Faculty in the News by Date | By Name

Notable Faculty Quotes, Jan.-Feb. 2008

Richard Bonnie was quoted in a March 5 (Hampton Roads) Virginian-Pilot article about the recent increase in the number of Virginians carrying handguns. "There are just too many guns out there," he said. "We'll be dealing with them for many, many years in the future." In the March 23 Roanoke Times, Bonnie said that the Virginia Commission on Mental Health Law Reform, which he chairs, plans to evaluate the General Assembly's new laws on commitment and mandatory outpatient treatment before recommending further changes. "The last thing we should do," he said, "is to add new challenges before the system has successfully absorbed the ones that have just been made." Bonnie discussed higher education's balancing of safety and privacy concerns when dealing with troubled students in the April 16 Chicago Tribune. "Many colleges are using the
uncertainties about the law as an excuse to do nothing," he said, but concluded that responsibility for protecting students depends on administrators and not regulations. "A little more clarity would be helpful, but I think more backbone would be more helpful," he said. "Educators may
have lost touch with their moral obligation to students to do the right thing."

In an April 12 National Journal article about the failures of the Environmental Protection Agency in the Bush administration, Jonathan Cannon noted that every EPA administrator has faced conflicts between what the agency's experts recommend and what the White House demands. "But it seems to me that that tension is now at an acute level," he said. "It's causing extreme friction within the agency and institutional damage. It's demoralizing the legal staff, and it's further separating staff from the political leadership at the agency."

Anne Coughlin was quoted in a March 11 (Waynesboro) News Virginian article about an obscenity case against an adult video store clerk, in which the defense has argued that the Virginia obscenity law abridges constitutionally guaranteed privacy rights under Lawrence v. Texas, the 2003 case overturning a Texas sodomy law. "Lawrence v. Texas does suggest that there may be new constitutional limits on the extent to which the state can regulate private sexuality, so it's not surprising to see it used in a case like this," she said. "But the Court was very careful to say that the state remains free to regulate commercial activity." In the March 16 Atlanta Journal-Constitution, Coughlin commented on race and gender bias complaints filed by a fired county official. The county had hired counsel to determine whether it could be sued successfully, but Coughlin said that hiring outside lawyers to assess its legal exposure was an inadequate
response. "The investigation should go beyond basic legal specifications," she said. "Two cases may not make a pattern or may not make a culture, but they certainly suggest the county has a problem and needs to figure out what to do."

Brandon Garrett was quoted in a April 7 New Jersey Lawyer article about deferred prosecution agreements, under which corporations agree to be supervised by outside monitors. "Given the central importance of monitors in supervising compliance and the sweeping powers they are provided," he told a congressional subcommittee, "a fair process for selection of monitors involving public notice and judicial approval is appropriate." He said that judicial supervision of monitors' appointments "could provide greater legitimacy by providing a neutral decision-maker,
as well as greater transparency by making aspects of the process public."

In a April 14 (Waynesboro) News Virginian story about the impact on Virginia's mental health system of recent legislative changes and a $42 million budget increase, Thomas Hafemeister noted that it is unclear whether the new funds will balance out the extra requirements and responsibilities the legislation imposes on community service boards. "The unanswered question there is whether that money actually translates into better mental health services," he said.

A. E. Dick Howard was quoted in a March 30 Bristol Herald Courier article about Virginia's process of judicial selection by the General Assembly. This method, he said, "raises a question of at least the appearance of judicial independence" by making judges directly accountable to legislators. He noted that the 1969 constitional commission, for which he served as executive director,
considered recommending a change in the state's method of selecting judges to a more merit-based system, but ultimately abandoned the idea because legislators "were not about to give up their traditional power. I think there was just not any likelihood that the legislature would
have seriously considered changing." In the next day's Herald Courier, however, he noted that other systems may be "cleaner and more attractive," but that reformers needed to prove that a "problem that needs solving" exists. "My impression is that Virginia judges, by national
standards, are quite good," he said.

In an April 1 CNNMoney.com article about the difficulties faced by securities self-regulatory groups in attempting to control the spread of false stock rumors, Edmund Kitch said that pursuing these types of cases requires establishing that someone was spreading falsehoods, that the information was in fact false, and that it greatly strengthened a person's profitable trading. "Putting those cases together is an enormous amount of staff work," he added, noting that "investigative resources would quickly be fully committed if you pursued a number of those."

Michael Klarman discussed the 1960s in a March 23 New York Times article about the history of race in presidential campaigns. "Nixon talks about 'law and order,' which is a code term for the urban race riots and rising crime rates," he said. "He talks about appointing strict conservatives to the Supreme Court, which is a code term for justices who won't insist on mandatory busing. And he talks explicitly about how we ought to have 'local control of schools.' Without explicitly using the language of race, he is saying whites shouldn't have to go to school with blacks."

In a March 2 Washington Post article about U.S. immigration officials' efforts to deport a man who had been acquitted on charges of supporting terrorism, David Martin said that "the government is perfectly within its legal rights to go ahead in two different forums even after they've lost in one. . . . Whether it's a sound use of prosecutorial authority is a much tougher question."

Daniel Meador was quoted in a March 12 WCAV-TV story about David Paterson, the first legally blind governor of New York. "The idea of a blind governor will be encouragement to a lot of people, many of whom have low aspirations, and might be discouraged about what they might accomplish," he said, noting that Patterson's biggest challenge will be the heavy amount of paperwork and reading.

In an April 25 Raleigh News & Observer article about the FDA's oversight of lasik eye surgery procedures, Richard Merrill said he would be very surprised if the agency entertained the possibility of a moratorium on lasik after its experience with breast implants several years ago. "The only time they tried a moratorium, they were showered with criticism," he said. "They felt they got a black eye."

Gregory Mitchell was quoted in an April 25 Chronicle of Higher Education article about the use of the Implicit-Association Test (IAT) to evaluate racial bias in capital cases. Mitchell suggested that implicit-bias research is not ripe enough for the courtroom, citing studies that suggest that the "IAT effect" is actually created by social anxiety, or by mere awareness of the existence of racial stereotypes, not by racial animus. "People equate the IAT effect with unconscious biases. If you're really serious about correcting this, then you should be very interested in all of the possible causes," he said, calling for more empirical research before changing legal theory. "If you don't know what is actually causing an IAT effect, than you can't form sound public policy," he added. "These are serious scientists, and there's a great deal of interest in their research. But we should be much more cautious about bringing it into the courtroom."

In a March 22 New Scientist article about the use of coercion in mental health treatment, John Monahan questioned the assumption that forcing people into treatment will reduce the risk of violence. "There is clearly some relationship between mental disorder and violence – it would be completely disingenuous to deny it – but it is not large," he said.

Robert O'Neil was interviewed on academic freedom issues in the March 6 Inside Higher Ed. "What suggests to some observers an ominous shadow of McCarthyism," he said, is "a new set of threats to free inquiry on the university campus — from private 'vigilante' groups that target professors and even students on Web sites and blogs, legislative demands for 'balance' and removal of 'bias'  from the classroom, mounting restrictions on corporate-sponsored research, and constraints on electronic communications that would not be tolerated in print media." O'Neil discussed the controversy surrounding a Yale student's art project that portrays her as inducing her own abortions in the April 21 Chronicle of Higher Education. "Art departments have always been and must remain shelters for creativity which sometimes offends and often challenges," he said, but acknowledged that such a message "doesn't usually go down terribly well with people in the outside world."

Glen Robinson was quoted in a March 18 Washington Times article about a Supreme Court case reviewing the FCC's policy of fining broadcasters for fleeting expletives. "The FCC has been on something of an indecency crusade since 2004," he said. "It has also greatly increased the level of fines — without Congress' authorization." In an April 24 Newsday article about a proposed New York Post/Newsday merger, Robinson commented that the newspapers' financial condition could sway regulators to look more favorably at the deal. "The antitrust division would surely take seriously an argument that this acquisition will help to ensure the viability," he said.

George Rutherglen was quoted in a March 19 Los Angeles Times article about consumer contracts that require credit card holders to agree to terms and conditions that they don't even see before receiving their cards. One such condition is the agreement to be subject to the law of Virginia, one of the few states without class-action lawsuits. "I wouldn't say Virginia is consumer-unfriendly," Rutherglen said. "Rather, Virginia strives to be business-friendly."

Jim Ryan wrote a commentary about fixing education policy in the April 1 issue of Slate. "Identifying what needs to be fixed in the field of education is easy: the No Child Left Behind Act, currently up for reauthorization but stalled in Congress pending the next election," he wrote. "The act is at once the Bush administration's signature piece of education legislation, its most significant domestic policy initiative, and the most intrusive federal education law in our nation's history." He argued against scraping the law, saying that it "has big problems, but its core ideas—creating high goals for all schools, ensuring accountability for meeting them, and focusing attention on disadvantaged and minority students who are too often ignored—are worth retaining."  He recommended that an amended NCLB that creates national standards and tests but leaves it to the states how to sanction or assist the low-performing schools, and that provides a loan-forgiveness program to encourage college graduates to go into teaching. "All of these fixes will take real leadership and real money," he concluded. "But they're worthwhile and certainly
better investments than our current response to educational failure: building more prisons."

Robert Turner wrote a commentary in the March 3 Washington Times about charges that telecommunications companies that were helping the government protect against future terrorist attacks were "spying" on Americans in violation of their civil liberties. The companies were allowing computers to examine digital telephone records to identify numbers that have communicated with telephones regularly used by known or suspected foreign terrorists. "Is this a violation of civil liberties?" Turner asked. "That issue was resolved by the Supreme Court, . . . and all of the cooperating telecommunications companies were assured by the highest officials at the Department of Justice that the program was fully lawful." Critics of the program, he wrote, "owe us an explanation of why they are trying to undermine efforts to identify individuals who may be planning catastrophic terrorist attacks against their fellow Americans."

Siva Vaidhyanathan was quoted in a March 13 Economic Times article about the prevalence of sex scandals in American politics. "To catch someone misbehaving is a great prize in today's competitive world of politics," he said. "Forty years ago almost all behavior was excused, there were no technologies and habits of surveillance, and there was the general assumption that men of power would misbehave and we just have to live with it. It is easier to be caught now." In a 3/26 Chronicle of Higher Education article about a commercial plagiarism-detection tool, Vaidhyanathan said that he objected to the tool's "techno-fundamentalist process and mistrustful culture. . . . It undermines the relationship between student and professor and among students. There has to be a better way." In an April 30 amNewYork article, Vaidhyanathan said that introduction of competition in the New York City cable television market "is a major improvement to media life in New York City. New Yorkers are blessed every day to have their
choice of newspapers, and now they are going to have their choice of television providers. Cable companies have been fat and lazy for a long time, and New Yorkers have been the victim of this."

G.E. White was quoted in an April 25 USA Today article about legislative proposals to make concealed gun permit records confidential.  He said states that close their records could have a tough time proving the constitutionality of the action. "We're not talking about national security or the security of the state," he said. "What we're talking about is whether the disclosure of this information might somehow increase the risk that people with the weapons would be endangered, or make it more difficult for them to use them to protect themselves. I think that's a pretty weak argument."

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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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