Current Faculty Headlines
Notable Faculty Quotes, November and December 2014
Kenneth Abraham was quoted in two Nov. 17 NerdWallet articles on the use of credit information in insurance policies. In one article, about who benefits from credit based scoring, he noted the possibility of error by credit reporting agencies. “Credit . . . is not as much in one’s control as how many auto accidents you have, and sometimes credit scores are wrong and sloppily prepared, and therefore unreliable,” he said. In the other, about the links between credit rating and insurance risk, he discussed a theory “that the tendency to be a risk taker leads to having poorer credit than those who don’t take risks – just as the tendency to be a risk taker may lead to having more accidents, or more of a whole series of losses that might be the subject of insurance.”
Jonathan Ashley was quoted in a Nov. 19 Courthouse News Service article about the U.S. Department of Justice’s refusal to release the details of deals struck between federal prosecutors and alleged corporate wrongdoers. “Courts have been skeptical of both non prosecution agreements [NPAs] and deferred prosecution agreements,” he said, “and there is increasing concern that NPAs provide a run around the judicial process since courts have little say in whether a prosecutor can bring charges or not.”
Richard Bonnie was quoted in a Dec. 14 Charlottesville Daily Progress article about a study he co-authored finding that young adults need more help transitioning into full adulthood. He said that policymakers should consider extending the age children can stay in the foster care system or continue receiving mandated support from parents. “The path to financial independence has certainly become more challenging,” he said, particularly for young adults “aging out” of the foster care system. “It’s unfortunate – but I think no surprise – that the impact of these changes on people’s trajectories in life really does diverge according to whether they begin that journey with advantage or not,” he said.
Jonathan Cannon noted in a Nov. 12 Newsweek article that the agreement between the U.S. and China to mutually shrink their greenhouse gas emissions will deprive chronically hesitant nations of a central excuse for their inaction on climate change. “It makes it much more difficult for other countries not to participate” in upcoming climate negotiations, he said. “Before, other countries could say that the two biggest emitters aren’t stepping up to the plate. Now, it appears they are.”
George Cohen was quoted in a Nov. 4 Allentown Morning Call article about whether thousands of emails from Pennsylvania Supreme Court justices to the state attorney general’s office were a serious breach of judicial ethics. “It would be surprising if all of those were simply administrative matters,” he said, suggesting that the messages should be the subject of an independent review.
Anne Coughlin discussed the history of rape law on a Nov. 21 NPR program. “Up until very, very recently, there was no crime. [People assume that] if the woman is drunk ... she’s consenting, she wasn’t raped,” she said. “That’s not victim blaming — that’s saying you weren’t even a victim.” In a December 17 WVTF story about a former Washington & Lee student who said he was expelled for having consensual sex with another student who later regretted the encounter and called it rape, Coughlin said such thinking is not reflected in state law. “The fact that a person wakes up in the morning and believes that they made a bad decision – I don’t know of any code that punishes that,” she said. “We punish non-consensual sex only when the perpetrator procures that sex through the use of force, threat or violence.”
Brandon Garrett wrote a Nov. 11 New York Times commentary about how prosecutors compromise with corporations. “With the same megabanks that have been prosecuted in recent years now being investigated for new crimes, doubts have been raised about the ability of prosecutors to clean up the largest corporate criminals,” he wrote. “Unless reform is taken seriously, crime will remain a line-item cost of doing business, and corporations will remain hardened repeat offenders.” On a Nov.18 NPR program, Garrett discussed the importance that a person presenting a lineup to an eyewitness not be able to convey the answer. “What the researchers have found is that people are really powerful nonverbal communicators, even through gestures or just the tone of their voice,” he said. Garrett discussed the problems of defendants with intellectual disabilities in a Dec. 10 Daily Beast article. “Very few agencies offer police any specific guidance or training on how to question people with ID,” he said. “When it’s clear the person doesn’t understand, it’s a red flag to get an advocate, get an attorney, help them understand they need an attorney. Unfortunately, some officers don’t think of that as part of their job.”
Rachel Harmon was quoted in a Nov. 1 Washington Post article about the likelihood of federal civil rights charges against police officers who kill unarmed citizens. “There is an extra burden in federal civil rights cases because the statute requires that the defendant acted ‘willfully,’ she said. “It is not enough to prove that he used too much force. You have to prove beyond a reasonable doubt that he did so willfully.” She explained this further in a Dec. 5 commentary for the New York Daily News. “Proving ‘willfulness’ is often the biggest obstacle to federal prosecution,” she wrote. “If an officer genuinely believed the force he used was necessary, he is not guilty of a federal crime, even if he was wrong.” She went on to argue that “avoidable deaths suggest the need for new policies and better training, and department policy violations justify discipline. Citizens should always demand as much. A decision not to charge anyone does not mean nothing went wrong.”
John Harrison was quoted in a Dec. 21 Pittsburgh Post Gazette article about state attorneys general declining to enforce laws they deem unconstitutional. “It’s probably true that the judgments that executive enforcement officers make about constitutionality of statutes they’re called on to enforce are somewhat influenced by their policy views,” he said.
In a Nov. 14 U.S. News & World Report article about the National Security Agency’s dragnet collection of U.S. phone records, Douglas Laycock said that legislation ending the program would almost certainly kill lawsuits claiming it was illegal. “The plaintiffs may try to keep the cases alive by arguing that the statute doesn’t do the job, or that the statute doesn’t reach some of what they say is unconstitutional,” he said. “It’s pretty inconceivable that the Supreme Court would hear one of these cases after a statute makes them moot.” In a Dec. 15 Michigan Radio story about a proposed state Religious Freedom Restoration Act that would let individuals or businesses seek exemptions to government regulations they feel substantially burden their sincerely held religious beliefs, Laycock said that similar laws in other states “certainly have not been interpreted in crazy ways that produce the kinds of problems that we’re now hearing about from opponents of the bill.”
David Martin was quoted in a Nov.18 Washington Post article about President Obama’s unilateral action to halt deportations of millions of illegal immigrants. “For Democrats, it’s a dangerous precedent,” he said. “You’re opening the possibility for a Republican president to say, I’m not going to go forward with enforcement in a number of areas.” In a Nov. 19 Los Angeles Times story on the topic, Martin said that a policy that shields large groups of immigrants “starts to sound like lawmaking. It would skate to the very edge of the president’s discretion if he were to exempt a very large group from enforcement.” In a Nov. 25 PolitiFact article, Martin supported claims that illegal border crossings are at the lowest point since the 1970s. “A great deal more of the border is under tighter surveillance and control, owing to a far larger Border Patrol, changed control strategies, and deployment of all sorts of technology,” he said, noting as well that enforcement isn’t the only factor in the number of apprehensions each year. “Sometimes economic factors, such as the Great Recession of 2009, may play a large role in a decline in apprehensions.”
Margaret Riley was quoted in a Dec. 2 PolitiFact article about whether a loophole in the Obamacare law gave businesses an incentive to hire illegal immigrants to avoid employer mandate fines. “The trigger for the employer mandate is that at least one of their full time workers obtains a marketplace subsidy, so the only way an employer could be sure would be to only hire permitted illegal immigrants,” she said. “That seems pretty unlikely.” In a Dec.5 FactCheck.org article on the same topic, Riley said the gyrations that a company would have to go through to take advantage of the loophole might expose it to scrutiny. “I doubt that newly permitted illegal immigrants are necessarily better employment candidates than citizens,” she said. “So a course of conduct of hiring the former to the exclusion of that latter would certainly raise questions.”
Frederick Schauer was quoted in a Nov. 18 Businessweek article about whether the transportation company Uber could deactivate the accounts of reporters who criticize it. “The First Amendment restricts government and not private entities, and thus private entities are allowed to discriminate on the basis of speech in ways that government may not,” he said. The 1964 Civil Rights Act . . . doesn’t ban discriminating against customers based on their opinion of said company—which is why restaurants are within their rights to kick out food critics who write nasty reviews.”
Gil Siegal was quoted in a Nov. 9 New York Times article about the duties of health care workers and others to minimize risk of transmission of infectious diseases. “I just flew from Washington, D.C., to Tel Aviv and had to take care of six sick passengers — three vomiting with fever,” he said. Whether whether assessing their own risk of getting sick or the risk of making someone else sick, he added, “people are not always rational actors.”
Benjamin Spencer was quoted in a Dec. 19 Inside Business article about the wait for a judge to issue a final order in a case in which the jury had awarded punitive damages. “I’m not familiar with there being any time limit on the judge,” he said. “I’ve seen cases where the judge kept the case under advisement for several months.” He speculated that the judge could have found that evidence was inappropriately admitted or that there was insufficient evidence to support the verdict. “If that’s the case, the judge could set aside the verdict and order a new trial,” he said.
Robert Turner and his son wrote a Dec. 29 Richmond Times-Dispatch commentary suggesting that the University of Virginia apologize for rushing to judgment after the Rolling Stone article appeared in November and suspending all fraternal organizations and associated social activities. “Did U.Va. learn nothing from the 2006 Duke lacrosse team scandal, where – reportedly under strong pressure from prejudiced faculty members anxious to make an example of ‘privileged’ athletes – on the sole basis of an allegation of rape, the lacrosse coach was fired and the team’s schedule for the rest of the season canceled?,” the Turners wrote. “More fundamentally, what message did Sullivan send about basic fairness and the due process of law? . . . It is precisely when the alleged crime is so heinous, and the accused unpopular with those in authority, that we must guard against emotion-driven efforts to bypass fundamental due process.”
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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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