Notable Quotes, July-Aug. 2006

Margo Bagley was quoted in an article in the June issue of Managing Intellectual Property about a recent Supreme Court case on patent injunctions. The decision was unanimous, but with two concurring opinions. "The concurring opinions contradict each other so it sends out a mixed message," she said. "It's a unanimous decision yet it's not unanimous at all. We will see more litigation regarding that particular question--that gives more things to fight over for attorneys."

Richard Bonnie was quoted in a 7/27 New York Times article on elder abuse. "We're looking at the worst side of human nature," he said, describing abuse of the elderly as "a kind of hidden problem, in all the settings in which it occurs, maybe even more so than child abuse is." Financial exploitation by potential heirs, he said, "is most likely to occur when you have a sizable estate . . . because they're concerned that the assets are going to be lost and not inherited." In the 7/31 Richmond Times Dispatch, Bonnie discussed the case of a Virginia teenager who refused chemotherapy treatment for Hodgkin's disease. "It is absolutely a thicket, ethically and legally," he said. "There are some clear boundaries . . . but this case seems to fall in between them." In an 8/12 Roanoke Times article about a jury's rejection of an insanity defense in a murder trial, Bonnie commented that "the insanity defense is raised a lot less frequently that what people think." He noted that about one percent of felony cases involve insanity pleas, and only a small fraction of those result in acquittals.

Anne Coughlin was quoted in a 7/19 Richmond Style Weekly article about same-sex marriage laws and problems over how the law determines who is a man and who is a woman. According to some courts, gender is fixed at birth and sex-change operations do not change a person's legal gender. "There's huge stuff at stake in these seemingly quirky little cases," she said. "As you can see the questions are messy. Very, very messy."  Coughlin discussed the war on drugs in the 8/13 Roanoke Times. "We're inclined to talk about drugs as a victimless crime," she said. "Everyone's a willing participant. The dealer is a willing seller, and the user is a willing buyer. Who among these people should we view as culpable? Who is a victim?"

Charles Goetz wrote a commentary for the 7/14 Pittsburgh Tribune Review about pending congressional bills limiting or banning seminars for judges. He wrote that "the alarms about these programs strike me as disingenuous, partisan muckraking," and went on to explain that it was "just plain laughable to picture judges as being gulled by a platoon of academics. Of all people, judges are probably the most impervious to being suckered. In a judicial system based upon adversarial argument, judges spend all day every day sorting the wheat from the chaff and draining out the snake oil. A judge who reads a daily newspaper, watches TV, or listens to cocktail party conversation is more likely to be subjected to 'improper influence' than at one of these judicial seminars."

Toby Heytens was quoted in a 7/14 Roanoke Times article about federal firearms charges against a Virginia man accused of shooting a police officer.  He said federal authorities likely chose to handle the case because the charge carries serious prison time, adding that the suspect in this case "has basically admitted everything you would need to prove this offense."

A. E. Dick Howard was quoted in a 7/12 Roanoke Times article about a proposed amendment to the Virginia Constitution that would remove a ban on granting charters of incorporation to churches or religious denominations. Howard explained that the ban originated during the 1851 constitutional rewrite, due to "an excessive concern that the General Assembly might get involved in the affairs of churches." In an 8/19 Roanoke Times article about Liberty University's new law school, Howard said he worried that the school's religious affiliation might stifle spirited inquiry and intellectual debate. Liberty "reminds existing law schools of the pluralism in legal education. It is useful to have law taught from various perspectives and it enriches the dialogue," he said. "But is there sufficient diversity of viewpoint in the classroom? That is a relevant question. Legal education teaches inquiry, skepticism and even doubt."

Michael Klarman was quoted in a June Atlantic Monthly article about the possibility that the Supreme Court might overrule Roe v. Wade. "With Roe on the books, the focus of the abortion debate has tended to be on issues like partial-birth abortion, which is a huge political winner for Republicans," he said. "If you take Roe off the books, the focus will be on poor women in a handful of states trying to get illegal abortions, and these highly salient examples are going to benefit the other side." In the 7/30 New York Times, Klarman noted that the Supreme Court cases that tend to provoke the biggest popular reaction are those in which justices seem to be out of touch with ordinary people. "Almost all of the instances of backlash," he said, "are conservative, populist reactions to decisions that seem elitist."

David Martin appeared on the 7/6 edition of NPR's Morning Edition to discuss President Bush's proposal to increase border security before implementing other immigration reforms. "The idea now is to test the new enforcement measures," he said, "but have some solid signs that they are working before we go into the other provisions of the law, the path to citizenship and the guest worker program." In the 7/15 issue of Government Executive, Martin commented on the overwhelmed system for  adjudicating immigration cases. A significant increase in caseloads was predictable, he explained, after the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. "One can expect an increase in court challenges in the wake of any massive legislative change," he said, "until the new statutory provisions receive authoritative interpretation and rulings on their constitutionality." In a 7/21 Potomac News article about special protections applicable to illegal immigrants from El Salvador put in place during the 1980s civil war in that country. "It really is a bit of a dinosaur," he said. "It's an annoyance, you have to train the Border Patrol in areas where they'll encounter Salvadorans. It would be better to end it."

John Norton Moore wrote a commentary for the 7/27 issue of Legal Week about the growing debate on judicial activism by the European Court of Justice (ECJ). He explained that his attention to the debate  was triggered by an opinion by the Advocate-General of the ECJ that the ECJ had exclusive jurisdiction concerning law of the sea matters and that member states could not use the dispute settlement provisions they had mutually accepted under the U.N. Convention on the Law of the Sea. For a court to overextend its reach, he wrote, "not only undermines the rule of law in the immediate case but, even more seriously, also risks permanent damage by undermining respect for an independent and empowered judiciary."

Jeffrey O'Connell was quoted in several news stories about his congressional testimony on medical malpractice reform. Under his "early offer" settlement proposal, a medical malpractice defendant would have the option of offering to pay the plaintiff's net economic damages before the case goes to court. A patient can refuse the offer and take the doctor to court, but the case must then be proved under a stricter "gross negligence" standard. A 7/14 US Fed News wire story reported O'Connell's remark that "the present system protects everybody but those who need it." In the 7/17 Medical Device Week, O'Connell commented that an early-offer system "could save as much as $600,000 for a serious claims case" by cutting out administrative overhead and a substantial portion of lawyer's fees.

Robert O'Neil was quoted in a 7/21 Chronicle of Higher Education article about changes in the tenure process at the University of Michigan, giving more time for scholars to complete research project but leaving them for longer periods with lower pay and little job security. O'Neil warned that moves to lengthen the pre-tenure period could foster mediocrity. "Those that most need a rigorous, time-limited review and appraisal process would, in short, be the first to seek an escape from it," he said. In the 8/15 Inside Higher Ed, O'Neil commented that a new Ohio law requiring that professors at public universities declare that they have no ties to terrorist groups threatens "a broad range of clearly protected free speech and academic freedom."  In the 8/17 Akron Beacon Journal, O'Neil said that the new Ohio law  "threatens academic freedom in ways that have rarely been experienced in the past half-century."

Kent Sinclair was quoted in a 7/24 Virginia Lawyers Weekly article about the proposed codification of Virginia evidence rules.  As chairman of the advisory committee that drafted the rules, Sinclair said he hoped the Supreme Court would adopt the rules and forward them to the Virginia Code Commission for presentation to the General Assembly in 2007 or 2008.  The goal is "to clearly set forth existing evidence law--not to change any aspect of the present balance of evidentiary doctrine in the commonwealth," he said. They are "intended to restate existing law in a clear and organized fashion, making it easier for counsel and judges to locate and apply established Virginia doctrine during the hectic trial process."

Chris Sprigman's congressional testimony on copyright issues in the fashion industry was discussed in the 7/28 Washington Times. He noted in his testimony that design imitation remains prevalent in Europe, despite an EU law that grants automatic copyright protection for three years and allows designers to register for up to 25 years of copyright protection. An article in the July issue of Reason magazine noted Sprigman's recent paper (coauthored with Kal Raustiala) arguing that copying in fashion may actually spur innovation, as imitations of each season's hot design creates "induced obsolescence," pushing consumers to demand new and different looks with which to distinguish themselves.

Paul Stephan was quoted in a 7/3 National Law Journal article about the Supreme Court's decision that using military commissions to try enemy combatants violated federal law and the four Geneva Conventions signed in 1949. All four Geneva Conventions contain an identical Article 3, which requires that a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples" be used to try those who have laid down their arms.  "Common Article 3's language is extremely capacious; it's like our due process clause," Stephan said. "The commission process can't be substantially different from courts-martial. Not special rights, but common practices are the baseline."

Robert Turner was quoted in several articles about trials of soldiers and former soldiers accused of offenses against Iraqi civilians. In a 7/5 Associated Press story, he said he believed that military juries can be better than civilian ones. "Military officers on the panel tend to be, on balance, of a higher caliber," he said. "They can look beyond the flash of a lawyer in an expensive suit." Turner wrote a commentary for the 8/6 Washington Times, criticizing an ABA resolution disapproving the use of presidential signing statements as a tool to override congressional intent. "The president's constitutional duties must prevail over any imposed by mere statutes," he wrote. "And for the ABA to suggest the doctrine of separation of powers requires that the president simply ignore congressional assaults upon his constitutional powers when a provision is ambiguous -- or when it is unreasonable to veto a critically important bill because one relatively minor provision is unconstitutional -- makes no sense either as a matter of constitutional law or public policy." In the 8/27 Arizona Daily Star, Turner criticized Judge Anna Diggs Taylor's "truly appalling opinion" that the NSA surveillance program was unconstitutional. "Taylor either chose to ignore or is actually oblivious to a number of important legal precedents that are incompatible with her decision," he wrote, "a decision that is certain to be reversed on appeal."

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