Faculty in the News by Date | By Name

Notable Faculty Quotes, Sept.-Oct. 2007

In a Sept. 29 U.S. News & World Report article about parents being held criminally liable for their teens’ drinking parties, Richard Bonnie said that stricter parental liability can reverse society’s tacit acceptance of underage drinking. “We have to get adults to understand the ways in which they contribute to this problem,” he said. “We’re not going to change social norms among kids if we don’t change social norms among parents.” In an Oct. 4 Louisville Courier-Journal article about proposals that the FDA regulate tobacco, despite the opposition of the agency’s commissioner, Bonnie argued that “there is no other agency better suited” to regulate tobacco and that it “is time to change course” to decrease the annual death toll from smoking. In the Oct. 30 Richmond Times-Dispatch, Bonnie noted that an ABA study finding state death-penalty systems to be deeply flawed “reveals that there is still quite widespread concern about the fairness of capital-punishment adjudication and sentencing practices across the country.”

Tomiko Brown-Nagin was quoted in a Sept. 14 Daily Progress article about a UVA panel discussion she moderated honoring the late civil rights attorney Oliver W. Hill. She said that Hill was “one of the heroic lawyers who worked tirelessly to bring an end to Jim Crow,” adding that “all Americans who value equality are beneficiaries of lawyers like Mr. Hill.”

Jonathan Cannon was quoted in an Oct. 5 Greenwire story about the increasing number of environmental law cases on the Supreme Court docket, a trend that began during Chief Justice John  Roberts’s first full year. He pointed out that Justice Anthony Kennedy’s role as the key swing vote on the court may be good news for environmentalists or states challenging the federal government. “The court seems to be sensing and responding to environmental injuries as injuries with particular characteristics, particularly the concept of interconnectedness and systemic harm,” he said. “Kennedy seems to get that, and therefore his swing vote is significant in terms of creating a potential majority in recognizing that environmental paradigm.”

George Cohen was quoted in an Oct. 26 Newport News Daily Press article about the possible conflict of interest posed by the fact that the prosecutor handling local dog fighting charges against Michael Vick once represented Vick’s father. Because Vick was never a client of the prosecutor’s, Cohen said it sounded like there was no basis for disqualification. “In general, the only time you’d have a conflict based on a prior representation is if you’re taking action against a former client directly,” he said. “The only situation that I can see is that if the lawyer, in representing the father, had learned some confidential information that might be used or revealed in the course of prosecuting the son. That could be a conflict, because you still have a confidentiality duty to your former client.”

Anne Coughlin was quoted in several articles about the Michael Vick prosecution. In the Sept. 14 Newport News Daily Press, she said she was not surprised that defense attorneys did not object to filings submitted by animal-welfare groups. “The best thing may be to keep their mouths shut,” she said. “If they make a big stink about it, it’ll just reflect back on them. They’re not going to want to draw more attention to it.” In a Sept. 25 Daily Press article about Vick’s indictment on state charges, Coughlin said it was unusual for local prosecutors to proceed after a federal investigation had secured a guilty verdict. “Typically we can imagine the state being willing, or even happy to step aside,” she said. “Why spend state dollars punishing him for something he’s already been punished for?” In the Sept. 26 Washington Post, Coughlin queried whether a Virginia law barring federal and state prosecutions for “the same act” would prohibit a conviction on state charges. “The crucial question is whether the Virginia prosecution is for the same acts,” she said. “It’s going to depend on how a judge construes that phrase.” In the Oct. 3 Daily Press, Coughlin pointed out that Vick’s attorneys could file a motion to toss out the state charges. “I would not predict his first move would be to plead guilty, given that he probably has a plausible argument that the case should be dismissed,” she said.

Earl Dudley was quoted in a Sept. 21 Newport News Daily Press article about possible connections between Michael Vick’s dogfighting operation and dogs bred by a man found shot to death in rural North Carolina. He noted that if new charges did emerge for Vick, they weren’t likely to impact his plea agreement with federal prosecutors. “I can imagine circumstances in which the prosecutor would put a provision in there saying, ‘If you get in any more trouble, the deal is off,’ but that would be unlikely,” he said. “I’ve never seen one that did.”

Thomas Hafemeister was quoted in an Oct. 10 WVAC-TV story about the high percentage of mentally ill persons in Virginia jails. “We have dramatically changed our priorities in this country; it used to be that we provided institutional care for individuals with mental health illness, and those were non-criminal institutions,” he said. He noted that one of the problems is that “the mental health system has collapsed in many ways in recent years,” with fewer beds available than in decades past.

In a Sept. 23 Richmond Times-Dispatch article about conflicts between the Richmond City Council and mayor L. Douglas Wilder, A. E. Dick Howard said that Wilder has no inherent authority to refuse to carry out laws enacted by the council. “The mayor is not simply a civil servant,” he said, “but he’s not really a free agent, either.” Howard discussed the U.S. Supreme Court in an Oct. 1 BBC News story. “This is going to be a term that is especially closely watched because, by the time it concludes, we will be on the verge of an election,” he said. “I think we got a much clearer picture of what a Roberts court will be from the term that’s just ended. The court is nearer to having an authoritative conservative majority than at any time in decades.”  In an Oct. 2 Richmond Times-Dispatch article about free speech on college campuses, Howard said that “universities, of all places, ought to be open to robust debate on even the most sensitive questions” and added that “the answer to offensive speech is more speech.”

John Jeffries was quoted in a Sept. 13 Los Angeles Times article about the University of California, Irvine’s decision (later reversed) to rescind Erwin Chemerinsky’s contract to be the first dean of its new law school, on grounds that Chemerinsky was too liberal. “It seems late in the day to notice that Erwin Chemerinsky is a prominent liberal,” Jeffries said. “That’s been true for as long as I’ve known him. It’s rather like discovering that Wilt Chamberlain was tall. How could you not know?”

Michael Klarman was featured in an Oct. 16 C-Ville Weekly interview in which he discussed a range of matters including the current Supreme Court term. “It turns out this year, there are a bunch of cases where the liberals might actually win, because everything turns on Justice Kennedy,” he said. “They just took a highly politicized case involving . . . requiring photo IDs to vote. Democrats vote against them because they think there’s an effort to suppress minority and poor people’s voting. Republicans say it’s an effort to stem voter fraud.”  Klarman also argued that the Supreme Court’s Brown v. Board of Education decision temporarily slowed the progress of civil rights. “Brown actually in the short term made things worse in the South,” he said, “but by doing that, it ultimately accelerated civil rights because you had to bring out the worst in white supremacy and put it on display for the country before people were mobilized to do something about it.”

In a Sept. 6 Daily Deal article about the unclear measure of damages in cases brought by private equity shops seeking to enforce commitment letters by banks, Paul Mahoney said that a court would be unlikely to award specific performance, which would force a defendant bank to abide by its agreement. Rather, he said, a court would be more apt to award “expectation damages,” which could be either the difference between what the PE shop expected to pay for the target and its anticipated return on the investment or the difference between the cost of the debt that the defendant bank had agreed to issue and the cost of the debt the PE firm could find after the lender’s breach. “The case that would be most interesting is the one where the borrower says that he has canvassed every money center bank in the world and found no one who would lend him the money on any terms,” he said. “But even there, you could take the value between target price and target valuation.”

David Martin was quoted in an Oct. 27 Associated Press story about an activist’s bid to get the Supreme Court to stop the deportation of illegal immigrants with U.S.-born children. Children born in the U.S. are automatically citizens, even if their parents are illegal immigrants. They are allowed to stay if their parents are deported, but most return with their parents to a country and culture they’ve never known. Martin said that the odds against the case are great, noting that courts have typically ruled that there is nothing unconstitutional about a U.S. child being forced to live outside the country. “It’s up to the parents to figure out the custody case,” he said. “The child suffers no risk to his or her citizenship status.”

In a Sept. 1 Financial Times article about the greater accuracy of predictions made by computer programs than those by human experts, John Monahan discussed Virginia’s use of the Rapid Risk Assessment for Sexual Offender Recidivism to set commitment procedures in motion and noted that “Virginia’s sexually violent predator statute is the first law ever to specify, in black letter, the use of a named actuarial prediction instrument and an exact cut-off score on that instrument.”

In a Sept. 14 Daily Progress article about the panel celebrating the life of Oliver W. Hill, Robert O’Neil said that Hill’s life and career serve as a model for all young people interested in practicing law. “This was a person of patience, persistence, sensitivity and, above all, confidence and courage,” he said. In an Oct. 11 Associated Press article about a Regent University student in trouble for posting an unflattering photo of Pat Robertson on his Facebook page, O’Neil said that Regent probably had a legal right to discipline the student because private institutions are not constrained by the First Amendment. He added, however, that disciplinary action might not be in Regent’s best interests because most private universities “pride themselves on making a voluntary commitment” to free speech rights.

Glen Robinson was quoted in an Oct. 3 San Francisco Chronicle about a public broadcasting station’s decision not to air a fiftieth-anniversary reading of Allen Ginsberg’s “Howl,” due to fears that the Federal Communications Commission would find it indecent and impose fines. He disagreed with others who suggested that “Howl” would be a good test case for the scope of the FCC’s power to penalize stations for “fleeting expletives,” and suggested that it was best to wait for the resolution of other cases now in the courts. “Maybe the commission would look differently on it if we were talking about Shakespeare, but Ginsberg isn’t Shakespeare,” he said.

In an Oct. 17 Roanoke Times article about a possible class-action lawsuit by families of Virginia Tech shooting victims, George Rutherglen said he was skeptical about the prospects for a class-action lawsuit. “The Virginia Tech massacre unfortunately involved a lot of people, but not a lot compared to the typical products liability class-action case,” he said.

Christopher Sprigman was quoted in a Sept. 6 Washington Internet Daily article about a federal circuit court decision holding that extension of copyright protection must be subjected to First Amendment review. “The Internet makes copyright really important because everything you do on the Internet involves making a copy, not like in the old pre-Internet world,” he said. Now that copyright law seems to have been promoted to “royal status,” he added, “we need to think about its effects.” Sprigman was also quoted in several articles about legislative proposals to provide copyright protection for fashion designs. “The fashion industry’s ability to create trends is based on designers’ relative freedom to copy,” he said in the Sept. 12 Financial Times. “If the law prohibited fashion design copying, then the fashion industry would have a much harder time creating and responding to trends.” Sprigman summarized his argument succinctly in the Oct. 10 Los Angeles Times: “Growth and creativity in the fashion industry depend on copying. It’s the engine that drives the fashion cycle, and the bill would kill the engine.”

Robert Turner was quoted in several articles about congressional hearings on legislation that temporarily gives the Bush administration expanded authority to eavesdrop on international telephone calls and e-mails. A Sept. 5 Cox News Service article quoted his testimony that the president has the right to expand surveillance of enemies during a time of war. “Not all presidential decisions were intended by the Constitution to be ‘checked’ by Congress or the courts,” he said, nothing that at the core of presidential powers are diplomacy, the collection of foreign intelligence and the command of military forces. Turner commented in the Sept. 17 Baltimore Daily Record about a case involving a conflict between counterterrorism laws and freedom of the press. “I don’t see any logic in extending the First Amendment to permit journalists to violate the espionage laws,” he said, “and, indeed, if we did that, I would expect our adversaries to quickly equip their spies with press cards.” Turner wrote a commentary for the Oct. 24 Wall Street Journal about Judge Michael Mukasey’s confirmation hearings and surveillance law. “The real issue,” he wrote, “is not whether the president is ‘above the law,’ but rather which ‘law’ he must see ‘faithfully executed’ when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.”

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