Current Faculty Headlines
Notable Faculty Quotes, March and April 2015
Richard Bonnie was quoted in an April 22 CBS News article about the gradual re-integration into society of John Hinckley, Jr., the man who shot President Ronald Reagan in 1981. “In terms of the management of insanity acquittees, generally, it is common to have this very carefully titrated doses of liberty approach, with gradual doses of freedom and a fairly tight monitoring system,” he explained. “Obviously the Justice Department has intense interest in what happens with him, and it’s not a case that’s likely to be treated in a routine fashion. Everything in this case has been given intense scrutiny at every moment.”
Darryl Brown was quoted in an April 17 Rochester Democrat & Chronicle article about a man who stole bronze flag holders from hundreds of military veterans’ graves but pleaded guilty to attempted third-degree grand larceny. “This is a good example of how plea bargaining distorts the criminal justice process sometimes,” he said. “The prosecutor and defense know that charging him with an attempted crime is misleading, but they’re willing to do it because it arrives at an outcome they think is appropriate.”
Ashley Deeks was quoted in an April 3 IRIN News story about the legality of Saudi Arabia’s bombing of Yemen. The Saudi justification for the attack rested on the claim that it was responding to a request from a neighbor’s governing authority, but Yemen’s President Abdu Rabu Mansour Hadi had announced his resignation and fled the country. “If Hadi were still in Sana’a and had a relatively modest rebellion on his hands, there is little doubt he could consent to have other states come in and help him,” she said. “That is not particularly controversial in international law. But it does get increasingly controversial the less control the requester has. At this point, the country seems to have spun out of control.”
Brandon Garrett was quoted in a March 17 Bloomberg News article about an investigation into whether banks had violated settlement agreements and manipulated interest rates. The Justice Department “now understands that these deferred-prosecution agreements don’t always work and there have to be serious consequences if companies don’t take them seriously,” he said. “I think DOJ understandably is frustrated and thinks enough is enough.” In an April 13 New Yorker article about compensation of wrongfully convicted people, Garrett noted the difficulties of suing for a violation of constitutional rights. “Police officers have qualified immunity,” he said. “They can violate your constitutional rights—reasonably but not egregiously.” He explained that law-enforcement records with evidence of misconduct can be obtained only after a suit has been launched. “It’s a Catch-22,” he said. “You can’t file a lawsuit without evidence to support your claim, and you can’t necessarily get at that evidence without the kind of discovery available to you only from a federal civil-rights case.”
In a March 3 St. Louis Post-Dispatch article about federal oversight of local police practices, Rachel Harmon said that police chiefs generally have not objected to the imposed reforms. “That’s not to say they love having the Department of Justice looking over their shoulder,” she added.
John Harrison was quoted in an April 16 PolitiFact article about whether the president and the vice president can be from the same state. While the Constitution does not prohibit running mates from the same state, Electoral College voters cannot cast both of their votes for two people from their home state. He noted, however, that the Constitution is silent about whether electors must come from the state that appoints them. “The Florida Republican Party might seek an amendment to Florida law so that non-Floridians could serve as electors, and nominate a slate of, say, Georgians, who could come down for the day in December when the electors give their vote,” he suggested. Harrison was also quoted in an April 26 PolitiFact article about whether foreign contributions to the William J. Clinton Foundation violated the Emoluments Clause of the Constitution, which bars gifts to government officers from foreign states. “I don’t know whether there’s any other provision of federal law that would treat a foreign gift to the foundation as having made to either of the Clintons personally,” he said.
A. E. Dick Howard was profiled in a March 15 Richmond Times-Dispatch article that surveyed his fifty-year career at the Law School. “Law should not be seen as a vocation,” he said. “It’s a way of understanding much larger issues — life in America, life in the world.” In an April 26 Charlottesville Daily Progress article about the Supreme Court’s consideration of same-sex marriage, Howard noted that a ruling that the 14th Amendment requires states to license gay marriages, or to recognize gay marriages from other states, would leave gay marriage opponents “without much recourse.” He also said it’s difficult for opponents to argue that gay marriage causes concrete harm, so their key argument would likely be that it’s an impingement of states’ rights to force them to license or recognize these marriages. “More liberal justices look at harm,” he said. “For those justices, the way the laws are actually applied is what matters.”
In a March 10 Wall Street Journal article about the expulsion of two University of Oklahoma students for leading a racist chant, Leslie Kendrick said the university appeared to be arguing that the chants weren’t an expression of opinion but threatening, harassing conduct that could incite violence. She noted that the “Supreme Court has been clear that statements of opinion, even offensive opinions, are protected against punishment.”
Annie Kim was quoted in a March 23 Virginia Lawyers Weekly article about the relationship between police and prosecutors when allegations of police misconduct surface, particularly when prosecutors seek internal affairs files from the police department. “In my experience representing police departments, I would say it’s uncommon for Virginia local government attorneys to release the internal affairs records of a police officer to anyone - whether it’s a prosecutor, defense attorney or a third party - absent a formal discovery request such as a subpoena duces tecum and a court order requiring its release,” she said.
Douglas Laycock discussed Indiana’s religious freedom law in a March 28 New York Times article. “The hysteria over this law is so unjustified,” he said. “It’s not about discriminating against gays in general or across the board. It’s about not being involved in a ceremony that you believe is inherently religious.” In an April 1 Lynchburg News & Advance article about lawsuits seeking to stop the closure of Sweet Briar College, Laycock said that legal arguments don’t lead anywhere if evidence shows there’s not enough money to run the college. “No matter what the will says, no matter who donated money, when there’s not enough cash flow to keep it going, a lawsuit cannot change that,” he said. Laycock was also quoted in an April 27 Bloomberg News story about how Chief Justice John Roberts would vote in the Supreme Court’s gay marriage case. “It is conceivable that he could provide the sixth vote for institutional reasons having to do with the court’s legitimacy and making the decision appear more legal and less political,” he said. “I do not think that is very likely, but it wouldn’t be astonishing.”
Michael Livermore was quoted in a March 25 Bloomberg BNA article about the Environmental Protection Agency’s interpretation of its authority as it prepares to defend its proposed Clean Power Plan. “There are many, many ways to interpret a statute. At the end of the day, what’s going to really ultimately matter is whether a court is going to take an all-things-considered view of what the agency has done here,” he said. Livermore’s research on the language of Supreme Court opinions was discussed in an April 22 Bloomberg News story. “It would take about 12 years of full-time labor reading one opinion per hour to work through the entire body of Supreme Court decisions, a task that could be held to be ‘cruel and unusual ‘ under the Eighth Amendment if assigned as punishment,” he said. “Advances in mathematics and computer science allow us to approach these massive textual datasets and perceive patterns that no human could, or would want to, find on their own.”
Daniel Ortiz was quoted in a March 6 Orlando Sentinel article about Marco Rubio’s choice of whether to run for president or for re-election to the U.S. Senate, under a state law that says someone cannot qualify for two offices on the same ballot. He pointed out that the Supreme Court has ruled that states can’t add to qualifications for federal offices spelled out in the U.S. Constitution. “Someone could make a good argument that that’s exactly what Florida is doing here,” he said. In an April 27 Guardian story about the same-sex marriage case, Ortiz estimated the chances that the bans would be upheld as “at most 5%”. Ortiz discussed his lucky tie in an April 27 National Law Journal about Supreme Court advocates. “It’s a special silk paisley tie I bought years ago in Venice when I really didn’t have the money to dress up to it,” he said. “It’s now fraying and I bring it out only for special occasions, like arguments before the Court.”
Frederick Schauer was quoted in an April 24 Reuters article about the possibility that New York’s Metropolitan Transportation Authority would ban all political ads after a court ruling ordering it to display a controversial ad from an anti-Muslim group. “Apart from streets, parks and sidewalks, the government as owners of space can restrict its speech uses as long as it does not engage in discrimination on the basis of point of view,” he said.
In an April 26 Charlottesville Daily Progress article about the Supreme Court’s gay-marriage case, Richard Schragger said a victory for gay marriage advocates would be “something like Brown v. Board of Education”: “If they win, that’s a huge victory for their movement. A loss would be both devastating and surprising.” He said most circuit courts have struck down the bans as unconstitutional, and that it’s unlikely the Supreme Court would go in a completely different direction. “If you were a betting person, you’d probably bet they will strike down same-sex marriage bans,” he said.
Micah Schwartzman coauthored a March 30 Slate commentary on the Indiana religious freedom law. “Recent efforts to pass state RFRAs do not strike an appropriate balance between the rights of religious believers and those who might be harmed when the state grants them exemptions from civil rights laws,” he wrote. “The result is that the movement to protect religious minorities has come under a cloud of suspicion—it looks as though they are seeking license to discriminate. To lift that cloud, state legislators must provide stronger assurances that religious exemptions will not impose significant costs on others, especially in the context of employment discrimination and access to services and places of business open to the general public.” Schwartzman was quoted in a March 31 San Francisco Chronicle article about the changing nature of religious freedom laws. Based on the Hobby Lobby decision, he said, courts might use such laws to override a local government’s antidiscrimination laws, or to allow employers to deny spousal benefits to same-sex couples. “Would a court find that discrimination on the basis of same-sex marriage, or someone’s status in marriage, is permissible, or would the government have a compelling interest in preventing it? I don’t think we really know the answer,” he said.
Molly Bishop Shadel was quoted in an April 9 PolitiFact article about whether the National Security Agency could read emails sent between two people living in the United States. By law, the NSA is supposed to “minimize” wholly domestic communications it obtains, she said. “I can’t promise the email wouldn’t end up in an NSA database,” she said, “but it’s not going to be accessible to the government if it does.”
Benjamin Spencer was quoted in an April 2 U.S. News & World Report article about a new ABA rule that up to 10 percent of a school’s entering class can be admitted without taking the LSAT as long as the applicants matriculate from the university’s undergraduate college or pursue another degree in addition to their J.D., and are at the top of their class. Because of the strict eligibility requirements for students to apply without taking the LSAT, he said he didn’t anticipate that schools will get a huge enrollment boost from this change but that the new rule may help with efforts to diversify law schools. “There are people who are members of groups that tend to underperform on the LSAT and if you dispense with the LSAT, and they’ve demonstrated good performance at the college, that might be a way to bring them in without the LSAT score bringing down your overall class LSAT figure, which is something the schools always have to pay attention to.” He added, however, that the change may not be enough to entice top undergrads to stay at their university for law school. “Students tend to pick their law schools based on their ranking,” he said. “And if a student’s a really good student at one of those universities, their opportunities may be better at other law schools.”
Robert Turner was quoted in a March 24 Washington Post article about prospects of Phi Kappa Psi suing Rolling Stone for defamation for its discredited rape story. “Falsely accusing someone of committing a heinous criminal act is defamation per se, and specific harm doesn’t need to be proven,” he said. “My guess is Rolling Stone is not going to want to see a drawn-out lawsuit covered by other media that they will certainly eventually lose.”
Rip Verkerke was quoted in a March 9 Law360 article about the Supreme Court’s decision that the Department of Labor and other agencies don’t need notice-and-comment rulemaking to change interpretive regulations. He noted that the three concurrences in the case might cast doubt on long-standing precedent requiring judges to defer to agency interpretations of regulations. “What might be more significant for future litigants and court watchers is that the case confirmed an ongoing split among the justices about the proper role of deference to administrative agencies,” he said.
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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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