News Around the Law Grounds
The Center for Children, Families and the Law Conference:
"Arranging Marriage: A Place for Policy?"
Marriage is a private union that has become a political issue. Should we bring back no-fault divorce? Punish non-marital childbearing? Discourage cohabitation? Promote family values? But whose values should be promoted? And whose model of marriage? What about diversity in religion, gender roles, and ethnic traditions? What about marriage for gays and lesbians? These are some of the questions being raised in our polarized debates about marriage.
The Center for Children, Families, and the Law held a conference addressing these and related issues at the Law School on November 16 and 17. Primary presenters included Norval Glenn, a sociologist from the University of Texas, speaking on "The Importance of Marriage;" Paul Amato, a psychologist Penn State University, speaking on "Good Enough Marriages for Children;" Milton Regan, a law professor from Georgetown, speaking on "Law, Marriage, and Intimate Commitment;" Martha Fineman, a law professor from Cornell, speaking on "Why Marriage?" and Michael Wald, a law professor from Stanford, speaking on "How Should Same Sex Partnerships be Recognized?"
University of Virginia faculty from the law school, psychology, and sociology commented on the various talks. A panel presentation also reviewed recent developments to promote marriage, such as covenant marriage. The conference was attended by about 100 participants including not only students and faculty but professionals and policy makers from within Virginia and beyond.
Explorations in Black Leadership: Elaine Jones
Elaine Jones, the President and Director-Counsel of the NAACP Legal Defense and Education Fund spoke in the Law School to a large audience composed of both university students and Charlottesville residents on November 1. Her topic was “Living a Life of Challenge.” She described her life as one that “celebrates the struggle” for civil rights for all Americans without regard to race, gender, age or ethnicity. She related recent experiences with several quite different cases to a rapt audience. She spoke also to LDF’s vigilance in fulfilling its mission and its readiness to pursue resolution in legislative, executive or administrative settings as well as in the nation’s courts. She concluded her remarks by noting again the absolute importance of a well developed set of skills to her conviction that she “can make a difference.” After she had concluded her remarks, she was interviewed by NAACP Chairman and University History Lecturer Julian Bond and Patricia Werhane, the Darden School’s Ruffin Professor of Business Ethics.
Ms. Jones, who is widely considered the nation’s top civil right attorney, graduated from the law school in 1970 becoming the first African-American woman to do so. She is also the first woman to head LDF. Her presentation was the second in a series of events sponsored under the auspices of the University’s Institute for Public History and The Darden Graduate School of Business Administration. The Institute’s program, “Explorations in Black Leadership,” seeks to document the significance and accomplishments of African-American leaders of the 2nd half of the 20th century.
Phillip Johnson Lecture: “The Kansas Evolution Controversy: Which Side is Violating the First Amendment?”
On November 1, Phillip Johnson, the Jefferson E. Peyser Professor of Law, Emeritus at the University of California at Berkeley, spoke to the Law School community on the topic of “The Kansas Evolution Controversy: Which Side is Violating the First Amendment?”
Professor Johnson discussed the public controversy over changes made by the Kansas Board of Education in the secondary school science curriculum. The media reported these changes as prohibiting the teaching of evolution. Johnson argued that, in reality, the changes decreased only slightly the quantum of instruction dedicated to the theory of evolution. However, they did require teachers to point out that evidence of micro-evolution -- changes within species -- does not necessarily support a theory of macro-evolution, the evolution of one species into another. Johnson charged that the “scientific elite” are so philosophically committed to a purely materialist explanation of the origins of life that they have ignored the flaws in the reigning theory of evolution. He argued that hiding the scientific debate from students is dishonest to the extent that it suggests there is a scientifically-proven, materialist explanation for the origins of life, when, in fact that explanation is largely dependent on its philosophical (atheistic) presuppositions. To the extent that the theory of evolution depends not on science but on a prior commitment to a materialist explanation, it is an “establishment” of atheism, within the meaning of the First Amendment. The cure, according to Johnson, is not to teach theistic or religious explanations of the origins of life but simply to be honest with students about the limitations of the materialist explanation.
Saving Nature Conference
The Law School's Center for Environmental Studies brought together leading scholars, environmentalists and other practitioners for a conference on Saving Nature: Theories, Tools and Strategies in Environmental Conservation. Co-sponsors of the event included the Southern Environmental Law Center, the Virginia Environmental Law Journal, the Environmental Law Forum, and the Institute for Practical Ethics.
The Conference came at a time of increasing public enthusiasm for conservation programs -- evidenced by the recent passage of a landmark federal appropriations bill for parkland and open space acquisition and by regulatory and spending initiatives at the state and local levels. Topics ranged from the relative merits of policy tools for conservation (regulation, public ownership, conservation servitudes, and private markets) to the design of institutions adequate to protect complex natural systems. The format of the conference allowed for a productive (and often energetic) exchange between scholars and practitioners. The audience (which included local and state officials and citizen activists) actively engaged with the participants and contributed to the success of the conference.
Profiles from Practice: Janet Napolitano
Janet Napolitano, a 1983 UVA law graduate and currently Attorney General of Arizona, returned to the grounds in early October as part of the Law School's Profiles from Practice series. She met in several settings with small groups of faculty and students and also addressed Professor David Martin's Immigration Law class and Professor Earl Dudley's Criminal Investigation class.
During the Immigration session, which was open to the public, she spoke about the challenges of managing the Southwest border. Arizona began to face enormous new migration pressures in the mid-1990s, as the Border Patrol deployed more effective strategies in Texas and California, thereby diverting traffic to the sparsely populated border in her state. Napolitano, who was US Attorney for the District of Arizona from 1993 to 1997, explained the often overlooked logistical challenges involved in coping with that volume of people and battling increasingly sophisticated smuggling operations. The challenges include transporting those who are caught, providing food and shelter while they are processed, dealing with the medical problems, including infectious TB, that some bring with them, and funding increases in the capacity of the courts, prosecutor's offices, interpreter services, and defense counsel. New criminal enforcement approaches, including an innovative plea bargain strategy, also had to be developed. She closed by outlining the broader policy choices that the current border situation poses.
McCorkle Lecture: "What Do Workers Want? Human Behavior and the Law of Work"
Professor Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago, delivered the McCorkle Lecture at the Law School on September 25. Professor Sunstein is the eighth in the series of distinguished scholars from the humanities, law, economics, philosophy and history, who have delivered the lecture. Professor Sunstein, one of the nation’s foremost public law scholars, is also one of its most versatile, as he demonstrated with his lecture, “What Do Workers Want? Human Behavior and the Law of Work,” which drew on law, economics and behavioral psychology.
Sunstein examined at length how cognitive perceptions can affect bargaining between employees and employers and how this in turn can be used to select among different “default” rules allocating legal rights between the parties. He observed, for example, that the law traditionally has begun with a default rule that assigns to the employer presumptive control over all terms of employment and then allows employees to bargain for the package of terms they prefer, as by trading off salary for health care, or vice versa. However, studies have shown, he argued, that employees may not be rational or fully informed about certain kinds of choices. For instance, studies show that people often are unrealistically optimistic about themselves, and that they also tend to have short-term time horizons. Such biases may cause employees to favor monetary income over health care benefits. In such cases, it may be appropriate to remove the choice altogether from the bargain. In other cases it may be appropriate at least to reverse the default rule -- assigning certain rights presumptively to employees but allowing employers to bargain for the package of terms they prefer. By changing the starting point of the bargain, one may be able to overcome the tendency of individuals to accept status quo arrangements even when they should prefer change. Altering the default rule could also facilitate more informed choices by employees to the extent that it induces employers who have better information about employment terms to disclose that information to employees.
Sunstein conceded that these findings of human behavior do not necessarily translate into simple legal rules. At the same time he showed how the laws of human behavior can aid our understanding and help us improve the laws of work.
Forum on the Leadership Challenges in Civil Rights Law
Henry Marsh, a leading civil rights activist, spoke to an overflow crowd in the Law School's Caplin Auditorium about his experience in the aftermath of the civil rights movement. Marsh was interviewed by NAACP chairman and University history lecturer Julian Bond, and James Monroe Professor of Law Michael Klarman.
Marsh, the first black mayor of Richmond and now state senator, was a Virginia Union University student in 1954, the year the Supreme Court decided Brown v. Board of Education. He later attended Howard University Law School and then became a lawyer in Richmond. Marsh said massive resistance of whites against desegregating schools caused him to fight for a change and eventually go into politics. The courts would never bring about change fast enough for me, he said. I don't care how many court decisions are made, they must be backed by political appointments and elections.
The program was the beginning of a series on black leadership during the civil rights movement. Co-sponsored by the University's Institute for Public History and Darden Graduate School of Business, the series will bring prominent African-American leaders to Charlottesville during the 2000-2001 academic year to relate their experience and to discuss such questions related to the future of leadership among African-Americans.
Martha Nussbaum Discusses the Moral Limits of Cost-Benefit Analysis
Martha Nussbaum, Ernst Freund Professor of Law and Ethics at the University of Chicago and one of the country’s foremost scholars of Greek classical philosophy, addressed the Law School community on the moral limits of cost-benefit analysis. Drawing on diverse sources, from the Bhagavad Gita to Hegel to Sophocles to personal anecdotes, Nussbaum described the dilemma of making “tragic choices.” Such choices, she argued, involve moral claims that are not capable of being resolved by reference to cost-benefit analysis of the kind used to inform ordinary social decisions. Because tragic choices involving fundamental moral claims are not susceptible to the trade-offs made by ordinary cost-benefit analysis, it is essential, she argued, for the law to be sensitive to basic moral rights and seek to avoid situations where they will come into conflict.
Professor F.M. Scherer Delivers John M. Olin Distinguished Lecture in Law and Economics
On September 6 Professor F.M. Scherer, the Aetna Professor Emeritus at the John F. Kennedy School of Government, Harvard University, and one of the country's preeminent antitrust economists, delivered a lecture entitled “Antitrust in High-Technology Industries and the Microsoft Case”.
Professor Scherer argued that despite some unique aspects of the Microsoft antitrust trial recently won by the Justice Department, the case was not as novel as some have alleged. In fact, antitrust has long focused on high-tech industries, starting from its very beginnings and, according to Scherer, has achieved some very beneficial results for consumers. For example, the famous Standard Oil case, which resulted in the breakup of the Rockefeller monopoly, involved what was arguably the most dynamic, high-tech industry of the day. The head of one of Standard Oil’s divisions had invented a new “cracking process” for gasoline production but was rebuffed by central Standard Oil management in his attempts to get the process implemented. After the breakup, however, the inventor went on to head one of the new Standard Oil companies and implemented his process, which became a huge success.
Turning to the substantive issues in Microsoft Scherer explained that the basic problem faced by Microsoft was that the “old” paradigm of applications being loaded onto a PC operating system with a web browser as simply one more application might be replaced by a new paradigm of applications located on the Internet written in JAVA language accessed by an enhanced browser and a skeletal operating system loaded on the PC. To preclude such competition Microsoft engaged in various strategies, notably including: attempting to bribe Netscape to keep its web browser off Windows; bundling its own web browser (Internet Explorer) to Windows 95; integrating Internet Explorer into Windows 98; threatening PC manufacturers with termination of their Windows licenses if they did not make Internet Explorer the default browser; and attempting to bribe America Online to make Internet Explorer the default browser in return for prominent placement of the AOL icon in Windows. Scherer argued that, assuming Microsoft has monopoly power in a relevant market (questions he sidestepped), engaging in such conduct Windows made out a strong case of an antitrust violation.
Scherer concluded by contrasting the sharply different outcomes of the Microsoft case and the FTC case against Intel -- why Microsoft suffered such a large punishment while Intel escaped with largely a slap on the wrist for similar conduct. Scherer’s surmised that the FTC was more timid than the Justice Department, perhaps because of the fact that the FTC needs to get three commissioners to agree on a course of action whereas Justice Department action required the decision of a single person. He also argued that Intel had a much stronger defense than Microsoft based on the superior quality and reliability of its product coupled with hundred-fold reductions in cost and price. He noted, too, that Intel had an effective antitrust compliance program, which resulted in squeaky clean internal files, in contrast to Microsoft which left behind many incriminating documents. Finally, Intel exhibited a professional and respectful, though adversarial, approach to the government regulators, while Microsoft took a much more hostile approach.
Ritter Scholarships Awarded
Elizabeth Amory, Sarah Anthony, Forrest Christian and John Henning have been awarded Ritter Scholarships for the year 2000. The prestigious Ritter Scholarships have been awarded each year since 1983 to four rising third-year students who exemplify the qualities of honor, character, and integrity envisioned by Mr. Jefferson when he founded the University.
Ritter Scholars are nominated and selected by members of the Law School community -- students, professors, administrators and alumni. The scholarship is in the form of a financial contribution toward third-year tuition payments.
The Ritter Scholars program was established by C. Willis Ritter, class of 1965 and senior partner of Ritter, Eichner, and Norris, a nationally recognized Washington, D.C. law firm that specializes in matters related to public finance.