Faculty in the News by Date | By Name

Notable Faculty Quotes, July-August 2007

Kenneth Abraham was quoted in an Aug. 3 USA Today story about a federal court ruling that insurance companies don't have to pay for flood damage caused by the failure of Now Orleans levees because their policies "unambiguously" excluded flood damage, even if from a man-made disaster. He said the case has only an "extraordinarily remote" chance of being heard by the Supreme Court, but noted that the ruling "is not a precedent that binds the state courts." The federal court was applying Louisiana state law, he said, and Louisiana courts could decide differently in interpreting similar policy language.

Richard Bonnie's testimony before the panel reviewing the Virginia Tech shootings was quoted in several news sources. "The need for reform in irrefutable," he said in the July 19 Daily Progress. "No one is satisfied with the current system." He said that federal and state privacy laws do not prohibit college administrators and staff members from sharing information about troubled students, and noted that the welfare of a student and the community must take priority. According to the July 27 Chronicle of Higher Education, Bonnie said that he was "alarmed by the apparently widespread perception that the law somehow prevents or impedes colleges and universities from doing what they think is the right thing with regard to students who are in distress." In an Aug. 29 Florida Today article, Bonnie discussed the planned insanity plea of former astronaut Lisa Marie Nowak. "It is always an uphill battle to raise an insanity claim," he said. "Jurors everywhere are naturally skeptical about claims of non-responsibility, and most litigated insanity claims are rejected by juries."

George Cohen was quoted in a July 22 Chicago Tribune story about a prominent Chicago law firm caught up in an accounting scandal. "The lawyers sort of slide under the radar when in fact they are very much involved in these accounting frauds," he said. He added that a lawsuit against the firm would be an uphill battle, noting that corporate lawyers generally are well-protected under the law:  "It's not like they don't have anything to worry about. But the corporate bar's power is pretty strong." In the Aug. 6 Business Week, Cohen commented on the conviction of a lawyer in another major fraud case, a comparatively rare event. "There's a reluctance, usually, to go after lawyers," he said, in part because it's hard to show that lawyers know all the details about the deals they work on.

Anne Coughlin was quoted in several articles about the Michael Vick case. In the July 22 Newport News Daily Press, she noted that the federal prosecutors might have more information than they had released. "They don't have to come out in the indictment with the best things they have or disclose all the information that they have,"  she said. In an Aug. 14 Associated Press story, Coughlin noted that pressure was mounting on Vick once his co-defendants agreed to plead guilty. "He's hanging out there by himself, and that's a very uncomfortable place to be," she said. "Once you have the testimony of the other two, it's hard to imagine how Michael Vick can stand alone and emerge successfully." In an Aug. 16 Daily Press article, Coughlin discussed whether local authorities would also press charges against Vick. "Generally, one jurisdiction will take the lead, and if it’s successful, the other one will be satisfied and won't proceed with additional charges," she said. Coughlin also discussed possible state charges in the Aug. 21 Washington Post, after Vick's guilty plea. She noted that the Fifth Amendment's ban on double jeopardy likely would not apply because federal conspiracy is different from potential state charges. "It's a very tough position that Vick is in," she said. "The federal charge wouldn't necessarily cover stuff he did in Virginia."

Brandon Garrett's study of wrongful convictions was featured in several news articles and editorials. His was the first systematic examination of 200 cases in which American prisoner have been cleared by DNA evidence. The July 23 New York Times quoted his conclusions that "a few types of unreliable trial evidence" – in particular, erroneous eyewitness identification and faulty forensic evidence – "predictably supported wrongful convictions," and that exonerated convicts were more apt to be members of minority groups than was the prison population generally. The Aug 6 Virginia Lawyers Weekly noted that few law review articles get attention from the mainstream media even after they're formally published, but that Garrett's was being cited by major publications months before its appearance next winter in the Columbia Law Review. "I was certainly very happy to see that people are writing about it and reading about it," he said, noting that he hopes the article will encourage improvements in the accuracy and trustworthiness of criminal trials.

Risa Goluboff wrote a commentary for the July 2 Slate about how conservatives have appropriated Brown v. Board of Education as a basis for the proposition that the 14th Amendment prevents states from treating individuals differently on the basis of race. "The new harm of racial classification that the court's conservatives now fetishize is something that afflicts all Americans, regardless of race," she wrote. "It is entirely about how people—often white people—feel when the government takes their race into account in decision-making. But that transformation can only be accomplished by disparaging, eliding, and downright ignoring the actual inequalities that attended Jim Crow in 1954 and continue to afflict American society today." She went on to explain, however, that "Brown may not have been the sturdiest reed on which to rely in rebutting this conservative constitutional vision," because the lawyers bringing the case "intentionally set aside the actual inequalities between black and white schools in favor of a blanket prohibition—at least in the education context—on state-imposed segregation...By the time the Supreme Court decided the case, the question of material equality, of truly meaningful outcomes, had been sacrificed to formal nondiscrimination, and was thus already off the table in the legal imagination."

Thomas Hafemeister was quoted in a July 22 Roanoke Times story about questions of competency in criminal trials. "When you're found incompetent to stand trial, you kind of move into this limbo" in which the legal proceedings are stayed until the defendant is declared competent again, he said. "In some cases that could be the rest of your life." Despite misconceptions that faking mental illness is a way for defendants to get themselves freed, he added:  "You don't just walk away. You stay in the system."

A.E. Dick Howard commented on Gov. Timothy M. Kaine's popularity in the July 8 Washington Post. He said that Virginia voters may judge Kaine a success even if he fails to achieve bold policy initiatives. "In this state, the governor gets a lot of credit for simply doing a solid job of meeting the state's basic needs," he said. "He doesn't need to be a Schwarzenegger, and most people in Virginia prefer he just as well not be." In the Aug. 28 Charlottesville Daily Progress, Howard discussed the legacy of departing Attorney General Alberto Gonzales. He said that Gonzales did not serve President Bush well in his handling of the firings of U.S. attorneys or his assertions of executive privilege, and that he will always be seen as part of the president’s tendency to appoint loyalists "who frankly are appointed above their levels of competence." He suggested that Bush would have to find a respected Washington insider or legal professional to avoid a damaging Senate confirmation battle and to improve relations with Congress.

John Jeffries was quoted in a July 9 Slate article about Justice Sandra Day O'Connor and other centrists on the Supreme Court. He resisted the "swing voter" label for either O'Connor or Justice Lewis Powell, with its implication that they swung from one ideological pole to the other, and expressed his view that Powell's work at the high court has endured. He offered as a case in point Powell's solo concurrence in Regents of the University of California v. Bakke, which established the principle that a university’s interest in producing student-body "diversity" could be a compelling state interest justifying the use of racial preferences in college admissions.

Edmund Kitch was quoted in a July 8 Daily Progress story about cases in which the Supreme Court had relied on UVA economics professor Ken Elzinga's antitrust expertise. The most recent decision will allow minimum price agreements between manufacturers and retailers to be judged on a case-by-case basis. Consumers may see an increase in prices as a result of the ruling, but Kitch noted that shoppers' natural inclination to prefer a bargain provides protection against high minimum prices. "If the price is set too high," he said, "the consumer will say, 'I appreciate your help and all, but I'm not going to spend $150 on a belt. I'm going to Wal-Mart.' "

Michael Klarman was quoted in a July 1 New York Times article discussing whether court decisions such as Brown v. Board of Education can change society. "Brown didn't transform society very much, and to the extent that it did it was indirect," he said. "Brown brought out the worst in White Supremacy, and Northerners were appalled by the police dogs they saw on television, and that advanced the civil rights movement." He said he believed that just as the court couldn't bring about integration on its own in 1954, so it won't be able to mandate colorblindness today. "The strongest evidence that there's not that kind of political support for colorblindness," he said, "is that the military and Fortune 500 companies have said we need affirmative action to survive." In a Aug. 30 USA Today article about the 50th anniversary of the Little Rock standoff that led military troops to enforce federal law in the South, Klarman noted that the nation was united over ending segregation "for a fairly brief time" in the late 1950s and early 1960s. "There's been enormous progress in many areas, but school segregation is not one of them," he said.

Julia Mahoney's scholarship on conservation easements was quoted in the Aug. 15 Roanoke Times. "Meadows are routinely converted into office parks, but office parks can be converted back to meadows, too," she wrote. "It is tempting for modern humans to imagine...that their works will endure forever, but history teaches otherwise." She argued that undoing a conservation easement may be just as costly and challenging as undoing development.

David Martin was quoted in a July 17 Christian Science Monitor article about communities using local police to enforce federal immigration law. "This is something we're going to see a lot of now," he said, noting that public frustration over high levels of illegal immigration and Congress's failure to agree on reforms is spurring the reaction. Martin was also quoted in a July 28 Associated Press story about recent declines in the arrest rate of illegal immigrants, cited by President Bush and the Border Patrol as evidence that their deterrence efforts are paying off. "People can read lots of different things into apprehension data," he said. "Sometimes increases are claimed as successes, and sometimes decreases are claimed as successes." In a July 28 Wilkes-Barre Times Leader article about Hazleton, PA's immigration ordinances, which would have fined landlords and suspended licenses of businesses found to house or hire illegal immigrants but were found unconstitutional by a federal judge, Martin said that it was "certainly a legitimately contested point. A few years back the office of legal counsel in the Justice Department issued an opinion saying that there is room for local authorities to enforce immigration laws if given that power by local government."

John Norton Moore was quoted in several articles about the debate over whether the United States should finally accede to the U.N. Law of the Sea Convention. In the July 2 Washington Times, he said that fears that the United States will lose valuable economic rights or military privileges under the treaty are "an insult to our intelligence." In the July 29 Boston Globe, Moore said it was "a disgrace to be making a security argument against it when the treaty is so powerfully in the security interests of the United States." Moore coauthored a commentary in favor of the convention for the July 30 Washington Post. "Today the convention is in force for 154 nations, including all the permanent members of the U.N. Security Council but the United States," he wrote. "Failure to adhere diminishes the voice of the United States in protecting our interests worldwide; it excludes America from the new functional organizations created by the convention, such as the Commission on the Limits of the Continental Shelf; and it sends a signal of American isolationism." In an Aug. 13 Wall Street Journal commentary about the race to dominate the Arctic and control its natural resources, Moore noted that the Law of the Sea Convention does not give ownership to the first country to plant a flag. "Jurisdiction over resources is not determined by staking claims," he said.

Mildred Robinson was quoted in an Aug. 30 Newport News Daily Press article about a challenge to the constitutionality of the Hampton Roads Transportation Authority. She noted that a self-supporting, independent taxing authority is part of many state government structures. "It's organized for a particular purpose," she said, "and in this case it would be to enhance transportation in a particular area. This is really not a novel idea."

James Ryan coauthored an article for the Aug. 1 issue of Slate on the jurisprudence of Justice Clarence Thomas. "Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak," he wrote. "But where history provides no support, he's likely to ignore it altogether." Ryan was also coauthor of an Aug. 6 New Republic commentary about how liberals can take back the Supreme Court. "To win these debates in the next election, liberals are going to have to borrow from Justice Antonin Scalia and the conservative lexicon.," he explained. "They should embrace the Constitution without hesitation and promise to appoint judges who will follow the commands of the Constitution. Then they should go after Republicans, hard, for not doing the same. In other words, they should portray themselves as the authentic defenders of the Constitution."

Kent Sinclair was quoted in a July 26 Examiner.com article about the constitutionality of Virginia's abusive-drivers fees, an issue almost certain to go to the state supreme court. He noted that motorists' best hope for seeing the fees eliminated appears to be legislative change, because courts give the legislature wide latitude in writing laws. "As long as there is a rational basis for what the General Assembly did, then the courts tend to leave the law alone even if it is something the court would not have done," he said.

Christopher Sprigman was coauthor of an Aug. 14 New Republic Online commentary about bills being considered in Congress that would extend copyright protection to fashion designs. "Unlike in the music, film, or publishing industries," he wrote, "copying of fashion designs has never emerged as a threat to the survival of the fashion industry. Indeed, growth and creativity in the fashion industry depend on copying...By allowing the copying of attractive designs, current law fits well with the industry's basic mission—to set new fashion trends and then convince us to chase them." He concluded that the proposed legislation was "a cure that is worse than the disease."

Robert Turner cowrote a July 26 Washington Post commentary on the White House's interpretation of the Geneva Conventions, which he said was a decision that "has compromised our national honor and that may well promote the commission of war crimes by Americans and place at risk the welfare of captured American military forces for generations to come." Turner was quoted in a July 28 Hearst Newspapers story about reactions to President Bush's plan for the federal government's survival following a catastrophic attack or natural disaster. "The president is obviously going to be the quarterback if we get hit," he said. "I understand the sentiments if you have a passionate hatred of George Bush or if you have a healthy distrust of government power. But if we get hit, the reality is the president needs to be the coordinator of our response." In a Aug. 16 Portland Oregonian article about government surveillance of an Islamic charity, Turner argued that the country's founders intended the president to have unrestrained command over intelligence gathering. "Clearly, the president has the right to listen to (Osama) bin Laden," he said. "We should be more interested when foreign terrorists are talking to people in this country."

Larry Walker was interviewed in an Aug. 27 WCAV-TV story about the resignation of Alberto Gonzales. He said that the Bush administration needs to step up with a replacement for the protection of the American people, but that with the presidential election season in full swing politics will spill over into the confirmation of a new Attorney General. "The Justice Department is so important in so many areas of public life that any resignation at this level is very unfortunate," he said, adding that "it's going to be very difficult, going to take a long time to confirm a successor."

G. Edward White was quoted in a July 17 GOPUSA story about the opening of a library featuring the personal papers of anti-communist hero Whittaker Chambers. "The possibility of a rich depository of the papers of an individual who was so intimately involved, in multiple ways, with Soviet espionage in the United States from the 1920s until his death in 1961, is an exciting one for historians of those years," he said.

George Yin was quoted in a July 14 National Journal article about how some Republican lobbyists have used in-depth knowledge of the federal tax code to survive Democratic rule on Capitol Hill. "Taxes aren't the easiest to lobby on, so it usually takes someone who really knows their stuff to do that," he said.

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