Current Faculty Headlines
Notable Faculty Quotes, September and October 2013
In an Oct. 7 Virginia Lawyers Weekly article about their presentation to a Virginia State Bar conference on professional development, Leslie Ashbrook and Ben Doherty discussed feedback from Virginia appellate judges on what they would like to see from lawyers. "The biggest critique from the judges," said Ashbrook, is that "lawyers don't take enough time to do analysis." Keyword searches are no substitute for focused analysis of the facts of a particular case and the possible sources of precedent, she said. "It's a habit to just go online right away," Doherty added, warning against developing "keyword tunnel vision."
George Cohen was quoted in a Sept. 5 Hook article about the late Ronald H. Coase, who was teaching at UVA when he published his most famous work. "If there's such a thing as the founding fathers of Law and Economics, he is up there," said Cohen. "His ideas have had remarkable influence and changed the way people thought about a lot of issues."
Anne Coughlin wrote an Oct. 23 New York Times blog post about the connections between binge drinking and sexual assaults. "Over the years, I often have found myself wanting to point out to young women that if they get blind drunk they run a very serious risk of being raped," she wrote. "Feminists are working to change a culture and a law that have vilified women for the very same conduct that we tolerate, if not celebrate, in men. . . . But, until that change fully takes hold, women remain vulnerable to forms of sexual violence against which the criminal law does not adequately protect them."
Ashley Deeks wrote an Oct. 21 New Republic commentary on how courts can influence national security. "While courts rarely intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch security policies," she wrote. "The Executive's awareness of likely judicial oversight over particular national security policies—an awareness that ebbs and flows—plays a significant role as a forcing mechanism. It drives the Executive to alter, disclose, and improve those policies before courts actually review them." In an Oct. 28 Christian Science Monitor article about the scandal of U.S. spying on friendly countries, Deeks cautioned against entering into binding agreements prohibiting surveillance. Not only would the U.S. face a loss of intelligence information, she said, but it also has to consider the possibility of a country like Germany at some point electing an "unfriendly" government and thus "complicating" the actions of future administrations.
Brandon Garrett co-authored a Sept. 23 New York Times Dealbook commentary on approaches to prosecuting corporations. "The favored new tool of the corporate prosecutor, the deferred prosecution agreement, is being actively exported to other countries," the authors wrote. "Britain's proposed program comes with a code governing its use, and a requirement that a court conclude that the agreement is both ‘in the interests of justice' and ‘fair, reasonable, and proportionate.' Moreover, the proposal itself has been opened for comment from the public. We wish deferred prosecution agreements had been similarly vetted in the United States." Garrett discussed criminal proceedings against banks in an Oct. 3 Bloomberg story. "If a settlement could be structured the right way, a guilty plea could work in terms of punishing the company without destroying it," he said. Garrett discussed the "revolving door" of lawyers between the government and private defense work in an Oct.30 Reuters story about the newly nominated head of the Department of Justice criminal division. "You want someone that has experience litigating the most complex corporate crime matters," he said, "but you also want someone who isn't going to feel conflicts of interest and feel disqualified from decisions in the most important cases."
A. E. Dick Howard's Constitution Day comments at James Madison University on constitution-making in post-Communist Europe were reported in a Sept. 18 Harrisonburg Daily News-Record article. While some claim the way to share the Constitution's ideals is simply to use it as a template, he said that wouldn't work because each nation has its own history. The right way, he said, is to ask a lot of questions, suggest ideas, and translate procedures and processes to work in a given culture.
In a Sept. 25 NerdWallet article about equity crowdfunding, Edmund Kitch warned that simpler securities laws are necessary. "If crowdfunding is to flourish the most obvious need is for a skillfully curated web site that will review projects and their promoters to ensure that they are honest and have the basic skills to succeed," he said. "Such web sites are unlikely to develop if the government stands in the way. If the government would simply create an open space for crowdfunding sites to operate, it could monitor their development and if it identified specific problems that create the need for targeted legal intervention, it could then pursue that intervention."
In an Oct. 4 American Prospect blog story about prayer in public schools, Douglas Laycock noted that the practice continues to be defended because some right-wing politicians pick the issue to score points with their base. "There's always some politician who wants to cater to the conservative religious vote and thinks this will be popular and he'll get credit for it," he said. "The founders got this right. Religion is corrupted by government, and religious minorities are oppressed by government efforts to sponsor religion."
In a Sept. 2 Wall Street Journal Online story about the Obama administration's move to put a higher price tag on greenhouse-gas emissions, Michael Livermore said the administration has used "the most mainstream, the most well-validated, the most broadly accepted methodology for assigning benefits. The entire process has been on the record." Livermore co-wrote an Oct. 15 Huffington Post article about the Supreme Court's decision not to review the foundational element of the EPA's greenhouse gas regulations. "EPA now as a green light to continue moving forward with its regulatory program," he and his co-author wrote. "The agency has now overcome the last remaining hurdle -- the upholding of the endangerment finding -- on its way to robustly regulated greenhouse gases under the Clean Air Act."
David Martin's remarks at an American Constitution Society panel were quoted in a Sept. 5 Virginia Lawyers Weekly article about prospects for immigration reform. "It's not just a matter of legalizing populations that become an important part of our communities over the years, although that is a very important part of the bill," he said. "It's also about creating a circumstance, a situation, a new culture of compliance, a new focus on enforcement so we don't get into the same situation a few years down the road."
Ruth Mason was quoted in a Sept. 13 Bloomberg story about the tax complexities facing same-sex couples, depending on their state of residency. "What happened before in marriage-equality states was that those states had to find a way to undo the discrimination at the federal level," she said. "Now you have states that don't want to recognize same-sex marriages trying to redo the difference."
An Oct. 12 Bloomington, Indiana Herald-Times article about the links between mental illness and violence quoted John Monahan and discussed his research showing that acts of violence are not committed by people purely because of mental illness but because of some additional factor such as substance abuse or abuse during childhood. "Substance abuse is not good for anyone," he said, "but it's much worse for people with mental illness."
Mildred Robinson and T. R. White were both quoted in an Oct. 1 CardHub article about sales tax holidays, such as the exemption in August for back-to-school supplies and apparel. "There is a benefit to consumers who will be able to purchase items without the additional cost of retail sales taxes," Robinson said. "Whether these are consumers who would be unable otherwise to afford that cost is unknowable." White noted: "I've thought right along that they are intended to benefit business not consumers. Evidence seems to bear that out. And the revenue loss does not seem to be really important enough to create a problem."
In a Sept.1 Boston Globe article about the increasingly powerful role of mayors in American politics, Richard Schragger noted that the ability of mayors to innovate depends on larger economic trends. "Cities are still subject quite strongly to the winds of the economy, and when those change, cities are hit very hard," he said.
Micah Schwartzman cowrote a Sept. 24 SCOTUSblog article about Town of Greece v. Galloway, the Supreme Court's current Establishment Clause case. "Without a constitutional prohibition on government expression that effectively embraces a particular faith," he and his coauthor wrote, "American lawmakers will consider themselves able to celebrate monotheism or even Christianity as such, despite the presence of numerous religious minorities and nonbelievers who hold beliefs outside those traditions. Full and equal citizenship in a free society should mean more than that."
Molly Bishop Shadel was featured in an Oct. 4 Virginia Lawyers Weekly article highlighting her tips for public speaking. "Your job isn't to put on a perfect show but to communicate information to people who need to know it," she explained. "Don't start with the unimportant stuff and don't get distracted by a digression." She noted that a presentation needs to be practiced, out loud, and that this practice means less reliance on a script or notes. Bullet points are fine but "a written script is a mistake unless you are President Obama delivering the State of the Union address. You know what you want to say, so don't stand up there and stare at a piece of paper."
Robert Turner was quoted in an Oct. 8 Agence France Presse story about the legality of the US capture of an Al-Qaeda suspect on Libyan soil. "It would not surprise me at all if we had the private consent of the authorities and, if that's the case, it was a perfectly lawful act," he said, adding that it was critical for the United States to provide a legal justification. "If we start saying our obligations don't count because we're the biggest gorilla in the zoo, we're not going to have a strong case to tell the Iranians or North Koreans or anyone else that they need to observe their non-proliferation obligations," he said. In an Oct. 27 Military Times article about Sen. Claire McCaskill's hold on a general's nomination because she had overturned a captain's sex assault conviction, Turner argued that McCaskill was sending the wrong message to military jurors and judges. "This message says that if you get any kind of a case that involves allegations of sexual impropriety, you had better side with the complainant," he said. "There's a horrible message here: Justice doesn't matter; convicting people whatever the evidence is the best way to continue your career."
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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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