Notable Quotes, Jan.-Feb. 2006

Lillian BeVier was quoted in a 1/24 Washington Times article about a case in which an anti-abortion group was barred from running commercials identifying a specific senator during his 2004 re-election campaign. She thought that the group's argument had merit, "based on their allegations that they are a citizens' grass-roots political organization and not a profit-making (or even a non-profit) corporation," she said. "The 'let's get big money out of politics' rationale of the electioneering-communications restrictions does not apply to them." In a 2/1 Newsday article, BeVier warned that it will take time to understand newly confirmed Justice Samuel Alito's impact on the Court, even if he votes on the same side of the issue as Justice Antonin Scalia more often than not. "I don't think you're going to know much about him before a year or two," she said.

Richard Bonnie was quoted in a 1/13 Associated Press article about the DNA confirmation of the guilt of a Virginia man executed in 1992. "Of course there are going to be cases in which people have claimed to be innocent and that DNA testing will tend to disprove that -- that should be expected," he said. "But I think we also know that there are going to be cases where the claim of innocence is supported." In a 1/14 Associated Press story about Mark Warner's political ambitions, Bonnie commended the former governor for ordering the DNA testing. "In the past the tendency among governors and legislators has been basically to say this is a judicial responsibility," he said. "It really is everyone's responsibility. It seems to be increasingly clear that there really is no political risk to take these concerns about innocence seriously." In a 2/5 Washington Post story, Bonnie criticized a New Hampshire law extending possession of alcohol to drinks already consumed. "When the law makes the offense simply a biological fact, of simply having a certain chemical in one's body, that steps over a line in the law that has been traditionally accepted," he said.

Rosa Brooks continued her regular commentaries for the Los Angeles Times, writing on topics such as the inhumane treatment of prisoners, the "inappropriateness" of criticizing the government, and the effects of civil war on Uganda's children. In her 1/20 column, she commented on the difficulties of teaching constitutional law. "In a world in which all constitutional issues are political footballs, I seriously wonder whether I can leave my students with any set of doctrines, principles or precedents that will enable them to distinguish confidently between laws and government actions that are 'constitutional' and those that are not," she wrote. "No matter how thoughtful the framers were, why should anyone imagine that a short document drafted more than two centuries ago could possibly contain the answers to every modern question? But that's the deep oddity of American constitutional culture. Despite its all-too-human origins, we treat our Constitution as revealed truth, and we want our judges to serve as its infallible priests." Brooks commented on her columns in a 1/31 C-Ville Weekly interview, saying "I think it's incredibly important for scholars to try to connect to the broader world -- if we can't do that, then I wonder what the point is of all our scholarship."

George Cohen was quoted in a 2/23 San Diego Union-Tribune article about lawyers facing indictment for a scheme that allegedly paid kickbacks to clients who filed shareholder class-action lawsuits. According to charges, the lawyers paid fees to other attorneys for referring clients with securities-fraud claims but knew that these funds would then be paid to the clients. Cohen explained that referral fees are acceptable when firms share work. "Basically, the rules say you can have some kind of referral fee as long as both lawyers are contributing to the representation or they agree to a joint representation," he said. "Then it's OK, as long as the client understands that this is what's going on."

Anne Coughlin was quoted in a 1/14 Roanoke Times article about the settlement of a case in which a man accused of rape sued his accuser for malicious prosecution, defamation and emotional duress. Noting that it's extremely rare for a man accused of rape to sue his accuser, she described such lawsuits as something of a two-edged sword: While there's no question that an erroneously accused man has had his life and reputation damaged, this sort of lawsuit could deter victims from coming forward. "You clearly want to protect innocent people," she said. "On the other hand, victims can make mistakes."

Brandon Garrett co-wrote a commentary in the 1/9 National Law Journal about two death penalty cases in which forensic evidence was fabricated and the jury never heard evidence that another person committed the crime. "In 170 cases to date," he and coauthor Jason Solomon wrote, "DNA testing has proven defendants actually innocent though appellate courts often found 'overwhelming evidence' of guilt." They urged that the cases be sent back for retrial: "The Supreme Court should use these cases to create a national conversation on how to avoid 'embarrassing' wrongful convictions from investigation to trial to appeal. We believe our system demands no less."

A. E. Dick Howard was quoted in a 1/10 Bloomberg.com story about Judge Samuel Alito's strategy before the Senate Judiciary Committee. Most nominees who appear before the committee, he said, follow "a pattern of cooperation, amiability, willingness to engage, but in fact saying very little." In a 2/5 Fairbanks Daily News-Miner article about the Alaska constitution, Howard noted the national trend to longer, more divisive documents. "Fifty years ago, constitution revisers were really trying to simplify documents and focus responsibility on state governments," he said. "Since the 1980s, I think there has been an unfortunate tendency to write social issues into state constitutions." In a 2/5 Richmond Times Dispatch article, Howard noted that the proposed Virginia constitutional amendment banning gay marriage could prove to be a "font of litigation." He added: "One thing this whole discussion reminds us of is what a delicate and sometimes risky enterprise it is to amend the Virginia Constitution on questions touching private law - contract law, domestic relations law, the sorts of relationships that generally are dealt with by statute. By and large, there are not many provisions in the state constitution that deal with relationships of that kind, and I think that's generally a good thing."

Richard Merrill was quoted in a 2/4 Baltimore Sun article about the FDA's recent series of acting commissioners. The current head's close ties to President Bush may give him greater effectiveness than his predecessors. "But the fact that he's on good terms with the White House," noted Merrill, "doesn't necessarily mean he's on good terms with the Congress."

Robert O'Neil was quoted in a 2/5 Miami Herald article about the ejection of two women from the U.S. Capitol for wearing message T-shirts during the State of the Union speech. "The long-term consequence" of silencing dissent, he said, "is a higher degree of self-censorship. Society is the poorer when deprived of the marketplace of ideas." In a 2/19 Knight Ridder/Tribune commentary published in several newspapers, O'Neil argued that U.S. newspapers sensibly chose to exercise restraint in not publishing the controversial Danish cartoons of the prophet Muhammad. "So deep is our national commitment to free expression that we insist on tolerating virtually all racist, sexist, anti-Semitic and homophobic publications, no matter how deeply offensive or hurtful they may be," he wrote. "There is wide appreciation among American journalists that enjoying press freedom does not depend upon pushing that freedom to its extremes, despite temptations to do so. Not everything that amounts to news, or evokes potential public interest, need be published. Drawing such a line does not constitute censorship, at least where self-restraint is voluntary."

Glen Robinson was quoted in a 1/9 Houston Chronicle article about whether the FCC would allow Howard Stern free reign on his new satellite radio program. In his opinion, through its rulings on cable, the Supreme Court has already given the FCC some jurisdiction over satellite. "The Supreme Court ruled that indecency regulation was constitutionally permitted for cable," he said. "However, it didn't mandate such regulation." What would stop the FCC from regulating? "It could be that the FCC doesn't want to get sucked into more program supervision than it can handle," he said. "Once you start going down this road, there's almost nowhere to stop."

George Rutherglen was quoted in a 1/25 New York Times article about a survey indicating that one-quarter of undergraduates have been sexually harassed on campus or at college events. "I'm sympathetic to their goal of calling attention to this form of conduct," he said, but added: "People, particularly undergraduates, have to grow up, and part of growing up is making mistakes." He called for "a realistic appraisal of what needs to be prohibited." Rutherglen also commented on the survey in the 1/28 Columbus Dispatch, saying "I think there's quite a bit of confusion about what sexual harassment is. The way the survey uses the term sexual harassment is extremely vague and uncertain." He said that a broad definition could have negative implications. "If every interaction between men and women could be labeled sexual harassment, then no misconduct will ever be punished," he said. "And I think some people richly deserve to be."

Kent Sinclair's work as chairman of the Judicial Council of Virginia's advisory council on rules of court was featured in the 2/27 Virginia Lawyers Weekly. The advisory committee is publishing proposed rules that for the first time would codify Virginia evidence law. Sinclair noted that the law of evidence now "is buried in over 1,000 published decisions from the Supreme Court and the court of appeals and a dozen scattered sections of the Code" of Virginia. "These rules are designed to achieve clarity and simplicity," he said, "while avoiding any tilt of the playing field."

Robert Turner was quoted in several news sources on President Bush's powers to conduct warrantless electronic surveillance. On the 1/24 NPR 'Talk of the Nation' program, for example, Turner explained that "the president has certain powers given him by the people through the Constitution. Throughout most of our history Congress has understood that includes complete control over intelligence. And every court that has considered this issue has said the president does have independent constitutional power in this area." He went on: "If we start allowing Congress by simple statute to seize presidential power, particularly in an area like this where the president's goal is to protect Americans from terrorist attacks, I think we're undermining the Constitution, we're undermining the doctrine of separation of powers, and I think we're serving our people very poorly." In a 2/20 Austin American-Statesman article about Bush's use of signing statements to indicate his interpretation of newly enacted laws, Turner said the nation's founders intended a president to have broad powers. "It's not true that all presidential powers are supposed to be checked," he said, especially when it comes to foreign affairs. "The Supreme Court has noted this time and time again."

J.H. Verkerke was quoted in a 2/15 Virginian Pilot story about a math test for Virginia Beach police recruits that discriminated against blacks and Hispanics, according to a U.S. Justice Department ruling. He said the concern is that hidden discrimination hinders efforts to diversify the work force. "The question is whether the test is an unnecessary barrier in initial hiring," he said. Verkerke also noted that many blacks and Hispanic applicants are reared in lower-income households, and that those groups might not have access to the same quality of educations as white applicants.

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Faculty in the News is compiled by Kent Olson, Law Library Director of Reference,
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