough is enough.” This seems to just about capture the level of impatience Roberts and others on the Court have with the statutory regime that they seem prepared to dismantle in many respects.

AP Photo/The Oklahoman, Steve Sisney

Bauer: To use Trevor’s term, Justices

Protestors at the Federal Courthouse on January 20, 2012, in Oklahoma City. The group gathered to mark the second anniversary of the Citizens United v. Federal Election Commission decision and hope to overturn it through a constitutional amendment and campaign finance reform.

Potter: On that point I’m curious. There are two cases that have come up recently, which the Court has essentially ducked, that flowed from this whole area of jurisprudence. One is the foreign national contribution, the Bluman case, and the other is the case last week where the Court denied cert and thus let stand the First Circuit decision on disclosure of funders of issue advocacy in an issue referendum. I wasn’t surprised by that, but I’m wondering if you think that either of those summary affirmances or refusals to grant cert indicate that the Court would just as soon not have campaign finance cases again, given the uproar of Citizens United.

Bauer: Well, that’s probably true although I wasn’t terribly surprised by their decision in the foreign national case. And there is certainly not the same majority in the Court for stepping away from disclosure issues as there is for dismantling the more substantive issue on speech. So it could be the Justices would like a break from more high-profile campaign finance cases. It could also be that the foreign national bans and disclosure requirements represent two directions that the Court is not prepared to turn away from.

father of the candidate is the major donor, the principal donor and fundraiser travels with the candidate and appears on stage, or another candidate meets with “his” $10 million donor to discuss policy, and one can go on and on with these examples—but if it all ends up looking like it’s really giving to another pocket of the candidate’s garb, haven’t we then obliterated the distinction in Buckley and turned this into a contribution? Haven’t we created exactly what the majority says we can regulate, which is potentially corrupt behavior? And I don’t know where that leads.

Where do the parties’ national committees stand on this?

Potter: Well, their role is to be irrelevant. Their view is we don’t take sides in primaries. We’re not going to say anything that helps or hurts a candidate, and they wouldn’t take sides between Super PACs either. However, that doesn’t mean they’d be silent on Citizens United. I think the national committee, maybe much more so than the party at large, has very strong deregulatory, libertarian views. One of the senior officials on the national committee is James Bopp who brought the Citizens United case originally.

Bauer: That’s right, but Bopp has tried to bring the parties more

Potter: I agree, but let’s look through the other end of that telescope. Assuming they basically send the signal that they’re not going to allow independent speech to be regulated out of existence, then it seems to me we end up in a position where corruption and the appearance of corruption does become front and center again.

What you will have is a lot of activity that to the average reader of the dictionary is coordinated but which, for federal election law purposes only, is considered constitutionally protected independent expenditure speech. If that involves what we’re seeing—the business partner of the campaign manager runs a Super PAC, the

into a deregulated zone. Their great fear is that the power of third party independent groups has ascended significantly at the expense of the parties. Bopp has already filed one case, unsuccessfully, in which he tried to carve out for the parties soft money now prohibited to them so they can engage in activities like issue advertising. He lost because it just simply couldn’t be squared with the McConnell case, but my guess is that they’re going to continue to look for more opportunities to make the case for parties because we are now seeing a significant imbalance between the parties and the vast and increasing influence of third party groups.

UVA Lawyer / spring 2012 31

Bauer: One problem, which Justice Scalia has made much of, is that members on the floor of the Senate have said things about purpose and motivation. In McConnell, Scalia pointed to the statements that members of Congress made about negative advertising run against them. These were floor statements. On other occasions, Scalia has found such legislative history to be completely unpersuasive, but he was quite strongly persuaded by this particular set of floor statements!

Trevor, how much fun are you having with Stephen Colbert’s PAC? Potter: I’m having a blast.

You really are his lawyer?

AP Photo/Alex Brandon

Potter: Yes. It’s the only time I’ve ever had to give a client advice in front of several million people.

Stephen Colbert, followed by Trevor Potter ‘82 (left), enters the FEC to file a Super PAC, May 13, 2011.

Is campaign finance regulation about incumbents protecting themselves to make it harder for challengers to take them on?

Potter: That’s certainly the opinion of some of the justices. In the Arizona case, Justice Scalia starts talking about how this is incumbent protection as usual and just another example of incumbents trying to keep people out. It seemed to me that one of the missed opportunities in that argument was to point out that this was passed by a referendum of the voters—I think over the opposition of incumbents—but this was not incumbent legislation. We heard the same thing in McCain-Feingold from what was then the minority.

I thought that was a silly argument because I’d been watching the sausage get made and to me, this was not incumbents protecting themselves. You might make the argument that the “millionaires” amendment was, but most of that legislation was a much more complicated question of how campaigns should be conducted. It was insurgents versus the leadership. It was Republicans versus Democrats. It was not the incumbents in the Congress making it difficult for their challengers.

32 UVA Lawyer / spring 2012

Are you’re giving him advice in the green room before you go on stage?

Potter: No. And unless I’m supposed to have a particular role, like with the Jon Stewart handoff, he doesn’t tip his hat about the questions in advance. He wants his viewers to hear what he can and can’t do with his Super PAC. It’s a little like taking a campaign finance final exam when you have no idea what the questions are going to be and the clock is running.

On nationwide television no less. He’s brilliant.

Potter: He is. I think he’s done an amazing job of taking, as we’ve just had, a complicated hour of discussion about these issues and distilling it into 4½ minutes where people who are not lawyers say, ‘Oh, I get it.’

The beauty of satire …

Potter: Yes. I keep telling him he’d make a great Supreme Court advocate because of his ability to take all of this information and convey it in an engaging and clear way. n

Citizens United Vindicates Fundamental First Amendment Principles n Lillian BeVier

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ainstream critics of Citizens United—of which there are many and they are fierce—almost uniformly fail to respond to the most significant aspect of the case, namely the majority’s rationale and Justice Kennedy’s First Amendment analysis in particular. This failure is unfortunate because the case actually vindicates deeply embedded and wellestablished First Amendment principles. It is true that Citizens United overruled a 20-year old precedent, Austin v. Michigan Chamber of Commerce, so to claim that Citizens United vindicates well-established First Amendment principles may seem like a stretch. But a couple of facts about Austin suggest that it’s not.

First, Austin itself was the first case in which the Supreme Court had ever sustained a prohibition of independent corporate spending on speech about political candidates. Confronted with such prohibitions in the past, the Court avoided the First Amendment issue—to the dismay of the liberal Justices, who chided the Court for its failure to reach and to vindicate the First Amendment claim that “reaches the very vitals of our system of government.”

Second, and more telling, is the Government’s brief and oral argument in Citizens United, which asked the Court to affirm Austin’s holding but to scrap its rationale. Indeed, by deploying in Citizens United an entirely different line of reasoning from that upon which the Austin Court relied, the Government itself disavowed whatever principle Austin purported to vindicate. The conclusion is inescapable: in overruling Austin, Citizens United reaffirmed the deeply-embedded principles that Austin had repudiated.

Citizens United rests on a secure First Amendment foundation. What bears repeated and unequivocal emphasis is that the case affirms a particularly valuable species of free speech, namely the freedom to discuss public issues and to debate the qualifications of candidates during campaigns for public office.

This freedom is widely acknowledged—except by the case’s critics—to be at the very core of the First Amendment. If the First

Lillian BeVier

Agreat deal of furor has been expended over Citizens United ’s affirmation that corporations have First Amendment rights.

But corporations have always had First Amendment rights. Indeed, some of our most significant First Amendment cases have vindicated corporate rights …

UVA Lawyer / spring 2012 33

Amendment protects anything, it protects freedom to engage in political speech. And when speech is protected by the First Amendment, so is spending money to speak.

From what critics have to say, it would be easy to get the impression that there is something dishonorable in corporations’ participation in debate about candidates, or that the case isn’t about speech because it’s only about money. But the Court didn’t protect corporate and union spending on speech about candidates for office because “money is speech.” It protected it because political speech about candidates before an election is a core constitutional value. To prohibit people and organizations from spending money to engage in such speech is the same—indeed, is designed to have precisely the same effects—as prohibiting them from speaking.

A second aspect of Citizens United that bears emphasis is that it reaffirmed the Court’s long-standing distrust of speech restrictions based on the identity of the speaker or the content of the communication. As Justice Powell observed regarding the former kind of restriction: “The inherent worth of … speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” And as Justice Marshall affirmed regarding restrictions based on content: “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Critics of corporate advocacy claim that it will “distort” elections, presumably because corporate advocacy may persuade citizens to come to different conclusions than they would if corporations were prevented from having their say. In other words, critics endorse restrictions not despite their being based on the identity of the speaker, or the possibility that their speech will persuade citizens, or the content of the speech but rather because the restrictions are so based.

That Citizens United will lead to more corporate and union political speech is a good thing and not a bad one, because robust debate about candidates is a good thing. Corporations are not the monolithic evil enterprises that critics make them out to be, nor do they speak with one voice. Moreover, corporations with the dreaded “vast amounts of money” in their treasuries are, relatively speaking, few and far between, as Justice Kennedy’s opinion documented.

Citizens United permits all of them—large and small, for profit and not-for-profit—to present their views of the facts and their opinions about candidates. Apparently the case’s critics do not believe that voters are capable of discerning the wheat of persuasive argument from the chaff of partisan hot air.

34 UVA Lawyer / spring 2012

A great deal of furor has been expended over Citizens United’s affirmation that corporations have First Amendment rights. But corporations have always had First Amendment rights. Indeed, some of our most significant First Amendment cases have vindicated corporate rights—and not just the rights of media corporations, because the amendment’s shield has never been limited to them. And it would have been a mistake to limit the Constitution’s protections to natural persons: a principal function of the Constitution is to constrain arbitrary government power.

The First Amendment prohibits government from suppressing dissent, the Fourth limits government’s ability unfairly to arrest and try alleged wrongdoers, and the Fifth stops government from taking private property for public use without paying compensation. If these amendments did not apply to corporations, the ability of government to act arbitrarily—to suppress dissent, to unfairly arrest and try wrongdoers, to seize private property—would be vastly increased. Tyranny is far more likely to come from the public sector than from the private and the federal government is far more powerful than even the largest private corporation. The corporate form facilitates an endless diversity of productive and charitable activities, and corporations serve as important centers of power separate from government. It would surely be misguided to yield more power to the government by taking from corporations the protection against government arbitrariness and overreaching that the Constitution provides. n

Some Answers from a Constitutional Perspective n G. Edward White, David and Mary Harrison Distinguished Professor of Law

Is Citizens United an “Historic” Decision?

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… The Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them …

upreme Court decisions come to be thought of as “historic” for different reasons, but typically such decisions combine significant legal, political, and social consequences with rationales that are capable of being generalized over time (as opposed to rationales that seem driven by the particular factual or historical context of the case). Some such decisions end up being deeply entrenched (Marbury v. Madison being the classic example), others (Dred Scott, Plessy v. Ferguson) end up being labeled “notorious” and repudiated. Whatever their ultimate status, “historic” decisions have large consequences (judicial review, the unconstitutionality of Congress’s abolishing slavery in federal territories, the effect of the Equal Protection Clause on legally mandated racial segregation) and rest on interpretations of constitutional provisions (Article III’s ‘cases and controversies’ provision, the 5th Amendment’s Due Process Clause, the 14th Amendment’s Equal Protection Clause) that were designed to apply long past the time the interpretations were formulated. Using those criteria, one can think of Brown, Griswold, and the majority decision in Lochner as “’historic,” even if some of the doctrinal baggage associated with those decisions (‘penumbral rights’ in Griswold and ‘liberty of contract’ in Lochner) has been abandoned.

Applying these criteria to Citizens United, the decision clearly has significant short-run and potentially longer-run political consequences, especially in a presidential election year. The question, however, is whether the doctrinal basis of the majority opinion in Citizens United is one designed to transform the constitutional jurisprudence of campaign finance cases and thus to apply widely over time.

Is Citizens United a legal argument or an ideological statement? Does it take First Amendment jurisprudence in a new direction?

Part of this question involves something of a detour. I don’t think the line between legal arguments and ideological statements is a bright

UVA Lawyer / spring 2012 35

Ted White

One might be confident—I am not—in labeling the majority outcome in Citizens United “conservative” or “liberal …”

36 UVA Lawyer / spring 2012

one. Since social and political issues are routinely translated into constitutional arguments in American culture, the Supreme Court consistently entertains cases raising contested questions in society at large. Those questions are contested in part because people approach them from competing ideological perspectives.

So of course the outcome in Citizens United has ideological ramifications, although I am not sure they are easy to categorize in conventional ideological labels. Some people believe that allowing wealthy corporate institutions a virtually unlimited ability to contribute to political campaigns distorts the market for political speech because distributing campaign messages costs money, resulting in the views of wealthier speakers allegedly having more influence. Others believe that the market for political speech works like other markets, with the impact of the speech being determined more by consumers than producers of its content. One might be confident—I am not—in labeling the majority outcome in Citizens United “conservative” or “liberal” (that would seem to depend on a baseline for such terms as applied to free speech cases, and in my view that baseline tends to shift regularly over time).

But surely there is more to the Citizens United decision than its outcome, which gets me to the question about First Amendment jurisprudence. Although Citizens United overruled the Court’s 1990 decision in Austin v. Michigan Chamber of Commerce, which allowed a state to prohibit corporations from using their corporate treasury funds to support or oppose candidates for political office, the primary constitutional rationale for Citizens United goes back to a line of decisions beginning with Buckley v. Valeo (1976), in which the Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them; in particular, the rationale of “equalizing the market” for speech about politics by imposing limits on expenditures had been disapproved by a majority of the Court. The only state interest in restricting the amounts expended for political campaigns given weight by Court majorities in the last decade has been that of eliminating the reality or appearance of corruption.

Once shifting majorities in the recent Court reached a consensus that the First Amendment does not permit a restriction on the campaign speech of some individuals to enhance the speech of others, it was necessary to find some link between particular restrictions and the anti-corruption rationale. The problem with applying that rationale to corporate speakers is that it rests on an assumption that there is a meaningful difference between a candidate’s being supported by wealthy individuals and being supported by corporations. Since many wealthy individuals and corporations have expended money on the campaigns of both of the major candidates in visible political elections in the last decade, one may assume that their contributions are a “bid for influence” with those candidates without assuming that there is something sinister in those bids for influence when they are made by corporations as

opposed to individuals. So Citizens United, rather than being a novel doctrinal innovation, might be seen as the culmination of doctrinal developments in the Court’s constitutional jurisprudence of campaign finance since the 1970s.

Will election law scholars and political strategists decades hence see Citizens United as a turning point in American political history, or just another case that fine-tuned how the country manages its elections?

The short-term practical effect of Citizens United has been perceived to be possibly more significant than any of the Court’s campaign finance decisions since Buckley v. Valeo. This is because eliminating restrictions on corporate as well as individual spending in elections has freed up candidates to create the “SuperPACs” that can amass large amounts of money for campaigns without having to attend to previous rules limiting campaign expenditures. That effect of Citizens United has clearly been characterized by some as distorting, anti-egalitarian, and having a tendency to support special interests in political campaigns at the expense of the interest of the individual voter.

Here is where perceptions of the political consequences of the decision appear to run squarely up against its jurisprudential basis.

The majority in Citizens United is saying, in effect, “The greater influence of some speakers in the market cannot be a reason for treating those speakers differently from other speakers [unless that influence is connected to the reality or appearance of corruption].”

That suggests that any efforts to privilege some speakers in political campaigns, even if those efforts are speech-enhancing (such as public funding designed to support less wealthy candidates), run afoul of the First Amendment. If that reading of the majority opinion in Citizens United is accurate, the decision would appear to be based on a constitutional principle of campaign finance jurisprudence designed to have lasting effect.

There would thus seem to be a qualitative difference between Citizens United and the Court’s previous campaign finance decisions since Buckley v. Valeo. Alongside Citizens United, those cases look like a judicial response to piecemeal efforts on the part of Congress to restrict campaign finance contributions or expenditures, resulting in various judicial formulas interpreting the First Amendment to preclude some efforts and permit others. It is as if in Citizens United the majority said “enough—any regulation that privileges some speakers in political campaigns at the expense of other speakers, whoever those speakers are, is unconstitutional.”

Of course it’s clear the Court didn’t mean that literally: bribery laws remain in effect after Citizens United, even if bribery is surely a form of “speech.” But it’s also clear that the majority wanted to categorically eliminate the “equalizing the market for campaign speech” rationale from its campaign finance jurisprudence.

E

ven if the above understanding of Citizens United is accurate, it may nonetheless be premature to label the decision “historic,” for two reasons.

First, the Court’s First Amendment jurisprudence has never been absolutist, despite the views of some individual justices.

First Amendment cases involve a weighing of state interests in restricting speech, and even when the speech is in a highly protected category, sometimes the government can demonstrate a compelling interest in restricting it. So categorical propositions in First Amendment jurisprudence have typically not had a long shelf-life (consider the Court’s twentieth-century “wall of separation” formulation in establishment clause cases, which has been repeatedly breached in twenty-first century decisions to permit various types of state support for religious schools).

Second, the political valence of efforts to prevent “unfairness” in the distribution of political campaign messages remains high.

It is no accident that President Obama has publicly criticized the Citizens United decision. The ideal of a “level playing field” for political candidates and messages connected to campaigning is deeply entrenched in American culture (despite repeatedly being departed from). This suggests that elected officials may continue to try to find ways to circumvent or neutralize the Citizens United majority’s proposition that the First Amendment does not tolerate efforts to equalize the market for speech about campaigns. I think it is far too early to say that Citizens United “ends” those efforts.

Stevens’s dissent says that the decision makes a mockery of stare decisis. Does he have a point, or is that a common dissent when the Court invalidates prior case law?

As I noted previously, although in one sense Citizens United involves a more categorical statement of the First Amendment’s effect on efforts to impose limitations on campaign contributions and expenditures, in another sense it can be seen as the culmination of the Court’s characterization of “money as speech, and campaign money as political speech” that dates back to the 1970s.

I would therefore disagree with Stevens’s characterization of the decision as making a “mockery” of the practice of stare decisis.

Moreover, with some rare exceptions, the doctrinal shelf-life of the Court’s constitutional law decisions tends to average about twenty years, so in that respect the Citizens United majority’s overruling of Austin, decided in 1990, seems right on schedule. n

UVA Lawyer / spring 2012 37

The Supreme Court’s Shift Away from Protecting Voters to Promoting Free Expression n Brian McNeill

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rofessor Dan Ortiz says the U.S. Supreme Court has largely abandoned the idea of protecting individual voters’ rights in favor of creating a structure that promotes free expression.

Citizens United v. FEC did more than change the funding model of U.S. elections, says University of Virginia Law Professor Ortiz.

The case offered yet another indicator that the Court has largely abandoned the idea of protecting individual voters’ rights in favor of creating a structure that promotes free expression in the marketplace of ideas. Ortiz explores the implications of that shift in his new article, “Recovering the Individual in Politics,” which will appear in New York University’s Journal of Legislation and Public Policy early this summer.

Ortiz, an expert on constitutional law and electoral law, discussed his forthcoming paper with the Law School.

38 UVA Lawyer / spring 2012

You write that in a number of recent election law decisions, the Supreme Court’s interpretation of the First Amendment has overlooked the importance of individual participation and instead emphasized the protection of social processes. Can you elaborate on this?

In its recent campaign finance decisions, the Court has not judged campaign finance regulations by how they affect an individual’s or entity’s right to participate in the political process but rather by how they affect the marketplace of ideas. It has focused attention away from questions like whether certain people or entities have participation rights that are burdened to whether a particular regulation impairs people’s ability to hear ideas.

What are a few recent Supreme Court decisions that best illustrate your argument?

The most notable—to some, most notorious—is Citizens United, the case in which the Supreme Court struck down regulations that prohibited business corporations and unions from spending from their general treasury funds to run broadcast, cable, and satellite advertisements featuring candidates for federal office within a certain window of the general and primary elections. The Court didn’t ask whether corporations and unions have the same right to participate in electoral activities as natural people or whether their participation might affect others’ ability to participate. Instead, it said that the identity of the speaker didn’t matter. Since it believed that corporate advertising, just like advertising paid for by natural people, helped the marketplace of ideas function more robustly, the Court held that corporate spending in elections should enjoy the same basic First Amendment protection that spending by natural people does.

much they’re spending, and on what. Required disclosure is still constitutionally permissible and should be adopted. Unfortunately, robust disclosure rules help only so much and politically it can be hard to have them adopted. Many in Congress don’t want heightened disclosure requirements right now because it would make it more difficult for outsiders to spend on their behalves.

How did you become interested in this topic?

Election law and campaign finance, in particular, are long-standing interests of mine. My first academic legal paper, my law school note, was on an election law topic and I’ve worked this corner of the law ever since.

Dan Ortiz

How does this article fit in with your overall scholarship?

Can you point to a few practical effects of this shift? What does this mean for the average American voter?

First, it means that there will be lots of advertising from sources that there wasn’t so much from before. And, to those who fear that politicians are beholden to those whose efforts and money help elect them, it means that government will pay even more attention to a powerful set of special interests than before.

Why do you believe the Supreme Court should be doing more to protect individual participation in politics?

Maybe I have a romanticized view of how politics can function, but, to me, the individual voter should stand at the center of things. The voter’s consent, after all, is what ultimately legitimates government. The more active the citizenry participates, to my mind, the better.

In light of the controversy surrounding the Supreme Court’s decisions in cases like Citizens United, are there any particular reforms that you would recommend?

The present Court has made it hard to regulate many forms of campaign spending except through disclosure, a regulatory technique under which spenders have to identify themselves, how

It presses further several ideas I’ve suggested in earlier papers on campaign finance, particularly the idea that our views on the constitutionality of campaign finance regulation turns largely on how we believe individuals actually make political decisions.

How do you believe voters make political decisions?

Different people make them differently. Study after study shows that most of us are fairly uninformed. We don’t know much about the candidates and issues that we’re voting on and, to the extent we know anything at all, most of it comes from so-called “shortcuts,” like party identification. And that ignorance is rational. We don’t know much not because we’re stupid but because the chance that our vote will make a difference is so small that it doesn’t make sense for us to invest much time and energy in gathering information. Some of us, by contrast, know a lot about politics, but for most in this group it’s because they view politics like a hobby. In other words, they derive pleasure from following the ups and downs of races and want a part of that excitement. Many of us are somewhere in between. And our knowledge about the issues probably varies from election to election. The trick of any well-functioning political system is to interest as many people as possible as deeply as possible in elections. But we all have other, central parts of our lives to attend to and most of us can devote only so much time to politics. n

UVA Lawyer / spring 2012 39

Faculty News & Briefs

In March Kenneth Abraham won the 2012 Liberty Mutual Prize from Boston College Law School for his paper, “Four Conceptions of Insurance” awarded for an exceptional work on property and casualty insurance.

The paper will be published in the University of Pennsylvania Law Review. In addition, Abraham gave the keynote address at a Conference on the Law of Insurance Claim Practices at the Rutgers-Camden Law School.

to present it at the International Society of Family Law conference at the University of Iowa in June.

In March Abrams did a panel presentation at the Law School with Dr. Charlotte Patterson of the University’s Department of Psychology on the use of social science studies of gay and lesbian parents in legal cases; presented a new paper “A Legal Home: Derivative Domicile and Women’s Citizenship” at the NYU Law School Golieb Colloquium; presented, with her co-author, Kent Piacenti ’12, a new paper called “Immigration, Citizenship, and Parentage,” at the Association for the Study of Law, Culture, and Humanities annual conference in Fort Worth, Texas; and presented a new essay, “Citizen Spouse,” at the University of North Carolina Law School faculty workshop.

Kerry Abrams’s recently published article “Marriage Fraud” in the California Law Review was the subject of a faculty Q&A for the Law School website.

Abrams presented an essay that she is co-authoring with Anne Coughlin, “Recognizing Polygamy,” at the Feminist Legal Network conference at George Washington Law School in January, and the two also plan

40 UVA Lawyer / spring 2012

In November Margo Bagley presented “America Invents Act: Prior Art” at the University of Minnesota School of Law’s Patent Strategy After The America Invents Act Workshop.

In February she presented “Issues in Plant Patent Litigation in the U.S. and Abroad” at Drake

University School of Law in Des Moines; “Changing Tides or a Drop in the Bucket? Issues in Plant Patent Litigation in the U.S. and Abroad” at the Iowa State University Bioethics Symposium, Who Owns Life?; and “The Wheat and the (GMO) Tares: Lessons for Plant Patent Litigation from the Parables of Jesus Christ” at the University of Minnesota MacLaurin Center Annual Faith and Law Lecture.

Michal Barzuza made a presentation to the Illinois College of Law’s Program on Business Law and Policy, Corporate Colloquium in September and in November to the Law School’s alumni board and council meeting and to a Law & Finance Workshop at the Swiss Institute of Technology in Zurich.

Faculty News and Briefs …

During the past year,

Richard Bonnie ’69 undertook several policy initiatives on mental health law.

He brought to a close his service as chair of the Commission on Mental Health Law Reform established by the chief justice of Virginia’s Supreme Court in the fall of 2006 and shepherded the Commission’s final legislative proposals through the General Assembly in 2012. In addition, in November he presented the Virginia College Mental Health Study, addressing the capacities of the commonwealth’s colleges and universities to respond to student mental health needs, to the General Assembly’s Joint Commission on Health Care (JCHC). The JCHC commissioned the study in October 2009.

Chaired by Bonnie, the study featured a survey of Virginia’s 64 private and public colleges and universities regarding students’ access to and utilization of counseling center services as well as the colleges’ policies and practices regarding response to mental health crises. Key results of this survey were published in an article, “Interventions Used by Colleges to Respond to Student Mental Health Crises,”

co-authored by Bonnie, John Monahan, and other colleagues and published in the November 2011 issue of Psychiatric Services.

Based on the survey and the deliberations of two task forces, the study team recommended better coordination between the colleges and mental health system and strengthening the capacity of community colleges to prevent and respond to mental health crises. Legislation recommended by the study was enacted by the General Assembly in 2012.

Bonnie is directing several grants designed to promote use of advance directives to guide health care outside the context of end-of-life decision-making, especially by people with serious mental illness and by individuals concerned about cognitive impairment as they age or who have been diagnosed with early stage Alzheimer’s Disease. These activities arise out of a major revision of the Health Care Decisions Act enacted by the Virginia General Assembly in 2009 and 2010 based on recommendations of Bonnie’s Commission on Mental Health Law Reform. He made presentations on this topic at Duke in April 2011, and at two colloquia sponsored by the UVA

Psychology Department in April 2011 and this past January. Also in 2012, he published “A Survey of Stakeholder Knowledge, Experience, and Opinions of Advance Directives for Mental Health in Virginia” with colleagues in Administration and Policy in Mental Health Services and Research.

Bonnie also initiated a new project relating to criteria and procedures for revoking and restoring the right to purchase, possess, and carry a firearm based on mental health conditions, a body of law that has come under scrutiny in the wake of the Supreme Court’s recent decisions recognizing individual firearm rights under the Second Amendment. He convened a task force and held a public forum in November at the University’s Frank S. Batten School of Leadership and Public Policy.

He will also present a paper on this topic at the annual meeting of the American Public Health Association in October.

Bonnie made several additional presentations on health law and ethics. He spoke on legal and ethical aspects of preparing for death at the program sponsored by the Hospice of the Piedmont, “Consider the Conversation,” at the Paramount Theater in Charlottesville in November. He also presented a paper entitled “Conscience and Duty: Reflections on Wearing White Coats and Other Uniforms,” at the University of Wisconsin School of Medicine and Public Health in April. In May he discussed the theoretical foundations of the rules governing intoxication in the penal law at Columbia Law School and the use of mandated

outpatient treatment in Europe and the United States at the anual meeting of the American Psychiatric Association.

He made presentations on U.S. drug policy for the committee on science, technology and law of the National Academy of Sciences in October, the Contemporary Club of Albemarle in November, and Fordham Law School in March.

In March Bonnie chaired and participated in a panel of public health leaders taking stock of whether progress has been made in reducing tobacco use in the five years since publication of the Institute of Medicine’s landmark study, Ending the Tobacco Problem: Blueprint for the Nation, which Bonnie chaired.

Bonnie is also serving on new MacArthur Research Network on Law and Neuroscience established in July 2011. Among the Network’s projects in which he is participating are several relating to the capacity of various brain imaging technologies to identity mental states (such as awareness, recognition, or deception) of interest to the legal system.

In addition to the publications mentioned above, Bonnie also published during this period a paper with Gil Siegal in the summer 2012 issue of the Journal of Law, Medicine and Ethics entitled “Personalized Disclosure

by Information on Demand,” and a paper in Psychiatric Services entitled “Reducing Mental Health Civil Commitments through Longer Temporary Detention Periods,” as well as several op-ed columns arguing that the individual mandate is within the reach of Congress’ power under the commerce clause.

UVA Lawyer / spring 2012 41

Faculty News and Briefs …

In December Tomiko Brown-Nagin was a commentator on a book panel about Reasoning from Race by Serena Mayeri at the University of Pennsylvania School of Law. In January Brown-Nagin gave the keynote address at the University of Iowa College of Law on the Martin Luther King Jr. Day Observance. She also gave the Rosenfield Lecture at Grinnell College.

In February she was a commentator on Law in American History, Vol. 1 by G. Edward White at the Law School, and in March gave the Hutchins Lecture at the University of North Carolina.

In April Brown-Nagin presented “Lawyers, the Grassroots, and Social Change: Constance Baker Motley at the Bar and on the Bench” at the Modern History Workshop at Princeton University, and the Lawyering & Social Change Lecture at the University of Pittsburgh School of Law.

42 UVA Lawyer / spring 2012

Jon Cannon was elected a fellow of the American College of Environmental Lawyers. In February he spoke on “The Clean Water Act at Forty” at the plenary session of the 18th Annual Public Interest Environmental Conference at the University of Florida Fredric G. Levin College of Law. Cannon spoke on the legal and political challenges of climate change at Williams College in January and the William & Mary Law School in March.

In April he spoke to the Virginia League of Conservation Voters on state and federal environmental legislation and the U.S. Constitution. Cannon continues to work on a book on the environmental decisions of the Supreme Court of the United States.

In March George Cohen presented his paper, “The Financial Crisis and the Forgotten Law of Contracts” at the 7th International Conference on Contracts at the Thomas Jefferson School of Law in San Diego. In addition, he will become the chair of the University of Virginia Faculty Senate in June and will give a CLE ethics presentation, “Beyond the No-Contact Rule: Ex Parte Contact with Non-Clients,” at the Law School’s Alumni Weekend.

In June Cohen will participate in a panel discussion sponsored by the Virginia Supreme Court on Ethics and Professional Responsibility Issues for Special Justices, which is part of their 2012 conference and mental health law update for special justices handling adult and juvenile civil commitment hearings.

Brandon Garrett’s article “Habeas Corpus and Due Process” will be published by Cornell Law Review in the fall.

A second piece, “Aggregation and Constitutional Rights” is forthcoming in the Notre Dame Law Review. Greg Mitchell and Garrett have also written a draft under submission, titled “Lay Interpretation of Fingerprint Examiner Testimony: The Effect of Match Language, Method Information and Error Acknowledgement.” Garrett’s “The Grit Writ,” a book review of Justin J. Wert’s Habeas Corpus in America, was published in The Review of Politics.

In January Garrett gave a talk on Convicting the Innocent at Arizona State University’s Sandra Day O’Connor School of Law, and gave training on eyewitness identification procedures to the Charlottesville Police Department.

In February he gave a talk titled “Eyewitnesses and the Court,” as the keynote address at the Catholic University Law Review annual symposium; and presented a talk on “Eyewitness

Faculty News and Briefs …

Misidentifications,” at the annual Guggenheim Symposium at John Jay College.

In March Garrett spoke at the Innocence Network National Conference in Kansas City and at a symposium being held by New England Law Review about his book Convicting the Innocent. He also contributed the introductory essay on the symposium in the Law Review.

Garrett taught two Osher Lifelong Learning Institute (OLLI) continuing education classes at UVA on eyewitness misidentifications and false confessions.

The OLLI was designed to bring together people from various backgrounds who share a common interest in learning and intellectual stimulation.

In May Garrett will present at the Criminal Justice Roundtable at Columbia Law School, and will also present a talk on Convicting the Innocent to the West Virginia Judicial Conference.

Garrett wrote short pieces of commentary including, “Learning What we Can from DNA” written as the lead essay for an online discussion on DNA and the Death Penalty in Cato Unbound; “Expanding DNA Databases is Problematic” for Jurist on February 29, 2012; “See No Evil,” Slate, January 12, 2011; “The Single Witness and the Single Eyewitness,” ACS Blog, January 12, 2011, and “Trial and Error: Learning from Patterns of Mistakes,” ABA Criminal Justice, Winter 2012.

JD/MA in Legal History program as Charles McCurdy retires.

Goluboff appeared in the PBS documentary, Slavery by Another Name, which debuted in February. Finally, she was recently appointed a faculty associate for the Governing America in a Global Era (GAGE) Program of the University’s Miller Center for Public Affairs.

In October Michael Gilbert presented a paper titled “Disclosure, Credibility, and Speech” at the Disclosure, Anonymity, and the First Amendment Conference at UVA. His paper from the conference is forthcoming in the Journal of Law and Politics.

Gilbert is completing a paper titled “Disclosure and the Information Tradeoff ” that addresses the effects of campaign finance disclosure on voter information.

Risa Goluboff received a Jacob Burkhardt Residential Fellowship from the American Council of Learned Societies for the 2012–13 academic year to support the writing of her book, People out of Place: The Sixties, the Supreme Court, and Vagrancy Law. Goluboff was appointed to serve as director of the University’s joint

Tom Hafemeister has several offers pending from various law reviews for a manuscript entitled “The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with Mental Illness,” (with Jeff George ’13). This paper targets a barbaric practice that is the subject of increasing national and international condemnation.

He is also completing work on another manuscript entitled “The Door Shouldn’t Be Hitting You on the Way Out: Recognizing Hospitals’ Fiduciary Duties to Their Discharged Patients,” which addresses a topic that has been a key component of efforts to reform health care delivery in this country, namely, hospital readmissions (with Joshua Hinckley Porter ’10 and Salima Ali ’11).

Hafemeister also recently completed (with Shelly L. Jackson) a pair of articles published in

peer-reviewed journals. The first, “Pure Financial Exploitation vs.

Hybrid Financial Exploitation Co-Occurring with Physical Abuse and/or Neglect of Elderly Persons,” is being published in Psychology of Violence. The second, “APS Investigation Across Four Types of Elder Maltreatment,” will be published in the Journal of Adult Protection. In addition, he is about to finish a paper written at the request of the National Institute of Justice that seeks to articulate a better foundation in theory for future research and interventions pertaining to elder abuse.

In February Rachel Harmon gave a talk entitled, “What the Federal Government Can Best Do to Reduce Misconduct” at Saint Louis University School of Law’s Public Law Review 2012 Symposium, “Control of Police Misconduct in a PostExclusionary Rule World: Can it Be Done?”

In March her article, “The Problem of Policing,” appeared in the Michigan Law Review. It also received honorable mention in the Association of American Law Schools Scholarly Papers Competition, announced at the AALS annual meeting in January.

UVA Lawyer / spring 2012 43

Faculty News and Briefs …

A. E. Dick Howard ’61 gave the keynote address at a symposium on the role of government organized in Charleston by the Charleston Law Review and Furman University’s Riley Institute of Government. Using the Warren Court’s activism as his point of departure, Howard discussed developments since the 1960s, such as the emergence of conservative public interest law firms and the birth of the Tea Party, that affect debates over the Constitution and government’s role. An article based on the keynote address will appear in the Charleston Law Review.

At the National Archives in Washington, D.C., Howard lectured on Magna Carta and its legacy in American constitutional law. The occasion recognized the display at the Archives of a copy of the charter owned by philanthropist David Rubenstein.

In Williamsburg, at the annual meeting of the Virginia Bar Association, Howard organized a program marking the 40th anniversary of Virginia’s present Constitution. Howard spoke on the several revisions of the Constitution and their intersection with great social and political

44 UVA Lawyer / spring 2012

moments in the Commonwealth’s history. He then moderated a discussion featuring former Governor Gerald Baliles ’67, Virginia Supreme Court Justice Elizabeth Lacey, and onetime VBA president Philip Stone.

At James Madison’s Montpelier, Howard was one of the speakers at a conference, “Founding Conversations: James Madison and Nelson Mandela,” organized

by Montpelier and the South African Embassy in Washington.

In Charlottesville, Howard gave the keynote address at the Model United Nations sponsored by the University of Virginia. His subject was “Revolutions and Constitutions.”

In January 2011 Jason Johnston presented “The Law and Economics of Regulatory Science” at the George Mason University Law and Economics Center Program on Judicial Education in Tucson; in February at the European Law and Economics and Geneva Association Joint Workshop on Climate Change and Insurance at the University of Innsbruck; in November at the University of Pennsylvania Conference on the Dodd-Frank Act; and will again in June at the annual meeting of the International Society for New Institutional Economics at the

University of Southern California Law Center.

Johnston has published “Fire Suppression Policy, Weather, and Western Wildland Fire Trends: An Empirical Analysis,” (with Jonathan Klick) in Karen M. Bradshaw & Dean Lueck eds., Wildfire Policy: Law and Economics Perspectives (RFF Press, 2012); Institutions and Incentives in Regulatory Science; (editor and contributor); Lexington Publishers, 2012; and Disasters and Decentralization, Geneva Papers on Risk and Insurance (Special Issue: Climate Change and Insurance).

In January Douglas Laycock learned that he and his team had won a 9-0 victory in the Supreme Court, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. He spoke about the case in January at the annual meeting of the American Association of Law Schools, in February to the Yale Federalist Society and the Virginia Law Review banquet, and in May to the National Association of Diocesan Attorneys and the Law School’s Alumni Council.

Also in January, Laycock spoke on the Religious Land Use and Institutionalized Persons Act at the Association of American

Law Schools. In March he spoke at UVA on “President Obama’s Contraception Mandate.”

He recently published Modern American Remedies: Cases and Materials (concise 4th ed.), “Sex, Atheism, and the Free Exercise of Religion” in the University of Detroit Mercy Law Review, and “The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement)” in the Journal of Tort Law. In October he filed an amicus brief in support of respondent in First American Financial Corp. v. Edwards, a pending Supreme Court case about a statutory claim modeled on the law of restitution.

In December Elizabeth Magill ’95 participated in a conference at Harvard Law School. The topic was “Political Risks in Public Law.” For the past year Magill has been chair of the American Association of Law Schools (AALS) section on administrative law. At the annual meeting of the AALS in January, the section put on a panel discussion that she had organized and moderated, “Presidential Review in the Obama Administration.”

Faculty News and Briefs …

Jeffrey Klein, in the Employee Relations Law Journal.

This spring Mitchell presented a paper co-authored with Brandon Garrett on fingerprint evidence at the University of Illinois College of Law and presented research on EEOC consent decrees at the annual conference of the Society for IndustrialOrganizational Psychology. In May he published an essay titled “The Importance of Replication in the Field” in the Psychologist.

I. Singh, W. Sinnott-Armstrong, and J. Savulescu (Eds.)New York: Oxford University Press; “The individual risk assessment of terrorism” in Psychology, Public Policy, and Law; and “Innumeracy and unpacking: Bridging the nomothetic/idiographic divide in violence risk assessment” (with Scurich, N. and John, R.) in Law and Human Behavior.

In March Dan Meador presented a portrait of Woodrow Wilson, Class of 1880, to the Law School (an earlier Wilson Portrait having mysteriously vanished to the Miller Center) and delivered a talk on Wilson, focusing mainly on his time as a student at the Law School.

John Monahan co-wrote

Greg Mitchell published a paper titled “Revisiting Truth or Triviality: The External Validity of Research in the Psychological Laboratory” in Perspectives on Psychological Science and published a paper titled “Effective Use and Presentation of Social Science Evidence,” which was co-authored with Allan King and

(with Steadman, H.) “Extending violence reduction principles to justice-involved persons with mental illness in Applying Social Science to Reduce Violent Offending, Oxford University Press, J. Dvoskin, J. Skeem, R. Novaco, and K. Douglas, K. (Eds).

He has in press “Dangerousness” (with Gray, N., Gunn, J., James, D., Snowden, R., Taylor, P., Walker, J., and Warren, L.) in Forensic Psychiatry: Clinical, Legal, and Ethical Issues (2nd ed) (Taylor, P., and Gunn, J); “Violence risk assessment” in Handbook of Psychology (2d ed) R. Otto (Ed.); “The inclusion of biological risk factors in violence risk assessments” in BioPrediction of Bad Behavior: Scientific, Legal and Ethical Implications,

In December John Norton Moore participated in the panel “Use of Force Decisions of the International Court of Justice: Triumph or Tragedy?” at the ABA’s 21st Annual Review of the Field of National Security Law in Washington, D.C. His paper on this topic, entitled “Jus ad Bellum Before the International Court of Justice” is forthcoming this year in the Virginia Journal of International Law. In February, at the request of former Vietnam POW Orson Swindle, Moore took part in a program at the Virginia Veterans War Memorial.

In March Moore led the international law curricular sessions for the admitted students open house. Also in March, Moore hosted Ambassador Arif Havas

Oegroseno of Indonesia who spoke on Contemporary Issues of the South China Sea Dispute.

This lecture was a component of Moore’s class on Oceans Law and Policy but was open to the University community.

In April Moore and Professor William B. Quandt spoke on Syria and the Arab League at the J.B. Moore Society of International Law faculty lecture series.

Moore, chairman of the Sokol Colloquium committee, along with professors John Setear and Pierre-Hughes Verdier hosted the 25th Annual Sokol Colloquium on April 19. This year’s topic was “Foreign Affairs Litigation in United States Courts.” Moore announced that papers from the colloquium, published years ago under the guidance of the late Professor Richard Lillich, will once again be published. The first of these volumes in the new series will contain the papers from last year’s Colloquium on International Arbitration: Prospects and Problems. Edited by Moore, it is forthcoming this fall. The papers from this year’s colloquium, also edited by Moore, will be published this winter.

Moore, who is director of the Center for National Security Law (CNSL), will give several lectures at the 20th National Security Law Institute sponsored by the center, at UVA. This annual program takes place the first two weeks of June and draws law professors, military personnel, and government attorneys seeking to

UVA Lawyer / spring 2012 45

Faculty News and Briefs …

better familiarize themselves with national security law.

Also in June Moore will speak at the international conference, “Regulation of Continental Shelf Development: Rethinking International Standards” held in Halifax, Nova Scotia. The primary sponsor of this conference is UVA’s Center for Oceans Law and Policy (COLP) which Moore directs.

In July Moore will lecture at the 17th Rhodes Academy of Oceans Law and Policy. Sponsored by COLP, this two-week annual program features experts on oceans law, policy, and science.

It takes place in Rhodes, Greece, and always draws highly-qualified students, primarily lawyers, from numerous countries.

John Morley published an article called “Collective Branding and the Origins of Investment Fund Regulation” in the Virginia Law & Business Review; presented an article called “The Separation of Investments and Management” at the Yale Law School Weil, Gotshal Corporate Law Roundtable and the Columbia Law School Blue Sky Workshop; and presented an article called “An Empirical Study of Mutual Fund Excessive Fee Liability: Do the Merits Matter?” at the Harvard Law School Law and Economics Colloquium.

46 UVA Lawyer / spring 2012

In addition to his teaching and writing in antitrust and communications law, Tom Nachbar continues to serve as both an U.S. Army Reserve judge advocate and a civilian senior advisor to the U.S. Department of Defense, Office of Rule of Law and Detainee Policy. In the former capacity, he attended the Judge Advocate Officer Advanced Course at the U.S. Army Judge Advocate General’s Legal Center and School in Charlottesville this January. In the latter capacity, he served on the U.S. delegation to the Ninth Meeting of the High Contracting Parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

This spring Nachbar’s paper, “Counterinsurgency, Legitimacy, and the Rule of Law” will be published in Parameters, the professional journal of the U.S. Army War College. He was recently named a senior fellow of the Center for National Security Law.

This spring Jeffrey O’Connell and his brother Thomas E. O’Connell published a book Five 20th Century College Presidents: from Butler to Bok (plus Summers) which uniquely focuses on the five roles of college presidents: leader, manager, energizer, envoy, and intellectual. The book takes up long-serving presidents running the gamut of the 20th century: Nicholas Murray Butler of Columbia (served 1900–45), Robert Hutchins of the University of Chicago (1930–51), James Bryant Conant of Harvard (1933–55), John Sloan Dickey of Dartmouth (1946–71) and Derek Bok of Harvard (1971–91, 2006).

At the book’s end, it examines the implosion of Lawrence Summers’s presidency at Harvard (2003–06).

In January Bob O’Neil received the First Freedom Council’s Virginia Award for commitment to religious liberty. Recently retired Episcopal Bishop Peter Lee and American Jewish Committee (AJC) Executive Director Marc Stern were his fellow recipients.

On James Madison’s birthday in March, O’Neil gave the keynote speech at the annual National Freedom of Information Conference at the Freedom Forum. He was also the keynote speaker at the University of MissouriColumbia on the Liberty Tree Initiative, sponsored by the Reynolds Journalism Institute along with the American Society of Newspaper Editors and the Knight Foundation.

Finally, the University of Virginia Press just published In Chambers, by Professor Todd Peppers ’93 of Roanoke College, including two chapters on Supreme Court Justices and their law clerks. O’Neil’s chapter was on Justice Brennan and his clerks.

Faculty News and Briefs …

Dan Ortiz has a forthcoming article appearing in the Election Law Journal titled “A Charter for a Vibrant Democracy.”

appeared on a panel at George Washington University with Supreme Court Justices Kennedy and Alito, and judges of the European Court of Human Rights on comparative constitutional law, giving a talk on “The Exceptional First Amendment”; gave a lecture on “The Force of Law: The Role of Coercion in Legal Theory” at Queen’s University, Kingston, Ontario, Canada, at University of Naples (Italy), and at Pontifical University, Rio de Janeiro (Brazil).

The lecture is about a current book in progress. He also spoke on “Stare Decisis on the Supreme Court” at University of Baltimore School of Law; and delivered paper at Royal Academy, Copenhagen, Denmark, on “Legal Realism and the Selection Effect.”

organized by the State Department and with the participation of Justices of the U.S. Supreme Court and members of the European Court of Justice.

Chris Sprigman finished an article, “Valuing Attribution and Publication in Intellectual Property,” which is the third in a series of papers reporting on laboratory experiments investigating how people value, price, and trade things that they have created.

He has also finished a book, The Knockoff Economy: How Imitation Sparks Innovation, that will be published by Oxford University Press in late summer.

Siva Vaidhyanathan published “Conversations with Renowned Professors and Practitioners on the Future of Copyright “ (with Jane Ginsburg, Jule Sigall, Kenneth D. Crews, Nina Paley, and David Carson) in the Tulane Journal of Technology and Intellectual Property.

Fred Schauer delivered a paper in December on “The Political Risks (If Any) of Violating the Law” at conference at Harvard Law School on Political Risks and Public Law and to the University of Richmond Program on Philosophy, Politics, Economics, and Law. The paper will be published in the Journal of Legal Analysis. In January Schauer delivered a paper on “The Ubiquity of Prevention” at a conference at Oxford University on preventive justice, which will be published by the Oxford University Press.

He also gave lectures on “Precedent” and “Constitutionalism” at University of Genoa (Italy) Master Course on Legal Theory; delivered a University-wide lecture at Marshall University on “Does the Constitution Matter?”;

The book that Molly Shadel co-authored with Bob Sayler, Tongue-Tied America: Reviving the Art of Verbal Persuasion, was featured as part of the Virginia Festival of the Book in March. Their appearance was sponsored by the Thomas Jefferson Center for the Protection of Free Expression.

Shadel also wrote “Make Jobs More Family Friendly” for the National Law Journal and “Mother-in-Law: Juggling a Legal Career and a Personal Life” for WorkStew.

In March Paul Stephan ’77 was elected to the executive council of the American Society of International Law, and in April he spoke at the Sokol Colloquium with respect to the recent International Court of Justice judgment on foreign sovereign immunity, and gave a lecture at Houston Law School on the Yukos affair.

Stephan also presented a paper on court-on-court encounters at workshops at Northwestern, Virginia, and George Washington law schools.

In May Stephan will take part in a seminar in Luxembourg

Walter Wadlington and Father Raymond O’Brien ’69, professor of law at The Catholic University of America and the Georgetown School of Law, have published Wadlington and O’Brien, Family Law Statutes, 4th edition 2011; and Wadlington & O’Brien, Family Law in Perspective, 3rd edition 2012. n

UVA Lawyer / spring 2012 47

Class Notes We welcome submissions for inclusion in Class Notes.

Online, submit them at www.law.virginia.edu/alumni; E-mail them to lawalum@virginia.edu; mail them to UVA Lawyer, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903; or fax them to 434/296-4838. Please send your submissions by September 1 for inclusion in the next issue.

1940

Region for his courageous contributions to the war

He has ventured into

Mortimer Caplin was

effort. After completing his

the world of e-books with

honored for his World

tour of duty, he returned to

the publication of the

War II service at the

practice law in New York.

second edition of Who Murdered Mom? along with

Fellows of the American Bar Foundation 56th Annual Awards Banquet

1945

his full-length two-act play, Arbitrating Murder.

The play is based on the

on February 4 at the National World War II

Betty Blair Stewart died

new edition of his book,

Museum in New Orleans.

at home in Marion, Va.,

which was re-edited by

at the age of 89. After

Darla Blaha, best known

ABF board of directors,

graduating from the Law

for writing about the

received a special honor

School, where she was

chicken ranch that was

for his courageous service

editor of the Virginia Law

basis of the Broadway play

in World War II. Following

Review, she served as a

The Best Little Whorehouse

graduation from the Law

civilian with the U.S. Army.

in Texas. Another book by

School in 1940, he clerked

Later she worked with

Swacker, Boardroom Con-

Caplin, a member of the

1936

president (1983–84).

for U.S. Circuit Judge

the State Department in

spiracies, has been paired

George C. Seward passed away on February 15

Armistead Dobie, then

Germany following World

with his play, the court-

at his home in Scarsdale, N.Y., at the age of 101.

joined Cohen, Cole, Weiss

War II and as law clerk to

room drama entitled Who

He practiced law for over 70 years and contin-

& Wharton in New York.

the chief justice of the

Murdered the Chairman? “I

ued to work at Seward & Kissel, a Manhattan

Soon after beginning his

occupation court system.

think producers, publish-

firm focused on corporate and litigation work

legal career he enlisted

In the 1960s she and her

ers, and playwrights will

for clients in matters involving corporate

in the U.S. Navy and was

husband, also an attorney,

consider this new avenue

finance, financial services, and capital markets,

assigned to naval intel-

took assignments with

of e-commerce productive

three or four days a week in his hundredth year.

ligence, then volunteered

the diplomatic corps in

and an aid to casting

He was a partner from 1953 until 1983 and

for shipboard duty

Uruguay, Thailand, and

directors,” Swacker notes.

served as senior counsel since that time.

overseas. As beachmaster

Columbia. From 1978 until

His e-books are available

Seward founded the business law section

of the 7th Navy beach bat-

retirement in 1989 she

from Amazon, Barnes

of the International Bar Association and was

talion, Caplin participated

was an attorney for the

and Noble, and other

made honorary life president. In a lecture series

in the initial landing force

housing authority.

publishers.

named after him, world leaders deliver talks

on Omaha Beach during

on global issues of timely interest. He became

the invasion of Normandy.

involved with the IBA in the 1960s when it was

He was named “Chevalier”

1949

1957

a federation of bar associations and played

of the Legion of Honor by

a major role in developing the IBA into a

the President of the French

Frank Warren Swacker

Benjamin A. Moore, Jr.’s

worldwide organization of business lawyers as

Republic, one of France’s

served as a member of the

firm, Buist Moore Smythe

well as a world organization of bar associations.

highest honors. He also

board of directors of the

McGee merged in May

received the Medal of the

University of Virginia Club

2011 with the North

Jubilee of Liberty from the

of Washington, and was

Carolina firm Womble

Governor of the Normandy

elected and served as its

UVA Lawyer / spring 2012 49

Class notes …

Carlyle Sandridge & Rice. “I

president, said, “Schloss-

have gone from the senior

berg has always agitated

lawyer in a 45-lawyer

for social justice,” adding

firm to a non-entity in a

that, “he preaches the truth

550-lawyer firm,” he writes.

“I like it!”

Stephen Schlossberg died

1958

add to the collections at

recounts Bill’s successful

Yale’s British Art Center

efforts to get the Texas leg-

The notes for the Class of

and Art Gallery. Fred has

islature to declare barratry

1958 have been compiled

an extensive collection

a crime, and to provide for

that the labor movement

by Ted Torrance in

of his own, which he is

civil remedies for victims.

is absolutely essential in a

cooperation with the staff of

presently cataloguing.

(Confession: Charlie Woltz

democratic society.”

UVA Lawyer and pursuant

Schlossberg grew up in

may have covered this in

to information solicited

Jim Atkin practiced in

detail, but I had to scurry to

at his home in Sarasota,

Roanoke, Va. He enrolled

from and furnished to him

San Francisco and, later,

the dictionary find out just

Fla. on December 10,

at UVA after high school,

by members of the class.

Washington, D.C., with

what barratry is. Do you

at 90. He was involved

but left to enlist in the

We hope that the obvious

the firm now known as

know?)

in the labor movement

Army Air Force after the

increase in the volume of

Pillsbury Winthrop Shaw

for nearly 50 years as

attack on Pearl Harbor.

news for the Class of 1958

Pittman, handling primar-

I had a very nice telephone

an organizer, lobbyist,

After serving in the Army

will encourage other classes

ily matters relating to the

chat with Joe Hilton, who

political strategist, media-

he worked in a family

to adopt a similar approach

oil industry. Along the

remains extremely busy,

tor, author, and advisor to

retail business, then took a

to gathering and reporting

way he served as deputy

arranging for investments

legendary United Auto

job as an organizer in the

news of their alumni(ae).

director of the transition

in Manhattan office

Workers president,

South with the Interna-

team at the Department

buildings by Chinese

Walter Reuther. As the

tional Ladies’ Garment

today we are 97 strong.

of Energy prior to Ronald

investment funds—a

union’s general counsel,

Workers Union for less

The following is some

Reagan’s inauguration,

concept apparently novel

Schlossberg played a

than a quarter of the

news about those hardy

and purchased a farm in

to the Chinese, which calls

leading role in bargaining

pay. He was familiar with

survivors.

Rappahannock County,

for Joe’s very frequent trips

with Detroit’s Big Three

injustices he’d seen and

where he raised apples

to the Far East.

automakers and helped

experienced in the South,

negotiate the Chrysler rescue deal in the 1970s.

In 1958 we numbered 161;

Over the years, Fred

and hunted foxes (a

where “Jews, blacks,

Goldstein has probably

reprise of Pierson v. Post?).

If you are ever in trouble

Catholics, and foreigners

done more than anyone to

Sadly, this past January

in Lexington, Ky., the man

He was known as a good

were hated with a passion.”

maintain the tie between

Jim’s wife, Dottie, died, and

dealmaker who could

(His father was a Jewish

our class and the Law

Jim expects to return to

to see is clearly Foster Pettit, who has practiced

make his points with wit.

immigrant from Russia.)

School, both as an effec-

the Bay Area later this year.

there since our graduation,

After nearly 20 years with

After graduating from

tive fundraiser for the Law

interrupted by three terms

the UAW he practiced with

the Law School in 1957,

School Foundation and

Another westerner is Bob

in the Kentucky House

Zwerdling, Schlossberg,

Schlossberg worked at

as an active participant

Dorsey, who lives in Las

of Representatives and

Leibig and Kahn for 2 years

Van Arkel & Kaiser, a labor

in Virginia affairs. As a

Vegas, where he has been

two terms as mayor of

until he was appointed

law firm in Washington,

member of the Virginia

a member of the Nevada

Lexington, plus a stint as

Deputy Under Secretary

D.C. In the 1960s he was

Tax Study Group, he gets

bar for over 50 years.

a cabinet secretary for the

for Labor-Management

made special assistant to

to Charlottesville a couple

Bob practiced alone until

Kentucky governor. A busy

relations in President

the director of the Federal

of times a year, and it

bypass surgery some ten

man, indeed.

Reagan’s administration,

Mediation and Concili-

was Fred who ultimately

years ago, but reports

an appointment that

ation Service, where he

obtained the permission

that he is still happily

Among the retired jurists

conservatives decried.

worked on trying to head

of the School to report the

married “to my childhood

in our ranks are Barbara

Following his ap-

off, then end, a months’-

news of our class in this

sweetheart.”

Coppeto (serving on the

pointment to the Labor

long newspaper strike in

rather informal format.

Department, Schlossberg

New York.

Fred practiced in Boston

became director of the

Though he was attacked

Connecticut Superior Down in Texas, Bill Edwards (who by the way

Court until a few years

for many years but is now

ago, and now wintering in

Washington office of the

throughout his career, he

learning the fine points

was the first responder to

Siesta Key, Fla., and sum-

International Labor Orga-

never shied away from

of golf (Fred: see the entry

my plea for news) has been

mering in Milford, Conn.);

nization. At his retirement

identifying himself as a

for John Merchant). Fred

named Corpus Christi’s

Stuart “Blue” Jay (serving

from this position in 1994,

liberal in favor of orga-

is also collecting British

outstanding plaintiff’s

on a domestic relations

Doug Fraser, a former UAW

nized labor, free speech,

18th and 19th Century

lawyer for 2012. A recent

court in Louisville, Ky.);

and humanism.

caricatures and prints to

issue of Texas Lawyer

and Swan Yerger, with

50 UVA Lawyer / spring 2012

Class notes …

12 years on the Hinds

daughter, Susan, became

his name as “Greaser.” Bill

civic activities, Larry is a

where his wife’s relatives

County (Miss.) Circuit

the first child of a black

corrected him, saying his

published author, having

live, but the prospect of

Court. Swan is also busy

graduate to receive a

name was pronounced

helped write a history of

selling his home in today’s

repopulating the South

J.D. degree from the Law

“Grizer.” Gregory objected,

the Bucks County (Pa.)

market is, to say the least,

with two daughters and

School, and her classmates

saying the “ie” spelling

courts and bar from

daunting. Reciting some

six grandchildren.

invited John to deliver that

called for his pronuncia-

William Penn to 2003. His

of the physical problems

year’s commencement

tion. Bill responded that

partners will be pleased

so many of us face with

Jim Thornton managed

address. He has been

it was his name, and that

to learn that a number

advancing years, Brad

to bypass the practice of

persuaded to write his

he could pronounce it

of years ago Larry and I

wryly recites a statement

law entirely by parlaying

autobiography, which is

“Brown” if he wanted to.

were fellow passengers

attributed to Terence

his experience as night

expected to be published

Gregory just smiled, but

on a cruise to various golf

(you know, 185-159 B.C.):

clerk at Keswick C.C. into

shortly under the title A

for the rest of the term Bill

courses in the U.K. and

“Senectus ipsa morbus

an MBA from New York

Journey Worth Taking. For

was “Mr. Brown.”

Ireland, and that I have an

est.” Come on; you all

University and a career as

obvious reasons, I have

extensive video of Larry

know Latin.

an investment manager

placed an order for one

From the Palisade in Ft.

haranguing an unfortu-

in New York City, where

of the first (and hopefully

Lee, N.J. (with a beautiful

nate barmaid in a pub on

I see John Oram on a more

he can be found at the

autographed) copies.

view of New York) Michael

the shores of the Shannon

or less regular basis, as

Kaplan writes that he

River.

his lovely home outside

firm of Tocqueville Asset Management. Your scribe

Alan Diamonstein reports

retired on a Friday as

Googled the firm and

from Newport News that

vice president and chief

Our closest physical tie to

convenient and enjoyable

found a picture of Jim; I’d

over the years he has

counsel of Mutual Life

the Law School is probably

over-night on the drive

know him anywhere.

been involved in asbestos

Insurance (MONY) and

Fred Landess, who spent

down here. John retired in

Savannah makes for a

litigation and commercial

on Monday began a

39 happy years with the

1995 from a very success-

The golf afficionados in

and real estate law. He was

13-year career as counsel

McGuireWoods firm in

ful New York practice, left

our ranks will find a true

a member of the Virginia

and deputy secretary of

Charlottesville. The sad

his home in Chappaqua,

icon in John Merchant.

General Assembly for 35

Horizon Blue Cross and

news is that after about

N.Y., headed south, and

John took up the game

years and is currently sup-

Blue Shield of New Jersey.

five years of retirement

never looked back. He has

when he was in the Navy

porting Virginia by serving

His wife, Harriet, served

Fred’s wife, whom he

had one wife, Sonia, and

after Law School, carried

on the Board of Visitors of

until 2005 as chairman

married while in Law

has two daughters, two

a handicap of from 4 to 8

the University. I suggest

of the Department of

School, contracted Pick’s

granddaughters, and two

for 38 years, was twice his

his appointment to the

Dentistry at Morristown

Disease, to which she

dogs. English literature

club’s champion, but most

Board is by itself a singular

Memorial Hospital,

eventually succumbed

(both the reading and

notably was elected to the

honor and a tribute to his

which Bill says “kept me

this past January. On the

writing thereof ) remains of

USGA executive commit-

years in the legislature.

dependently wealthy.” He

brighter side, Fred has

great interest, and he has

and his wife both enjoy

dusted off his high school

taken both courses locally

four years John officiated

I had an amusing note

travelling abroad: “She

trumpet, and now plays in

and, over five summers,

at the Masters, U.S. Open,

from Bill Griesar. He

puts on my flea collar

three bands, including the

at Cambridge University.

U.S. Amateur and Senior

spent 25 years practicing

and leash and takes me

Charlottesville Municipal

He continues with the

Open tournaments, and

corporate law in New York

places … When we get

Band.

game of golf, but “with

was Tiger Woods’ first

City, and another 20 years

back she’ll tell me if I had a

lawyer. Finally, in 2010

as vice president and gen-

good time. The problem is

I had a nice handwritten

John was elected to the

eral counsel of Rockefeller

that after we get back the

note from Brad Miller,

National Black Golf Hall

University. He now divides

visited country usually has

who lives in Tampa. Brad’s

Tom Otis stopped by with

of Fame. Unfortunately,

his time between Dobbs

a revolution.”

wife died in 1993, but

his wife, Mina, for lunch

a minor stroke plus a

Ferry, N.Y., and the Maine

prior to then she and Brad

the other day, on his way

torn rotator cuff ef-

coast near Damariscotta.

Larry Grim still appears

travelled extensively, often

to Boca Grande, Fla., for

fectively ended John’s

Bill recounted an incident

to be The Man in Perkasie,

to Mexico City, where

a stay. Tom retired in

golfing career, but he still

in one of Charlie Gregory’s

Pa., as the senior in a

his wife grew up. Brad’s

2000 after decades with

remains active in national

labor law classes: Gregory

17-lawyer firm. Along with

stepson is trying to get

a Boston investment

golf affairs. In 1994 John’s

called on Bill, pronouncing

numerous corporate and

him to move to Dallas,

management firm, and

tee in 1992. For the next

decreasing proficiency.” So say we all.

UVA Lawyer / spring 2012 51

Class notes …

he is now a director of

Hobart McWhorter, a

wife, Phyllis, just recently

During the winters they

I extend my thanks to all

a family firm that is the

venerated litigator in the

celebrated their 50th

have made a habit of

those who made the forego-

largest Ocean Spray

venerable Bradley Arant

wedding anniversary.

escaping to Anguilla.

ing news possible.

cranberry grower and

firm in Birmingham, where

stockholder. He and Mina

he spent his entire career,

From further south, in

Here in Vero Beach for all

Corresponding Secretary,

have a winterized beach

speaks of now doing as

Pompano Beach, Dick Roth

or part of the winter are

1955 Windward Way

house in S. Dartmouth,

much or as little as he

reports that he has finally

wishes (“which includes

retired after 54 years of

Stuart Brunet, Verne Hampton, Bob Emmons

Vero Beach, FL 32963

Mass., where he pursues his hobbies: “supporting

doing nothing”), and it is

practicing in the areas of

and your scribe. Verne is

the children, educating

clear that his consuming

trusts, wills, probate, and

still practicing in Detroit.

the grandchildren” and

interest is saltwater fly

real estate. He was also

Stu is retired from trust

generally cavorting on

fishing, at which he has

city attorney for the City

administration, most

the shores of, and on,

grown quite adept. In fact,

of Lighthouse Point for

recently with Irving Trust

George Grattan now

Buzzard’s Bay.

if you will visit a certain

27 years. Now “I play golf

in New York. And Bob is

lives in University Village.

(Contact Edwin G. Torrance,

e-mail: etorr@cox.net)

1960

bar in Deep Water Cay in

three times a week and

“semi-retired” from the

“I’m moving closer to

From Huntsville, Ala.,

the Bahamas, you will find

raise 400 orchids. Having a

former Palmer, Dodge firm

Charlottesville all the time,”

Bob Smith writes that he

a photo of Hobart with

great time.”

in Boston.

he writes.

recently completed the

the 11-½ pound bonefish

manuscript for a book

he caught there. Very

I received a very newsy

I retired from my Rhode

entitled Law and Lawyers

impressive.

note from Allan Johnson.

Island firm in 1997 and have

Allan and Nancy (who

been on the dole ever since.

in the United States,

1964

which will be published

Bill Bunting called from

were one of the married

Connie and I both enjoy

this year by a member

Princeton, N.J., to report

couples in our Law School

travelling and the game of

of the Amazon group. I

that he is still extremely

years and often my dinner

golf, which have married

will be looking for it; the

busy in private practice

hosts) now live in Virginia

together nicely. We’ve had

mere scope of the title is

(estate planning and

Beach, but until 1988,

numerous golfing trips

mind-boggling.

administration), but on

when Allan retired, they

to the U.K. and Ireland,

the side he is active in

lived in Southport, Conn.,

and to Europe, and last

Henry Williams has

Cranbury, N.J., civic affairs

where Allan was much

May we had the pleasure

Richard “Randy” Bigger

checked in from upstate

and charity work, and

involved in civic affairs,

of introducing one of our

has been selected for

Scottsville, N.Y. He spent

is writing a history of

not the least of which was

sons to the St. Andrews and

inclusion in North Carolina

about 20 years with the

Cranbury. The weekends

his serving as founder and

other courses in Scotland.

Super Lawyers 2012 in

Harris, Beach firm in

find him doing “farm work.”

first head of the Southport

Non-golf travel has involved

estate planning and

Rochester, then left to

I wonder what he does

Conservancy. His practice

some interesting crossings:

probate. He is a senior

found The Williams Law

in his spare time. By the

was in civil litigation,

the United States 3-½

attorney with Wishart

Firm, which is still going

way, Bill is the fellow you

in Bridgeport and later

times on our Gold Wing

Norris Henninger &

strong as a solo venture.

will hear from annually for

Westport. Both a daughter

motorcycle, and Russia

Pittman in Charlotte,

Henry’s extra-curricular

contributions to the Law

and her husband are Law

via the Trans-Siberian line,

where he focuses his

activities are numerous

School Foundation, but I

School graduates, appar-

from Beijing to Moscow. All

practice on estate

and eclectic, ranging

am assured his approach is

ently with distinguished

in all, the fates have been

planning and

from the presidency of

with a glove of velvet.

records. During the sum-

extremely kind to us, giving

administration.

mer months the Johnsons

us the health to enjoy our favorite pursuits.

the Landmark Society of Western New York to

From the northern part

have been sailing on

commodore of the Lake

of Florida, in Tallahassee,

increasingly large boats,

It has been fun putting

Yacht Racing Association

Ben Phipps writes that he

ranging from Sunfish to a

this column together. I urge

Chair’s Award, given by the

to ski patrol director. And

is still practicing, dealing

30-foot Alberg, and Allan

all to contribute what they

trusts and estates section

he adds his bass voice to

strictly with state and local

also plays tennis competi-

can for the next edition of

of the New York State Bar

the local church choir.

tax issues throughout

tively, participating in six

UVA Lawyer. Simply write

Association. He is a senior

the state. He and his

national tournaments.

or e-mail me at the address

counsel to Nixon Peabody

below. In the meantime

in Rochester, where he

52 UVA Lawyer / spring 2012

Jon L. Schumacher has been honored with the

Class notes …

concentrates his practice

1968

on estate planning and

arbitrations, and union

an advisor to law firms on

organizing campaigns,

insurance and risk

1970

administration, as well as

David D. Biklen has been

and has litigated cases

management matters in a

Paul C. Giannelli ’70,

federal and state income,

appointed chair of the

involving discrimination,

recent Wall Street Journal

LL.M. ’75 is a distin-

estate, generation skip-

Uniform Law Commission

wrongful discharge, sexual

article about litigation

guished university

ping, and gift taxation.

study committee on

harassment, and related

against law firms.

professor and the Albert

Greenberg serves on

eyewitness identification

claims in state and federal

David O. Whittemore

procedures. The ULC is a

courts across the U.S. He is

the board of directors of

Richard W. Weatherhead

writes that his law partner

group of lawyers includ-

the co-office managing

Impact Makers, an infor-

Professor of Law at Case

of 27 years, Dave Wallace,

ing practicing attorneys,

partner with Saul Ewing in

mation technology and

Western Law School.

retired June 30. His new

professors, judges, and

Washington, D.C.

management consulting

He has written exten-

partner, Robert W. Carlson,

legislators from every state

firm based in Richmond

sively about evidence

came on board July 1.

who draft and promote

that is a for-profit com-

and criminal procedure,

“Rob’s practice in probate

laws to solve problems

pany with no shareholders

with a particular focus on

litigation complements

common to all states. The

that contributes its profits

scientific evidence.

mine in probate and estate

study committee will focus

Jerry Coughlan has been

to charitable community

planning,” he writes. “We

on improving procedures

selected as San Diego’s

partners and is a founding

are looking for one more

used in eyewitness

Professional Malpractice

benefit corporation.

attorney, a UVA Law gradu-

identifications; mistaken

Law Lawyer of the Year in

ate in the Metro-west area”

eyewitness identifications

Best Lawyers 2012. He is

Gordon D. Schreck

of Framingham, Mass.

are the single most fre-

with Coughlan, Semmer,

continues as leader of the

quent cause of wrongful

Fitch & Pott, and focuses

admiralty and maritime

convictions.

his practice on trying and

practice group of Womble

litigating civil and white-

Carlyle Sandridge & Rice,

collar criminal cases.

1966

1969

J. Weatherhead III and

following that firm’s

Kenneth M. Greene has

Judge Donald M. Haddock

chairman of the board

recent merger with the

been honored as a top

reports that he “mandato-

of trustees at Millsaps

Charleston firm of Buist

vote-getter among

rily retired by virtue of old

College in Jackson, Miss.

Moore Smythe McGee,

Business North Carolina

age” and intends to perfect

He previously served as

of which Schreck had

magazine’s 2012 legal elite

his farming, hunting, and

treasurer of the board and

been a member since

for bankruptcy law, a

fishing.

as chair of the presidential

his graduation from the

distinction that will put

search committee. He

Law School. Schreck was

him in the magazine’s legal

graduated from Millsaps

named to South Carolina

elite hall of fame. He was

in 1965.

Super Lawyers 2012 in

recognized in the category

J. Thomas Fowlkes is

1967

transportation/maritime

of business law as well,

After stepping down as

law, and has been listed

making him the only

general counsel of

in Best Lawyers in the area

attorney to be recognized

LeClairRyan, David I.

of maritime law for some

in both practice areas.

Greenberg opened his

20 years. He was recently

Greene was also selected

own office in Richmond,

re-elected to the board

for inclusion in the Top 100

Va., where he provides

of trustees of Hampden-

list in North Carolina Super

general counsel services,

Sydney College.

Lawyers 2012 for banking.

including risk mitigation

He is with Carruthers &

among the 2011 Virginia

Edward R. Levin was

advice, to law firms and

Roth in Greensboro, where

Legal Elite by Virginia

named to SmartCEO

other businesses,

he is a member of the

Business magazine in the

magazine’s list of the legal

including benefit

banking and finance team,

area of construction. He is

elite for 2011. He

corporations that do not

focusing his practice on

a partner with Gentry

represents employers in

have their own general

commercial finance,

Locke Rakes & Moore in

labor negotiations,

counsel. He was quoted as

banking, and bankruptcy.

J. Rudy Austin was named

Roanoke.

UVA Lawyer / spring 2012 53

Class notes …

1972 Asher Grunis LL.M., a

been visited. He flew to

the firm he founded

Hawaii for Christmas to

in 1988, Robertson &

complete all 50.

1976

out more about the law school application process

Hollingsworth, in

Frederick N. Gleaton

and financial aid options.”

member of the Israeli

Charleston, S.C., and

was named in Best

Priscilla is an attorney

Supreme Court since 2003,

began, as of January 1,

Lawyers 2012 for medical

with the Metropolitan

a private consulting and

malpractice law and was

Transportation Authority

was appointed chief justice

1975

dispute resolution practice

named in Georgia Super

(MTA) and Long Island Rail

in ceremony took place at

Thomas R. Bagby

focusing on complex

Lawyers 2012 for the

Road (LIRR), specializing in

the president’s residence,

currently serves as

construction, engineer-

fifth consecutive year.

employment law.

with President Shimon

president-elect of the

ing, architecture, and

He is a founding partner

Peres and Prime Minister

Virginia Bar Association.

environmental matters,

with Owen, Gleaton,

which emphasized the

Benjamin Netanyahu

He is president of Woods

with emphasis on medical,

Egan, Jones & Sweeney

options offered by careers

present.

Rogers in Roanoke,

aviation and transporta-

in Atlanta. The firm was

in public service, I had

chairman of the labor and

tion, and other large

named to U.S. News &

the pleasure of being

tion called the Grunis

employment law section,

public and private proj-

World Report’s list of best

introduced by one of the

Law permitted Justice

and principal of the firm.

ects. He may be reached at

law firms for 2011-12

students to fellow Law

Grunis to be named Chief

His practice focuses on

Claron A. Robertson, d/b/a,

and to Fortune’s list of

School alum Shawn Grant

Justice. Previously, judges

representing management

a division of Robertson

top-ranked law firms in

‘02; Shawn is now VP and

were not allowed to serve

in a broad range of labor

& Company, LLC, 177

America for 2012.

Director of Law School

as the president of the

and employment law

Meeting Street, Suite 320,

court if they were within

issues. He was named

Charleston, S.C. 29201,

Daniel J. Hoffheimer has

three years of their 70th

Lawyer of the Year in Best

843-723-6470, and car@

been selected as a leading

birthday.

Lawyers 2012 in employ-

roblaw.net. Beginning

lawyer for 2012 in the area

ment law-management.

January 1, 2012, Robertson

of trusts & estates by Cincy

Stephen C. Neff ’76, LL.M. ’77, S.J.D. ’88 was

& Hollingsworth will

magazine. Hoffheimer

awarded the David J.

W. Stuart Dornette has

continue its practice,

was also named in Ohio

Langum, Sr. Prize for

in February. The swearing-

A new piece of legisla-

1974

“At this year’s program,

Admissions Counseling for Nelson Test Prep.”

been selected as a Leading

with no other changes, as

Super Lawyers 2012 in

American Legal History for

Monroe Kelly III has been

Lawyer for 2012 in the

Robertson Hollingsworth

estate planning & probate

2010 for his book, Justice

named Norfolk Banking

area of sports by Cincy

& Flynn.

and Best Lawyers 2012 in

in Blue and Gray: A Legal

and Finance Law Lawyer

magazine. He was selected

trusts and estates. He is a

History of the Civil War

of the Year in Best Lawyers

for inclusion in Ohio Super

Tina Swent Byrd, ap-

partner with Taft Stettinius

(Harvard University Press,

2012. He is a partner with

Lawyers 2012 in the area

pointed to the California

& Hollister.

2010). The book was cited

Williams Mullen in Virginia

of business litigation and

Superior Court in 2010,

Beach.

named Best Lawyers 2012

is serving in family law

Priscilla Lundin writes

for scholars” while also

as an “excellent resource

Cincinnati Litigation-

in the main courthouse.

that she recently enjoyed

being “highly accessible to

Frank Riggs was named

Municipal Lawyer of

“The most challenging

going to the Law Day

general readers.”

the Atlanta Construction

the Year. He was also

part of the job,” she writes,

event sponsored by the

Law Lawyer of the Year

recognized in Chambers

“is grappling with child

Pre-Law Institute at John

Donald Shuller was

in Best Lawyers 2012. He

2011 as a leader in the field

abuse issues and trying

Jay College of Criminal

named in Ohio Super

is partner and co-chair of

in the area of litigation-

to decide if the claims

Justice in NYC, which

Lawyers 2012 and Best

the construction practice

general commercial. He is

are true or made up for

she’s attended for the

Lawyers 2012 in real estate

group with Troutman

partner and co-chair of the

strategic reasons. The

past several years. “This

law. He is a partner with

Sanders in Atlanta, Ga.

litigation department of

financial issues are not

annual event gives the

Vorys, Sater, Seymour and

Taft Stettinius & Hollister.

difficult emotionally, but

students, the majority of

Pease in Cincinnati, where

Charles A. Young III is

can be very interesting

whom are from under-

he is a member of the

enjoying retirement. Last

Claron “Rob” Robertson

and complicated.”

represented groups in

commercial and real estate

summer he drove to Little

retired from the full-time

the legal profession, the

group.

Big Horn, Mont., to visit

practice of law effec-

opportunity to talk to

the last three of the Lower

tive December 31. He

lawyers in different areas

48 states he had not yet

remains of counsel to

of practice, and to find

54 UVA Lawyer / spring 2012

Class notes …

1977 Stephen V. Cheatham has joined Buckley King in Cleveland, Ohio, as of counsel. He was previously vice president and associate general counsel to New York Community Bank in its contracts and corporate governance division.

Richard F. Engel reports that his son, John Engel ’08, was married in September to Megan Fanale ’11

Gifts with a Big Impact

in Leesburg, Va. John changed firms and is

With a continuing interest in Vietnam, where focused charitable contributions within my

now with Ballard Spahr in

means can make a visible difference (unlike in some other contexts), I most recently funded two

Baltimore, Md.

improvements for a small primary school in the province of Dong Thap in the northwest part of the Mekong Delta. Assisted by a Vietnamese friend in the critical matter of dealing with the local and district Peoples’ Committees, I gave the school a proper set of bathroom facilities, complete with water

1978

tank and pump, which cost less than a long ski weekend in Vermont.

My financial bona fides having thus been established, the authorities proceeded as agreed to replace the rickety wooden bridge over a canal beside the school with a solid and durable concrete and rebar structure. All of the children must cross the bridge in order to reach the school, and the wooden predecessor, in effect a large xylophone missing many notes, produced such apprehension in the littlest ones, aged five or six, that in crossing they would form a human chain with hands on the shoulders of the child in front.

Last November my friend and I attended the very colorful opening ceremony for the bridge arranged by the local officials. There were many speeches in Vietnamese, a bit of which I understood,

Ed Baxa ’78, LL.M ’80

as well as one by me (also in Vietnamese) which my friend said was indeed understood, and I handed

received the 2012 Florida

over the promised funds in a fat envelope of hundred-dollar bills that paid most of the cost. The

Bar President’s Pro Bono

amount would perhaps have funded a week’s vacation at Stowe.

Services Award for the 9th

Some of the posturing by the more important officials grew a bit wearisome, but it was very gratify-

Judicial Circuit. Baxa has

ing to see the children scampering back and forth over the “Starfish Bridge,” the name I prescribed it

served as guardian ad

should bear. (In Vietnam all bridges, even the smallest, are named.)

litem for more than 100

Perhaps the best moment was when, after the ceremony, two elderly ladies from the local village

children in juvenile

came up to my friend and me to thank us, since the bridge not only serves the school but is also in

dependency court and has

daily use by villagers working in the surrounding rice paddies. The ladies were touchingly apprecia-

made a collective

tive and expressed themselves with the grace and politeness characteristic of older people in that

contribution of nearly

fast-changing country.

1,000 hours of pro bono

—Thomas L. Higginson, Jr. ’76

work throughout his career. He is a partner with Foley & Lardner in Orlando,

UVA Lawyer / spring 2012 55

Class notes …

where he is chair of Foley’s

1979

law-management,

1980

litigation-labor &

national pro bono committee. He maintains a

John “Jack” Berry has

employment. He is a

John F. Brenner was

complex commercial

joined the personal injury

partner with Quarles &

named in New York Super

litigation practice focused

firm of Allen, Allen, Allen &

Brady in Milwaukee.

Lawyers 2011 and in New

on construction law.

Allen as managing partner

Jersey Super Lawyers

of the Charlottesville

John Maddrey was named

2012 in class action/mass

office. Berry served as chief

solicitor general of North

torts, personal injury

judge on the Circuit Court

Carolina in November.

defense-products, and

W. David Paxton was

bench of Virginia’s 16th

Maddrey is responsible for

civil litigation defense. He

named among the 2011

circuit from 2010–12.

coordinating the handling

is a partner in the health

Virginia legal elite by

of civil appeals before

effects litigation practice

Virginia Business magazine

H. Aubrey Ford III was

state and federal appel-

group with Pepper

in the area of labor/

designated among the

late courts and will also

Hamilton in Princeton,

employment. He is a

top 10 Virginia Lawyers

coordinate the state’s

N.J., and New York, where

partner with Gentry Locke

in Super Lawyers 2011. His

Department of Justice’s

he focuses his practice on

Rakes & Moore in Roanoke.

Mary Bland Love was

son, Aubrey, is living in

participation in amicus

the defense of complex

recently honored as

Denver, and his son, Billy,

briefs. He has served as

product liability and mass

Jonathan J. Rusch, a

Lawyer of the Year at the

just returned from a one-

an attorney with the

tort cases against phar-

deputy chief in the

annual Jacksonville

year Fulbright program in

Department for 31 years,

maceutical and medical

fraud section of the U.S.

(Florida) chapter of the

Malaysia.

most recently handling

device manufacturers.

Department of Justice,

cases challenging the

American Board of Trial

has received the Director-

Advocates. She is of

Michael K. Kuhn was

constitutionality of State

Leonard C. Martin has

General’s Commendation

counsel to Marks Gray,

named in Best Lawyers

statutes. His career with

been selected to serve as

from the United Kingdom

where she practices in

2012. He is a partner in

the Department also

state chair for Mississippi

Serious Organised Crime

medical and products

the real estate group with

includes seven years in

for the American College

Agency (SOCA). The

liability. Her primary focus

Jackson Walker in Houston,

the consumerprotection

of Trust & Estate Counsel

commendation, which is

is in the defense of

Tex., where he focuses on

division and 15 years in

(ACTEC) for a five-year

SOCA’s highest award and

hospital and physical

commercial real estate

the transportation section.

term. He was named

one rarely given to non-

liability cases.

with an emphasis on office

among the 2011 Mid-South

Britons, is in recognition of

Cuyler Overholt has

Super Lawyers and was

his service as co-chair of

Michael P. Haggerty

published her debut novel,

selected for inclusion

the international mass-

has been named in Best

A Deadly Affection, a his-

in Best Lawyers 2012 in

marketing fraud working

Lawyers 2012 in real estate

torical mystery set in 1907

trusts and estates and

group, a multinational

law and was named in

New York about a young

nonprofit/charities law.

law enforcement body

Texas Super Lawyers

psychiatrist who fears she

He is a shareholder with

dedicated to improving

2011 in banking and real

may have unwittingly pro-

Baker Donelson in Jackson,

international coopera-

estate. He is a partner

voked a patient to commit

where he concentrates his

tion and coordination in

with Jackson Walker in

murder. Overholt worked

practice in taxation, trusts

combating all types of

Dallas, where he leads the

as a litigation attorney and

and probate, planned

mass-marketing fraud.

finance practice group. He

freelance business writer

giving, and nonprofit organizations.

and retail leasing.

represents banks, credit

Ely A. Leichtling was

before turning to fiction.

companies, insurance

named in Wisconsin Super

To read more about the

companies, and other

Lawyers 2011 in employ-

book, (see In Print), visit

financial institutions in

ment and labor. He was

www.cuyleroverholt.com.

real estate, commercial,

also named in Best Lawyers

recently elected to the

and corporate lending

2012 in employment

board of directors of the

transactions.

law-management, labor

northeast chapter of the

1981 Christine Hughes was

Association of Corporate Counsel. The ACC is an

56 UVA Lawyer / spring 2012

Class notes …

association of in-house

contributed articles to

estate department. Truitt

Blake A. Bell, senior coun-

in Best Lawyers 2012 in

counsel that offers legal

Kingdom Magazine (Arnold

was selected for inclusion

sel with Simpson Thacher

commercial litigation

education programs,

Palmer’s publication) and

in Best Lawyers 2012 in real

& Bartlett in New York City,

and bet-the-company

pro bono opportunities,

Arnold Palmer’s Guide to the

estate law.

was elected to a four-year

litigation, named among

advocacy, women’s

Majors. Ross is co-author

term as town councilman

the 2011 Virginia Business

and diversity initiatives,

of a golf book that has just

J. Vann Vogel is working as

in Pelham, N.Y., where he

magazine’s list of legal

and networking to its

been released: Mastering

a deputy general counsel

served as town clerk for

elite in civil litigation,

members. Hughes is gen-

Golf’s Toughest Shots. This

at Verizon Wireless. His

the last four years and as

and in Virginia Super

eral counsel at Emerson

is the second book pub-

son, Peter, is a freshman

town historian for the last

Lawyers 2011 in the areas

College in Boston, Mass.

lished by the Professional

at University of North

nine.

of business litigation,

Caddies Association, and

Carolina and his daughter,

Chris Roux has joined

contains hands-on advice

Susanna, is a freshman

Janice Ingram, have been

and intellectual property

Alston & Bird in

from some of the top

at Davidson. He and his

raising their son, Brett (15),

litigation.

Washington, D.C. He prac-

professional caddies. Ross

wife, Jennifer, enjoy fall

and daughter, Jennifer

ticed in Los Angeles for

contributed a chapter

weekends in the Carolinas

(10) in Pelham, Blake has

Lisa M. Friel has left

30 years, serving the last

about how players can use

and their vacation/retire-

published two books on

the Manhattan District

three as co-chair of Alston

the rules to their advan-

ment house in Asheville.

the history of the region

Attorney’s office after

& Bird’s construction &

tage in problem situations.

(and is working on a

28 years in public service

government contracts

(See In Print.)

third). He has published

to join T&M Protection

more than 80 articles on

Resources, a security, con-

group. He was selected

1983

While he and his wife,

employment & labor,

for inclusion in Best

Dennis Ryan has joined

related topics that have

sulting, and investigations

Lawyers 2012 in the area

Health Diagnostic

appeared in a host of

firm in Manhattan, where

of construction law. “The

Laboratory, a medical test-

newspapers and history

she is vice president in

move was made princi-

ing company established

journals and has presented

charge of the sexual mis-

pally for family reasons,” he

in Richmond, Va., in 2009,

academic papers on the

conduct consulting and

writes, “but I am looking

as executive vice presi-

same subject at conferenc-

investigations division.

forward to transitioning

dent. Ryan will help plan

es throughout New York

my practice to the East

the company’s expansion

State. He sits on the boards

Coast and reconnecting

of facilities in the United

of numerous not-for-profit

with UVA classmates.” He

States and in Europe. He

Robert Barnes is of

philanthropic and historic

can be reached at Chris.

was a founding partner of

counsel in the real estate

preservation organizations

Roux@alston.com.

LeClairRyan.

and finance practice with

and is a member of the

Carlton Fields in Atlanta,

program committee for

Ga. He has experience in

the Conference on New

CMBS lending and matters

York State History. Far

involving mezzanine loans,

more importantly, he

Jack Ross left the practice

equity investments,

notes, for much of the

Elizabeth G. Hester has

of law in Washington, D.C.

borrowing entity

last decade he has been a

been named a BTI Client

some years ago to pursue

structures, defeasance,

Little League, softball, and

Service All-Star, a

writing interests. Ross is a

asset management, loan

soccer coach.

recognition (from BTI

1982

freelance sports journalist,

Raymond Truitt has been

workouts, and real estate

currently writing mostly

appointed to the board of

leasing and sales. He

Hugh M. Fain III has been

attorneys who deliver

about golf. Among other

advisors of Loyola College,

previously served as

installed as the 124th

superior service to Fortune

endeavors, he writes a

Loyola University

general counsel and in

president of the Virginia

1000 companies and other

monthly golf rules

Maryland’s school of arts

senior management for

Bar Association. He is

large organizations. She is

column for New England

and sciences. He is

two nationally recognized

a shareholder in the

a partner in the commer-

Golf Monthly—“putting

managing partner for

commercial mortgage

litigation section at Spotts

cial section with Kaufman

my legal training to

finance and operations for

lenders.

Fain in Richmond and

& Canoles in Richmond,

work in a different

Ballard Spahr in Baltimore

is the firm’s managing

Va., where her practice

capacity!” Ross has also

and is a partner in the real

director. He was named

includes mergers and

Consulting Group) of

UVA Lawyer / spring 2012 57

Class notes …

acquisitions and assisting

commercial litigation, land

clients in the formation of

use & zoning law, and real

Catherine Currin Hammond ’84, chief

limited partnerships and

estate. He was named as

judge of the 14th Judicial Circuit in

limited liability companies.

Kansas Litigation-Real

Henrico County, Va., received the 2011

She also handles general

Estate Lawyer of the Year

Women of Achievement Award from the

contract and corporate

for 2012. In 2011 he was

Metropolitan Richmond Women’s Bar

matters. Hester was

elected to the board

Association for her pro bono work and

selected for inclusion in

of trustees of Johnson

decades of public service. Judge

Best Lawyers 2012 in the

County Community

Hammond has taken a leadership role in

area of corporate law. She

College, a 42-year-old

efforts to help the homeless, in

is a fellow with the Virginia

institution with more than

advocacy for inmates on death row, and in bringing about statewide mental health

Law Foundation.

21,000 credit students.

reform. She has also volunteered as an intake lawyer at Central Virginia Legal Aid. The bar also recognized Hammond’s initiative in creating the first drug court in Henrico, a

1984

collaborative project including law enforcement and health care providers. Hammond’s husband, Paul, and elder son, Matthew, were with her to receive the award.

Mary Steele has recently

1985

Bell, was released in

become CEO of New

paperback and on Kindle.

Horizons Ministries, a

He also published A

non-profit serving Seattle

Century of Eugenics in

elected to the

Judge Russell Carparelli

street kids. Mary served on

America: From the Indiana

International Rugby Board

LL.M. of the Colorado

the board of New Horizons

Experiment to the Human

executive committee. He is

Court of Appeals has

during her career as a

Genome Era. (See In Print.)

the first American to be a

received the 2012

litigator at Davis Wright

voting member of the

Honorable William J.

Tremaine. She took over

In 2011 Paul A. Lombardo

as an expert by the media,

board in its 125-year

Brennan, Jr., Award given

leadership of the organiza-

was elected as a member

and in the past year has

history.

by the National Trial

tion after retiring from her

of the American Law

been interviewed by the

Advocacy College at the

law practice.

Institute and named the

Associated Press, the BBC,

Bobby Lee Cook Professor

USA Today, National Public

Robert P. Latham was

He is regularly contacted

John “Gib” Mullan became

Law School. The award is

chief counsel of the House

given in recognition of

Gretchen Wylegala has

of Law at Georgia State

Radio, the CBS Evening

Energy and Commerce

outstanding skills and

been elected vice chair of

University in Atlanta. He

News, and Anderson

Committee’s subcom-

contributions to the

the Hilbert College board

was appointed as a senior

Cooper 360 on CNN.

mittee on commerce,

National Trial Advocacy

of trustees. She is also

advisor to the Presidential

manufacturing, and trade

College and the legal

currently a member of

Commission for the Study

Steve M. Pharr has named

in 2011.

profession. Judge

the University of Virginia

of Bioethical Issues in

in North Carolina Super

Carparelli has served on

Jefferson Scholarship

Washington D.C., and

Lawyers 2012 in construc-

Greg Musil continues

the faculty of the National

regional selection

traveled to Guatemala to

tion litigation. He is with

to practice commercial

Trial Advocacy College

committee. Wylegala is

investigate U.S. govern-

Pharr Law in Winston-

litigation and real estate

since 1984.

an assistant U.S. attorney

ment funded research

Salem, where he focuses

in the U.S. Attorney’s

there as reported by the

on general commercial

Shughart in Kansas City,

John K. Hutson has been

office, Western New York

Commission in: Ethically

litigation, construction

Mo. Musil was selected for

selected as educator of

District. Her work in law

Impossible: STD Research in

law, real estate litigation,

Missouri & Kansas Super

the year at Army Logistics

enforcement has been

Guatemala from 1946-1948.

professional liability, and

Lawyers for 2011 and Best

University in Fort Lee, Va.

products liability.

law with Polsinelli

recognized by the U.S.

His award winning book,

Lawyers 2012 in bet-the

Justice Department with

Three Generations, No

company litigation,

a 2011 National Crime

Imbeciles: Eugenics, the

Victim Service Award.

Supreme Court and Buck v.

58 UVA Lawyer / spring 2012

Class notes …

Michael Platt has

and divestitures, and

Kenneth Williams is

recovery of deep-ocean

had been involved in two

been appointed chief

general corporate law. He

professor of law at South

shipwrecks. He was

previous deaths. OSHA

executive officer of Lease

is partner in the securities

Texas College of Law in

counsel of record in 52

cited SeaWorld Orlando

Corporation International,

and capital markets group

Houston. He is a nation-

cases in the U.S. Court

for willfully exposing em-

an aircraft leasing

with Calfee, Halter &

ally recognized expert on

of Appeals and argued

ployees to life-threatening

company that is a wholly

Griswold.

the death penalty and

four cases before the U.S.

hazards in interacting with orcas.

criminal law. His book,

Supreme Court. He was a

LIBRA Group. He is based

Susan W. Murley was

Most Deserving of Death?

visiting professor at the

in New York City.

named to the Top

An Analysis of the Supreme

Law School.

Women in Law for

Court’s Death Penalty

2011 by Massachusetts

Jurisprudence, was recently

Ron Haron resides in

cooperatively, form

Lawyers Weekly. She is

published by Ashgate

Arlington, Va., with his

complex relationships,

co-managing partner of

Publishing Company. (See

wife, Judy, daughter, Rose

communicate with distinct

Andy Abrams LL.M., who

Wilmer Hale and a partner

In Print.)

(6), and son, Anthony (4).

dialects, and swim long

was named dean of the

in the corporate practice

Charleston School of

group in Boston, where

Law in 2008, reports that

she concentrates her

the law school received

practice mainly in the

accreditation from the

areas of corporate finance,

American Bar Association

mergers and acquisitions,

in August.

and corporate governance.

owned subsidiary of the

1986

Kerr argues that orcas are intelligent animals that, in nature, work

distances every day. In In October Jeffrey Kerr,

captivity at SeaWorld in

general counsel to People

California and Florida, they

for the Ethical Treatment

are forced to swim in tight

David J. Bederman passed

of Animals (PETA), filed a

circles in concrete tanks.

away on December 4 at

lawsuit asking a federal

They are deprived of their

the age of 50. He was

court to declare that five

freedom, the use of their

K.H. Gyr Professor of

wild-caught orcas forced

sonar, and are forced to

1987

Joseph G. Grasso co-

James F. Ritter has

Private International Law

to perform at SeaWorld

perform tricks for human

edited the American

joined Sheppard, Mullin,

at Emory Law School

are being held as slaves in

entertainment.

Bar Association’s The

Richter & Hampton in

and a noted authority

violation of the Thirteenth

Handbook on Additional

Washington, D.C., where

on public international

Amendment to the

Insureds. (See In Print.) The

he is special counsel in the

law, admiralty, and legal

Constitution. The filing,

Alfred “Ran” Randolph, Jr., serves on the Virginia

book comprehensively ad-

corporate practice group.

history.

the first in history seeking

Bar Association’s board

dresses issues that relate

He represents businesses

Prior to his 20 years at

to apply the Thirteenth

of governors. He was se-

to additional insureds that

seeking and providing ac-

Emory Law, Bederman was

Amendment to nonhuman

lected for inclusion in Best

concern both insurers and

cess to capital in a number

with Covington & Burling

animals, named the orcas

Lawyers 2012 in banking

policyholders. Grasso is

of industries, and has

and served as a legal ad-

as plaintiffs and sought

and finance law, corporate

a partner in the litigation

extensive experience in

viser at the Iran/U.S. Claims

their release. In February

law, and financial services

department and co-chair

the aerospace, defense,

Tribunal at The Hague.

U.S. District Judge Jeffrey

regulation law. Ran is a

of the insurance practice

communications, health

He was a prolific author

Miller of San Diego, Cal.,

partner with Kaufman &

group with Wiggin and

care, and energy indus-

of books and articles on

ruled that the Thirteenth

Canoles in Norfolk, where

Dana in Philadelphia and

tries. He was previously

public international law,

Amendment applies only

he is a member of the

New York.

with Latham & Watkins.

legal history, admiralty,

to humans.

lender representation

John J. Jenkins has been

Jennifer Weiss is in her

and constitutional law. He

formal complaint to the

creditors’ rights and busi-

named by Best Lawyers

seventh term in the

litigated cases involving

Florida State Attorney

ness restructuring practice

2012 as the Lawyer of

North Carolina House of

shipwreck finds on the

asking that involuntary

groups. He coaches youth

the Year in Cleveland in

Representatives. She has

ocean floor and repre-

manslaughter charges be

lacrosse with Jeff Stedfast

the area of securities/

represented her district

sented the company that

brought against SeaWorld

’86. Ran has three boys

capital markets. He advises

since 1999.

held the salvage rights to

and its executives follow-

(9, 12, and 16) and is

publicly and closely held

the Titanic. Last year he

ing the February 2010

approaching his 23rd

corporate clients on mat-

became chair of the board

death of orca trainer Dawn

wedding anniversary with

ters involving securities

of directors of Odyssey

Brancheau. She drowned

his wife, Kristen.

and capital market issues,

Marine Exploration Inc.,

after being pulled into

mergers, acquisitions

which leads search and

the water by an orca that

legislation and regulation,

Kerr brought an earlier

and bankruptcy and the

UVA Lawyer / spring 2012 59

Class notes …

’87 Fantasy Baseball: Another Winning Season Rolls Around

1988

It was spring, 27 years ago, when Joe Prochaska gathered a group of fellow law students in a classroom for their first season of rotisserie (aka fantasy) baseball.

That first season was so engaging that he and eight other team owners from Law School are still in the game, including Greg Cross (Smokin’ Buses), Mike Dean and George Schwab (Gungan Crue), De O’Roark (Lounge Lizards), Paul Parmele and Tom Schorr (Schorr

Kim Bonuomo has been

Things), Greg Ross (Dancing Bears), and John Tawa

elected shareholder with

(Tawa O’Powa, 2011 champion). Not to be outdone, the founder’s team is dubbed Prochaska’s Possums.

With a few other friends and colleagues, they form the

L to R:Joe Prochaska ’87, Mike Dean ’87, John Tawa ’87, Greg Cross ’87, George Schwab ’86 (red shirt), Greg Ross ’87, Tom Schorr ’87, De O’Roark ’87, Paul Parmele ’87

Moss & Barnett in Minneapolis, Minn., where she is a member of the

Henry Mathewson Memorial Rotisserie Baseball League,

family law practice group.

named for a player whose statistics and persona were overshadowed by those of his famous brother, Christy.

She focuses her practice

Since Law School the annual draft has expanded to a three-day event in April, usually occurring soon after the

on complex asset

opening of the major league season. One day is set aside for the draft, and wives, children, and girlfriends are

valuation and distribution,

invited to all other events. The owners have rotated the annual draft-hosting duties in their hometowns and

business valuations,

have been to each at least once, including Austin, Atlanta, Cincinnati, Portland, Ore., Los Angeles, Nashville,

custody and parental

Charlotte, D.C., Baltimore, Princeton, and New York City. They’ve also ventured to New Orleans, Seattle, and

rights, financial support,

Louisville. They’ve seen a no-hitter at Dodger Stadium, toured the Louisville Slugger bat factory, and watched

premarital agreements,

thousands of bats (of the mammalian variety) fly out from under a bridge at dusk in Austin.

and settlement

Despite their demanding schedules, owners are expected to show up on draft day. The dynamics of the

negotiations.

fiercely competitive event could never be fully conveyed by a Webcam. After sifting through stats and countless other variables to come up with a list of players for their dream team, they bid for them in $1 increments.

Owners have a total of $260 with which they must acquire 23 American League players, including 9 pitchers, 14 hitters, and so on.

More often than not the draft is held in a law firm conference room, but once in a while they break the pattern in great style—as in the memorable 1992 draft that took place in the Tennessee State Senate Chamber, thanks to Prochaska. The event begins with the owners singing the national anthem, and they’ve had some notable accompanists: an Elvis impersonator in Las Vegas, a Kenny G-style saxophone played by a Venable lawyer in Baltimore, an authentic Churchill Downs bugler performing Stars and Stripes and a “call to the rail” in

John M. Cooper and a

Louisville.

partner announced their

Then they get down to business. In the heat of an auction things can get pretty tense: an owner’s funds run

new personal injury law

low in the thick of bidding and the pitcher with the overpowering fastball is out of reach, or someone’s stuck

firm, Cooper Hurley, in

with too much money and no decent players to bid on. At this point, things can get loud, but mostly it’s a

Norfolk, Va. Cooper was

good-natured battle of wit and witticisms.

previously a partner with

As they follow their teams throughout the 162-game season, there are the inevitable ups and downs. “One

Shapiro, Cooper, Lewis &

week a hitter’s performing better than hoped, the next he’s in a slump,” notes O’Roark. “Or a player comes out

Appleton and devotes

of nowhere to have the season of his life.” How do they handle these unpredictable swings? “I like to keep a

himself to helping

ball-peen hammer in my desk drawer,” quips Dean, also known as the Commish. It’s his job to keep things

individuals hurt in car,

moving and apply the rules when things get out of hand.

truck, motorcycle, and

There are plenty of rules in the league’s constitution, drawn up in 1985 and amended as deemed necessary

train accidents. Cooper is a

in the years since. Perhaps not surprisingly, the rules are often challenged. “Lawyers are always playing around

district governor for the

the edges,” says Dean. “We’re good at it. It’s what we do for a living.”

Virginia Trial Lawyers

This year everyone met in Chicago, the city of Big Shoulders, deep-dish pizza, and the start of one team’s championship year.

— Rebecca Barns

60 UVA Lawyer / spring 2012

Class notes …

Association, the statewide

including initiatives, ref-

Super Lawyers 2011 in

plaintiffs’ bar, and serves as

erenda, and recalls, and is

intellectual property

chair of the FELA (railroad

one of the country’s lead-

litigation and business

worker claims) Litigation

ing experts on statutory

litigation. He was also

Group for the American

interpretation and the role

named one of Virginia’s

Association for Justice. He

of institutions—judicial,

Legal Elite in Virginia

was named to the Top 100

legislative and administra-

Business 2011 in intellectual

Trial Lawyer list for 2011 by

tive—in shaping the

property law. Riopelle is

the National Trial Lawyers

interpretive process.

partner and chair of the IP

1991

Alexander M. Macaulay

litigation/patent depart-

organization. In January

has been named in Best

he was reelected as 2nd

Patrick Hyder Patterson

ment with McGuireWoods

Sarah Davies has been

Lawyers 2012 for govern-

district governor for the

recently published Bought

in Richmond.

appointed member of the

ment relations law. He is a

Virginia Trial Lawyers

and Sold: Living and Losing

Girard College board of

founding partner with

Association.

the Good Life in Socialist

managers.

Macaulay & Burtch in

Yugoslavia with Cornell

1990

Girard is a boarding

Richmond, Va.

school for academically

Elizabeth Garrett has

University Press. In the

been elected to the

book he examines the

Michael Milgraum has

capable students, grades

Jeffrey L. Stredler has

American Academy

unique mix of socialist

published his first novel,

1–12, who are from fami-

been elected to serve

of Political and Social

and consumerist life in the

Never Forget My Soul. The

lies with limited financial

on the Virginia State Bar

Science (AAPSS) and will

former Yugoslavia. (See

book tells the story of

resources headed by a

litigation section board of

be inducted as a Harold

In Print.) He is assistant

two children of Holocaust

single parent or guardian.

governors. He also serves

Lasswell Fellow. She was

professor of history at the

survivors and their journey

The 43-acre campus is

on the VSB corporate

selected in recognition

University of California,

to psychological and

located in Philadelphia, Pa.

counsel section board of

of contributions she has

San Diego.

spiritual healing. (See

Davies is a member

governors. Stredler is se-

made to social sciences

In Print.) Milgraum is an

with Cozen O’Connor

nior litigation counsel with

and for communicating

attorney and psychologist

in Philadelphia. She is

Amerigroup Corporation

practicing in Silver Spring,

administrative partner for

in Virginia Beach.

Md.

the commercial litigation

her understanding beyond

1989

her own discipline.

group, concentrating

Garrett is the Frances

Russell S. Sayre has been

her practice in complex

Andrew “Mac” Warner LL.M. is currently posted

selected as a leading

commercial litigation,

in Bamyan, Afghanistan,

litical Science and Public

lawyer for 2012 in the area

including cases involving

where the Taliban blew

Policy at the University of

of business litigation by

class actions, securities

up two large statues of

Southern California Gould

Cincy magazine. He was

fraud, Uniform Com-

Buddha carved in a moun-

School of Law. She holds

also named a future star in

mercial Code transactions,

tain in March 2001. Warner

joint appointments at the

Benchmark Litigation 2012.

business torts, breach of

writes he is using his

R. and John J. Duggan Professor of Law, Po-

USC Dornsife College of

Brian C. Riopelle has been

He was named in Best

contract, construction

LL.M. instruction to teach

Letters, Arts and Sciences,

recognized in Benchmark

Lawyers 2012 in appellate

litigation, health care, and

judges, mullahs, prosecu-

and the USC School of

Litigation as the 2012

practice, commercial

environmental contamina-

tors, defense counsel, and

Policy, Planning, and

Virginia Litigator of the

litigation, and litigation-

tion. She also handles

police the rule of law and

Development, as well as

Year. American Lawyer

banking and finance, and

appellate matters in state

other justice basics. “As we

a courtesy appointment

selected him as its Litigator

included in Ohio Super

and federal courts.

transition the responsibil-

at the USC Annenberg

in the Spotlight in 2011,

Lawyers 2012 in business

ity for security from

School for Communication

and he was named in

litigation. He is a partner

military to civilian control,”

& Journalism. She is an

Chambers USA 2011 as a

with Taft Stettinius &

he writes, “the rule of law

authority on the study

leading lawyer for

Hollister in Cincinnati.

emerges as the primary

of direct democracy,

intellectual property.

need to maintain order

Riopelle was also named in

and to generate trust in

Best Lawyers 2012 in patent

society at large.”

litigation and in Virginia

UVA Lawyer / spring 2012 61

Class notes …

1992

Timothy J. Moran has

Richard C. Gross ’93 was nomi-

joined Sidley Austin as

nated for promotion to the rank of

Sean Paul Brankin LL.M.

partner in the project

Brigadier General by President

has been elected partner

finance practice in

Obama and was confirmed by the

in the antitrust group

Washington, D.C., where

U.S. Senate on February 17. He

with Crowell & Moring in

he focuses his practice

now serves as Legal Counsel to the

Brussels. He focuses his

on infrastructure project

Chairman of the Joint Chiefs of

practice on matters involv-

development and finance.

Staff at the Pentagon.

ing EU and UK antitrust

He was previously with

law, including merger

Dewey & LeBoeuf.

General Gross is a 1985 graduate of the U.S. Military Academy at West Point and a 2009 graduate of the United States Army War

control and counseling.

Lowell Sachs was

College. He has served in a number of leadership roles, including Chief Legal

Julie Lynn, who formed

recently promoted to

Advisor, International Security Assistance Force and Staff Judge Advocate (SJA),

Mockingbird Pictures

deputy vice president

U.S. Forces-Afghanistan; SJA, Joint Special Operations Command, Fort Bragg,

in 1999, was one of the

for BCS Incorporated, a

N.C.; and Deputy SJA, V Corps, Heidelberg, Germany. He has served in multiple

producers of the 2011

management consulting

deployments to Iraq and Afghanistan. His most recent assignment was SJA for

release, Albert Nobbs. The

firm specializing in work

U.S. Central Command at MacDill Air Force Base, Tampa, Fla.

film stars Glenn Close, who

on energy, environment,

plays the lead character,

and national security mat-

a woman who disguises

ters. His work for the U.S.

herself as a man to work

Department of Energy’s

and survive in 19th

Office of Energy Efficiency

and tort disputes. He was

David Haddock was named

Nash’s recent launch, with

century Ireland. The film

and Renewable Energy

previously with K&L Gates.

general counsel and

partners, of The Green

was nominated for three

supports breakthrough

secretary of Sunrise Senior

Room, a performance

Golden Globes and three

research and development

Living in October 2010.

space and theatrical

Academy Awards.

and federal initiatives

He lives in Alexandria,

bookstore in Atlanta, Ga.,

1993

designed to advance the

Va., with his wife, Klara,

that provides a supportive

Sean M. Mahoney

nation’s energy security,

Lisa E. Jones joined Sidley

and children, Alex (3) and

community for actors.

continues to work at

economic vitality, and

Austin in Washington,

Adam (1½).

the Conservation Law

environmental health. His

D.C., as counsel in the

Foundation in Portland,

previous work in the tech

environmental group. She

Todd C. Peppers has co-

Group, a business and

Maine. He will miss the

sector managing federal

was previously assistant

edited In Chambers: Stories

entertainment manage-

20th reunion to canoe

government affairs for Sun

section chief in the

of Supreme Court Law

ment company, which

the length of the Allagash

Microsystems prepared

appellate section of the

Clerks and Their Justices,

specializes in helping

River, but notes that he

him with more than a

Environment and Natural

a collection of essays

clients with accounting,

looks forward to Sean

decade of experience as a

Resources Division, U.S.

about Supreme Court law

bookkeeping, taxes,

Maloney’s return to

public policy expert and

Department of Justice.

clerks and the justices

contracting, business

Washington, D.C., in 2013.

technology ambassador.

they worked for. Peppers

due diligence audits, and

contributed two original

overall business manage-

essays to the book. (See

ment. The company also

In Print.)

offers nonprofit consulting

Lowell lives in Falls Church,

Sean Maloney is running

Va., with his wife, Christine,

for a seat in the U.S. House

and daughter, Autumn.

of Representatives in the

1994

services. Last winter Nash

Maj. Michael K. Gould,

brand new NY-18 district.

Paul Stockman has joined

U.S. Army Reserve, is

He is a partner with Orrick

McGuireWoods’ commer-

deployed for a year to

in New York, N.Y., where he

cial litigation department

serve as a judge advocate

is a member of the energy

in Pittsburgh, Pa., as part-

with the Combined Joint

Shannon King Nash was

and infrastructure group.

ner. He focuses his practice

Interagency Task Force

the subject of a feature

In 2006 he ran for attorney

on the litigation, trial,

435, which handles

in the October issue of

general of New York.

and appeal of insurance

detainee operations in

Atlanta Tribune magazine.

coverage, environmental,

Afghanistan.

The Q&A piece focused on

62 UVA Lawyer / spring 2012

Nash’s primary business is the Nash Management

1995

was named a “Woman of Influence” by the Women’s Economic Development Agency in Atlanta.

Class notes …

1996

Mark Knueve was named

practices primarily in the

Charter Communications

in Ohio Super Lawyers 2012

real estate development

in St. Louis, Mo. Deredyn

Nominated by President

in employment and labor

and finance area,

joined the company in

Barack Obama to the

law and in Best Lawyers

representing developers,

2008 as vice president,

District of Columbia

2012 in employment

lenders, and operating

corporate finance to head

U.S. Court of Appeals

law-management and

companies in connection

Charter’s corporate

in August, Catharine

litigation-labor & employ-

with real estate matters.

finance, M&A, and

Easterly was formally

ment. He is a partner with

long-term financial

James “Buddy” Robinson

sworn in February. The cer-

Vorys, Sater, Seymour and

planning efforts. Charter

was named vice president-

emony marked her formal

Pease in Columbus.

Communications is the

general counsel and

entry to the court; she has

corporate secretary of

been serving on the bench

Jennifer Parham

operator in the United

Kohler Co. in Kohler, Wisc.

since November, when she

was selected as the

States and provides

He will have full global

was confirmed by the U.S.

recipient of the 2012

advanced communica-

responsibility of the legal

Senate. Easterly previously

YWCA Outstanding

tions services to customers

department. Previously,

served in the special litiga-

Women Award in the area

Robinson was senior vice

tion division of D.C. Public

of human relations and

Jennifer M. DelMonico

president and general

Defender Service.

faith in action, presented

received the Alumnus of

Amit P. Mehta was named

counsel for Milwaukee-

by the YWCA of Greater

the Leadership Center

to National Law Journal’s

based Bucyrus

Richmond. She was

Award at the Greater New

Minority 40 Under 40

International.

honored for her leader-

Haven Chamber of

list for 2011. Mehta was

ship and service in the

Commerce 2011 annual

recognized for his key role

fourth-largest cable

in 25 states.

Indiana Chief Justice

community, including her

awards luncheon in

in defending several high-

Randall T. Shepard LL.M.

work with the Richmond

October. The award is

profile cases, including

stepped down from

Christian Leadership

given to an alumnus of the

the ultimately dismissed

the bench in March. He

Institute and the Needle’s

chamber’s leadership

charges against former

Eye Ministries, which

programs who has made

International Monetary

Governor of Indiana in

Leezie Kim has rejoined

connects professional men

outstanding contributions

Fund President Dominique

1985 and became chief

Quarles & Brady as partner

and women to improve

to the region. DelMonico is

Strauss-Kahn. Mehta’s suc-

justice two years later,

in the Phoenix, Ariz., office,

their community through

a partner with Murtha

cessful representation of

making him the longest

where she focuses her

Christian values, ethics,

Cullina in New Haven,

former Congressman Tom

serving state court chief

practice on corporate

and love.

Conn., where she is a trial

Feeney in connection with

justice in the nation.

transactions involving

lawyer for parties in

a grand jury investigation

Shepard oversaw reforms

international business

complex commercial

concerning a privately

in the way the court does

transactions and national

litigation disputes and

funded trip to Scotland

business, including the

security, health care,

defendants in tort and

in 2003 was also noted.

Webcasting of oral argu-

restaurant business

product liability actions.

Mehta was the primary

ments and issuing jury

transactions, and

author of the brief for Rep.

instructions in straight-

immigration benefits and

Feeney in the U.S. Court of

forward English to make

enforcement matters

Appeals for the D.C. Circuit

the law easier for jurors to

affecting businesses. She

in 2009. The court ruled

understand. He has several

left the firm in 2007 to

that Feeney’s statements

things planned, including

serve as general counsel to

serving as a senior judge

then-Arizona Governor

Brian W. Byrd has been

Constitution’s speech or

in the state court of

Janet Napolitano ’83, and

listed among Business

debate clause, a decision

appeals and as a visiting

in 2009 she became

North Carolina’s 2012 legal

that allows members

scholar at the University of

deputy general counsel in

elite in real estate law. Byrd

Matthew Derdeyn was

of Congress to speak

Cincinnati College of Law.

the U.S. Department of

is with Smith Moore

recently promoted to

freely during ethics probes

Homeland Security.

Leatherwood in

senior vice president for

Greensboro, where he

corporate finance at

was appointed by the

1997

were protected by the

UVA Lawyer / spring 2012 63

Class notes …

regarding legislative

Lacey) and reports that his

that govern those plans.

matters.

children, AJ (5) and Justin

Hadley previously served

Mehta was named a

(4), continue to enjoy the

as associate counsel for

future star in Benchmark

perks of his working for a

pension regulation at the

Litigation’s 2011 ranking

chocolate company.

Investment Company Institute, the national

of U.S. litigation firms and lawyers as well. He is a

1999

association of U.S.

Stephanie L. Chandler was

investment companies.

listed among Business

named to San Antonio

Among his many

D.C., where he focuses his

North Carolina’s 2012 legal

Marc P. Berger has been

Business Journal’s

responsibilities he

practice on white-collar

elite in construction law.

named the new chief

outstanding lawyers list as

advocated for the

criminal defense, complex

He is with Smith Moore

of the securities and

a rising star. She was also

Institute’s membership

civil litigation, and appel-

Leatherwood in

commodities fraud task

named a 2012 rising star in

before Congress, the

late litigation.

Greensboro, where his

force in the U.S. Attorney’s

Texas Monthly. Chandler is

Department of Labor, the

partner with Zuckerman

Neale T. Johnson has been

Spaeder in Washington,

practice focuses on

Office criminal division

a partner with Jackson

Department of the

Daniel J. Smith has

commercial litigation with

in Manhattan. Berger will

Walker in San Antonio,

Treasury, and the

joined TidalTV as vice

a focus on construction,

supervise a team that

where she focuses her

Securities Commission on

president and chief

contract, real estate, title

has brought a series of

practice on securities

retirement security issues.

counsel. Headquartered

insurance, and landlord-

high-profile insider trading

transactions, reporting,

in Baltimore, Md., TidalTV

tenant matters.

prosecutions against

and compliance; mergers

Barry S. Persh and Sherri

provides advertisers and

hedge fund traders and

and acquisitions; technol-

Persh welcomed their son,

agencies with a technol-

Robert J. Shelby has been

other corporate insiders.

ogy licensing and

Ryan Colby, on January 4.

ogy solution to allow them

nominated by President

He has been with the U.S.

commercialization, and

Barry is a senior counsel

to manage their video ad-

Barack Obama to serve as

Attorney’s Office for the

general corporate work.

with Dow Lohnes in

vertising campaigns across

U.S. District Court judge for

Southern District of New

She also leads Jackson

Washington, D.C.

all types of media—online,

the District of Utah. Shelby

York since 2002 and served

Walker’s technology

mobile, and addressable

is a shareholder at Snow,

as deputy chief of the task

section.

television.

Christensen & Martineau,

force since 2010.

Michael and Sali Rakower had their third baby girl,

where his practice focuses

Hannah Abigail, in March

on complex commercial

of 2011. Michael reports

litigation and catastrophic

that they have a “happy

personal injury cases on

and frenetic” household.

Amy E. Davis joined Rose

behalf of both plaintiffs

He was recently selected

Walker as partner in Dallas,

and defendants in state,

for inclusion in New York

Tex. “I could not have

federal, and administrative

Michael L. Hadley joined

found a more perfect fit,”

courts throughout the

Davis & Harman in

she writes. Rose Walker

country.

Washington D.C., as a

Fredrick Stein, at-

Joseph S. Brown was

partner, where his practice

torney advisor with the

1998

is a nationwide trial firm

Super Lawyers rising stars.

for business people that

James H. Wilson attended

recently elected president

focuses on employee

Transportation Security

shares her philosophy

the September wedding of

of the executive board for

benefits, advising clients

Administration, com-

about cases: understand

David Chung to Grace Oh

the Minority Bar

on the full range of tax,

pleted a master of arts

your client’s goals; focus

in Washington, D.C., where

Association of Western

ERISA, and other laws

in security studies at the

on what’s important; avoid

he was able to reunite

New York. He is a senior

affecting benefits plans.

Naval Postgraduate School

unnecessary cost and

with other UVA alums

associate with Hodgson

His particular focus is on

Center for Homeland

delay. Davis’s areas of prac-

as well. He and his wife,

Russ in Buffalo, where he

helping financial institu-

Defense and Security. In

tice include employment

Michele, continue to live

concentrates his practice

tions that sell products to

the 18-month program,

and commercial disputes,

in York, Pa. Jim is currently

in the business litigation

defined contribution and

Stein collaborated on

representing professionals

counsel at The Hershey

and employment litigation

defined benefits plans,

current policy, strategy,

and businesses “on both

Company (where he works

practice groups.

IRAs, and 529 plans

sides of the versus.”

with Lauren Connolly

64 UVA Lawyer / spring 2012

navigate the special rules

Class notes …

and organizational design

to bring significant tax

firm’s Washington, D.C.,

legal protections for

Atlanta, Ga., where he

challenges with the lead-

savings. He was named in

and Abu Dhabi offices. He

whistleblowers. He lives in

focuses his practice on real

ing experts from all fields

Best Lawyers 2012s.

advises corporate and gov-

Maryland with his wife and

estate and other commer-

ernment clients on a wide

two daughters.

cial transactions.

of Homeland Security to including: intelligence,

Tracey C. Allen was re-

range of international

counter terrorism, Islamic

cently promoted to special

trade and trade policy

scholars, psychologists,

counsel with Wilmer Hale

issues, including defense

academics, domestic

in Washington, D.C. She

trade/export controls,

and international law

practices in the litigation/

anticorruption laws,

enforcement, and

controversy department

first responders. His thesis on the homeland and national security

2001

Gunes Hopson and her husband, Kevin, are pleased to announce the birth of their second son,

economic sanctions, and

Matthew Bosher and Tess Autrey Bosher

and is a member of the

customs/security-related

welcomed their third

born in October. Their first

intellectual property

issues.

daughter, Mary Louise,

son, Aydin Kendell, was

litigation practice group.

on February 22, 2011.

born in August of 2010,

implications of America’s

She has represented

Andy Wright continues

Matthew and Tess live

and is Skyler’s guardian

dependence on foreign oil

clients in patent infringe-

to serve as associate

in Richmond, Va., where

angel, looking down on

establishes that with the

ment cases involving an

counsel to the President

Matthew is a partner at

him from heaven. Hopson

right policy choices and

array of technologies,

in the Office of the White

Hunton & Williams.

continues to work for

current technology, the

including pharmaceuticals,

House Counsel. He and

Capital One in Richmond,

United States can become

genetic screening, and

his wife, Caprice Roberts,

Va., as director, assistant

energy independent in

flash memory.

are having a ball with their

general counsel in the

a few short years. Stein’s

infant son, Garrett Robert

legal department. In

thesis was nominated for

Brian Murray has been

Wright.

addition, she has her own

the CHDS Outstanding

made partner with Latham &

Thesis Award.

Watkins in Washington, D.C.

Skyler Blue. Skyler was

part-time photography

Jacqueline Yount Ferrell

business, called “fotogenic”

has joined K&L Gates as

(www.fotogenicrichmond.

lawyer whose practice

counsel in Charlotte, N.C.,

com).

focuses on the regulatory

where she practices in the

L. Dwight Floyd has been

treatment of voice-over-

labor and employment

appointed to the board of

Scott E. Adams has been

Internet protocol services

group.

directors of the South

elected to the prestigious

and broadband-based

American College of Trust

services. In addition to

Jason Zuckerman joined

Commerce, where he will

and Estate Counsel, a

assisting clients with mat-

the U.S. Office of Special

serve a one-year term. He

nonprofit association of

ters relating to emerging

Counsel as senior legal

also serves on the board of

lawyers who have made

technologies, Murray has

advisor to the special

trustees of the South

substantial contributions

significant experience

counsel. He was previ-

Carolina Governor’s School

to the field of trusts and

with more traditional

ously a principal at The

for Science and

estates law through

telecommunications and

Employment Law Group,

Mathematics. Floyd is a

writing, teaching, and

media issues, including

where he litigated

partner with Parker Poe

bar leadership activities.

inter-carrier compensa-

whistleblower retaliation

Adams & Bernstein in

Devin C. Dolive has been

Adams is a partner with

tion, universal service, and

and False Claims Act

Columbia, where he

named partner with Burr

Bradley Arant Boult

the regulation of cable

qui tam actions. He has

concentrates his practice

Forman in Birmingham,

Cummings in Birmingham,

companies.

been included twice in

on commercial litigation

Ala., where he practices in

He is a communications

2000

2002

Carolina Chamber of

Washingtonian magazine’s

with emphasis on science

the commercial litigation

of the trusts and estates

Tamer A. Soliman has

list of top whistleblower

and technology issues.

group. He litigates

and tax practice groups.

been promoted to partner

lawyers and in Best Lawyers

He focuses his practice

with Akin Gump Strauss

in the area of employment

Anthony D. Greene married

ranging from contract

on advising clients on

Hauer & Feld, where he is

law, and has written and

Heidi Brink-Herling in

disputes and business

estate planning strate-

a member of the interna-

lectured extensively on

Asheville, N.C., on October

torts, to pricing and

gies, including drafting

tional trade practice in the

1. He is an associate with

antitrust matters, and also

Troutman Sanders in

represents employers,

Ala., where he is a member

wills and trusts designed

commercial matters

UVA Lawyer / spring 2012 65

Class notes …

2003

focusing on labor and

intellectual property

employment litigation and

litigation. She counsels

advice, collective

clients on intellectual

Justin Chiarodo is a

with Finnegan, Henderson,

bargaining matters,

property issues, including

partner at Dickstein

Farabow, Garrett & Dunner

employee benefits

infringement, licensing,

Shapiro in Washington,

in Washington, D.C. He

litigation, and ERISA

and branding, and on

D.C., where he practices in

focuses his practice on

Justin J. Hasford has been elected to partnership

marketing and advertising

the government contracts

complex patent litigation

Afi Johnson-Parris was

issues, and assists clients

group. He represents

at the trial and appellate

listed as a rising star in

in the acquisition and

government contractors

levels on behalf of pioneer

North Carolina Super

protection of their

and health care companies

pharmaceutical compa-

Lawyers 2012 in family law

intellectual property

in all aspects of federal,

nies, and has particular

and collaborative law. She

around the world.

state, and local procure-

experience with cases aris-

is a divorce and family law

ment matters, with a focus

ing from abbreviated new

attorney in Greensboro in

Bill Sinclair recently

on the False Claims Act

drug applications under

her own practice,

joined Silverman,

and other government

the Hatch-Waxman Act.

Johnson-Parris Law.

Thompson, Slutkin &

contracts litigation, inves-

promoted to counsel in

White in Baltimore, Md.,

tigations, and compliance

Burcak Unsal LL.M.

the intellectual property,

where his practice focuses

matters.

joined Google as head

media, and technology

exclusively on litigation.

group of Hogan Lovells.

He also has been selected

J. Dalton Courson has

in January. He was

She also was recently

to the leadership academy

been made a member of

previously with DLA Piper

named to the Virginia

of the Maryland State

Stone Pigman Walther

Istanbul, where he led the

Business legal elite. Tarah

Bar Association, where

Wittmann in New Orleans,

corporate/M&A group.

and her husband, John

he is on the nominating

La. He is in the litigation

Delacourt, welcomed their

committee. He continues

section, where he has a

Eric Volkman has been

second child, Gabrielle

Jonathan E. Moore has

as an adjunct professor at

litigation and trial practice

made partner with

Marie, in September.

been named partner with

the University of Maryland

with a focus on insurance

Latham & Watkins in

Gabrielle joins two-year-

Warner Norcross & Judd in

Carey School of Law. Kate

coverage, creditors’ rights

Washington, D.C.

old sister, Victoria

Grand Rapids, Mich. He

has just begun a part-time

and bankruptcy, and

He practices primarily

Genevieve. The family

focuses his practice in

litigation practice doing

commercial litigation.

in the areas of white-collar

resides in Dunn Loring.

litigation with an emphasis

legal research and writing

on commercial litigation,

for various attorneys

Kelley Edwards has been

complex civil litigation.

Kelly Howard has been

complex litigation, and

throughout Baltimore,

promoted to shareholder

He has worked on a wide

elected partner in the

electronic discovery.

and she continues to care

with Littler Mendelson

variety of matters in

corporate group with

for their son, Teddy, while

in Houston, Tex. She

federal and state court,

Crowell & Moring in

maintaining an active

represents management

where he has repre-

Washington, D.C. She

volunteer schedule.

in charges and litigation

sented foreign countries,

matters related to employ-

municipalities, companies,

litigation.

Tarah Grant has been

focuses her practice on

legal counsel in Turkey

criminal defense and

securities transactions,

Bryan F. Stroh is vice

ment discrimination,

elected officials, and

securities reporting, and

president and general

harassment, retaliation,

other individuals in civil

compliance, mergers and

counsel of the Pittsburgh

and wage and hour

litigation and government

acquisitions, corporate

Pirates, one of Major

disputes. She also advises

investigations. He also

League Baseball’s oldest

employers on a variety of

has notable experience in

Nicole M. Murray has been

franchises. Previously

labor and employment

export control matters and

elected partner with

with Katten Muchin

matters, including employ-

data privacy compliance

Quarles & Brady in

Rosenmann, Stroh worked

ment and severance

in the context of interna-

Chicago, Ill. She is a

with the Cleveland Indians

agreements, reductions in

tional investigations.

member of the intellectual

and the White Sox on

force, Fair Labor Standards

property group and

player salary arbitration

Act compliance, and unfair

focuses her practice on

cases.

competition issues.

governance, and general corporate counseling.

66 UVA Lawyer / spring 2012

Class notes …

David Zetoony has been

Kathleen Carignan was

finance practice group,

involve complex civil

universal compliance and

elected partner with Bryan

a featured panelist at the

where he represents lend-

litigation.

whistleblower programs.

Cave in Washington, D.C.

University of Miami School

ers in finance transactions,

He practices mainly with

of Law Entertainment &

including real estate loan

Thomas H. Kim has been

Billy Wynne and his wife,

the antitrust, franchise

Sports Law Society annual

originations, mezzanine

elected partner in the

Christy, are grateful to

& consumer law client

symposium in April. The

financing, loan workouts,

litigation department

announce that Harrison

service group, and leads

event, co-hosted by the

restructurings, whole loan

of Jenner & Block in

Lei Jun Wynne joined

the firm’s data privacy and

Miami Marlins, was held

sales, and related matters.

Washington, D.C., where

their family on February

data security practice.

in the new Marlins Park.

he focuses his practice

7 in Zhengzhou, China.

Kathleen provides legal as-

Claudia Gee Vassar and

on complex commercial

Lei is 18 months old and

sistance and professional

her husband, David, are

litigation in the hospitality

has quickly enriched the

education for artists and

pleased to announce the

and energy industries.

Wynne household with

works with communities

births of Sylvia Mar Vassar

Michael Autuoro has been

to create cooperatives

and Rafael Gee Vassar,

Gordon F. Rainey has

Billy and family are in

named principal in the

and residencies to attract

born September 6.

recently put his legal skills

Denver, Colo., where Billy

IP litigation group with

creatives to revitalize

to use in the commercial

is senior vice president

Fish & Richardson in New

unused industrial or city

intelligence field, taking

and principal with Health

York City. He focuses his

spaces.

on a position at Hakluyt,

Policy Source, a federal

2004

his love and good cheer.

a London-based strategic

health care consulting

property litigation as well

Heather L. Carlton is

intelligence and advisory

firm focused on policy and

as intellectual property

Assistant U.S. Attorney

firm.

advocacy.

strategy counseling in a

in the homicide section

variety of technologies,

of the superior court

including computer

division, United States

hardware and software,

Attorney’s Office for the

semiconductor methods

District of Columbia. She

Dara (Zelnick) Kesselheim

Scott P. Horton has been

and devices, vehicle sys-

joined the office in 2008

and her husband, Jared

named partner with

tems, business methods,

and has served in the

Kesselheim, welcomed

Jaeckle Fleischmann &

telematics, gaming, and

appellate division and the

their second son, Eli

Mugel in Buffalo, N.Y.,

financial services.

misdemeanor, felony trial,

George Kesselheim, on

where he is a member of

practice on intellectual

2005

and felony major crimes

July 13. Eli is doing great

A-J Secrist has been elected

the labor and employment

Courtney Caprio is an

sections of the superior

and he adores his big

partner with Parker Poe

and E-discovery and

associate with Stroock

court division.

brother Zachary (now 2½).

Adams & Bernstein in

records management

in Miami, Fla., where she

Dara was recently named

Charlotte, N.C., where she

practice groups. He was

focuses her practice on

partner in the government

represents public and

named to the Business

commercial litigation, par-

enforcement & compliance

private entities in securities,

First of Buffalo “Who’s Who

ticularly in entertainment,

and major commercial

merger and acquisition,

in Law” list in 2011.

intellectual property,

litigation practice groups

and general corporate

contract disputes, class

with Choate, Hall &

matters. Her practice also

actions, and torts. In 2011

Stewart in Boston, Mass.

involves giving general

she was recognized by

She focuses her practice

corporate and securities

The Daily Business Review

on representation of

advice to private invest-

as South Florida’s Most

John Domby has been

individuals and corpora-

ment companies. Secrist

Effective Lawyer in the

named a rising star in

tions in both government

advises senior manage-

area of complex business

North Carolina Super

and internal investigations

ment and boards of

civil litigation. She was

Lawyers 2012. He is an

involving health care

directors of multi-national

previously with Kasowitz

associate with Winstead in

fraud, securities fraud, and

companies regarding

Toni J. Hoverkamp has

Benson Torres & Friedman.

Charlotte, in the real estate

government contracting,

enterprise risk manage-

joined Farrell Fritz as an

as well as matters that

ment, including the design

associate in the real estate,

and implementation of

land use, and municipal

UVA Lawyer / spring 2012 67

Class notes …

departments.

Brent Olson has been

the Shenandoah Valley

Adam B. Schwartz is

Hoverkamp works out

promoted to senior

Battlefields Foundation.

Assistant U.S. Attorney

of both Hauppauge and

counsel with Dow Lohnes

He is a member of the

in the homicide section

Bridgehampton, N.Y. She

in Washington, D.C. He

John Marshall American

of the superior court

focuses her practice on

represents clients in civil

Inn of Court, the Thomas

division in the U.S.

representing buyers and

litigation matters before

Jefferson Intellectual

Attorney’s Office for the

sellers in residential and

federal and state courts

Property American Inn

Eben C. Hansel has been

District of Columbia. He

commercial real estate

at both the trial and

of Court, and a member

elected to the board of

joined the office in 2008

transactions, institu-

appellate level and also in

of the Lawyer Referral

directors of Live

and has served in the

tional lenders in providing

arbitration proceedings.

Committee of the Virginia

Baltimore, a nonprofit

appellate division and the

State Bar. He is also the

organization that markets

misdemeanor, felony trial,

and private developers in

Brooke Purcell was

outgoing chairman of

the City of Baltimore as a

and felony major crimes

obtaining financing for

honored at the Sanctuary

the staff parish relations

great place to live. He is

sections of the superior

development projects. She

for Families 2011 Above

committee at River Road

an associate with Ballard

court division.

also works with private

& Beyond Pro Bono

United Methodist Church,

Spahr, where his practice

developers and investors

Achievement Awards and

where he has served on

is focused mainly on

Albert B. Stieglitz, Jr.,

in joint venture negotia-

benefit in New York City

the church council.

commercial real estate

and his wife, Amanda,

tions and with landlords

in November for her work

law and transactions.

announce the birth of

and tenants in leasing

on behalf of a traumatized

N. Malick in Hot Springs,

transactions. She was

victim of domestic vio-

Va. on November 1, 2008.

John Sherman and his

Kingston Stieglitz, on

previously with Herrick,

lence and her two young

She practices corporate

wife, Hobby, welcomed a

October 29. Stieglitz is

Feinstein.

daughters. Sanctuary for

law with McCandlish

baby girl, Lucy Stoddard

a trial attorney in the

Families is a nonprofit

Holton. They met at the

Sherman, into the family

fraud section of the

agency dedicated to serv-

Law School during the bar

on January 21. “Hobby and

criminal division of the U.S.

ing victims of domestic

review course, and Rhodes

Lucy are healthy and are

Department of Justice. The

violence and sex traffick-

proposed at the Law

doing great,” writes John.

family lives in Arlington, Va.

ing and their children.

School in the fall of 2007.

“We couldn’t be more

financing to borrowers,

Rhodes married Alana

their daughter, Caroline

excited.”

Rhodes B. Ritenour has been promoted to

2006

partner at LeClairRyan in

Robert Weissert was selected as a “Must-Know

2007

Floridian” by Florida Trend magazine, and was featured in the March

Joshua C. Johnson has

Richmond, Va. His practice

Sean Cameron and his

been named partner with

focuses on litigating intel-

wife, Rita, welcomed their

Alexandra Marzelli

2011 issue. He is the vice

Gentry Locke Rakes &

lectual property matters,

second child, Beatrice

joined Patton Boggs in

president for research and

Moore in Roanoke, Va. He

representing interests in

Christine, to the family last

Washington, D.C. Marzelli

general counsel for Florida

focuses his practice on

the hospitality industry,

October. Sean is in-house

advises pharmaceutical,

TaxWatch, a nonpartisan,

construction litigation,

and appearing before

counsel in the Internet

medical device, dietary

nonprofit public policy

criminal defense, and

state agencies and elected

services and market-

supplement and food

research institute based in

government regulatory

bodies. Rhodes chairs the

ing communications

clients on the full range of

Tallahassee.

matters, representing

LeClairRyan hospitality and

department at Apple.

regulatory and compliance

individuals and corpora-

tourism industry team.

The family, including

matters involving the Food

article describes an effort

Callum (3), recently moved

and Drug Administration

that Weissert led to find

to Willow Glen, Calif.

(FDA), the Consumer

savings within the Florida

Product Safety

state budget. According to

tions in a wide variety of

Rhodes is chairman of

The Florida Trend

complex civil matters as

the American Diabetes

well as in government

Association Board

investigations in federal

for Central Virginia, a

John H. Doyle, his wife,

Commission (CPSC)

Florida Trend, the volunteer

and state courts.

co-founder of the Diabetes

Joan, and their four

and the Federal Trade

members of the group

Support Group for Greater

children, Aaron, Mikayla,

Commission (FTC).

looking for the savings

Richmond, and a trustee

Colleen, and Juliet, moved

included “a who’s who of

of the Virginia Museum

to Maine in the summer

state business leaders, plus

of Frontier Culture and

of 2011.

the two party nominees

68 UVA Lawyer / spring 2012

Class notes …

for governor, Democrat

Jonathan S. Tannen ’09 was a

Eighth Circuit Court of

and then-state CFO Alex

foreign law research assistant to

Appeals and organized

Sink and Republican Rick

Asher Grunis LL.M. ’72 (center) in

the Federalist Society’s

Scott” (now Florida’s 45th

Jerusalem in the summer of 2007.

2011 National Student

governor), as well as other

Grunis was recently named Chief

Symposium with Justice

prominent elected officials

Justice of the Supreme Court of

Clarence Thomas as the

and community leaders.

Israel. His father, Edward

keynote speaker.

The effort yielded more

Tannen ’73, shared at least one

than 125 cost-savings

class with Grunis at the Law

recommendations worth

School— Charlie Whitebread’s criminal procedure class. Edward visited Jonathan

approximately $4 billion,

and Grunis the summer Jonathan was working for the Supreme Court of Israel.

more than one-third of

Jonathan is currently a law clerk to Justice Peggy A. Quince of the Florida

which were implemented

Supreme Court.

by the Florida legislature.

2008

in September, running

of law and policy. She

Erin N. Thompson has

Joe L. Fore, Jr., has joined

101.90 miles in a 24-hour

advocates for low-income,

joined Goldberg Kohn as

Baker Hostetler in Orlando,

James R. Billings-Kang

period. Choi is an attorney

elderly, and disabled

an associate in the com-

Fla., where he focuses his

has joined Blank Rome

with the Bergen County

clients and lobbies state

mercial finance group in

practice on complex

as an associate in the

Mental Health Project and

and federal agencies. She

Chicago, Ill. She represents

business litigation.

corporate litigation group

resides in Leonia, N.J.

is a staff attorney with

financial institutions in

Community Legal Services

documenting, negotiat-

Megan A. Peloquin has

in Philadelphia, Pa.

ing, and performing due

joined Weil, Gotshal and

diligence for asset-based

Manges in Washington,

and cash-flow commercial

D.C., as a litigation

finance transactions.

associate.

in Washington, D.C., where he focuses his practice on complex civil litigation

Elisabeth Falaleev Miranowski writes that

at both state and federal

her daughter, Sasha

levels. As a member of

Helene Miranowski, was

the consumer financial

born on October 29, in the

services team he works

middle of the snowstorm

Michael Menssen

on a variety of consumer

that hit the East Coast.

announces that his

finance litigation matters.

2009

2010

2011

second child, Daniel James

Paul Mysliwiec enjoys

Menssen, was born on

prosecuting misdemean-

July 31.

ors in Brooklyn’s Red Zone, consisting of tough

Natalia Oehninger is

Karin Agness was named

neighborhoods such

an associate with Jones

among Forbes’ 30 Under

as East New York and

Day in Dallas, Tex., where

Karla J. Soloria has joined

30 in the area of law and

Canarsie. He especially

she practices labor and

Kaufman & Canoles in

policy. She founded a

enjoys facing off against

employment law.

group for conservative

fellow UVA grads such as

college women called

Adam Heyman ’03 and

Network of Enlightened Women while at UVA.

Austin A. Averitt has

Norfolk, Va., where she

joined Burr & Forman in

practices in the litigation

Whitney B. Price has

Birmingham, Ala. He

group.

Jessica Goldthwaite ’04

joined Butler Rubin

practices in the commer-

in the Legal Aid Society,

Saltarelli & Boyd in

cial litigation group, where

Caroline W. Stanton is an

and looks forward to

Chicago, Ill., as an as-

he focuses on financial

associate with Williams

Jacqueline Choi came

his time in the felony

sociate. She concentrates

services litigation.

Mullen in Richmond, Va., in

in tenth among female

grand jury.

her practice in complex commercial litigation.

the corporate law section,

Alex Cox was named

where she focuses her

Track and Field 24-Hour

Rebecca Vallas has been

among Forbes’ 30 Under

practice on mergers and

National Championships

named among Forbes’

30 in the area of law and

acquisitions and general

held in Cleveland, Ohio,

30 Under 30 in the area

policy. He clerks in the

business matters. n

runners in the 2011 USA

UVA Lawyer / spring 2012 69

In Memoriam

George C. Seward ’36 Scarsdale, N.Y. February 15, 2012

Thomas W. Bartram, Jr. ’51 Spartanburg, S.C. November 22, 2011

Jeb Howard ’57 New Bern, N.C. October 10, 2011

Thomas H. Truitt ’64 Lexington, Va. December 27, 2011

Llewellyn C. Thomas ’38 Eugene, Ore. October 26, 2011

Aita Jogi ’51 Washington, D.C. January 9, 2012

Stephen I. Schlossberg ’57 Sarasota, Fla. December 10, 2011

Richard C. Lowery ’67 Arlington, Va. October 20, 2011

David R. Owen ’39 Lutherville, Md. November 4, 2011

Eugene F. Roberts ’51 Pittsburgh, Pa. November 21, 2011

John C. Cooper III ’60 Baltimore, Md. March 7, 2012

Stuart M. Lewis ’70 McLean, Va. February 13, 2012

Julian O. von Kalinowski ’40 Los Angeles, Calif.

February 11, 2012

Robert M. Moore ’52 Washington, D.C. January 17, 2012

James R. Bresee ’61 Lebanon, N.H. November 3, 2011

Joe Gray Lawrence, Jr. ’73 Virginia Beach, Va. January 16, 2012

Betty Blair Stewart ’45 Marion, Va. January 8, 2012

R. Daniel Saxe, Jr. ’52 White Plains, N.Y. November 23, 2011

Clark G. Redick ’61 Shawnee Mission, Kans.

October 19, 2011

William M. Martin III ’73 Carrollton, Va. February 17, 2012

George W. Rauch ’47 Nantucket, Mass.

November 10, 2011

Calvin H. Childress ’54 Norfolk, Va. December 16, 2011

Rex H. Sater ’62 Santa Rosa, Calif.

January 20, 2012

Thomas C. Givens, Jr. ’75 Tazwell, Va. February 1, 2012

Francis N. Crenshaw ’48 Norfolk, Va. January 26, 2012

Kenneth Schoenberg ’54 Mountainside, N.J. December 23, 2011

Kenneth C. Allen ’63 Adelphi, Md. October 18, 2011

Robert Allen Armstrong II ’76 Annandale, Va. July 12, 2011

Norborne Berkeley, Jr. ’49 New York, N.Y. December 29, 2011

Billie M. Millner ’56 Newport News, Va. December 1, 2011

John W. F. Haner ’64 Raleigh, N.C. February 13, 2012

David Jeremy Bederman ’87 Atlanta, Ga. December 4, 2011

John C. Kinder ’50 Saint Clairsville, Ohio March 8, 2012

Daniel B. Burns ’57 Winchester, Mass.

June 10, 2011

Glenn B. McClanan ’64 Virginia Beach, Va. January 26, 2012

Michael Kozakewich, Jr. ’89 Clarksburg, W.Va. February 5, 2012

Sam F. Musser ’50 Key Largo, Fla. February 9, 2012

Richard Flender ’57 Southampton, N.Y. October 26, 2011

M. Clifton McClure ’64 Charlottesville, Va. October 30, 2011

Elena L. Lawrence ’95 Fort Collins, Colo.

December 15, 2011

70 UVA Lawyer / spring 2012

In Print

Non-Fiction Fat Kid Got Fit: And So Can You! Bill Baroni ’98 and Damon DiMarco Lyons Press

Like its title, this book is frank, refreshing, and direct. Fat Kid Got Fit: And So Can You! reveals the way the author turned his unhealthy, 320-pound self around to become trim, healthy, and happy.

Anyone trying to manage his or her weight will find a helpful guide in Bill Baroni. He knows what it’s like to slog through multiple attempts at losing weight and how it feels to give up hope of ever doing so. After a frightening episode of chest pain, he set about taking control of his life and his weight, and he was able to do so without costly exercise equipment, bariatric surgery, drugs, or bizarre diets.

In 1994 Baroni spent one month at the Duke University Diet & Fitness Center, where he started on a path toward health and fitness. Within a year he lost over 120 pounds and he has kept it off for over 15 years. He knows what it takes to turn unhealthy habits around—nothing less than a change of lifestyle.

“You don’t have to spend a small fortune,” he writes. “You don’t have to starve yourself.” You have to start thinking differently and create healthy habits. This is the book he wishes he had when he started his journey on the way to health.

Dr. Howard Eisenson, executive director of the esteemed Duke Center, describes Fat

Kid Got Fit as a gift to people who cannot afford to participate in a program like the one at Duke.

In the spring of 1995, as Baroni was making progress at Duke, he applied to law schools. He decided on Law School at UVA in part because he was impressed with how physically active people were on grounds and how physical fitness seemed in balance with academic rigor.

The author’s solid, reasonable approach to weight loss and fitness provides an excellent alternative to the unsettling ups and downs of dieting and sketchy attempts at exercise.

Changing habits is hard work, Baroni admits, but the rewards are amazing.

If you’re on the right path, a little progress is a great motivator, and before long you’re on your way.

Baroni explains the basics of nutrition and how healthier eating can bring our bodies into balance. He describes how an exercise program can be enjoyable if it’s based on realistic goals, and how such a program can, in addition to weight loss, bring flexibility, balance, and strength. Fat Kid Got Fit is an excellent guide to making healthy lifestyle changes that will keep readers fit for life.

Bill Baroni is the deputy executive director of the Port Authority of new York and New Jersey. He is also an adjunct law professor at Seton Hall University Law School.

Heart of the Nation: 9/11 & America’s Civic Spirit John M. Bridgeland ’87 CreateSpace

On September 11, 2001, John Bridgeland was serving as director of the Domestic Policy Council under George W. Bush. In the aftermath of the attacks on America that day, he realized that while terrorists were attacking our democratic ideals, one of the foundations of those very ideals— commitment to public service—had been weakening for decades.

A strong tradition of civic service produces the kind of leaders and volunteers who can pull the country through times of crisis and make sure the nation holds the promise of equal opportunity for all of its citizens. The “pursuit of happiness” mentioned in the Declaration of Independence refers to a kind of happiness that comes from self determination combined with public service. “We are happiest in deep and fundamental ways when serving others,” Bridgeland notes.

Times of crisis can jar us into reassessing priorities, and that’s what happened in the wake of 9/11. Americans responded in a new spirit of civic action and discovered, in a sense, the real meaning of the pursuit of happiness.

“Even Adam Smith, often identified as the icon of capitalism and the profit motive, believed that true happiness was found in the virtue of considering and serving others,” notes Bridgeland. He traces the roots of American volunteerism, from inspiring quotes from the Founders to programs including the

UVA Lawyer / spring 2012 71

In print …

Civilian Conservation Corps, the Peace Corps, and AmeriCorps.

President Bush asked Bridgeland to lead a renewed call to civic leadership and volunteering that would last long after 9/11. The goal was nothing less than a true culture shift. Soon the newly established USA Freedom Corps led the way.

In Heart of the Nation Bridgeland shows how he reached across party lines and pushed aside cynicism and bureaucracy to promote a new spirit of civic service that brings self-fulfillment and a stronger democracy. Supreme Court Justice Anthony Kennedy and the ABA began a “Dialogue on Freedom,” and Mortimer Caplin ’40, founder of the Public Service Center at the Law School sought ways to inspire lawyers to do more to serve the public interest.

John Bridgeland is president and CEO of Civic Enterprises, a public policy development firm. He is a current member of the White House Council for Community Solutions under President Obama.

The Handbook on Additional Insureds Joseph Grasso ’86, Timothy A. Diemand, Michael Menapace, and Charles Platto co‑editors American Bar Association

The main purpose of additional insured coverage is to protect the additional insureds from claims of vicarious liability—liability based entirely on the relationship between two insureds. The various approaches taken across the United States and in other countries have created the need for a comprehensive resource on the subject. The Handbook on Additional Insureds, written for attorneys and other insurance professionals, addresses issues that relate to additional insureds that concern both insurers and policyholders.

72 UVA Lawyer / spring 2012

This book addresses the full range of topics related to this complex coverage, including: definitions and comparisons of commonly used titles; common provisions; hold harmless and indemnification agreements; limits issues; laws of various jurisdictions, including Canada and the U.K.; and the concerns associated with specific lines of insurance, including D&O construction, marine, and aviation.

Joseph Grasso is a partner with Wiggin and Dana in Philadelphia and New York.

in the 21st century. “A groundbreaking achievement in the historiography of American eugenics,” notes one reviewer.

Paul A. Lombardo is a professor of law at Georgia State University College of Law. He is the author of Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell.

Bought and Sold: Living and Losing the Good Life in Socialist Yugoslavia Patrick Hyder Patterson ’88 Cornell University Press

A Century of Eugenics in America: From the Indiana Experiment to the Human Genome Era Edited by Paul A. Lombardo ’85 Indiana University Press

In 1907 the state of Indiana passed the world’s first involuntary sterilization law based on the theory of eugenics.

In the decades to follow, more than 60,000 people deemed feebleminded or socially deficient were forcibly sterilized in the United States. A Century of Eugenics in America presents the history of the eugenics movement in the U.S., including legal repercussions of the role of government in controlling reproduction and the possibility of a renewed eugenics movement in the age of the Human Genome Project.

A noted historian of the eugenics movement, Paul Lombardo assembled ten essays, including one of his own, entitled “From Better Babies to the Bunglers: Eugenics on Tobacco Road.”

These compelling essays detail the origins of eugenic sterilization in Indiana, the eugenics movement in popular culture, state studies of sterilization, and eugenics

During the time of the Cold War, Yugoslavia was unique among communist countries in its blend of socialism and cultural aspects of capitalism. From the mid-1950s on, the political climate in Yugoslavia allowed an openness to a consumer lifestyle of acquisition stoked by advertising and persuasive sales pitches for the latest in fashion, entertainment, appliances, and services.

In Bought and Sold, Patrick Hyder Patterson explores the role of consumerism in the country’s collapse into civil war in 1991.

The author details the growth of consumer culture in Yugoslavia, including examples of ads, and how consumerism became an important part of individual and group identity. Meanwhile, the country’s communist leadership sent mixed signals to citizens, sometimes encouraging, but at other times limiting, consumer behavior.

The trend toward consumerism sparked public debate between those who were troubled by the conflict between Marxist ideology and Western capitalism and those who welcomed what they saw as “The Good Life.”

Patterson explains how consumerism was one thing that held Yugoslavia’s

In print …

multiethnic society together in the 1960s and ’70s, and how the economic downturn in the ’80s led to disillusionment, ethnic conflict, and war. He also reflects on what the turmoil in Yugoslavia means in terms of the relationship between socialist and capitalist systems and about consumer society and lifestyle in general.

“Whether one wants to wallow joyously in Yugo-nostalgia or flee the unending distortions of wartime propaganda, read this book,” writes Susan Woodward of the Graduate Center, City University of New York. “Patrick Hyder Patterson’s deeply researched and insightful study of the consumerist core of market socialism is a compelling demonstration of why we need historians and why one does not need ethnonationalism to explain Yugoslavia’s collapse.”

Patrick Hyder Patterson is assistant professor of history at the University of California, San Diego.

In Chambers: Stories of Supreme Court Law Clerks and Their Justices Edited by Todd C. Peppers ’94 and Artemus Ward University of Virginia Press

In Chambers is a collection of essays written by former law clerks, legal scholars, historians, biographers, and political scientists that gives a behind-thescenes view of clerking at the Supreme Court. The essays reveal how clerks are selected, the range of tasks they perform,

and how the job has evolved from the late 1800s to today.

Some of the most prominent lawyers, law professors (such as Alan Dershowitz and Deborah Rhode), and judges (J. Harvie Wilkinson III ’72) describe their own relationships with the Justices, while other essayists describe a Justice’s practice in a broader context. Peppers contributed two original essays to the project, including an essay on Justice Ruth Bader Ginsburg and her law clerks that is based in large part on an interview he had with the Justice.

“Filled with telling anecdotes illuminating the personalities of Supreme Court Justices, these essays also show how the institution of the Supreme Court law clerk has developed,” writes Mark Tushnet of Harvard Law School. “Law clerks—and their employers—come through in these essays as human beings working in an extraordinary environment.”

Todd Peppers is Henry H. and Trudye H. Fowler Associate Professor of Public Affairs at Roanoke College and a visiting professor of law at Washington and Lee University School of Law. He is the author of Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk.

The Collapse of American Criminal Justice William J. Stuntz ’84 Harvard University Press

“Among the great untold stories of our time is this one: the last half of the twentieth century saw America’s criminal justice system unravel.”

This is the opening sentence of the book William Stuntz finished writing in the last months of his life. He died of colon cancer last year at the age of 52.

The Collapse of American Criminal Justice is a sweeping criticism of the criminal justice system Stuntz had studied for 25 years. He argues how in recent decades the system has become a bureaucracy that strays from even the basic idea of justice. Stuntz explains how the U.S. incarceration rate became the highest in the industrialized world, how jury trials become exceedingly rare, and how black males suffer the most from increasingly harsh penal codes. He describes the irony of how this happened; that Supreme Court rulings that were meant to protect defendants from unfair discrimination in the hands of police combined with harsh laws passed to curtail crime have led to a system without either justice or mercy.

The author traces the history of crime and punishment practices in the United States, beginning with the founding of the nation, through key Supreme Court rulings in the twentieth century.

In the final chapter, Stuntz suggests strategies for repairing the broken system, including more trials, fewer plea bargains, more transparency, and more local accountability.

UVA Lawyer / spring 2012 73

In print …

Sasha’s Sweet 16 Secrets to Long Life Tina Ravitz ’81 Animate Photography

Not everyone is a cat lover, but it’s certain more people will be after turning the pages of this book. The subject is Sasha, the author’s companion, a white cat with smoky blue eyes and a beguiling personality. This warmhearted tribute, illustrated throughout with beautiful, full-color photographs, defies anyone’s notion that cats are remote, indifferent creatures.

Sasha is not only elegant but humorous; she is playful and seemingly insightful. At 16 she seems to defy her age, and she has some advice for anyone seeking a long and contented life. Sasha’s Sweet 16 Secrets to a Long Life is a beautiful “meow-to” book from one remarkable feline.

Tina Ravitz combines her photography skills and love of animals in her portrait studio, Animate Photography, in New York City. She specializes in photographs of cats, dogs, other pets, and the people in their lives. Sasha’s Sweet 16 Secrets to a Long Life is available through her Web site at www. animatephotography.com.

Mastering Golf’s Toughest Shots The World’s Best Caddies Share Their Secrets of Success Chapter by Jack Ross ’82; book by James Y. Bartlett & the Professional Caddies Association Sellers Publishing

Even the world’s best players and their caddies know that scoring in golf is all about controlling the extent of one’s mistakes. In Mastering Golf ’s Toughest Shots, awardwinning caddies like Alfred “Rabbit” Dyer, Tim “Smiley” Thalmueller, and Steve Williams offer their insights and secrets to

74 UVA Lawyer / spring 2012

conquering tricky lies, gnarly rough, deep bunkers, rough greens, and challenging conditions.

After reading this book, golfers will gain insight into analyzing every troublesome situation, avoid making bad decisions, and making every shot a “Green Light” special. Other tips and tricks from game’s best caddies include: how to use five fingers to quickly size up your shot; how to select the easiest shot out of any tough situation; how to avoid making a situation worse; and how to use the Rules of Golf to your advantage in challenging situations.

Jack Ross authored the chapter “Rules to Live By: Knowing Your Options Can Save You Strokes.” He left the practice of law in Washington, D.C., to pursue writing. He is a freelance sports journalist. Among his endeavors he writes a monthly golf rules column for New England Golf Monthly.

He’s also contributed articles to Kingdom magazine (an Arnold Palmer publication) and Arnold Palmer’s Guide to the Majors.

The Prayer We Offer: A Catholic Guide to Communion with God Peter J. Vaghi ’74 Ave Maria Press

The Prayer We Offer is Monsignor Peter Vaghi’s fourth and final book in the Pillars of Faith Series. The series provides a concise, clear, and thorough introduction to the foundations of the Catholic faith for discerning readers on a journey of faith. In this volume he focuses on the Catechism, scripture, and the writings of Benedict XVI to show the way to a more meaningful life of prayer.

Vaghi guides readers in their understanding of the practice of Christian

prayer, tracing the roots of prayer in the Old Testament, revealing how Jesus was the master teacher of prayer, and describes Jesus’ own way of praying, particularly during Holy Thursday and Good Friday.

Vaghi provides insight into how prayer is God’s gift to people and how to overcome the daily distractions that get in the way of meaningful conversations with God. Each chapter concludes with a prayer, questions for reflection, and a quote from an individual about the role of prayer in his or her own life.

“Msgr. Vaghi draws skillfully on his extensive experience as a pastor and teacher to help readers come to a new appreciation of prayer,” notes Cardinal Sean O’Malley, Archbishop of Boston, “first and foremost in the Eucharist, but also prayer in all the rich communal and personal expressions that our Catholic faith offers us.”

Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention George K. Walker, ed. ’74 LL.M. Martinus Nijhoff

Definitions for the Law of the Sea clarifies undefined terms and phrases used in The United Nations Convention on the Law of the Sea, as well as terms used in its analysis. This volume is based on nearly a decade of work by the American Branch of the International Law Association’s Law of the Sea Committee. Over 200 terms and phrases used in the United Nations Convention on the Law of the Sea are clearly defined, accompanied by analysis and commentary contributed by prominent experts in the field of oceans law. Relevant

In print …

documents are included with updated references as well.

Definitions for the Law of the Sea is an invaluable reference for government officials, academics, and practitioners of oceans law and serves as an indispensable supplement to the multi-volume United Nations Convention on the Law of the Sea 1982: A Commentary.

George K. Walker is professor of law at Wake Forest University. He chairs an International Law Association (American Branch) Law of the Sea Committee research project on the U.N. Convention on the Law of the Sea on which this book is based.

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance J. Harvie Wilkinson III ’72 Oxford University Press

In Cosmic Constitutional Theory, Judge Wilkinson explains how American constitutional law has undergone a dramatic transformation in recent years and how an increasing number of important and diverse issues, including health care reform, abortion rights, firearms regulations, and even a presidential election have come into the domain of judges. He argues that some of world’s most brilliant legal minds have put forth cosmic interpretations of the Constitution that have given the courts unprecedented power and weakened the role of representative democracy.

The tradition of judicial restraint and bipartisan judicial deference shown by some of the great judges of the past—Louis Brandeis, Oliver Wendell Holmes, and Felix Frankfurter to name a few—has largely been replaced by factions of conservative

and liberal activism supported by a raft of different theories: originalism, living constitutionalism, process theory, or the so-called anti-theoretical creed of pragmatism. Such theories “have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results,” Judge Wilkinson writes. As a result of their grand theories, liberal and conservative judges try to second-guess legislatures, chipping away at the founding principles of democracy.

Wilkinson argues for self-disciplined judicial modesty and restraint and less “judicial hubris,” drawing upon examples of contemporary constitutional problems of interest to general readers to illustrate his case. Cosmic Constitutional Theory “is both unusual and inspiring” notes a New York Times review.

J. Harvie Wilkinson III has served on the U.S. Court of Appeals for the Fourth Circuit since 1984, and as Chief Judge from 1996 to 2003.

Most Deserving of Death? An Analysis of the Supreme Court’s Death Penalty Jurisprudence

penalty lack confidence in the system that carries it out. A noted authority on capital punishment, Williams uses case studies to examine the role of race, jury selection, and ineffective assistance of counsel, all of which affect the Court’s decisions and how those decisions play out in lower courts.

The author traces the history of capital punishment in the United States, explaining the problem of ineffective representation, the issue of race and the death penalty, mental illness, death penalty procedures and appeals, international law and the death penalty, execution methods, and judges and capital punishment.

Most Deserving of Death? is a compelling book for anyone interested in criminal justice and human rights. “From racial discrimination, to incompetent lawyers, to wrongful convictions, Williams offers a guided tour of the Supreme Court’s failure to ensure a just system that executes only the most deserving,” writes Adam Gershowitz, University of Houston Law Center.

Kenneth Williams is professor of law at South Texas College of Law. He has taught and written extensively on the subject of the death penalty and currently represents several death row inmates in the state of Texas.

Kenneth Williams ’86 Ashgate

Thirty-five years ago the Supreme Court reinstated capital punishment in this country.

For a number of reasons Kenneth Williams details in Most Deserving of Death? many Americans both for and against the death

UVA Lawyer / spring 2012 75

In print …

Fiction A Walk Across the Sun Corban Addison ’04 Silver Oak

In the aftermath of a tsunami that battered their coastal town in India, two sisters, Ahalya Ghai, 17, and Sita, 15, were left orphaned and homeless.

As they tried to make their way to find shelter in a convent that was their school, they were abducted and swept into the grim, hidden world of sex trafficking.

A world away in Washington, D.C., an attorney named Thomas Clarke grieves over the death of his infant daughter and his estranged wife. He decides to take a pro bono sabbatical in India with a group that prosecutes sex traffickers. Soon he sees firsthand the dark realities of the sex trade and the corrupt institutions that do nothing to stop it—in some cases even facilitating it. When he learns of Ahalya Ghai and Sita he is determined to free them, risking a deadly showdown with the hardened criminals and profiteers responsible for their plight.

The business of sex trafficking is grim, but the story told in A Walk Across the Sun is nothing of the kind. “Chilling, suspenseful, and powerful …. Readers will mourn the injustices depicted and celebrate the triumphs long after the last page is turned,” notes a review in Library Journal.

76 UVA Lawyer / spring 2012

The author began his legal career specializing in corporate law and litigation.

He has a keen interest in international human rights and the abolition of modern slavery. Research for A Walk Across the Sun, Addison’s first book, took him to India, where he spent a month with a team of investigators, attorneys, and social workers from the International Justice Mission.

He met with trafficking victims, activists in France, and a senior official from the U.S. Department of Justice. Well grounded in fact, this fast-paced and timely thriller educates readers about the illicit trade that affects millions of women and children in every country in the world.

Zero Day David Baldacci ’86 Grand Central Publishing

As the plot of Zero Day, the first book in David Baldacci’s newest mystery series unfolds, Army Ranger John Puller, the best military investigator in the U.S. Army’s Criminal Investigative Division, heads for a tiny mining town in West Virginia to investigate the brutal murder of Col. Matthew Reynolds and his family.

Puller, notes the Kirkus Review, is “a soldier/sleuth who fights like Rambo and thinks like Holmes.” Puller is a war veteran who served in Afghanistan; his experience in combat has driven him to the edge. Now he’s a haunted man assigned to track down a different kind of killer—on native soil.

The victim had a desk job with the Defense Intelligence Agency and lived with his family in Northern Virginia. Why was he killed in this remote town? Puller

has to find out, and the locals are not that cooperative—except for one, an attractive homicide detective named Samantha Cole.

She knows everyone and can navigate her way through the tight-lipped community.

Puller discovers an old vine-covered government building that was built in the 1960s and staffed by government workers who never interacted with the people in town. There are troubling clues that the murderer had military training, and that the case involves the Department of Homeland Security. Could the government be involved? And if so, will Puller’s investigation put his own life on the line?

The closer they get to solving the mystery, the more dangerous their mission becomes.

David Baldacci and his wife, Michelle, have founded the Wish You Well Foundation, which works to promote literacy. Visit his Web site at www.

DavidBaldacci.com.

Everybody Says Hello Michael Kun ’88 Livingston Press

In Everybody Says Hello, computer salesman Sid Straw leaves Baltimore and his ex-girlfriend behind to take a job with Velocity Computers in Los Angeles. It seems like a great opportunity for a fresh start, but there’s one big problem. Wherever he goes, Sid is still Sid, and along with his enthusiasm and considerable charm he takes all of his flaws and foibles with him. Readers of this novel are in for a hilarious ride.

Sid’s calamitous adventure is told through letters, emails, and postcards sent to his employer, his parents, his college friend, Heather Locklear (yes, the bombshell actress, who bails him out of jail and

In print …

talks him down from ledges), his ex-girlfriend, and his little nephew.

Sid is full of notions that get him into trouble. He is by turns sweet, annoying, perceptive, and clueless.

He signs missives with a chipper “Eat Wheaties!”

Time after time things go wrong; just when it seems they can’t get any worse, they do. His boss at Velocity Computers fancies himself to be the Tom Cruise character in Top Gun and dubs Sid “Goose.” Sid tries to make the best of his new job, but trips himself up in a surprising (and entertaining) variety of ways, including online comments about overweight co-workers and room charges that reveal his penchant for repeat viewings of adult movies. Along the way there are altercations with motel management, an accidental cat poisoning, and a nightmarish trail of bills to pay. However you think it might end, you will probably be surprised.

The author has “a deft hand, a keen eye, and a kind heart to go with his quick, acid-tipped tongue,” writes one reviewer.

Sid Straw will remind you of someone you’ve known whose life seems a comedy of errors. You’ll find yourself rooting for him every step of the way.

Michael Kun is an attorney in Los Angeles. This is his sixth novel.

researcher. They and the other four in the group must share their stories in order to heal. Adam and Joe find a common bond in their experiences during the war and in the Holocaust.

Together they deal with the ghosts that were created six decades ago.

When they are able to open their hearts and listen to each other’s struggles, their healing begins.

Author Milgraum’s mother is a Holocaust survivor who lives with emotional wounds from her experience. His early experiences contributed to a lifelong interest in trauma and how one survives it to put their world back together again. As a psychologist he has worked with Holocaust survivors and their children and victims of other kinds of trauma, including spousal and child abuse. “These are painful stories, says Milgraum, “but they are also very important, because in seeing how people heal from their emotional scars, we learn something essential about the power of hope and faith.”

Dr. Michael Milgraum is an attorney and psychologist practicing in Silver Spring, Md. This is his first book.

organizes a group for women who have been emotionally traumatized in hopes of helping them. One of the women struggles with the fact that when she gave birth as a teenager, the doctor took her baby.

Misunderstanding Summerford’s suggestions about locating her now 20-year-old child, the woman tracks down the doctor who delivered her baby and is found at the scene of the man’s murder.

Believing herself at least partly to blame, Summerford sets out to fight for her patient, the only suspect. In the face of incriminating circumstantial evidence, a powerful family getting in the way, and an investigating officer who thinks the case is wrapped up, Summerford never waivers in her quest to prove her patient’s innocence.

Along the way she discovers a secret that could bring catastrophe upon people she cares about if she reveals it to save the life of her patient.

The author provides compelling details, from behind-the-scene dealings in Tammany Hall to elegant social events on Fifth Avenue in New York City at the turn of the century.

“A solid plot pulls the reader in with little effort, while strong, flowing prose and captivating characters provide the incentive to remain to the very last page,” notes a starred Kirkus review.

Cuyler Overholt was a litigation associate before starting a freelance writing business. This is her first novel. n

Never Forget My Soul Michael Milgraum ’90 Guidelight Books

Never Forget My Soul explores the lives of six traumatized people receiving treatment in group therapy, each bearing the emotional scars of a trauma that occurred years ago. Flashbacks that reveal these traumatic experiences create suspense throughout the book.

The therapy group brings together a diverse set of patients, including Joe, a cocky and self-centered surgeon, and Adam, a shy and anxious medical

A Deadly Affection Cuyler Overholt ’79 Copper Bottom Press

In 1905 when female doctors were few and far between, Genevieve Summerford finished third in her class at Johns Hopkins Medical School. She’s driven to succeed in her new career as a psychiatrist, in part out of her feelings of guilt for her younger brother’s death and regret over a painful indescretion as a teenager. She wants to make a difference in people’s lives.

Despite her father’s disapproval, she

UVA Lawyer / spring 2012 77

Opinion

Lower the Licensing Barriers So We May Serve n Eleanor Magers Vuono ’95

W

Now, I am in a unique position: I am a military spouse attorney, hen I think of military spouses, these words come to mind: desiring to work in my chosen profession, all the while facing a strong, adaptable, heroic, passionate, and committed. When new state licensing process each time my husband receives his next I think of military spouses who are trying to maintain careers and assignment. The challenges of being a lawyer married to the military professions while packing and moving to a new state every two or are formidable and the exercise is expensive. My story is typical, but three years, different words come to mind: stymied, challenged, worth sharing. I passed the Virginia bar exam after graduating from frustrated, and often under-employed. As we head into our second law school. I quickly waived in decade fighting the nation’s to the District of Columbia bar, wars, it is time to address these because its rules were accomemployment challenges for modating. When I left active duty military spouses with simple military service, I moved to Fort fixes to state licensing and Hood, Tex., with my husband. I employment rules. The ability was able to waive in to the Texas to find rewarding work makes bar because I just met the rule resense for everyone: the military quiring legal practice for five out benefits when there is strong of seven years. However, I was family support, the service required to take the multi-state member is more likely to stay in ethics exam again. The timing if the spouse is happy with the was challenging. We had two lifestyle, and the spouse is able children under the age of three, to contribute his or her unique and my husband was deploying talents to the communities to Iraq. I also was serving as the where they live. battalion’s family readiness group I have known many military Eleanor Magers Vuono ’95 with her husband, Col. Tim Vuono. advisor at the time. spouses, because I have been in In 2008 my husband took the military—in one role or ancommand of a brigade at Fort Jackson, S.C. I learned of his orders too other—since I was born in a military hospital in Germany in 1970. My late that year to take the February exam, and we moved in the midst father was an Army lawyer and we moved routinely, so I attended four of the July exam. It was not worth the time or expense to take the different high schools in four years. I attended Princeton University on following year’s exam, knowing that we would be leaving in another an Army ROTC scholarship, then the Law School. After clerking for a 16 months. Columbia, S.C. has an active legal community that is very federal judge for one year, I served on active duty as an Army lawyer. welcoming and supportive of military families. Like most states, South I left active duty service after I fell in love in with an Army officer in Carolina also has a tremendous need for attorneys who are willing to the halls of the Pentagon, married him, and became an Army wife.

UVA Lawyer / spring 2012 79

Opinion …

I am optimistic that change is on the horizon. Recent White House serve the legal needs of military families and veterans. I very much initiatives led by Michelle Obama and Dr. Jill Biden, wife of the Vice would have liked to join that bar, but as the rules currently exist, it President, have brought much-needed attention to the employment simply was not feasible. challenges facing military spouses. The Military Spouse JD Network Although military spouses serve willingly, we also sacrifice (“MSJDN”) formed last summer to help military spouse attorneys greatly in our chosen role. Each state bar examination often costs network with and support one another. In February between $4,000 and $5,000 for preparation materials the American Bar Association House of Delegates and fees. Licensing may take up to a year for the passed Resolution 108 at the midyear meeting in application process, the character review, the two- to As we seek to balance New Orleans. Resolution 108 encourages state bar three-day examination and waiting for the results. I support for our authorities to adopt rules that accommodate the have given up working as a lawyer at times, because unique needs of military spouse attorneys who move the licensing barriers have been too high. At other spouse’s career with frequently in the nation’s defense. Idaho became times, I have worked behind the scenes, or been our personal and the first state in the nation to adopt a rule change underpaid, or worked for free. At all times, I have allowing qualified military spouses to practice law the continued expense of maintaining annual bar professional goals, without the burden of an additional bar license. fees in the several states where I am licensed, so there are many simple MSJDN has submitted rule change proposals in that I do not lose my status in the event the military Virginia, California, Ohio, Georgia, Arizona, North sends us back to one of those locations. solutions that would Carolina, and New York.

Military spouses are simply asking for state make our jobs easier.

Every day, I am grateful for my husband, for licensing rules that minimize the inherent burdens his service, and for this country that I love. It seems that come with our military service. As we seek to appropriate that we also acknowledge the hardbalance support for our spouse’s career with our working military spouses who sacrifice as well. But personal and professional goals, there are many more than just saying “thank you,” it is time to take the simple steps simple solutions that would make our jobs easier. One simple fix would to lower licensing barriers and to improve access to employment be the ability to waive into a state bar if we already are licensed and opportunities for our military spouses. n in good standing elsewhere. Another easy solution would be reduced bar fees for military spouses who maintain multiple licenses. Many states offer a reduced rate for lawyers who serve in the judiciary. It Eleanor Magers Vuono currently is an adjunct professor at Catholic Law would be a simple matter to expand that category to include military School in Washington D.C., while her husband, Col. Tim Vuono, works on spouses. Military spouse attorneys are a talented bunch. Our legal the Joint Staff in the Pentagon. She also works as a freelance writer for small skills can make a positive difference in the communities where we law firms, handling trial and appellate briefs. She is an active member of the live, particularly in the unique world of military families and veterans.

MSJDN. We just need the opportunity to serve.

80 UVA Lawyer / spring 2012

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In this June 30, 2011 file photo, comedian Stephen Colbert, left, confers with his attorney Trevor Potter as they appeared before the Federal Election Committee (FEC) in Washington. (AP Photo/Cliff Owen, File) See page 24 for more with Trevor Potter ’82.

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