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Faculty Briefs

ArmacostBarbara Armacost ’89 appeared on a panel, “Lawyers, Religious Faith, and Social Justice: Our Responsibility to ‘the Orphan, the Widow, the Alien’ and ‘the Least of These,’” at the Pepperdine Institute on Law, Religion, and Ethics. The panel explored the three ways in which lawyers have a substantial impact on social justice: pursuing social justice directly by representing those in need in traditional legal aid offices, in criminal defense and prosecutors’ offices, and human rights clinics; as office holders, governmental advisors, political commentators, and influential citizens who have a substantial impact on social policy at local, state, and national levels; and finally by representing corporations and other businesses serving the cause of social justice in their role as counselor to their clients, raising social concerns with clients, and structuring business arrangements that consider the impact of client actions on those in need.

BeVierLillian BeVier delivered a paper at the University of Minnesota Law School for a symposium in the fall celebrating the law library’s millionth volume. The paper discusses several aspects of First Amendment doctrine that have been applied with surprising consistency over time. In addition, it takes note of a new approach to First Amendment issues that Supreme Court Justice Stephen Breyer has proposed. Expressing some skepticism about that approach, the paper compares it to the way the Court has decided First Amendment cases in the past.

BeVier also participated in a panel at a Symposium on Law and Democracy sponsored by the George Washington University Law School and held at the Library of Congress. The topic of the panel was campaign finance reform, and BeVier discussed the fundamental constitutional issues that the new campaign finance law raises.

BeVierVincent Blasi completed an article, “Holmes and the Marketplace of Ideas,” which was published in the Supreme Court Review. Earlier in 2004, Blasi presented drafts of this article at workshops at the University of Chicago Law School and Rutgers School of Law-Newark.

Richard Bonnie ’69 is chairing a new study for the Institute of Medicine of the National Academy of Sciences. The committee is charged with developing a long-term strategy for reducing tobacco use. The committee held its first meeting in May and will produce its report in the summer of 2005. He is also co-chairing a new organization called Physicians and Lawyers for National Drug Policy (PLNDP). This organization, whose members are a Who’s Who in American medicine and law, will promote a public health approach to public policies relating to prevention and treatment of alcohol and drug problems.

BonnieBonnie also continues to develop an interdisciplinary program at the Law School on aging and the law, the Advocacy Clinic for the Elderly, funded by the Jessie Ball duPont Foundation. He is also serving on the Steering Committee for the University of Virginia’s new Institute on Aging, directed by Professor Tim Salthouse from the Department of Psychology. In September, the Institute of Law, Psychiatry and Public Policy sponsored an educational program for the Virginia Elder Law Attorneys on competency assessment and the elderly, and Bonnie spoke on the subject. Also in September, Bonnie wrote an article on voting among elderly people with cognitive impairment that appeared in the Journal of the American Medical Association.

At the request of the Dean of UVA’s Medical School, Bonnie served on the search committee for a new chair for the Department of Psychiatric Medicine. The new chair was appointed in the fall.

In May, Bonnie presented “The Death Penalty and the Supreme Court,” at the Annual Meeting of the American Psychiatric Association in New York, and “The Ethics of Medical Cannabis for Policymakers and Physicians,” at the 3rd Annual Conference on Cannabis Therapeutics in Charlottesville. In June, he presented “Reducing Underage Drinking: A Collective Responsibility,” at the 3rd Annual Conference on Public Health and the Law, in Atlanta, and in October, “Mental Illness and the Death Penalty,” to the Grand Rounds for Department of Psychiatry, Virginia Commonwealth University, Richmond.

In January, Bonnie presented a paper entitled “Mandated Naltrexone Use by Criminal Offenders: A Legal Analysis” (legal issues raised by ordering addicted offenders to take naltrexone, an opiate antagonist, as a condition of parole or probation) at the University of Pennsylvania at a conference on addiction and the criminal justice system; and a paper entitled “Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures,” at a Symposium on Mental Illness and the Death Penalty, at Catholic University Law School.

In February, he presented a paper entitled “National Organ Insurance: A Plan for Increasing the Supply of Organs for Transplantation” at UVA’s Institute for Practical Ethics and Public Life; and in May he will be presenting two papers at the Annual Scientific Meeting of the American Psychiatric Association: “Mental Illness and the Death Penalty,” and “Unraveling Soviet Psychiatry: Changes in 15 Years.”

In addition to Bonnie’s continuing role as Chair of the Institute of Medicine (IOM) Committee on Reducing Tobacco Use, he is also serving on a new IOM Committee on Increasing Rates of Organ Donation and a new IOM/NRC Committee on Synthesis of Research on Adolescent Health and Development. He is also serving on a new Steering Committee on Underage Drinking for the National Institute on Alcohol Abuse and Alcoholism, and on a new Max Plank International Network on Aging under the aegis of the University’s Institute on Aging.

Finally, Bonnie is co-authoring articles on “The Capacity to Vote of Persons with Alzheimer’s Disease,” American Journal of Psychiatry (in press, 2005); “From Coercion to Contract: Reframing the Debate on Mandated Community Treatment for People with Mental Disorders,” Journal of Law and Human Behavior (in press, 2005); “The National Organ Transplantation Act after Twenty Years: A Time for Reform,” (under review at the Journal of the American Medical Association); “Addressing the Ethical, Legal and Social Issues Raised by Voting by Persons with Dementia,” Journal of the American Medical Association (2004); and “License as Leverage: Mandating Treatment for Professionals,” International Journal of Forensic Mental Health (2004).

BrooksRosa Brooks, along with coauthors Jane Stromseth and David Wippman, finished the manuscript of book on building the rule of law in the wake of military interventions. The book project was sponsored by the American Society of International Law and funded by the U.S. Institute for Peace and the Carnegie Endowment for Peace.

Brooks also completed an article, “War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror” forthcoming in the University of Pennsylvania Law Review. She also presented papers this spring at Vanderbilt, Georgetown, Princeton, and Boalt Hall, and served as coordinator of the Kerry- Edwards campaign’s Human Rights, Democracy & Development policy team.

GoluboffRisa Goluboff won the William Nelson Cromwell Foundation Fellowship, which supports the work of junior legal historians. She is publishing an article in the UCLA Law Review, June issue, called “The Work of Civil Rights Before Brown v. Board of Education : Purging Labor Cases from the NAACP’s Legal Strategy.” In addition, Goluboff presented a paper at the American Society for Legal History in October called “The Work of Civil Rights Before Brown v. Board of Education,” and presented the same paper to the Harvard Faculty Workshop in November. Goluboff is on the program committee for the Law and Society Association’s annual meeting taking place this June in Las Vegas.

Goluboff has a contract with Harvard University Press for her book, The Lost Origins of Modern Civil Rights, which won the 2004 Law and Society Association Dissertation Prize.

HowardA.E. Dick Howard ’61 gave the Caroline Robbins Lecture at the University of London on “The Global Voyage of American Constitutionalism: The Influence of the American Constitutional Experience in Other Lands.” The Caroline Robbins Lecture is one of the most prestigious lectures at the University of London. Previous lecturers have included Bernard Bailyn and Gordon Wood.

Howard also received the George C. Marshall Award in International Law and Diplomacy, awarded by the Greater Richmond chapter of the World Affairs Council, for his international work helping the emerging nations of Eastern Europe insert “protections for the rights of citizens into their new constitutions.”

He was in residence as the Thomas Hawkins Johnson Visiting Scholar at the U.S. Military Academy at West Point, appointed at the nomination of the Academy’s law and history departments. He lectured on subjects including American constitutional history and the Supreme Court, and did a faculty workshop in constitution-making in Iraq and Afghanistan.

Howard also organized and moderated a panel reviewing the 2003–2004 decisions of the Supreme Court of the United States at the annual meeting of the Virginia Bar Association, and gave lectures and presentations to other groups, including the Council for America’s First Freedom, the Jepson School of Leadership Studies at the University of Richmond, the Brookings Institution, the Federal Executive Institute, and the Sorenson Institute for Political Leadership at the University of Virginia.

At Governor Warner’s request, Howard organized the Governor’s Legal Fellows’ Program that selects law students who spend a day a week in Richmond working with the Counselor to the Governor. He also testified before a joint subcommittee of the General Assembly on proposals to amend the Constitution of Virginia to allow a governor to serve a second consecutive term.

Karen Moran has joined the Law School as professor of legal research and writing. Moran graduated with high honors from Duke Law School in 1988, and then clerked for Judge Thomas Clark on the Eleventh Circuit. She practiced three years with Fulbright & Jaworski in Washington, DC, and then served four years as a staff attorney with the EEOC. After moving to Charlottesville, Moran resumed a relationship with Fulbright & Jaworski, becoming of-counsel to that firm and focusing chiefly on appellate litigation. Among other projects, she worked on amicus briefs in Grutter v. Bolinger and Hopwood v. Texas.

KlarmanIn April, Michael Klarman gave a talk to the legal history colloquium at Villanova, and in March, appeared on the “Great Minds” broadcast of the Continuing Judicial Studies Education Committee of the California judiciary discussing various aspects of the Brown decision. In January, he appeared at a faculty workshop at Washington & Lee and in December, presented “Brown v. Board : A 50th Anniversary Retrospective” to Florida circuit judges and to state appellate judges emphasizing the ethical considerations raised by the case. These two talks were part of the 2004 annual education program of the Florida judiciary at Amelia Island Plantation.

In November, Klarman gave a talk to the New York office of Facing History and Ourselves, an organization which educates high school students about racial tolerance. This was in connection with the publication of his talk entitled, “The History of Black Enfranchisement and Disfranchisement.” Also in November, Klarman appeared at the Federalist Society annual convention, participating in a plenary panel on “Brown and the Original Understanding,” and gave a talk at the City Club of Cleveland, “Brown and the Civil Rights Movement,” in conjunction with the Battisti lecture that he delivered at Case Western Reserve School of Law entitled “Why Brown was a Hard Case.” He also taped an appearance on For the Record, Cleveland’s local public-television program that aired in February about his book, From Jim Crow to Civil Rights.

In October, Klarman was the first annual scholar-in residence for the Continuing Judicial Studies Program of the California judiciary. He gave a plenary lecture on “Brown and the Civil Rights Movement,” a presentation on “Why Brown was a Hard Case,” and taught a class on “Personal and Moral Dilemmas in Judging,” which focused on ethical conflicts raised by Brown and its enforcement. Klarman also presented a paper, “Brown and Lawrence,” at the University of California at Los Angeles School of Law’s legal history colloquium. During that same trip, he gave two talks at the University of Southern California, one a university lecture, “Brown and the Civil Rights Movement” and the other a graduate student workshop on “Brown and Lawrence.”

Klarman gave a lecture at Norfolk State University, “Brown and the Civil Rights Movement,” and then traveled from Norfolk to Los Angeles through Boston, where he attended the Red Sox’s series-clinching victory over the Anaheim Angels in the first round of the playoffs.

In September, Klarman spoke at the Federal Judicial Conference’s National Workshop for U.S. District Judges in Seattle on “Why Brown was a Hard Case,” and is now working on an essay on Scottsboro for a book to be published on Criminal Procedure Stories.

LongIn November, Clarisa Long presented her paper, “Intellectual Property Privileges,” at the University of California Berkeley School of Law. That same month, she presented her paper, “Dilution,” at Columbia Law School, and plans to present this paper at the UCLA Intellectual Property Scholarship Colloquium this spring, where she will also be a commentator. In February, she presented “Patents from Contracts to Acts” at the Chicago Intellectual Property Colloquium.

MagillElizabeth Magill ’95 spoke in September at a lunch sponsored by the University of Virginia’s American Constitution Society about her paper, “The Revolution that Wasn’t.” The paper is about separation of powers jurisprudence in the Rehnquist Court.

In October, Magill appeared on a panel organized by the Administrative Law & Regulatory Practice Section of the American Bar Association. The panel topic was “Advisory Committees, Confidentiality and the Constitution.” Her talk, “Legal Argument without Law,” was about the case seeking information about the workings of the National Energy Policy Development Group headed by Vice President Dick Cheney.

Magill presented a paper “Agency Self-Regulation” at the Law School’s faculty retreat in January, at the University of Colorado School of Law in February, and at University of Michigan School of Law in March. The paper discusses administrative agency actions that limit their discretion when no source of law would require them to do so.

In December, Magill was awarded and has now accepted a fellowship from the Program in Law and Public Affairs at Princeton University. She will spend the 2005–2006 academic year in Princeton working on a project on the health, safety, environmental, and consumers’ rights movements of the 1960s and 1970s and their implications for public law.

MalaniAnup Malani presented “Are Non-Profits Really For-Profits in Disguise? Evidence from Executive Compensation in the Nursing Home Industry” (with Albert Choi) to a University of Virginia Summer Workshop (August), the Georgetown Law Center (September), and the New York Federal Reserve Bank/Princeton University conference on on-profit corporate governance (September), Northwestern University Law School (February), Washington University Law School (February), Columbia Law School (February), the University of Virginia economics department (March), and the University of Alabama Business School (March). In November, Malani presented “The Option Value of New Therapeutics” (with Faifang Hu) to the University of Chicago conference on pharmaceutical innovation.

In January, he presented “Bayesian Interpretation” to the Law School’s Faculty Research Conference, and in February, he presented “The Effect of Patient Self- Selection on Outcomes in Clinical Trials, with Evidence from Ulcer Trials” to the Washington University Business School. In April, he presented “Preliminary Results from Analysis of supplemental executive retirement plans and change-in-control payments to executives at S&P 500 Companies” (with Rajesh Aggarwal) to the Law School’s faculty workshop.

Malani has also submitted to the Journal of the American Statistical Association “Testing for Placebo Effects Using Data from Blinded Clinical Trials;” to the Journal of Law and Economics “The Impact of Joint & Several Liability on Plaintiff Recovery and Co-Defendant Solvency: Evidence from Asbestos Litigation” (with Charles Mullin); to the Virginia Law Review “Habeas Bargaining;” and to the Journal of Public Economics “Are Non-Profits Really For-Profits in Disguise? Evidence from Executive Compensation in the Nursing Home Industry” (with Albert Choi).

In February, Malani conducted a randomized controlled trial of the effects of caffeine on blood pressure on 90 subjects at the University of Virginia’s General Clinical Research Center to provide a more powerful test for the importance of patient expectations in mediating the pharmacological effects of medication. The trial employed a novel design from Malani’s Ph.D. dissertation. It will be able to distinguish between placebo effects that directly affect the physiology of patients versus placebo effects that are mediated by unobserved behavioral changes in patients.

Malani is also directing a data-gathering project on placebo effects to determine how widespread placebo effects are and to take advantage of a simple test for placebo effects that he devised in his Ph.D. thesis. With the invaluable assistance of library staff and research assistants, Malani reports he is gathering data from over 2000 clinical trials of a number of different ailmentmedication combinations. These include statins for hypercholesterolemia, smoking cessation therapies such as nicotine patch and gum, impotence therapies such as Viagra and Cialis, antibiotics for bronchitis, antibiotics for diarrhea, analgesics for pains, and others. The goal is to perform meta-analyses of gathered trials so as to quantify the size of placebo effects for each.

Working with Rajesh Aggarwal and with the aid of eight Law School students, Malani is gathering data on supplemental executive retirement plans (SERPs) and change-in-control (CIC) payments to top executives of S&P 500 companies during the period 1994– 2003. The purpose of this research is to shed light on these two components of executive pay that have thus far eluded serious public attention. This project will be the first to provide concrete numbers on the trends in the use of SERPS and CIC, the effect that they have on the performance-sensitivity of CEO pay, and the effect that CIC payments generally (not just golden parachutes) have on merger and acquisitions activity. This research is jointly sponsored by the Law School and UVA’s McIntire School of Commerce. Preliminary results will be presented at a Law School faculty workshop in April.

Malani also serves on the Law School’s entry level appointments committee and organizes the Health Law and Policy Speaker Series sponsored by the Sadie Lewis Webb Program in Law and Biomedicine.

MartinDavid Martin has been appointed a Non-Resident Fellow of the Migration Policy Institute (MPI). MPI, based in Washington, DC, provides nonpartisan research and policy analysis on global migration and immigrant integration. His work at MPI will focus on the legal aspects of migration management at the national and global levels, drawing upon his extensive writing in the field and his service as General Counsel of the Immigration and Naturalization Service in the mid-1990s. MPI also appointed Michael Fix ’77 as Vice President and Director of Studies. Fix, an expert on immigrant integration, previously served as Principal Research Associate at the Urban Institute. “Having these two highly respected scholars and innovators in the field join us will deepen the Institute’s ability to provide independent analysis and policy insight on all aspects of global migration, one of the most compelling policy and political issues of our time,” said MPI President Demetrios Papademetriou.

Martin, who is Warner-Booker Distinguished Professor of International Law and Class of 1963 Research Professor, was elected to the Board of Editors of the American Journal of International Law in April. He has served for the past two years as a Vice President of the American Society of International Law, and spoke at the Society’s annual meeting in Washington, DC, on a panel addressing “Protection or Control? — Regulating the Movement of People in a Globalized World.”

In October, Martin delivered a lecture in the Law School’s Caplin Pavilion on the subject of “Dual Nationality: TR’s ‘Self-Evident Absurdity’” — the inaugural chair lecture for the Warner-Booker Professorship (view lecture). Among many activities at the Law School, he took part in a panel for students in September addressing the Supreme Court’s recent term and spoke on the enemy combatant cases, Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush.

Martin was invited to testify before the 9/11 Commission on preventive detention under the immigration laws and under the asserted power to designate persons as enemy combatants. At a conference in March 2004 at Boston College Law School on “line drawing in the war on terrorism,” Martin sketched proposals for how courts should deal with challenges to the U.S. government’s detention of enemy combatants. His work seeks a middle ground protective of liberty but sensitive to the need for military effectiveness in the struggle against terror. He also presented a paper on immigration and terrorism at a conference held at the University of California, San Diego that month. In May, he was invited to present a paper critiquing the President’s temporary worker immigration reform proposal at the Council on Foreign Relations in New York, as part of a study program chaired by noted economist Jagdish Bhagwati. And he served as a faculty member at workshops for federal district court judges sponsored by the Federal Judicial Center. He taught a session on developments in immigration law at the Center’s workshops in Philadelphia in April, Chicago in July, and Seattle in September.

Last fall Martin completed a 200-page study for the U.S. Department of State, titled “The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement.” Chartered as part of the Department’s effort to revitalize refugee admissions, which had fallen off steeply in the aftermath of September 11, the report analyzes the factors that complicate refugee admissions in the 21st century and makes concrete recommendations for changes. Martin was invited to speak about the report at the annual meetings of organizations that support refugee resettlement, the Ethiopian Community Development Council in May 2004, and Church World Service and the Episcopal Migration Ministries in February, as well as earlier sessions sponsored by the Council on Foreign Relations and MPI. He also spoke on this topic as luncheon speaker at the Global Immigration Summit of the American Immigration Lawyers Association in New York in October. And he presented some of the report’s preliminary conclusions to a conference at Columbia Law School held in memory of noted refugee scholar and activist Arthur Helton, who was killed in the bombing of UN offices in Baghdad.

Dan Meador moderated a panel discussion on the future of appeals at the inaugural conference of the Appellate Judges Education Institute in Dallas in November. Meador is currently serving on the steering committee planning a national conference on appellate justice to be held in Washington, DC, in November 2005.

MonahanJohn Monahan, currently a member of the National Scientific and Policy Advisory Council, Hogg Foundation for Mental Health and on the editorial board of the American Psychology-Law Society Series, Oxford University Press, published articles in 2004 in Criminal Justice and Behavior ; the International Journal of Forensic Mental Health ; the Annual Review of Psychology; Psychiatric Services; Psychology, Public Policy, and Law; the Journal of Consulting and Clinical Psychology; and Behavioral Sciences and the Law. The articles cover topics such as violence risk assessment and management, mandating treatment for professionals, and the relation between personality traits and violence in psychiatric patients.

NachbarThomas Nachbar presented a paper, “Monopoly, Mercantilism, and Intellectual Property” at Georgetown and Boston University and will be presenting it as part of the Chicago-Kent College of Law Intellectual Property Colloquium in April. The paper challenges a recent set of arguments in intellectual property scholarship that are premised on historical claims about 17th-century intellectual property regulation. The argument of the paper is that current authors have misunderstood the context — mercantilism — in which that regulation was taking place, causing them to misunderstand the regulations themselves and their value as models for modern intellectual property rules.

O'ConnellThis spring, Jeffrey O’Connell will be working with Harvard Law School professors Kip Viscusi and Joni Hersch on an empirical study, based on data filed with Texas and Florida insurance departments, comparing the present costs of paying medical malpractice claims with the costs under a proposal authored by O’Connell called “Early Offers.”

O’Connell will also be completing a related research project, co-authored with two economists, on an economic model comparing the costs mentioned above as between present medical malpractice claims and those dealt with under the “Early Offers” proposal.

In February, O’Connell spoke at a symposium on non-economic damages in tort law at the University of New Mexico with the resulting papers to be published in the New Mexico Law Review. He is also completing another paper on non-economic loss in tort law to be published in an international law journal as a part of a festschrift honoring Bill Dufwa who is retiring as Professor of Insurance Law at the University of Stockholm. O’Connell is also completing a chapter on tort law in a book edited by Professor Paul Carrington of Duke Law School and published by the New York University Press on how the law in various fields has backfired in supposedly protecting the needy.

The Thomas Jefferson Center for the Protection of Free Expression, under the leadership of its director, Robert O’Neil, filed two amicus curiae briefs in the Supreme Court of the United States in the Livestock Marketing and Tory v. Cochran cases. In October, O’Neil gave part of the Catherine Stratton Lecture at MIT. In February, O’Neil spoke at a plenary session of the College Art Association’s Annual Meeting in Atlanta, and a week later, in Cincinnati, judged the Scripps-Howard First Amendment Journalism Awards. In late March, he was a panelist at the Cosmos Club’s Legal Affairs Forum, dealing with journalists’ sources. O’Neil has signed a contract with the Harvard University Press for a book tentatively entitled The Future of Academic Freedom that will help fulfill “the need for a critical reexamination of academic freedom arising from the current confusion and uncertainty on the college campus and well beyond.”

Scott Receives University’s Highest Honor

Casteen and Scott
University President John Casteen presents Bob Scott the Jefferson Award. Seated at right is UVA Rector Gordon Rainey’67.

After conferring honors on 347 third-year UVA students, President John T. Casteen III announced Robert E. Scott as this year’s winner of the Thomas Jefferson Award. When the former dean of the Law School tried to return to his seat, Casteen beckoned him back to stand through an extended round of applause before sharing some of the beloved faculty member’s accomplishments with those at Fall Convocation on October 22. In presenting the award, Casteen noted that Scott, a nationally renowned teacher and scholar in the fields of contracts, commercial law and bankruptcy, was receiving UVA’s highest honor for his “integrity and honor, bold and skillful leadership, unfailing civility and uncompromising excellence … qualities that have distinguished [his] tenure as dean and his 35 years of teaching and scholarship.” Under his leadership, the School of Law completed a capital campaign in 2000, raising $203 million. Scott also spearheaded the most ambitious building project in the school’s history, the renovation of the David A. Harrison III Law Grounds, completed in 1997, followed by the law student-faculty meeting and dining center, completed in 2002. The central meeting area of this center is appropriately named “Scott Commons.” An important part of Scott’s role has been to set the intellectual tone and agenda for the Law School. Prior to becoming dean, he founded the Legal Studies Workshop at the school, one of the first faculty colloquia of its kind. As dean, he urged the Law School community to aspire to preeminence in its teaching mission and in the equally important obligation of engaging in scholarly research that advances the University’s core function as an institution dedicated to the search for truth. Scott, who returned to teaching in 2001, is currently a David and Mary Harrison Distinguished Professor of Law.

OrtizDan Ortiz was co-editor and coauthor of The Campaign Practice Guide and its associated website, which came out in August; and of Enhancing Values: Practical Campaign Reforms for States, which was published by The Reform Institute. Ortiz continues to pursue the wine and beer distribution case currently in federal court.

RutherglenGeorge Rutherglen has concentrated recently on writings in civil rights law, including a new edition of his book, Major Issues in the Federal Law of Employment Discrimination and a forthcoming casebook, Employment Discrimination: Law and Theory. Both works provide an informed and current view of the law in this field emphasizing ongoing changes in legal doctrine and, in the casebook, the economic foundations of prohibitions against discrimination. Rutherglen has also published articles on “Custom and Usage as Action Under Color of State Law” in the Virginia Law Review and on “The Improbable History of Section 1981” for The Supreme Court Review. Each offers a close historical analysis of the development of civil rights law from its origins in Reconstruction to the present day.

Last spring, Rutherglen gave his chair lecture as the John Barbee Minor Distinguished Professor on “Controversy, Consensus, and the Concept of Discrimination.” The talk focused on the philosophical justification for prohibitions against discrimination, using this perspective to account for the issues, such as affirmative action, that have proved to be subjects of enduring controversy.

Rutherglen was recently appointed to the ABA Standing Committee on Federal Judicial Improvements, chaired by David Landin ’72. The Committee examines issues of current concern in the federal courts, such as judicial independence, adequacy of judicial funding, and pending changes in federal rules and jurisdictional statutes.

ScottIn October, Elizabeth Scott ’77 presented a paper at a conference on the ALI principles of the Law of Family Dissolution at Harvard Law School. Her article, “Marriage, Cohabitation, and Collective Responsibility for Dependency” was published in the University of Chicago Legal Forum.

Stephen Smith ’92 was a panelist on the William Howard Taft Supreme Court Review at the University Club, Washington, DC (Summer 2004). The panel discussed the most significant decisions of the Supreme Court of the United States from the October 2003 Term, including the “enemy combatant” cases, the Pledge of Allegiance case, and the Sixth Amendment case Blakely v. Washington. Co-panelists included Chief Judge Loren Smith (moderator), Judge (and former Solicitor General) Kenneth Starr, former Acting Solicitor General Walter Dellinger, and Georgetown Law Professor Michael Seidman.

SmithSmith also presented at the University of Michigan Legal Theory Workshop Series a talk entitled, “Proportionality and Federalization” based on his article of the same name forthcoming in the Virginia Law Review. The article shows that, contrary to the conventional wisdom, the fault for the remarkable severity of federal criminal sanctions and the “federalization” of crime cannot be laid entirely at the doorsteps of Congress and the Department of Justice. Rather, the federal courts themselves bear a large share of the fault for adopting interpretive strategies that make federal criminal law broader and more severe than necessary and thus drive up incentives for taking cases federal instead of leaving them to state authorities. While professing to adhere to a “rule of lenity” that narrowly construes ambiguous criminal statutes in favor of the defendant, the Supreme Court actually follows what might be called a “rule of severity” broadly construing criminal statutes against defendants where morally blameworthy conduct is at stake. The rule of severity is applied even when expanding the reach of a federal criminal statute will substantially increase the penalty authorized for a criminal act under other federal statutes or state law. The article shows that by changing the interpretive strategies courts follow in criminal cases, they can help counter the federalization of crime and restore a sense of moral proportion to federal punishments.

In an article entitled “Innocence and the Guilty Mind” (in progress), Smith discusses recent innovations by the Supreme Court in the area of federal mens rea doctrine. The claim is that, although the Court is right to use mens rea requirements to make moral “innocence” a defense to federal criminal charges, the Court’s current approach is inadequate to achieve that objective. Moreover, the Court’s understanding of “innocence” is unduly narrow: “innocence” protection, properly understood, involves more than simply avoiding punishment for blameless acts and includes ruling out disproportionately severe punishments for blameworthy acts. The article proposes a number of ways in which federal mens rea doctrine should be reconfigured in order to accomplish the “innocence” protection the Court seeks to achieve.

StephanIn October, Paul Stephan ’77 made a presentation to the competition committee of the Organization for Economic Cooperation and Development in Paris on the arguments against regulatory harmonization in the field of antitrust. That month, he also presented his paper “Process Values, International Law, and Justice” to a conference on “Justice and Global Politics” organized by the philosophy department of Bowling Green University. In December, Stephan made a presentation to the faculty of the Fondation National des Sciences Politiques (Sciences Po) in Paris on the enforcement of international law in the United States. During fall semester, he taught courses on international commercial law and international economic law at Paris II, and a course on international regulatory governance at Paris I and Sciences Po.

WadlingtonWalter Wadlington delivered the Matthews Lecture as the Inaugural Sesquicentennial Event at the School of Law of the University of Mississippi on October 14. The topic was “Consent and Informed Consent to Medical Treatment: A Sesquicentennial View.”

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