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Faculty in the News by Date | By Name

Notable Faculty Quotes, September and October 2014

Michal Barzuza was quoted in a Sept. 24 Delaware Business Court Insider article about the need for tax reform to prevent inversions, or corporations leaving the U.S. and reincorporating in foreign jurisdictions. She said that one advantage in favor of U.S. jurisdictions is that several foreign countries have much stricter corporate laws, and pointed out that federal tax reform will be the key if the United States wants to retain corporations mulling an inversion. “I think there is not much Delaware can do to prevent inversions,” she said. “It’s about the tax implications and Delaware does not have any influence on federal taxes.”

Darryl Brown was quoted in a Sept. 24 Roanoke Times article about attempts to make public a rejected plea agreement in the case of a former Washington & Lee student charged with killing another student in a December crash. “It is very unusual in my experience,” he said. “I never heard of a court sealing a rejected plea agreement between the parties.” He explained that the Freedom of Information Act and the First Amendment grant the public the right to view court records and observe proceedings. “It is not uncommon for judges to tell the lawyers to not speak about a case,” he said, but noted that sealing a plea agreement is unusual if not done to protect the identity or safety of a cooperating witness.

Anne Coughlin was quoted in a Sept. 6 Washington Post article about the verdict in the trial of former Virginia governor Bob McDonnell. “His happy life is over, whether or not he is exonerated on appeal,” she said. “A jury of his peers came back and said, ‘You are corrupt.’ That must really conflict with his image of who he is.” She added that McDonnell’s “broken marriage” defense didn’t sit well with jurors. “Pointing and blaming other people is risky, especially when you’re the governor and the other person you’re blaming is your wife,” she said. In an Oct. 12 New York Times story about the challenge of defining rape, Coughlin said that colleges, which aim to create environments where all students can be safe, are right to set codes of conduct defining rape more expansively than state statutes. The challenge, she said, is to ensure that everyone is aware of the distinctions. “We’ve seen cases where women have reported to off-campus police that they have been raped, only to learn that the criminal law doesn’t extend to their case,” she said. “That experience is really, really painful.”

In a Sept. 16 Richmond Times-Dispatch article about a billion-dollar lawsuit by Virginia against banks for defrauding taxpayers during the mortgage crisis, Quinn Curtis noted that the case differed from other financial-crisis lawsuits because it was brought under the Virginia Fraud Against Taxpayers Act instead of federal securities laws. “The fact that this statute creates the potential for treble damages puts a lot of pressure on the banks to try and resolve this case,” he said.

Ashley Deeks discussed whether the U.S. could legally arm rebel groups in Syria in an Oct. 6 NPR program. “If you did use force against ISIS, under collective self-defense, I think it’s perfectly justifiable to arm rebels who are fighting ISIS,” she said. “Where it gets a little bit more complicated is where there are rebels fighting multiple groups, including ISIS, but maybe also including Assad’s government.”

In a Sept. 30 WVTF story, Deirdre Enright discussed the forensic link announced by state police between Jesse Matthew and Morgan Harrington, the Virginia Tech student who disappeared in 2009. Whatever evidence police have in the Harrington case, she said that reasonable doubt could remain. “There’s also the issue of whether or not other people were involved – whether it was Jesse Matthew on his own or if he had cohorts in this, and nobody seems real clear on that,” she said. She also said that crime lab errors are possible, but that she “would be very surprised if they made a mistake in a case like this where everyone is watching.”

Kim Forde-Mazrui was quoted in an Oct. 7 Richmond Times-Dispatch article about parallels between the Supreme Court’s Loving case throwing out Virginia’s miscegenation law and its decision not to review the Fourth Circuit ruling on same-sex marriage. He noted that it was interesting that “many of the important cases that advance civil rights do involve the Supreme Court invalidating Virginia law.” In an Oct. 12 Times-Dispatch article on same-sex marriage, Forde-Mazrui noted that the Supreme Court is affected by changes in public opinion. “The court often waits until it is going with the momentum of the country,” he said. “It actually rarely goes too far ahead of where the country is.”

Brandon Garrett was quoted in a Sept. 1 Corporate Counsel article about the Department of Justice’s new “restitution and remediation agreements” used to avoid prosecuting corporations for illegal acts. “It sends the wrong message if companies that commit serious crimes are given nonprosecution deals,” he said. “If crimes were committed, both the company and employees should be prosecuted.” In a Sept. 12 Alexandria Times article about racial tensions in Ferguson, Missouri, Garrett pointed to the underlying problem of a serious divide between the police force and residents. “If you have a minority community that feels like they’re being ignored or harassed, then a particular shooting can become a flashpoint,” he said. “It is usually not just about one incident. It’s usually about a history of behavior.” Garrett discussed the recording of police interrogations in a Sept.15 New York Times article. He noted that there were at least 65 documented cases of exonerated defendants whose confessions contained details of the crime that had not been made public, suggesting the police unwittingly fed them ideas with leading questions. Without a recording of the entire interview, he said, “you have no idea if the details came from the suspect or the police.”

In an Oct. 18 Bloomberg News story about the naming of a special presidential coordinator to combat Ebola, John Harrison explained that special advisers often have no legal authority to direct actions. “They’re like the chief of staff of the White House, who legally speaking can’t order anyone to do anything, but whose suggestions to officials, including cabinet officials, are generally complied with because they are in effect from the president,” Harrison said.
A. E. Dick Howard was quoted in an Oct. 12 Richmond Times-Dispatch article about the Supreme Court’s refusal to hear the case about same-sex marriage in Virginia. “In the larger sense, what the Court might well be doing is simply reacting to where the country has come to be in a very short period of time,” he said. “I think people increasingly are coming to accept that other people’s marriage arrangements really don’t affect them.” By not acting on same-sex marriage, “the Court is sort of marking time,” he said. “It is not holding the country back, nor pushing it ahead. That’s what the Court does sometimes.”

In an Oct. 6 NPR story about the Supreme Court’s new term, Leslie Kendrick discussed a free speech case involving the question of what constitutes a threat on Facebook. The defendant was convicted of making threats against his estranged wife and an FBI agent but contended that he was just mimicking rap songs and should not be convicted without actual proof that he intended to threaten, intimidate or harm. Whatever rule the justices come up with, she noted, it will likely apply not just to Facebook and Twitter, but to all forms of communication — including people speaking face to face or publishing in the newspaper. When crafting a rule, she said, the justices will ask if the standard “is going to chill people who engage in speech that is borderline but ultimately protected.”

Douglas Laycock commented in a Sept. 21 Martinsville Bulletin article about a school district’s policy on distributing Gideon Bibles to students. “The general rule is that the school cannot discriminate either in favor of or against religious material,” he said. “It would be unconstitutional for the school to give the Gideons preferential access, letting them distribute Bibles when there is no general right to distribute literature.” Laycock was also quoted in an Oct. 17 Deseret News story about whether Houston church leaders opposed to a local human rights ordinance banning discrimination based on sexual orientation could be required to hand their sermons over to city attorneys. “These subpoenas seem designed to intimidate and harass” those opposed to the ordinance, he said. Laycock was also featured in an Oct. 20 Wall Street Journal article about a segment on HBO’s “Last Week Tonight With John Oliver” suggesting that the Supreme Court permit cameras to record its oral arguments but lure viewers by substituting the justices and lawyers with images of animals (below). “My sense is that the justices don’t want cameras because they can walk around D.C. and go out to dinner and not be recognized by the public,” he said. “I think they worry that the cameras would change that.”

Michael Livermore appeared in a Sept. 15 EENews program about a case he had just argued challenging the legality of the Interior Department’s sales of new offshore drilling leases. “Basically the argument is that the government had failed to do an adequate economic analysis in several important respects,” he said. “An important part of the claim is that the government failed to recognize and analyze the value of waiting to drill in certain areas, especially where environmental and social uncertainties are particularly high.”

David Martin was quoted in an Oct. 2 Dallas Morning News story about whether Thomas Eric Duncan, the Dallas patient with Ebola, could claim asylum in the U.S. because he faced prosecution in Liberia for lying to airport screeners about his exposure to the virus. “That’s not a basis for asylum,” Martin explained. “You have to have a well-founded fear of persecution, not prosecution.” (Duncan died on Oct. 8.)

Ruth Mason was quoted in a Sept. 24 Guardian article about the Foreign Accounts Taxation Compliance Act, which has caused some expatriates to give up their U.S. citizenship after having their accounts closed or limited by foreign banks. “Americans living abroad were not originally the primary target of FATCA,” she said, explaining that the law “was designed principally to prevent offshore tax evasion by resident Americans.”

In an Oct. 21 Arizona Republic article about campaign claims that an incumbent had “voted in Congress to give terrorists full legal rights under the Constitution,” Thomas Nachbar pointed out that detainees already have constitutional rights when tried in military commissions or in the U.S. court system. “It implies that by bringing them here and putting them into the courts they would have a different level of constitutional protection,” he said. “I don’t think that’s true.”

Dan Ortiz was quoted in a Sept. 10 Guardian article about whether the Supreme Court would agree to hear cases that deal with whether states can ban same-sex marriage and whether states must recognize same-sex marriages performed lawfully out of state. “Just in the interest of judicial economy, and only having to go through this once,” he said, “they would probably want to take one case that had both issues or take at the same time one case that posed one issue and one that posed the other.”

In an Oct. 12 Richmond Times-Dispatch article about the Supreme Court’s involvement in social issues, Margaret Foster Riley said that the Court will likely leave some issues to the states “unless it has no choice but to get involved.” She pointed out that some cases are in state rather than federal court as a strategy by advocates, such as a lawsuit in New York state court seeking to win legal rights for chimpanzees. Animal rights advocates worry the high court could well rule that “states don’t have a compelling interest in animal cruelty,” she said. Riley was also quoted in an Oct. 30 Slate article about whether the Doctors Without Borders nurse Kaci Hickox could be held in quarantine. “The judge will need to weigh the probability of infection, however small, versus the magnitude of harm an outbreak could cause,” she said.

Robert Turner was quoted in an Oct. 4 CNN story about how Thomas Jefferson would have handled ISIS. Explaining that the nation’s first war on terror was waged by Jefferson against the Barbary pirates, he said Jefferson believed paying ransom to terrorist organizations was a sign of weakness as a nation. “Some leaders wanted to pay ransom to get hostages back or pay tribute so they wouldn’t take further hostages,” he said. “Jefferson was a lover of peace, but he was not one to believe that peace would be preserved by weakness. We had to show strength.”

Andrew Vollmer wrote an Oct. 9 New York Law Journal commentary about the need for narrower subpoenas in SEC investigations. “Unduly broad requests for electronic documents slow the production process, extend investigations, and significantly increase the associated costs,” he wrote. “Without sacrificing enforcement goals, the staff of the Division of Enforcement could use narrower, more specifically tailored document requests, which would speed up investigations, allow the agency to allocate its resources more efficiently, reduce costs for recipients of the requests, and treat those recipients more fairly.”


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Faculty in the News is compiled by Kent Olson, Law Library Director of Reference, Research and Instruction; and the Law School Communications department.

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