UVA Law Takes on Fauxfield

Kelly Wu '27 
Staff Editor 

Photo Credit: Kelly Wu 


Grab your florals and best blazers because another Fauxfield has raced past! Held on Saturday, September 28, the Law School spent the day at Ellie’s Country Club, filled with colorful drinks and colorful-er outfits. Though most showed up in preppy pastels, a surprising lack of outlandish headwear undermined the theme just slightly. Nevertheless, the event saw lots of dancing, slightly out-of-pitch singing, and an overall good time!


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gcu2vn@virginia.edu

Environmental Law Forum Convenes "Supreme Court Round-Up"

Emily Becker '27 
Staff Editor 


Last Thursday, September 26, the Virginia Environmental Law Forum (“VELF”) convened students and faculty to discuss cutting-edge environmental questions. VELF Vice President Sarah Zube ’26 introduced the two panelists: Professors Cale Jaffe and Michael Livermore, both of whom are affiliated with the Law School’s Program in Law, Communities, and the Environment. The discussion touched on many hot-button issues, including the much-whispered-about Loper Bright, the lesser-known but highly influential National Environmental Policy Act, and the renaissance of superfund laws.

Professor Jaffe, who also runs the Law School’s Environmental Law Clinic, led off the discussion with Loper Bright. Loper Bright overturned the Chevron doctrine, which arose from a decades-old SCOTUS decision that had established a tradition of deference by the judiciary to federal agencies allowing agencies, not the courts, to interpret ambiguous statutes. To give the audience an idea of how powerful the Chevron doctrine was, and how controversial Loper Bright has been, Professor Jaffe invoked Justice Kagan’s dissent, where she lamented the majority’s judicial power grab: as Professor Jaffe put it, “she’s throwing down on this one.” Justice Kagan is far from alone in her concern over the magnitude of the decision. Professor Jaffe emphasized the fact that just about any environmental regulation could be in jeopardy under Loper Bright.

In light of the vast ambiguity, dramatic language, and potential for far-reaching implications of Loper Bright, it is easy to paint a very stark picture of what is already a highly politicized, complex area of government regulation. However, both professors suggested that the future may not be as grim as the anxious law students taking their first administrative law class may think. Professor Jaffe mentioned the Commerce Clause’s application in environmental cases, alluding to the fact that we may have become accustomed to a great deal of administrative power. Perhaps there will be some salutary effects of Loper Bright in this respect. Professor Livermore approached the issue from another angle by asking the question, what will happen, practically speaking, on the ground in courts? Will Loper Bright be applied as dramatically as one might expect? He asserted that one of two things will likely happen: the courts will decide to defer to the agency, or they will rely on ideological priors. Chevron allowed agency deference, and Professor Livermore contended that ideological priors were not absent pre-Loper Bright. There may not be as momentous a shift in interpretation of statutes as there could be. Courts may refrain from calling in experts and engaging in protracted proceedings to decide policy when they could, in fact, rule to defer to agencies.

Students concerned about the vulnerability of environmental statutes could perhaps then breathe a sigh of relief after hearing these more tempered views on Loper Bright. However, that would  have been premature, as there is another environmental statute in jeopardy irrespective of Loper Bright: the National Environmental Policy Act (“NEPA”). As Professor Jaffe explained, NEPA requires environmental agencies to produce environmental impact statements before undertaking major initiatives. SCOTUS has agreed to hear a case that challenges the scope of these impact statements on behalf of the Surface Transportation Board (“STB”). In assessing the impact of a new rail line designed to transport crude oil to refineries, the STB poses the question of whether their impact statement should consider the rail’s implications beyond its very narrow regulatory area. Professor Jaffe explained that if SCOTUS finds that the STB can disregard broader implications of its actions, the Court will effectively negate one of NEPA’s main historical functions, which has been to encourage agencies to consider the ramifications of their actions within the larger environmental framework.

Professor Livermore introduced a new topic to the discussion which should give big oil enthusiasts, conservationists, and everyone in between some food for thought about what environmental regulation and litigation will look like in the coming decades. While we may be accustomed to thinking about environmental regulation as a federal action, Professor Livermore drew attention to a new movement by state legislatures to enact what amounts to superfund laws with a twist. The Comprehensive Environmental Response, Compensation, and Liability Act, or the Federal Superfund Act, funded and created mechanisms for holding major polluters liable for their actions. Some states have or are considering enacting similar acts specifically focused on emissions. Vermont enacted the Climate Superfund Act earlier this year which, as Professor Livermore explained, allows the state to retroactively tax emitters who will mostly be big oil companies. A similar bill awaits the New York governor’s signature.

Professor Livermore anticipates three types of challenges to these statutes as they pass: due process as it relates to foreign entities, due process as it relates to retroactivity, and pre-emption by the Clean Air Act (“CAA”). The professor explained that he expects the due process challenges to be the weakest, as personal jurisdiction could very well still be established with foreign corporations, and the federal superfund act itself is retroactive, meaning that it is unlikely that a retroactivity due process challenge would be successful. What Professor Livermore did flag as a dispute to look out for, though, was pre-emption by the CAA. The CAA does not prevent states from implementing more stringent policies than its own, but it is potentially unresolved whether it would preempt states whose statutes implicate emitters’ out-of-state behavior. Professor Livermore predicts that the current Supreme Court majority would have to grapple with tension between two of its core ideals in consideration of this issue: federalism and skepticism of environmental protection. While Professor Livermore presented the counterargument to preemption that the state statutes are retroactive and the CAA is regulatory, meaning that there would not be a conflict, he acknowledged that this is a thorny enough issue, where the stakes are high enough, that he considers it worthwhile to flag.


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ejb6zt@virginia.edu

VLR Honors Judge and UVA Law Alumnus

Garrett Coleman '25 
Executive Editor 


In honor of his fortieth year on the bench, the Virginia Law Review published an online edition dedicated to Judge J. Harvie Wilkinson III ’72 of the United States Court of Appeals for the Fourth Circuit. Judge Wilkinson was appointed to the bench by President Reagan in 1984, after he had served in the U.S. Army, worked as an editor for a Virginia newspaper, taught at the Law School, and served as Deputy Assistant Attorney General.

The edition begins with a tribute from Professor John C. Jeffries ’73, who gave a sense of Judge Wilkinson as a law school professor. While teaching Miranda v. Arizona in Criminal Procedure, “Jay began to complain of the heat in the classroom and, to the growing consternation of the students, took off his jacket, then tie, then shirt, to reveal the “famous cases” tee shirt of Miranda, which encapsulated the Supreme Court’s advice for custodial interrogation: (1) call a lawyer; (2) STFU. The class roared.”[1]

Judge Wilkinson also seemed to be a natural for the judiciary. A former clerk of Judge Wilkinson and now colleague in the federal judiciary, Judge Daniel A. Bress for the Ninth Circuit had this to say: “What was immediately apparent to me when I began clerking for Judge Wilkinson was that this was a person who was most naturally at home in the medium of law.”[2] And in the same vein, he noted that Judge Wilkinson brought that knowledge and enthusiasm to every case that came before him, no matter how small.[3]

The special edition concludes in classic UVA Law fashion with an ode to civility. And Judge Wilkinson seems to have practiced that kindness well in his tenure. Another former clerk, Professor Allison Orr Larsen of William & Mary Law School, said that “Judge Wilkinson practices what he preaches” when it comes to collegiality.[4] According to Larsen, the Judge loves telling those in the legal field to “disagree agreeably.”[5] In her words, “To disagree agreeably, one must commit to creating a culture in which repeat players both act in good faith and give each other the benefit of the doubt.”[6] And Larsen saw this on full display in the many friendships Judge Wilkinson has with colleagues of other political or ideological dispositions, though this never meant that the Judge was forfeiting his own beliefs.

It is one of the many privileges of going to a law school like ours to celebrate fellow alumni who have reached the heights of a Judge Wilkinson.


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jxu6ad@virginia.edu

[1] John C. Jeffries, Jr., Jay Wilkinson as Teacher, 110 Va. L. Rev. Online 248, 248 (Sept. 2024).

[2] Daniel A. Bress, The Judge, 110 Va. L. Rev. Online 261, 262 (Sept. 2024).

[3] See id. at 266.

[4] Allison Orr Larsen, Learning to Disagree Agreeably, 110 Va. L. Rev. Online 283, 284 (Sept. 2024).

[5] Id.

[6] Id. at 285.

Real Deal: Government

Jason Vanger ‘27, Alicia Kaufmann ‘27, 
Staff Editors 


On Tuesday, September 24, the Public Service Center hosted the fifth and final installment of its Real Deal series, a program focused on hearing from current professionals in public service-related jobs. Last week’s panel was dedicated solely to government careers. While snacking on sandwiches and oatmeal raisin cookies, students heard from Robyn Bitner ’14, Yan Gao ’15, Cassondra “CJ” Murphy ’18, and Megan Watkins ’16. Full bios of the panelists, with more detailed descriptions of their positions, can be found on the Public Service Center website.[1] The panel was facilitated by Assistant Dean for Public Service Ryan Faulconer ’08, who posed questions about their positions and solicited advice for folks interested in pursuing a career in the government.

Faulconer opened with a positive, “What is the most rewarding aspect of your job?” Bitner, a trial attorney in the Special Litigation Section at the DOJ’s Civil Rights Division whose work involves investigating violations of children’s rights in juvenile justice systems, started the panel off strong, saying “to work on behalf of kids that have been written off.” Murphy, an Assistant Counsel with the U.S. Senate Office of the Legislative Counsel, spends her days helping Senators, committees, and their staff turn proposed policy into legislative text. She expressed that being a part of drafting important legislation is the most fulfilling to her. Gao, a General Attorney in the Mergers 1 Division of the Bureau of Competition within the FTC, compared his experience as a first-year attorney at the FTC to those at a Big Law firm. Rather than reviewing documents, at the FTC you are thrown into the deep end and quickly get first hand experience while being supported by higher-ups.

The panelists were then asked to speak on the most challenging aspects of their positions. Watkins, a deputy attorney in the Henrico County Attorney’s Office, leads the office’s School Law Practice group where she represents the Henrico County School Board and school administration. She explained that since she is so “embedded with her client,” she is always on call to hear concerns, so at times it feels like there is no privacy. “Even in the bathroom stall,” she joked (not jokingly at all), “people will keep talking to me.” Murphy followed, expressing that her schedule is “very client driven,” so it changes a lot based on Senate activities.

Faulconer then posed the age-old question, “How do you handle the government salaries?” The panelists were refreshingly honest and transparent in their responses to this question. While I will not publish their honesty, they admit that government salaries can be found online. All panelists acknowledged that while they may not drive luxury cars, they are able to live very comfortably. Murphy explained that government employers are much more transparent about pay and total benefit packages during the recruiting process than firms are. Bitner and Gao also advised to keep earning potential in mind when contemplating positions.

Asked about advice for current 1Ls, the speakers agreed that students should be open to trying new opportunities and should recognize that their long-term careers may be different from what they expect now. Bitner suggested that students avoid putting too much pressure on any one job to be “the job.” She encouraged them to take jobs because something about it excites them and not to be afraid to leave a job if necessary. Watkins recalled that she had received unexpected job offers from employers who had seen her performance. Students should “put your best foot forward in everything you do” because you never know who is watching, she said.

The panelists also gave more concrete examples of experiences that helped them get to where they are now. Most panelists had summer internships in government or other public interest paths. Gao highly recommended externships, crediting one with his career after graduation. “The bar for getting these great opportunities is so low” for students, he said, but gets higher for graduates, so they should take advantage of it now. Faulconer interjected to add that experiences that rule out a career can be just as useful as ones that open a path. Murphy also noted that the timeline for public service jobs is different from the private sector and told students not to panic if some of their friends have job offers before they do.

The panelists spoke about other aspects of government work. For example, Faulconer asked them to name agencies that they have heard are especially good to work for. Murphy said that the Congressional Research Service, which advises members of Congress on policy matters, would be a good choice for students interested in policy research. Gao said that he had a lot of respect for the Antitrust Division at the Department of Justice, which does similar work to the FTC. Bitner suggested that students might be interested in the Consumer Financial Protection Bureau or the Department of Education as both do work on student loans.

One audience member asked how politics impacts the panelists’ work. Most panelists saw the impact as relatively minor and enjoyed the nonpartisan nature of their careers. As Gao put it, “If I were not tuned in to the news, I couldn’t tell who’s in charge.” However, Watkins said that there is a chance that elections can change clients’ focus dramatically and suggested that students ask about the impact of politics in interviews. Bitner said that learning how to adapt messaging to different administrations is an important skill.

Students who are interested in government careers should look out for Federal Government Career Day on October 23.


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hcr9bm@virginia.edu 
nnk2gn@virginia.edu 

[1] https://www.law.virginia.edu/protected/public-service/real-deal-government.

OPP Dazzles with "Introduction to Employer Interactions:

Bradley Berlich '27 
Staff Editor 


This past Tuesday, September 24, the Office of Private Practice (“OPP”) hosted one of two sessions entitled “Introduction to Employer Interactions.” The session was intended to help law students, a group not always renowned for their social fluidity, gain exposure to normal, professional, basic, human interactions. One might think, given the attendees’ status as students at a good law school, they would possess enough social ability or tact to engage in networking, or “making work friends.” However, you would be wrong. The question is not one of quality, but quantity. The manners at hand are simple yet numerous. A violation of even a single one can put your networkee in a foul mood.

“Remember the attorney’s name,” was one helpful piece of advice given by an anonymized member of OPP, referred to here as “OPP 1,” and accompanied by OPPs 2, 3, and 4. According to OPP 1, one could scarcely believe the amount of grief referring to an attorney by the wrong name causes. All sorts of adverse reactions, like un-responded-to emails, scowling in the hallways, and a lack of return offer can result from this one simple error.

“Remember the attorney’s name” was followed by its close corollary, knowing your own name, an especially important step to the method of greeting that OPP 1 described as “the handshake.” The handshake is a deceptively simple tactic, whereupon meeting someone, you take their hand in yours and shake it. But the speed, timing, and strength with which you shake are crucial. Step one is to look at the other party and make sure that they would indeed like to participate in the shaking of hands. Follow their lead. If they extend their hand, grasp it. If they do not extend their hand, do not, in a manic fit suggesting some type of aneurysm-induced spasm or a simple lapse of judgment, reach forward and take their hand in yours.

Once it is established that the attorney intends to shake hands, the actual shake should be conducted with a firm grip, fingers “web to web,” with medium vicariousness, and a range of motion confined to one to one-and-a-half inches from the initial center of handshake mass. “Do you see this hand,” said OPP 1, holding up their left hand. “This hand never gets involved.” Attendees nodded solemnly. Some scribbled furiously in notepads. “None of this,” said OPP 1, reaching around to pat or hit OPP 2, with whom they were demonstrating the handshake, on the back. Then comes the tricky part: knowing and reciting your own name. This is “your line,” and it’s good practice to know it, and rehearse it ahead of time. In a mirror if you must.

The presentation then turned to the topic of food and drink. Unsurprisingly, it is unbecoming for young professionals to wander around ballrooms clutching two trays of hors d’oeuvres, limbs slathered in barbeque sauce. Rather food should be taken, eaten, and napkins and toothpicks disposed of quickly, preferably the whole arrangement being done out of sight of an attorney. As for the alcohol, many law firm events will feature guest appearances by a veritable jazz quartet of potent potables. But, cried OPP 1, as if Hatchet Granny upon her soap box, the prudent law student should stop imbibing at least one drink before it looks like they’ve drunk anything at all. Visible intoxication is terrible form. Invisible intoxication, however, a tradition as timeless and stately as the corner office pop-up bar, is totally fine.

Next, OPP addressed attire. Clothing, and appropriate clothing at that, is mandatory at all networking events. The ideal student should be dressed conservatively. Suits should be dark, either navy or gray. Blouses and jackets could be permitted a splash, perhaps no more than a speckle, of color. Socks, ties, and jewelry should be “normal,” and should not contain occult symbols, risqué jokes, or general novelty. Heels should err on the low end. But though you should be well dressed, you ought not be “richly” dressed. In fact, “the hungrier you look, the better,” said OPP 1. Hiring teams at Biglaw firms appear to want someone who looks like they need the job for the money and will work like it too. So, leave any custom tailoring in the closet. No comment on whether smearing soot on yourself like a Dickensian orphan will yield even greater results, but there’s only one way to find out.

And, if the worst should come to pass, counseled OPP 3, and you happen to commit some grievous error like spilling a glass of wine, your manner should be that of absolute unflappability; your face, an unmoving visage the likes of which ought to be chiseled into stone. Stop. Apologize. Offer to clean it up. And move on. The aura you project is of the utmost importance, especially when you want to encourage others to approach you, or for you yourself to get in the right headspace before entering a conversation circle. Even when standing idly by the table proffering the light lunch, your manner should convey: “I am ready for professional conversation.” OPP 1 demonstrated, dropping their hands to their side, and adopting a vacant-looking grin somewhere in between nitrous addict and recent lobotomite. OPP 1 did look extremely approachable. It was a grin that conveyed a level of familiarity and ease with the Clio dashboard and fluorescent lights. It was a grin of unconscious competence. It was a grin that said I belong.

This reporter found the “Introduction to Employer Interactions” genuinely helpful. An identical session will be held on Wednesday, November 6.


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jqr9gh@virginia.edu 

Federalist Society Hosts Fifth Circuit Judge Kurt D. Engelhardt

Bradley Berklich '27 
Staff Editor 


This past Thursday, September 19, Judge Kurt Englehardt of the U.S. Court of Appeals for the Fifth Circuit was given a warm reception when he spoke at a Federalist Society lunch event, delivering a prepared statement about the role the Anti-Federalists played in the founding of the United States before taking audience questions. He presented as a chipper, thoughtful man, and seemed very pleased to have the opportunity to speak to law students. Judge Engelhardt was appointed to the Fifth Circuit in 2018 by President Donald Trump, and he currently serves as one of seventeen active judges on the court. Prior to his appointment to the Fifth Circuit, Englehardt served as a judge on the U.S. District Court for the Eastern District of Louisiana.

Judge Kurt D. Engelhardt speaking with Ann Kreuscher ’25 
Photo Credit: UVA Federalist Society 

Englehardt began by speaking about the roles the Federalists and Anti-Federalists played in the ratification of the Constitution, and how the Anti-Federalists, though they are often overlooked in favor of the Federalists, made a great number of contributions to the Constitution and the founding ethos of the United States. Engelhardt reported that the “American Nationalist” Federalists—among them the authors of The Federalist Papers, Alexander Hamilton, James Madison, and John Jay—believed in a strong, centralized national government. This ran contrary to the views of the “American Radical” Anti-Federalists that a government could only serve the people if it was small and localized, a mechanism aimed to bolster the rights of individuals and reduce the risk of tyranny.

Engelhardt at one point quoted Patrick Henry, an Anti-Federalist, whose sentiment was emblematic of the dispute: “What right had [the signers of the Declaration of Independence] to say, ‘We, the people . . .’ instead of ‘We, the states?’” Where the Federalists wanted a strong, centralized state (“rejecting a monarchy for a republic”), the Anti-Federalist vision was closer to the initial Articles of Confederation, where the powers were vested in the states, with a weak central government. Ultimately, their vision was not realized, but, as Engelhardt pointed out, the entire Bill of Rights is an Anti-Federalist invention, added to the Constitution post-hoc as a way for the Federalists to placate the opposition and secure the votes necessary for ratification.

As far as many members of the public are concerned, the Anti-Federalists have largely been relegated to the wastepaper basket of history or confined to high school American history class. “We forget the Anti-Federalists,” said Engelhardt, “because they lost the ratification battle. But they won when it came to the application of the Constitution.” Despite this, Engelhardt said that the Ninth and Tenth Amendments, designed to protect non-enumerated rights and to reserve all powers not explicitly assigned to the federal government to the states or the people, respectively, are “plow[ed] over” by the expansive interpretation of Congress’ regulatory power.

Concluding his speech, Engelhardt invoked the Anti-Federalists’ conviction to individual liberties to call upon attendees to “resist cancel culture . . . [which is] designed to suffocate free people until they forgo the joy of persuasion.” Engelhardt encouraged the listeners to speak “freely” and “truthfully” about their feelings on issues such as American exceptionalism, human rights violations in China, and the character and value of the founding fathers, whom he described as “deeply flawed men, but historic visionaries.”

At the end of his prepared remarks, Engelhardt took questions in a discussion chaired by Federalist Society President Ann Kreuscher ’25. One question was about the Fifth Circuit’s recent Supreme Court track record. In the 2023–2024 Supreme Court term, the Court reversed or vacated seven of the ten cases that it took from the Fifth Circuit. This arguably falls just short of the record for the most negative treatment ever received by a Circuit Court in a single term, a number set by the Fifth Circuit just last year, when only one of their nine judgements was substantively affirmed.

Engelhardt remarked that he obviously would have preferred different outcomes, but that he was not overly bothered by the results. To him, it was most frustrating when the Court rejected cases on grounds of standing, mired in the question of “how much does your ox have to be gored [to have a stake in the matter],” and did not reach a discussion on the merits of the arguments. He also commented that the amount of negative treatment the Fifth Circuit received had a lot to do with the circuit splits that the Fifth Circuit often generates, prompting certiorari to be granted. “Scalia said he can live with a few bad decisions, but not with a circuit split,” quipped Engelhardt. “Circuit splits are tough cases. Texas tests the government’s authority every chance they get . . . We don’t invent these cases. They come to us, and we rule on them.”

Still, the wins the Fifth Circuit did get last term were big wins. Self-described modern-day Anti-Federalists should be beaming, especially after the Court affirmed the Fifth Circuit’s decision in Security and Exchange Commission v. Jarkesy, where they ruled that defendants are entitled to trial by jury under the Seventh Amendment when the SEC seeks civil penalties for securities fraud. Trial by jury in civil cases, Engelhardt pointed out, was such a large deal to the Anti-Federalists that they very nearly did not ratify the Constitution in Pennsylvania because of its absence from the document.

The ruling removes the ability of federal administrative agencies to dish out monetary penalties in-house, and it makes a big difference. According to a 2015 Wall Street Journal article, “SEC Wins with In-House Judges,” when the SEC tried cases before an administrative law judge, they won 90 percent of the time.[1] When in federal court, that number dropped to 69 percent. The illusory nature of the Fifth Circuit K/D ratio might explain why Engelhardt is so relaxed. With Supreme Court rulings coming one after the other that curtail what he calls “gain of function regulatory bureaucracies,” it’s clearly a good time to be an Anti-Federalist.

However, when asked, Engelhardt was staunchly against the concept of judges as policymakers. Speaking negatively, he said “[people] are constantly bringing policy issues to the court. [If they] can’t convince enough people to enact the law, then [they]’ll just create a law with a judicial opinion.” For Engelhardt, “policy choices . . . [don’t] impact the fundamental principles. [They don’t] impact what we do constitutionally.”

Judge Engelhardt stayed after the Q&A ended and took time to talk with students, giving them an opportunity to meet him personally, hear more about his reading list for clerks (which includes Anti-Federalist thinkers, Loper Bright, and Scalia’s dissent in Morrison v. Olsen), and gave them a chance to examine his necktie, which bore the text of the Constitution in diagonal stripe.


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jqr9gh@virginia.edu 

[1] Jean Eaglesham, SEC Wins With In-House Judges, Wall Street Journal (May 6, 2015 10:30 p.m.), https://www.wsj.com/articles/sec-wins-with-in-house-judges-1430965803?msockid=27a5e5ba31216dc8003df16f30366c7b.

Sound Justice Lab Hosts Panel on Banned Books

Noah Coco '26 
Managing Editor 


From September 19th through the 20th, the University of Virginia’s Sound Justice Lab hosted a conference titled “Technologies of Silence.” The two-day multidisciplinary conference featured panels of speakers and performances by artists exploring the legal technologies and tactics used to silence stories, individuals, and groups.

On Thursday, September 19, the conference convened a panel at the Law School titled “Banned Books, Tabooed Art, Unspeakable Subjects.” The panel featured moderator Amy Woolard ’08, Breanna Diaz, Andrea Dennis, Mame-Fatou Niang, and Paul Halliday.

The unifying theme of the speakers’ remarks was the socio-legal mechanisms through which dominant cultures have suppressed, erased, or weaponized information, experiences, and creative expression of marginalized communities—particularly people of color and the LGBTQ community.

Sound Justice Lab Co-Director, Professor Anne Coughlin, briefly introduced the panel and offered a tribute to the late Professor Frederick Schauer, who was originally scheduled to participate in the discussion. Following Professor Coughlin’s remarks, Woolard, Chief Program Officer at the ACLU of Virginia, spoke to frame the discussion.

She articulated the process by which ideals adopted by the dominant culture inform societal norms and taboos. Through the inherent power embodied by such a position, these norms manifest through laws that govern society. The active suppression of information and experiences by such socio-legal mechanisms as book bans, therefore, “don’t happen in a vacuum, and they leave wake,” commented Woolard. Rather, she described the use of such socio-legal tools as part of a designed and coordinated attempt to “block out information and experiences” and “paralyze and chill stewards of that information and those experiences.”

Book bans, said Diaz, Policy and Legislative Counsel at the ACLU of Virginia, make up the “sad majority” of her work. She proceeded to describe the nationwide “coordinated attack” on school curriculums and community and school libraries. Although cloaked in a nominal effort to protect students and the public from harmful rhetoric—sexually explicit content, obscenity, pornography, etc.—in practice, these efforts primarily target books about, and authored by, people of color and LGBTQ people. Rather than the putative goal of protecting the public from the dissemination of harmful rhetoric, the real goal motivating these efforts, Diaz alleged, is to “erase [their] historical contributions and experiences from classrooms and the public generally.”

On the ground, this “coordinated attack” has materialized through efforts to regulate school policies around the selection and removal of materials, pro-book ban and classroom censorship campaigns, and efforts to remove school and public library staff or board members. Most of these efforts are concentrated in five states: Texas, Florida, Missouri, Utah, and Pennsylvania.

Virginia, too, has been the site of active campaigns to censor content. In 2022, for example, Governor Glenn Youngkin’s Executive Order Number One banned instruction in “inherently divisive concepts,” which includes critical race theory. That same year, SB 656 was signed into law, requiring the Virginia Department of Education to develop, and local school boards to adopt, model policies ensuring parental notification of curricula including sexually explicit content and allowances for parents to opt out of instruction of such materials to their children. Diaz noted, however, that parents in Virginia always had similar opt-out rights. Instead, she explained, this bill intentionally targeted specific content from racial and LGBTQ communities and has already been used as a premise for the removal of books from school libraries.

Halliday, Professor of History at the University of Virginia, spoke about various manifestations of book bans and book burnings throughout the history of the British Empire. He began with the burnings ordered by King Henry IV of the philosopher John Wycliffe’s books at the turn of the fifteenth century for their allegedly heretical doctrines of Catholic theology. Halliday proceeded to the 1634 order to burn William Prynne’s Histriomatrix—a screed against the immorality of contemporary theater viewed, in part, to directly implicate the Queen—in front of Prynne in a public setting. In both of these accounts, Halliday noted, divine authority was asserted, in part, as justification to burn the books.

Halliday also noted, however, that this precursor to the book ban, as well as the modern form of the book ban itself, bestowed no inherent authority upon the suppressors. Instead, the authors’ ideas persisted through dissemination by the original audience and readers of the proscribed content. Despite the heavy hand of authority, the survival of these ideas depended on the traction they gained among contemporary audiences and the democratic process of dissemination among the public. It is “not the ideas that were burned,” said Halliday, only their physical publications.[1]

Dennis, Associate Dean for Academic Affairs at the University of Georgia School of Law, examined an analogous socio-legal mechanism in her remarks: the use and misuse of rap music in criminal procedures. She traced this history back to the antebellum slave code prohibitions on reading, writing, and drumming; the use of the criminal process in the 1930s to harass and investigate jazz musicians who expressed social critiques through their music; all the way to the targeting of black artists and civil rights activists under the guise of the FBI’s COINTELPRO program in the 1960s.

The suppression of black creative voices has manifested in recent decades, in part, through the criminal prosecution of rap artists for the communication of threats through their lyrics. “Creative expression has become a means and instrumentality of crime” under the law, said Dennis. Compounding these efforts at suppression is the continued silencing of incarcerated artists, and the delicate strategic decision of whether to testify during trial. “We are not hearing from those held behind bars,” said Dennis, and the hesitation to testify in one’s own defense deprives those same artists of the “opportunity to defend their art and provide an explanation for their creative process.” Posed with the question of whether the use of rap lyrics should be banned from the criminal legal process, Dennis expressed ambivalence. “Should we be proposing silence as a solution to the problem?”

Niang, Director of the Center for Black European Studies and the Atlantic at Carnegie Mellon University and Artist-in-Residence at the Ateliers Médicis in Paris, began her remarks with a provocative statement: “I am an unspeakable subject as a French black person.” By that statement, she meant that the story of slavery and black people in France has been erased from France’s history and culture. Race has been formally removed from official documents; there is no word for “blackness” in the French language; and French history is taught in schools without any reference to slavery beyond that which had happened in the United States.

What is most striking about this omission, for Niang, is the unifying role of history as “the backbone of French national identity.” “Nothing explains how I got here,” she said. The lack of language and vocabulary to talk about the black French experience suppresses this identity and personal expression. The twin tools of history and language cohere to erase these stories from the public consciousness. Artists like Niang are working to fill this void with creative projects to give voice to these stories and identities, including her most recent work, “Sounds of Silence,” a “sound tapestry” to preserve and promote the lived experiences of one particular community in France.


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ebj6gs@virginia.edu

[1] Much credit is owed to Julia Sabek ’26 for graciously taking notes during Professor Halliday’s discussion because I had to leave early.

The Real Deal: Legal Aid & Nonprofit

Joshua Jolly '27 
Staff Editor 


The Public Service Center recently put on their third installment of the “Real Deal” series, where they bring in speakers from different segments of public interest law to share their journey. This week’s edition showcased four alumni working in the Legal Aid and Nonprofit sphere.

Ruby Cherian ’23 is an attorney with the Charlottesville based Legal Aid Justice Center (LAJC) in the Civil Rights and Racial Justice branch. She shared her experience recently joining the organization after working with them during her time in law school.  Cherian emphasized how gratifying it is to do work that impacts the local community in a way that is tangible and visible. Cherian expressed how one-on-one interaction with community members and finding out what their priorities and concerns are are the most rewarding parts of her work. Among her many endorsements of the LAJC is the variety that each day brings with it. One day you may be lobbying members of the Virginia General Assembly, and the next you’re working on media strategy for the Center’s projects.

Megan Keenan ’18 is a staff attorney for the ACLU Voting Rights Project. She joined the ACLU after two clerkships and working as an associate at Covington & Burling LLP. Keenan shared that the scope of her work being voting rights, the substance varies widely based on what point in the election cycle the country is in. With an election upcoming in the next few months, day-to-day activities with the Project involve a lot of fielding questions from voters who feel they have been adversely impacted in some way, and helping in decision-making for on-the-ground strategies relating to voting rights.  Keenan talked about how now, being more than five years out of law school, she is getting to a point in her career where she is starting to feel more like an expert in some areas, emphasizing how rewarding it is to be confident in the work you’re doing, despite it still being very challenging. As the ACLU Voting Rights Project is primarily focused on impact litigation, Keenan said she had expected a bit more of an arms-length relationship with clients, though she was pleasantly surprised. She found that even with the impact litigation model, she has found ample opportunities to work with people on the ground and to find ways to bring their considerations to bear in her work.

Sujaya Rajguru ’22 is a staff attorney at the Pennsylvania based Women’s Law Project. She praised the experience of working with the Project for a combination of the personal quality of life she can have and the consistent victories she is able to win on behalf of clients who would otherwise be lacking legal representation, or even brief legal advice. Rajguru shared an anecdote which stood out to her, in which a client reached out with concerns over lactation discrimination, where her employer was not giving her adequate time to breastfeed. She said she was able to instruct the client as to the relevant laws in the client’s area, and upon sharing an obligation of breastfeeding time with the employer, the client was granted adequate time. This was just one example, but one which Rajguru says is representative of working with the Women’s Law Project.

Kolleen Gladden-Sorensen ’21 is a staff attorney at Restoration Immigration Legal Aid. She recently transitioned to this position after doing public interest housing work. Giving an overview of her week-to-week experience, Gladden-Sorensen said that she is primarily working with defensive asylum cases. She described these as cases in which an individual is before an immigration court facing deportation, as opposed to what she called affirmative asylum cases where an individual initiates the process by seeking asylum. She contrasted this position with from her old housing work in terms of the responsibilities from day to day. Previously, she would handle many cases at a time, with daily juggling of different clients but now she is working on a much more flexible schedule with a more manageable client load.

The thing on much of the room’s mind seemed to be the viability of working in public interest for those anticipating a considerable amount of student debt . The panelists, all recent graduates of UVA Law, were transparent with their experiences but all framed a similar message: It’s doable if you do it right. Primarily, “doing it right” seemed to mean being aware of the cost of living. Rajguru and Gladden-Sorensen talked about their experiences with high cost of living cities, and encouraged people to think about this when considering both what position and what geographic area they want to enter practice in. Keenan, on a positive note, explained how national public interest organizations have higher starting salaries than people are generally anticipating. She explained that in her experience, it did not need to be a choice between financial stability and working in the field she wanted to.


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ebj6gs@virginia.edu 

How Two UVA Law Professors Think About Living Constitutionalism

Andrew Allard '25 
Editor-in-Chief 


Last Wednesday, September 11, Professors Sarah Shalf ’94 and Rachel Bayefsky, hosted by the American Constitution Society at UVA Law, led a discussion on living constitutionalism. Professor Shalf, the Law School’s Director of Clinical Programs, began by offering a “practical perspective” on living constitutionalism.

Professor Shalf explained that living constitutionalism is difficult to define because academics, jurists, and politicians have developed different versions of living constitutionalism. “You end up with a lot of different versions of . . . what living constitutionalism is. And there are also different flavors among different justices, different judges, different academics in terms of how they flesh out what the theory is,” said Shalf. “It actually describes a number of different theories.”

Professor Rachel Bayefsky (left) and Professor Sarah Shalf (right). 

Shalf also responded to how Professor Solum described originalism and living constitutionalism at a Federalist Society event last week. “Professor Solum would say that living constitutionalism rejects [that] the meaning the Constitution is fixed when it was ratified or it rejects that that should be binding on us. . . . Depending on what flavor of originalism and what flavor of living constitutionalism you’re comparing, they might actually have some overlap,” Shalf explained. “I’m not sure that in reality what people think originalism is and what people think living constitutionalism is are always necessarily mutually exclusive.”

Shalf continued by explaining the constraints on living constitutionalist interpretation. “You’re not just sort of making things up as you go along, but you’re looking to the Constitution trying to discern what the underlying constitutional value is. Then you’re applying those values and provisions to the modern context, in a way that reflects the diverse America that didn’t get to participate in writing the Constitution.”

This approach, Shalf explained, has defined Eighth Amendment jurisprudence since the 1950s, when the Supreme Court adopted the “evolving standards of decency” framework in Trop v Dulles.[1] “An originalist might say . . . we’re going to look at all kinds of historical evidence to see what in 1789 was considered cruel and unusual punishment,” Shalf said. But the Warren Court, which was more sympathetic to living constitutionalism, chose a different path, looking to changes in culture and legal practice among the states and globally.

The Supreme Court’s more expansive rights jurisprudence reached a high point in Roe v. Wade, an early decision of the Burger Court. But the prevalence of living constitutionalism that defined mid-twentieth-century jurisprudence ultimately resulted in a conservative backlash, Shalf explained. “There was a reaction against Roe v. Wade and also against a lot of the reforms, the Civil Rights Movement. And so a group of conservatives got together and developed a more methodological theory of originalism because they wanted to constrain the court.” That group of originalists became the Federalist Society.

Responding to the criticism that living constitutionalism is unconstrained, Professor Bayefsky explained how living constitutionalism does constrain judges, while also noting that originalism may not be as constraining as its proponents claim. Bayefsky focused on a popular living constitutionalist theory, Columbia Law Professor Philip Bobbitt’s constitutional pluralism. Bobbitt’s theory consists of six modalities—historical, textual, doctrinal, structural, prudential, and ethical—each of which judges use to decide cases. “You could see this as descriptive in the sense of—here’s how constitutional argument takes place . . . . We could also see this as normative—that these should be the accepted categories of constitutional argument,” Bayefsky explained, adding that it is common for judges to rely on multiple modalities in a single case.

Bayefsky acknowledged that constitutional pluralism may enable judges to simply follow the modality that they prefer in a given case. But she argued that multimodal arguing is already the accepted practice among judges. “Most if not all judges are, in fact, pluralists. Even in cases where judges purport to be saying, we’re drawing only on the original meaning, it’s very common to hear pragmatic arguments.” Ultimately, multimodal reasoning may be a necessary consequence of judgment, Bayefsky explained. “In the end, judging does require a certain amount of judgment. It’s impossible to completely extricate judicial discretion, and the purpose is to train judges, law students, academics, scholars, perhaps even politicians, to be thinking about how to wisely exercise their discretion based on their legal understanding and experience.”

Ironically, the debate between originalists and living constitutionalists may be the product of institutional incentives more than legal philosophy. Professor Shalf, citing the work of Professor Richard Re, pointed out that the current divide between conservatives and liberals may be realigning. “When the judges you have appointed are in the minority, then you want to constrain judicial interpretation by the judges who you don’t agree with. You want to say everything is very fixed and defined and objective . . . Whereas more expansive theories of constitutional interpretation might be adopted by the people who are in the political majority.” Professor Shalf suggested that the court’s fractured opinion in United States v. Rahimi[2] may indicate the beginning of such a realignment among the Court’s conservative justices.


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tya2us@virginia.edu 

[1] 356 U.S. 86 (1958).

[2] 602 U.S. ___ (2024).

97th Annual Lile Moot Court Competition Kicks Off with Info Session

Noah Coco '26 
Managing Editor 


Most 2Ls roll into their second year of law school, many with summer associate positions in hand, content to ride out their remaining years of school with light schedules and ample softball. For a minority of students, however, the fall semester of their 2L year offers an opportunity to engage their competitive spirit with more case research and appellate advocacy in the first round of a venerable Law School tradition: the William Lile Minor Moot Court (“Lile Moot Court”) Competition.

The Lile Moot Court Competition, named after the first dean of the Law School, is entering its ninety-seventh year of competition. This past Wednesday, September 11, the Lile Moot Court board, composed entirely of students, introduced the competition to a group of eager and curious 2Ls in advance of the first round in October.

The Lile Moot Court Competition is open to all 2Ls. Participants in the competition will compete in teams of two in a four-round tournament (hopefully) spanning their second and third years. In each round, teams are presented with a problem created by the Lile Moot Court board and tasked with preparing appellate briefs and oral arguments. The first two rounds are conducted during consecutive semesters during 2L year, and the competition culminates in two additional rounds conducted during the fall of 3L year. Teams are cut from the pool of competitors in each subsequent round of competition.

The competition begins with the preliminary round running from October 1–25. Every team that signs up by the deadline of September 27 is eligible to compete and will receive materials containing a single-issue problem at the commencement of the round on October 1. Teams have until October 21 to brief the issue and are capped at a 3,500-word argument section. Teams will then present at oral arguments conducted between October 22–25. Although teammates may collectively prepare the brief, they will have to argue their issue individually during this round of competition before a panel of judges composed of the Lile Moot Court board and previous competitors. The written brief constitutes 50 percent of teams’ final scores, with the remaining 50 percent allocated to performance during oral arguments.

Only eight of the original teams will advance to the quarterfinal round scheduled for February–March 2025. Advancing teams will be prompted with a new two-issue problem to brief, this time capped at a 7,900-word argument section. Teams will then, seeded by their preliminary round scores, compete against opposing teams at oral arguments judged by Law School professors.

The pool of teams will then be narrowed to four who will compete in the semifinal round hosted in September–October 2025. For the final time, the remaining two teams will be presented with a new two-issue problem to brief. Each team will again face off at oral argument against an opposing team, this time appearing before acting judges, usually representing state supreme courts, state courts of appeal, or federal district courts.

The final two teams will compete one last time in November 2025 in what will certainly by then be an adept display of appellate advocacy. The same issues briefed and argued in the semifinal round will again be argued in the finals, although both teams will be given an opportunity to revise their briefs before competing in oral arguments.[1] The final round is generally presided over by acting federal circuit court of appeals judges.[2]

The winning team will be announced at the conclusion of the final round. In addition to receiving a cash prize (of a currently undisclosed amount), the winners of the ninety-seventh  Lile Moot Court Competition will be honored with a plaque to be adorned on the walls outside the moot court rooms in Slaughter Hall adjacent to the ninety-six winning teams preceding them, including the yet-to-be-determined winners of the ninety-sixth competition chosen this November.[3]

Any 2Ls interested in competing in the ninety-seventh  Lile Moot Court Competition may sign up with a partner, or sign up individually and be assigned a partner, by the September 27 deadline. Questions may be directed to Amy Vanderveer (fvu2tr@virginia.edu) or Natalie Little (ngl17vc@virginia.edu).


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cmz4bx@virginia.edu

[1] One team may be required to switch sides between the semifinal and final round.

[2] Historically, the finals round has occasionally been presided over by sitting Supreme Court justices, including Justices Marshall, O’Connor, and Brennan.

[3] Astute observers may notice at least one notable name on a plaque memorializing the 1959 Lile Moot Court winners: Edward “Ted” Kennedy ’59.

First-Years Introduced to Program in Law and Public Service

Jamie Newton '27 
Staff Editor 


On the afternoon of Monday, September 10, the Program in Law and Public Service (LPS) crowded Caplin Pavilion with prospective first- and second-year fellows to decorate cupcakes, learn about LPS, and connect with current LPS fellows. Students iced their cupcakes with their choice of frosting and sprinkle variety—the classic take of chocolate frosting and rainbow sprinkles seemed to be exceedingly sought-after—as LPS Director and Professor Annie Kim ’99 discussed the many components of this tailored curriculum and “hub” for students interested in a career in public service.

In 2009, President Jim Ryan ’92, then a professor at the Law School, created the Program in Law and Public Service to better prepare and support the minority of students at the Law School seeking public service careers in law. LPS offers special classes and curricular requirements, opportunities for faculty mentorship, academic advising, an outline bank, and more.

In the past fifteen years, the Program has expanded in size and capacity. In 2023, a total of 130 law students were LPS fellows, forty-five of them 1Ls. The 2023 cohort was the largest ever in LPS’s history, in addition to a record number of applicants. Currently, the program boasts around 400 alumni working in and adjacent to the public sector as resources for support and networking. Given that every seat in Caplin Pavilion was filled, and the cupcake supply was quickly demolished, interest in the program continues to thrive for the foreseeable future.

One of the most emphasized components of LPS during this information session was the vital role core faculty play in advising and guiding students in the public service journey. While other professors working and researching in fields directly involved with or adjacent to public service are available for support, LPS hosts four “core faculty members”: Professors Kim, Andy Block, Chinh Le ’00, and Josh Bowers. These four professors assist in teaching the required spring semester course for new 1L fellows, supervise a recommended 3L capstone course, host a faculty dinner series, and provide all-around support to the LPS fellows.

Professor Kim highlighted that LPS gives public service students, often isolated by the experiences and interests of their private sector peers, “your cohort, your tribe.” To access the niche support system and community of faculty and peers offered by LPS, fellows must complete a series of requirements. Apart from the spring semester course for new 1L fellows, students must work at least one full summer in public service (excluding judicial internships) after their first or second year of law school, take at least one clinic or do one externship, enroll in ten broadly defined credits that support a student’s specific public service aspirations, and write a substantial research paper related to those aspirations. Given the latitude fellows have in pursuing their interests, it was noted that these requirements are only natural stepping stones any student in public service would likely take during their law school career.

Both 1Ls and 2Ls with intentions of working in public service are invited to apply. Professor Kim and LPS Outreach Chair Carter Farnsworth ’26 recommended applicants talk honestly about their intentions after graduation, as the program exists primarily for those planning to start their public service careers directly out of law school. They stress this as an important factor for Professor Kim and other faculty in evaluating applications, especially during a competitive cycle such as last year’s. Aside from post-graduation plans, students should not stress if they don’t have a resume jam-packed with previous experience in public service. Students aren’t selected based on their specific interests or niche aspirations; they need only provide “something” to demonstrate a general interest in public service, whether that be newly found or long-established.

To apply, students must submit a resume, an unofficial copy of their undergraduate transcript if they’re a 1L or law school transcript if they’re a 2L, and a list of two references “who know you well.” In addition, students should write two 400-word responses to questions regarding their passions and any expected hurdles or stressful factors in pursuing a public service career. After applying, students will have a quick meeting with Professor Kim to discuss their interest in LPS and foreseeable contributions to the community. Professor Kim stressed that the application and interview are relatively informal and low-stakes. Farnsworth advised students not to “select out” because of the application requirement.

After outlining the application process and makeup of the Program, Professor Kim turned it over to current fellows to mingle with prospective students. By this point, the cupcakes were gone, but conversation was still lively. Fellows spoke to their various interests in public service, the paths they took to finding those interests, and how LPS has played an integral role in uplifting and honing their passions. Many of the current fellows expressed a sentimental appreciation for the community LPS has provided them. Cheryl Bond ’25 remarked, “I get to have friends in the same boat.” At a law school with seemingly infinite resources for those looking to pursue careers in the private sector, these fellows credited LPS with affording them a safe space for those with interests outside of the norm.

Students interested in applying to the Program in Law and Public Service should submit their applications to Professor Kim by October 18. More information is available on the LPS page online.


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jmn5jgk@virginia.edu

Common Law Grounds Addresses Homelessness

Kelly Wu '27 and Mayan Lawent '25 
Staff Editors


On Tuesday, September 10, 2024, Common Law Grounds (CLG) gathered students across the ideological spectrum in Caplin Pavilion with a brand new topic of discussion: “Shelter Under the Law: Addressing Homelessness Through Law & Politics.” Students grouped into small sections, introduced themselves to each other, and shared their honest feelings and experiences with the specified topic, and interactions with politics at large, over a provided lunch.

To begin the discussion, every small group was handed information sheets explaining and examining the U.S. Supreme Court decision in Grants Pass v. Johnson, decided mere months ago in June 2024. Within the decision, the city of Grants Pass, Oregon was ultimately allowed to pass a law that prohibited camping with bedding on public property, with the U.S. Supreme Court noting it did not constitute a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.” This decision came six years after a 9th Circuit case, Martin v. Boise (2018), in which the court found that such laws would in fact violate the Eighth Amendment’s prohibition of cruel and unusual punishment.

In the aftermath of this decision, students were asked to read responses from legislative and judicial figures across an array of ideologies from California Governor Gavin Newsom’s celebration of the decision’s ability to provide local and state officials the authority to clear unsafe encampments, to Justice Sotomayor’s criticism of the decision’s punishment based on the status of homelessness. The groups were supplied with both big-picture and specific questions to get the conversation started and asked to reflect on what the decision meant to them.

Once broken out into smaller groups of five or six, the audience was quickly spurred into open discussions on things as large in scale as “Is housing a basic human right that the government is responsible for providing?” to smaller ideas concerning reactions towards Newsom’s idea that homelessness should be addressed through local government rather than national. Within the small groups, people with backgrounds from big cities where homeless encampments are prominent to those from smaller areas where homelessness is less visible began to reflect on how their upbringings had shaped their view on the topic. This led to related discussions on thoughts about anti-homeless architecture, drug usage within homeless communities, criminalization of homelessness, human dignity’s place within the law, and the role of community and religion in society.

These conversations then spurred questions about the role of policy, with CLG facilitating the shift through a look into various policy approaches. Considering proposals such as Housing First policies, which provide permanent housing to individuals through housing vouchers and rental assistance, the students were then asked to discuss the benefits and detriments of various policies. Despite the large breadth of topics and opinions discussed, no clear policy answers were easily found. Overall, the discussions showcased the murky and ambiguous nature of homelessness and the law, with complexities at every corner. Many groups found themselves affirming these were questions with no clear answers, and policies all had their caveats. The lunch concluded with the development of a deeper understanding of differing viewpoints, and as students headed back to their classes, many were reflecting on how the state of homelessness should be addressed in a modern context.

The event showcased the ultimate goal of Common Law Grounds: to prompt difficult conversations on relevant, controversial topics. Started almost eight years ago, the organization was founded on a foundation of respect and civility for those growing up in any background. CLG hosts a series of roundtable discussions every year, with topics including abortion, gun control, and the role of religion in the judiciary. For the board members and those who attended, it was clear that the organization is not merely for centrists seeking fellow like-minded people; it aims to be the exact opposite. Before every discussion panel, attendees are asked to rate how liberal their views are on a scale of 1 to 10 for the facilitators to both form more diverse groups and see how to cater to differing opinions. If you ever find yourself wanting to step out of your comfort zone and learn more about how the rest of the Law School understands various topics, be sure to look into future discussion panels hosted by Common Law Grounds!


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gcu2vn@virginia.edu 
zuc9mq@virginia.edu 

Law Alumni Present on Prosecution

Bradley Berlich '27 
Staff Editor 


This past Tuesday, September 10, the Office of Public Service hosted a panel of four Law School alumni to discuss their experience as prosecutors. The panel was chaired by Ryan Faulconer ’08, himself a former federal prosecutor, now the assistant dean of public service. The panelists were buzzing with excitement at being back at the Law School and having an opportunity to share their experiences when Faulconer prompted them to talk about the most rewarding parts of their work.

Some panelists focused on the responsibility of bringing bad guys to justice. “Solving the big crime . . . Saying ‘my name, on behalf of the United States of America’ . . . never gets old,” said Zach Ray ’16, an Assistant United States Attorney for the Eastern District of Virginia, where he focuses on healthcare fraud cases.  “We get to play FBI and Sherlock Holmes . . . Taking [a defendant] down when they never see it coming . . . is really rewarding,” echoed Alec Ward ’21, a trial attorney in the Criminal Section of the Civil Rights Division at “Main Justice”—the U.S. Department of Justice in Washington, D.C.

Others talked about their ability to meaningfully change the lives of people in hard situations for the better. Megan Mers ’20 and Amanda Swanson ’20 both work on matters of domestic violence in the Manhattan District Attorney’s Office and the U.S. Attorney’s Office for the District of Columbia, respectively. Both conceded that line of work often exposed them to difficult situations, and vicious cycles of relationship violence, from which the victim was unable to escape. Mers elaborated: “It is everyone’s worst day. It’s the worst day of your defendant’s life, witness’s life, survivor’s life. And sometimes they take that out on you.” But, Swanson added, “[e]very now and then, when you stick with a case long enough, you find someone who is willing to stand up for themselves and not live [in a violent relationship] anymore.”

However, the bad days are still bad. And sentencing is the worst. “Sentencings are like funerals,” said Ray, who explained that he stands right next to the defendant during the procedure. “I walk out, and I pass their mom, their dad, their spouse, and their kids . . . . [We] don’t celebrate convictions.” Mers agreed. “The day sentencing feels fun or not impactful to you is the day you should stop being a prosecutor.” It’s easy for some to think of the prosecutor as the good guy, but this is not strictly the case. The person you convict might otherwise be a pillar of their community, a good spouse, parent, coworker, and neighbor. Or worse, the unstated fear that they could very well be innocent. “Some people go in thinking they’re going to be the superhero . . . [but n]o one with a conscience who does it for very long comes away not seeing shades of gray,” said Ward.

That’s why it can really matter that you have some degree of discretion within your role as a prosecutor. All four attorneys stressed the importance of personal autonomy in their work. Often, the ability to follow an assigned case from beginning to end is an office policy known as “vertical prosecution.” Many prosecutor offices are horizontal, not vertical, and instead break up assignments by case stage to improve efficiency with some attorneys only dealing with the beginning, middle, or end. “[It is] very hard to wield discretion at a horizontal office,” said Ward. “[In contrast] most of the cases I prosecute, I was the lead investigator on.” But with discretion comes more complications, and more responsibility. “Sometimes it’s difficult dealing with the uncertainty of if you’re prosecuting for the sake of prosecuting or doing it for the sake of improving someone’s life,” Swanson remarked. And though prosecution has better hours than big law, there are still long days, but no make-work to fill time-entry sheets. “Someone has to be there in a vertical prosecution office. There are weeks and sometimes months where I am working as much as my firm friends, but there’s always a reason I care about,” commented Mers.

When asked by Faulconer to tell the story of their paths to prosecution, and if they had any advice for interested students, the panelists agreed that there was no single path to prosecution, and that a resume that reflected an interest in public service and criminal law was the most important thing. “Don’t think you have to know right now that you want to be a prosecutor, or it’s over,” said Ray, who was an associate at Covington & Burling in D.C. after graduating. “Go see Jennifer Hulvey [in the Office of Financial Aid, Education and Planning],” continued Ray. “I knew I didn’t want the golden handcuffs, and so we created a plan where I could pay back these loans . . . we had a plan, we stuck to it, and once my loans got down to a certain point, we made the jump.”

UVA can help you land the gig, too. “I came to this panel,” admitted Ward. “Rachel Kincaid was working [at DOJ Civil Rights] and I think I literally took her desk . . . [I am] totally unashamed to say it was UVA and the folks here that got me this job.” Swanson quoted a talk Merrick Garland gave at the Eastern District of Virginia—good advice for all prosecutors and people who spend their days running around— “wear rubber-soled shoes.” Tights not included.


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jqr9gh@virginia.edu 

Armacost, Institute of Justice Attorney Talk 4th Amendment

Ashanti Jones '26 
Features Editor 


“When it comes to private trespassers, the law is pretty straightforward,” Robert Frommer said. “Somebody trespasses you can call the police and say ‘Hey, I’m having a problem here,’ and they’ll come. But what about when it’s not a private person that wants to trespass on your land, but a government official themselves? That’s a completely different story.”

On Thursday, September 12, the Federalist Society at the University of Virginia School of Law hosted UVA Law’s own Professor Barbara Armacost ’76, J.D. ’89 and senior attorney for the Institute of Justice, Robert Frommer for their event titled “Reforming the Fourth Amendment.” The event focused on the Fourth Amendment open fields doctrine—a doctrine that allows law enforcement officials to search and seize on open land, including public and private property, without a warrant.

The Federalist Society’s Vice President for Speakers, Andrew Odell ’26, opened the discussion by welcoming attendees and introducing the day’s speakers. Professor Armacost specializes in criminal procedure and policing and the law. She has written several articles on both topics. Frommer serves as the Director for the Institute of Justice’s Fourth Amendment Project and has litigated several search and seizure cases, including the ongoing 9th Circuit case Snitko v. FBI.

Frommer began by describing the open fields doctrine and framing its effect on American society. Despite its name, the open fields doctrine does not just apply to what the average person would consider an open field. In simple terms, the doctrine allows law enforcement officials to inspect, search, and seize without a warrant any outside area except curtilage, or the area “immediately surrounding the home,” reasoning there is no expectation of privacy in these areas.[1]

Historically, courts have interpreted curtilage very narrowly with fenced-in areas and areas marked with “no trespass” signs considered open fields, which Frommer found particularly troubling. Frommer shared with the audience, that according to a study conducted by the Institute for Justice, an estimated 96 percent of private property in the United States would be considered open fields under the existing doctrine.[2]

“In many places, officers can enter private property without it even being considered a search,” Frommer said. “[With open field searches,] you’re not in the Fourth Amendment bucket at all, it is completely unregulated. The open fields doctrine . . . privileges officials over private citizens . . . and the property owner themselves.”

Frommer believes the open fields doctrine is directly opposed to the origins of the Fourth Amendment and the Framers’ intentions for the scope of its protection. He described the Fourth Amendment as a continuation of the British common law ideal of “a man’s home is his castle” in the colonies, and a rejection of the use of British general warrant searches leading up to the American Revolutionary War.

“[General warrant searches were] a blank check given to these officials to allow them to go where they want, to search, and to root through things without judicial authorization and without any evidence of a crime being committed,” Frommer said.

Frommer argued that the Fourth Amendment was created to combat these types of searches and should be construed more broadly to respect the Framers’ intent. Frommer stated judicial constitutional interpretation should not boil down to a game of semantics but should consider the text in light of traditional American values.

“We’re supposed to put in our general principles and values, and then work out the details through legislation,” Frommer said.

Frommer shared some previous and current litigation the Institute of Justice’s Fourth Amendment Project has taken on regarding the open field doctrine. Frommer emphasized that these cases rest on individual state constitutions instead of the federal Constitution, which he credits as the source of their success in a recent Tennessee case, Rainwaters, et al. v. TN Wildlife Resources Agency. 

In Rainwaters, game wardens from the Tennessee Wildlife Resources Agency would regularly enter the plaintiff’s private land to search for possible hunting violations and also installed cameras for twenty-four-hour surveillance. Frommer and his team argued since the Tennessee Constitution gives citizens the right to be secure in “possessions,” the Tennessee Constitution covers beyond just the curtilage. The Tennessee Court of Appeals agreed that “possessions should be interpreted as covering real and personal property and confined the authority of the Tennessee Wildlife Resources Agency to search without a warrant to ‘wilds and wastelands,’” i.e. unowned or unkept/unenclosed land.

Following Frommer’s presentation, Professor Armacost asked Frommer follow-up questions about his opinions on public policy surrounding the Fourth Amendment and possible movement of the open field doctrine at the federal level.

Professor Armacost opened her questioning by remarking on the delicate balance with Fourth Amendment jurisprudence between giving law enforcement officials the ability to do their job and protecting citizen’s right to privacy.

“We’re all on both sides of any debate on the reach of the Fourth Amendment,” Armacost said. “On the one hand, we want the level of protection from surveillance by law enforcement that guarantees a robust level of privacy for the activities we want to do in private. On the other hand, we want law enforcement to secure some level of safety so we can live without high risk of crime that would make our lives less secure.”

Professor Armacost asked Frommer if he has any suggestions on balancing both of these needs, especially in the context of investigating hunting violations since a majority of land used for hunting is private land and it is substantially harder to obtain evidence to create probable cause for a warrant for hunting violations due to the nature of the crime.

Frommer responded that he believes the need to balance is a false dichotomy—several states with big hunting populations such as Montana, Washington, New York, Vermont, and Mississippi, have rejected the open-field doctrine. Frommer also feels like the balance is already instilled into the Fourth Amendment.

“The Framers when they created the Fourth Amendment, they already struck that balance,” Frommer said. “When they said that searches and seizures can’t be unreasonable as violating the spirit of the common law. You can use your powers under the common law to investigate . . . regular police work, you can talk to people, you can drive down the street.”

Next, Professor Armacost asked Frommer his level of optimism on changes to the federal open field doctrine under Jones and Carpenter in light of law enforcement using twenty-four-hour video surveillance without obtaining warrants. Frommer shared he was not that optimistic.

“Possibly, but unlikely,” Frommer said. “[The] key thing for Carpenter and the Fourth Circuit . . . was able to create a comprehensive picture of your movements—follow you from one place to another—but a static camera here would [only] catch you when you were going by. Maybe if [the static camera] was at an entryway where it captures every time you come or leave.”

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alj3emz@virginia.edu

[1] “Amdt 4.3.5 Open Fields Doctrine” Legal Information Institute, Cornell Law School. <https://www.law.cornell.edu/constitution-conan/amendment-4/open-fields-doctrine>

[2] “Good Fences? Good Luck” Windham, Joshua and David Warren, Ph.D. Institute for Justice, March 13, 2024. <https://ij.org/report/good-fences-good-luck/>

U.S. Solicitor General Speaks at Overflowing Caplin Pavilion

Mayan Lawent '25 & Kelly Wu '27 
Staff Editors 


This past Friday, September 6, the Virginia Law Review and Virginia Law Women welcomed the United States Solicitor General, Elizabeth Prelogar, to Caplin Pavilion. The venue was packed as hundreds of students were eager to hear General Prelogar’s thoughts on appellate advocacy, building a successful legal career, and the current state of the Supreme Court. The discussion was led by Professor Cate Stetson ’94 and introduced by Leah Schwartz ’25. After hearing General Prelogar’s voice on Strict Scrutiny countless times, she did not disappoint in person.

Solicitor General Elizabeth Prelogar (left) and Professor Cate Stetson ’94 (right). 
Source: Jennifer Song ’27

The discussion with General Prelogar introduced some interesting new classifications for lawyers: Are you a “heater,” a “cooler,” or maybe even an “icy hot?” Joking aside, this opened up a conversation about the different ways to influence a courtroom and an audience, and the role each type of advocacy plays. One of the key pieces of advice she had for litigators: “Be true to yourself.” Preparation is critical, but in the end, judges are listening to the person in front of them. Another important preparation tip General Prelogar shared was to look at each case and prepare ten key questions that define the fault lines. Write them down, think through potential answers, and be ready to discuss them. You don’t need to memorize everything, but practicing your points out loud helps develop fluency. The more experience you get, the better you'll be at narrowing down prep time and focusing on what matters. As General Prelogar put it, “Experience is key.” So, hear that everyone? Time to try out for Moot Court.

Another topic that came up was the role of oral argument. Is it a standalone moment, or part of an ongoing conversation with the judges? General Prelogar suggested that while not everyone may present in front of the Supreme Court, watching oral arguments with its unique format and continuous dialogue between the same nine justices can improve your own advocacy. She humorously noted that the justices see the Solicitor General less as the “tenth Justice” and more like the “thirty-seventh law clerk,” but oral argument is still a crucial opportunity to guide the justices’ focus toward the issues you believe are most important.

General Prelogar also emphasized the importance of being scrupulously honest and credible. Her role requires building long-term relationships with the justices, and unlike private practice, her client—the federal government—has broader, long-term institutional interests rather than short-term incentives. During this portion, she reflected on the need, unlike in private practice, to not always focus on individual victories but on what would be beneficial to the country as a whole moving forward.

Finally, Prelogar had two pieces of advice for 1Ls: “Be kind, be respectful,” and “don’t shy away from what makes you uncomfortable.” In oral argument, the tradition is to call opposing counsel “my friend,” and though it can feel awkward at times, the principle behind it—“showing respect to others enhances your own advocacy”—is a valuable one. She noted that her first year of law school and subsequent career were filled with moments of growth through discomfort. She reminisced that the mentors she had challenged her to work through tough times. A powerful story she shared involved clerking for the late Justice Ruth Bader Ginsburg after her husband passed away. As Justice Ginsburg said, “Martin would have wanted me to be here.” So, “put yourselves out there!”

General Prelogar also shared her unique pre-argument routine. She is sure to leave the office by 7 p.m. so that she can get home and have dinner with her family, where she eats the same pregame meal every time—no one in the audience asked her what the meal was, unfortunately. And then she delivers the opening statement of her argument to her two young children for grades from one to ten. While we are sure this is a way to destress and shape her children into future legal juggernauts, we think it is also a good reminder to keep all arguments as simple as possible. General Prelogar seemed proud that her children usually give high scores, to which Professor Stetson replied, “Wait until they become teenagers and give nothing but indifferent twos.”

When asked about the current conservative bent of the Court, General Prelogar did not opine on any of the major proposals such as term limits. Instead, she expressed optimism on her ability to reach the newer justices going forward. She emphasized that while she is realistic in her goals, she never believes it is impossible to change the opinion of the Court to her side of an argument. Anyone expecting bold statements about the dire state of the federal judiciary was out of luck, which makes sense given how her office depends on a long-term relationship with the same nine people.

As authors, we all left this wonderful event feeling a bit more inspired to be the best advocates possible. We’re sure many of our fellow students felt the same.

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zuc9mq@virginia.edu 
gcu2vn@virginia.edu

Virginia Innocence Project Kicks off Pro Bono Projects

Jamie Newton & Alicia Kaufmann '27 
Staff Editors 


On Tuesday, September 3, the Innocence Project Pro Bono Clinic hosted a kickoff meeting for interested students. Students heard from the Innocence Project Clinic Staff Attorney Payal Sampat ’23, Virginia Innocence Project Student Group (VIPS) leaders, and others about various opportunities to get involved in the program. To clarify, VIPS and the Pro Bono Clinic are functionally the same, and they offer pro bono hours to those who volunteer. They are distinct, however, from the year-long Innocence Project Clinic where students receive credit for participation. Do not fret if you were unable to attend! Here are the important topics that were discussed.

Sampat outlined seven different teams where students can get involved, all with varying levels of commitment. First, there are three ancillary teams: intake, policy, and reentry. The intake team reviews all of the applications that are submitted to the clinic and makes recommendations as to whether they should be assigned a case team. The VIPS co-leaders explained that intake team members are the first to see clients’ applications and are responsible for writing a memo that evaluates whether the client has a case for actual innocence. The student leaders emphasized that although this team is the lowest commitment, with most of the work performed asynchronously at your own pace, it is extremely important. Around 280 applications have been submitted that they have not yet been able to review, so your help could make a huge difference!

The policy team conducts advocacy work in an attempt to make the process of proving innocence or wrongful conviction easier. There are two major projects that the policy team is collaborating on this year: rectifying the issues caused by faulty Virginia forensic scientist Mary Jane Burton and investigating eyewitness lineup procedures and police eyewitness policies. Juliet Hatchett ’15, one of the directors of the clinic, described the day-to-day work on this team as a “mixture of research and advocacy,” with the second project being more research-heavy. Sampat estimated a commitment of thirty-to-fifty hours per semester, including weekly one-hour meetings.

The last ancillary team, reentry, is new to the program this year. The leader of the team specified that they will work on mental health counseling and housing assistance for clients after they have been exonerated. This team will also have hour-long weekly meetings and a semester commitment of roughly thirty-to-fifty hours.

Probably the most rewarding yet intense pro bono opportunity VIPS offers law students is its case teams. There are currently four case teams for students of all years to participate in. Although a lot of the details of each case are protected by confidentiality requirements, Sampat and student team leaders further explained the background of each case, often accompanied by a “trigger warning” due to the sensitive nature of the alleged crimes like assault and homicide. Notwithstanding the delicate topics many of these cases broach, Sampat emphasized the decided belief each team and the organization as a whole has in their clients’ innocence.

These teams provide students with insight into, and involvement with, the full exoneration process. VIPS has been working on some of these cases for a number of years, while others are “more preliminary” and involve a greater focus on investigatory work. Some cases are older, such as one from 1985, while others are much more recent. No matter the case, students will receive opportunities to draft briefs and petitions, hone their investigative skills, work directly with clients and witnesses, and meet attorneys from outside the law school assisting on certain cases. Given the possible necessity of travel out of Charlottesville to meet with clients or witnesses, one of the team leaders, Isabel Cook ’25, underlined that access to a car or inability to travel would not impede any student’s ability to work on a case team. Carpooling is always an option, and students can always find work to contribute to beyond these specific facets of casework.

Many of the team leaders found their current positions through work in the Innocence Project Clinic, which Sampat referred to  as VIPS’s “full-time classroom component” of their pro bono extension. Each participant in VIPS with prior experience with the organization, either through clinic work or other pro bono opportunities, emphasized just how important this work was to their law school experience—“a great way to do actual legal work that matters.”

While the ’24-’25 application deadline already passed at the end of last week, VIPS will always be around for law students. Keep this opportunity in mind in the coming semesters and years when looking for pro bono hours, ways to involve yourself in public service, or if you just have a hankering to help rectify one of our justice system’s greatest wrongs—the conviction and incarceration of the innocent.


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jmn5jgk@virginia.edu 
hcr9bm@virginia.edu 

Virginia Law & Business Society Welcomes New Students

Jason Vanger '27 
Staff Editor 


Virginia Law & Business Society (VLBS) held its kickoff event on Thursday, September 5, over sandwiches in Caplin Pavilion. Founded in 1981, VLBS is a student-run organization devoted to corporate law and business. Emily Eason ’26, President of VLBS, introduced the organization and noted upcoming events, such as lunch-and-learns with law firms beginning in October, dinner with 1L Representatives, and a social with students at the Darden School of Business later in the year.

Following Eason’s brief introduction, representatives introduced several student organizations related to corporate law and business. The Virginia Law Emerging Companies and Venture Capital Society (ECVC) provides opportunities for students interested in emerging companies and venture capital, mergers and acquisitions, and private equity. Speakers highlighted mentorship opportunities, speaker events and panels, and networking and social events. ECVC also runs the Transactional Law Competition each year, in which teams of students compete in a simulation of negotiations over a proposed merger agreement.

Law, Innovation, Security & Technology (LIST) focuses on technology law, including prominent issues such as artificial intelligence, privacy, cybersecurity, and financial technology. LIST aims to educate students about issues in the field, provide practical skills and experience, and connect students with mentors and resources. It also works closely with Virginia’s LawTech Center, which promotes research on policy and regulation of technology, the use of data to study legal texts, and the impact of technology on the legal profession. Speakers noted that LIST will hold its first General Body Meeting on Thursday, September 12 and that it is looking for 1L Representatives to spread awareness among the Class of 2027.

The Plaintiffs’ Law Association at the University of Virginia (PLAVA) informs the university community about firms that work on plaintiffs’ law and supports students looking to work in the field. Plaintiffs’ lawyers are those who regularly represent plaintiffs in litigation, often relying on contingency fees. Speakers pointed out that plaintiffs’ law can be a good opportunity for students interested in litigation, allowing them to gain experience quickly while promoting justice, adding that the field contains a variety of large, mid-sized, and small firms. They recognized that the area is not necessarily emphasized by the Office of Private Practice, but said that PLAVA helps to assist students interested in pursuing it. Upcoming events include a Kickoff Meeting, a Litigation Panel, a screening of the documentary No Accident which details  the prosecution of those involved in the Unite the Right rally in Charlottesville, and a joint panel with Virginia Law Women (VLW).

Virginia Law & Business Review (VLBR) is one of the nation’s leading journals in corporate law and business. VLBR publishes issues three times each year, with articles covering areas such as antitrust, bankruptcy, commercial law, corporation law, finance, and other regulatory issues. Aside from publishing scholarship, VLBR provides professional development opportunities for members, including attendance at an annual symposium exploring an emerging area of law and business. It also hosts social events, including, in the past, happy hours and dinners. Along with UVA’s other student-run journals, VLBR will take part in the Unified Journal Tryout in the Spring. It will also host interviews for Managing Board positions in April 2025.

Rivanna Investments is an investment management fund run by students at UVA Law, who manage a slice of the school’s endowment. Since its founding in 2010, Rivanna has grown its initial capital investment of $100,000 to over $350,000. In addition to managing its fund, Rivanna aims to give students an opportunity to learn about and practice financial concepts. 1Ls will be able to apply for an analyst position, where they will be trained in financial concepts and then evaluate current positions and new opportunities, or in roles focused on managing relationships with alumni and law and asset management firms. Applications for the analyst position will be open from September 9 to September 16. Representatives from Rivanna added that they look to include a mix of students with and without experience in finance. In addition to investment management, Rivanna provides networking opportunities, including trips to New York City and Washington, D.C.

VLBS and affiliated organizations in the law and business fields will continue to host events throughout the year. Interested students can reach out to contacts at the various organizations’ executive boards, join organization mailing lists, or follow through social media.


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nnk2gn@virginia.edu 

Solum and Barzun Discuss Originalism’s History, Merits

Andrew Allard '25 
Editor-in-Chief 


Last Thursday, September 5, the Federalist Society at UVA Law hosted a talk, dubbed “Originalism 101,” with Professors Lawrence Solum and Charles Barzun ’05. The pair discussed the origins of originalism, its variations, its merits and flaws, and its impact on judicial decision-making.

Professor Solum began by tracing the emergence of contemporary originalism to the rise of administrative agencies and the expansion of federal power during the New Deal era and under the Warren Court. “There were decisions that many judges, scholars, and lawyers felt were inconsistent with the text of the Constitution. That gave rise to a conservative backlash,” Solum explained.

As part of that backlash, conservative legal scholarship emerged criticizing living constitutionalism, including by Robert Bork and William Rehnquist. But, ironically, it was a critic at Stanford, Paul Brest, who coined the term “originalism” in his article The Misconceived Quest for the Original Understanding. “Brest, by naming the theory, created originalism as a movement . . . people reacted to Brest’s critique with defenses of originalism,” said Professor Solum.

But defenders of originalism did not always agree with each other. “Originalism is a family of theories. It’s not a single theory that all originalists agree on,” Solum explained. While nearly all originalists share two foundational ideas—that constitutional meaning is fixed when a provision is enacted and that fixed meanings should bind constitutional actors—there is no single view on how to conduct originalist legal analysis.

For example, original intent originalists argue that the Constitution means whatever the Framers intended for it to mean. Original public meaning originalists, on the other hand, argue that the Constitution was a public document and should be understood as it would have been understood by the public at the time of ratification.

The latter view gained momentum in the 1980s when then-Judge Antonin Scalia advanced the theory in discussions with President Ronald Reagan’s Justice Department, which was developing a constitutional theory for the administration. “That caused a major shift in originalism and the emergence in the 1990s of what’s now called new originalism.” Around that same time, originalists such as Scalia and later Clarence Thomas were elevated to the Supreme Court.

“In the 20-teens, many more originalists were appointed to the federal bench . . . There are now dozens of judges on the United States Courts of Appeals and District Courts who identify as originalists, and some of the Supreme Court justices are originalists to some degree,” said Solum. The Court is not “consistently originalist,” Solum continued, citing the Dobbs majority opinion as “thoroughly non-originalist.” Nonetheless, Solum acknowledged that the Court is “dramatically more sympathetic to originalism than [it] was in the ’50s and ’60s.”

Professor Solum lastly touched on living constitutionalism, one of the principal rivals to originalism. Solum noted that there are several varieties of living constitutionalism, ranging from legislative supremacy—making Congress, rather than the judiciary, the primary authority on constitutional meaning—to common law constitutionalism, allowing the Supreme Court to amend constitutional law through the common law process.

In response, Professor Barzun explored some of the common criticisms of originalism. Firstly, critics often object that meaning cannot be fixed in the way the originalists claim. “These kinds of skeptical objects are oftentimes hard to respond to. It’s fairly easy if you’re philosophically sophisticated enough to show the difficulty with any coherent account of meaning.” While such arguments can be philosophically persuasive, Barzun said, it ultimately proves too much. “If you don’t think that we can fix meaning in any way . . . then what’s the point of being here?”

A stronger criticism, says Barzun, is that originalism doesn’t accurately reflect the views of the founding generation. “If you look at the founding, they weren’t originalists . . . The idea of a constitution itself was fundamentally different than what we think of today. When they talked about the Constitution, they weren’t talking about a document . . . It is the entire tradition, it’s a culture, it’s a set of practices that hold the country together . . . If our whole point is to do what was original, then that seems to be a big problem.”

Originalists have responded to this criticism on normative grounds—even if the Founders didn’t think of constitutions that way, we should now. For example, Justice Scalia argued this position on rule-of-law grounds—people need predictability to organize life and defend freedom. Others advance an argument based on democratic theory: The Constitution is an expression of popular will, so we should obey it.

But Barzun expressed skepticism toward both of these responses. He argued that the U.S. Constitution may not really provide predictability and structure. Instead, courts create constitutional structure through their decisions.

The democratic theory justification can also be criticized because the polity at the time of the founding was unrepresentative. Most of those voting on the ratification of the Constitution were white, propertied men. “It doesn’t seem all that democratic today, right? . . . That’s probably the most stock of stock objections to originalism. But one reason why it’s a stock objection is because it’s, in a sense, a powerful one.”


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tya2us@virginia.edu 

SCHOLAR WARS: VLR Online Piece Sparks Twitter Mob

Garrett Coleman & Andrew Allard '25 
Executive Editor & Editor-in-Chief


It turns out that legal academics are on social media much more than we previously thought. So much so that the Virginia Law Review and UVA Law Professors Saikrishna Prakash and Aditya Bamzai made the virtual front page on Above the Law.[1] After their essay on the executive removal power was published in Virginia Law Review Online,[2] Professor Julian Davis Mortenson at the University of Michigan Law School took to X (formerly known as Twitter) to voice his concerns in a series of frustrated posts.[3]

Mortenson alleged that Prakash and Bamzai had repeatedly misrepresented his position on the powers inherent in the executive. In relevant part, Prakash and Bamzai’s essay contends:

Although Mortenson has never discussed removal in his articles, he has similarly argued, on the one hand, that the “executive power” was an “empty vessel” and, on the other, that it included “law execution”; might have included “appointments”; and embraced a set of “disaggregated” powers.

But it does not take great brilliance to identify the deep tension in the twin claims that the “executive power” was an “empty vessel” and, at the same time, might have included “law execution,” the “power to appoint assistants,” or other “disaggregated” powers. One claim or the other must give way.[4]

This “empty vessel” was explained by Mortenson in his article, The Executive Power Clause.[5] Not wanting to provoke his ire on X, we think this paragraph provides sufficient context for what Mortenson meant when using that phrase:

When Article II vested “the executive power,” it conveyed the authority to execute the laws. This power was an empty vessel that authorized only those actions previously specified by the laws of the land. . . . Either way, the conceptual gist of executive action was implementation of instruction and authority that came from elsewhere. Make no mistake: the presidency thus created was a massively powerful institution. Just not one with a free-floating foreign affairs power, a residual national security authority, or indeed any other power not specifically listed in the Constitution.[6]

While this reads like common academic parlance to us, the conversation on X was anything but. Before we begin, we would like to note that this article could not include every post or every bit of context. We welcome any challenge on X @LawWeekly. With that said, the first salvo came from Mortenson on Saturday evening:

Mortenson’s thread continued, with increasing zeal:

A Boston University School of Law professor, Jed Shugerman, joined the conversation to side with Mortenson:

The rest of Shugerman’s thread detailed an alleged slight from Prakash and Bamzai. As Shugerman puts it, he organized a conference on executive power in 2022, invited Prakash and Bamzai, but was stood up by Prakash and caught off guard by an unannounced forthcoming article from the two professors in the Harvard Law Review. Shugerman criticized Prakash and Bamzai’s “anti-collegial” decision not to share their drafts in advance of the panel, as other participants had. Shugerman subsequently issued an apology, saying that he was “stepping back” from the discussion on X.

There were also defenders of Prakash and Bamzai. Professor William Baude of the University of Chicago Law School and our very own Professor Richard M. Re joined the battlefield:

Off of X, Baude wrote a more detailed piece about the academic debate, available in The Volokh Conspiracy.[7]

Wound up in this “tweetstorm” was an implicit critique of the law review system, juxtaposed against the peer-review process more common in other academic fields. Professor Milan Markovic of Texas A&M School of Law chimed into the debate to opine on the structural weaknesses of student-run journals:

Professor Jacob Charles, a Second Amendment scholar at Pepperdine Caruso School of Law, seconded Markovic’s criticism of student-run journals, citing District of Columbia v. Heller as a product of gaps in the law review process.

In response, Professor Robert Leider of the Antonin Scalia Law School jumped in to defend student-run journals:

But Professor Jack Rakove of Stanford University’s political science department would not take this lying down:

As authors, we are split on the actual merits of Mortenson’s critique. But we are united in a morbid curiosity about this Saturday-night tweetstorm and a sense that X may be a less-than-ideal forum for academic debate. Whatever the resolution to this debacle, we hope that it will be reached in a gentler exchange.


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jxu6ad@virgina.edu; tya2us@virginia.edu 

[1] Joe Patrice, Law Professors Call Out Colleagues Over Persistent Misrepresentations, Above the Law (Aug. 27, 2024). https://abovethelaw.com/2024/08/law-professors-call-out-colleagues-over-persistent-misrepresentations/.

[2] Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (2024).

[3] See Patrice, supra note 1. For the rest of this article, we took screenshots of the relevant X accounts, the handles of which are all visible. To the best of our knowledge, all these Xs (tweets?) remain published.

[4] Bamzai & Prakash, supra note 2, at 168 (footnotes and citations omitted).

[5] Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269 (2020).

[6] Id. at 1367.

[7] Will Baude, Executive Power Scholarship: A Three Level Problem, The Volokh Conspiracy (Aug. 28, 2024), https://reason.com/volokh/2024/08/28/executive-power-scholarship-a-three-level-problem/?utm_source=dlvr.it&utm_medium=twitter.