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SPRING 2007 THE MAGAZINE OF THE UNIVERSITY OF TEXAS SCHOOL OF ULAW TLAW

Our New Dean: LEVINSON on Where LAWRENCE G.SAGER the Constitution UT LAW Goes Wrong at the HU and BLACK on UNITED STATES “EMPTY VOTING” SUPREME COURT

THE UNIVERSITY OF TEXAS LAW SCHOOL FOUNDATION, 727 E. DEAN KEETON STREET, AUSTIN, TEXAS 78705 C2_MarinaVillageLakeway 6/13/07 3:08 PM Page 1 01_Contents 6/7/07 10:54 PM Page 1

UTLAW TABLE OF CONTENTS 2 IN CAMERA UT SCHOOL OF LAW UT Law at the United States Supreme Court and our dynamic new clerkship program

Dean LAWRENCE SAGER 6 MEET OUR NEW DEAN: LAWRENCE G. SAGER University of Texas Law School Foundation President, Board of Trustees C. KENNETH ROBERTS, ’51 10 TEN COMMANDMENTS, THREE PLASTIC UT Law School Alumni Association President CARRIN PATMAN, ’82 REINDEER, AND ONE NATION…INDIVISIBLE

UT LAW MAGAZINE 16 SUPREME PERSUASION: UT LAW CLINICS Editor KIRSTON FORTUNE ENJOY REMARKABLE SUCCESS AT THE

Contributing Writers UNITED STATES SUPREME COURT LAURA CASTRO, ’97 TOM HENNINGER ’92 22 FROM LAW STUDENT TO JUDICIAL CLERK Contributing Photographers CLAIRE DUGGAN (AND HOW TO GET THERE) MARSHA MILLER MARK RUTKOWSKI

Class Notes Editor 28 “EMPTY VOTING” AND THE FOUNDATIONS SHANAN STORM OF CORPORATE GOVERNANCE Design VISUALINGO

Cover photos 31 FACULTY BOOKS MARSHA MILLER

Cover photo illustration KRISTINE BRUINSSLOT 32 A TALE OF TWO SIGNINGS

COMMENTS? WE WELCOME 36 NEW FACULTY PROFILES: WILLIAM M. SAGE YOUR LETTERS. PLEASE EMAIL KIRSTON FORTUNE AND JOHN M. GOLDEN AT [email protected]

OR WRITE CARE OF: THE UNIVERSITY OF TEXAS 38 NURTURING SCHOLARSHIP: THE EMERGING SCHOOL OF LAW SCHOLARS PROGRAM 727 EAST DEAN KEETON STREET AUSTIN, TEXAS 78705 41 PORTRAIT OF A DEAN: BILL POWERS TO ADVERTISE, PLEASE CONTACT: MIKE MCKEE 42 CHIEF JUSTICE OF THE UNITED STATES ACCOUNT EXECUTIVE TEXAS MONTHLY CUSTOM KEYNOTES AT TEX LEZAR MEMORIAL PUBLISHING PHONE: 512.320.6934 LECTURE SERIES FAX: 512.476.9007 EMAIL: MMCKEE@TEXASMONTH- LY.COM 43 TEXAS REVIEW OF LAW & POLITICS CELEBRATES ITS FIRST DECADE TO CHANGE YOUR CONTACT INFORMATION, PLEASE CONTACT: PHONE: (512) 471-6314 44 CLASS NOTES EMAIL: [email protected] ONLINE: HTTP://WWW.UTEXAS.EDU/LAW/DE 53 IN MEMORIAM PTS/ALUMNI/FORM.HTML

UT Law Magazine is published twice a year by the 56 GOLD E. LOCKS ON TRIAL University of Texas Law School Foundation, a nonprofit corporation, 727 East Dean Keeton Street, Austin, Texas, 78705.

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UT LAW AT THE UNITED STATES SUPREME COURT

During its most recent term the Supreme Court agreed to hear only seventy-eight of the 8,517 cases filed. Of the cases selected for review this term, students and faculty in the Law School’s Supreme Court Clinic and Capital Punishment Clinic have been involved in five—an unprecedented number of active Supreme Court cases at any law school in a single term. Story on page 18.

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Photo: Claire Duggan 04-05_InCamera2_R2 6/13/07 4:24 PM Page 4

FROM LAW STUDENT TO JUDICIAL CLERK

In 2007, fifty UT Law graduates will clerk at the federal and state level in courts around the country, including a record twenty at the federal appellate level. The excitement about clerking among current students is the direct result of a dynamic new clerkships program. Story on page 22.

4 UTLAW Spring 2007 04-05_InCamera2_R2 6/13/07 4:24 PM Page 5 IN CAMERA

Photo: Marsha Miller 06-09_DeanProfile 6/7/07 10:59 PM Page 1

Recently appointed law school dean Lawrence Sager was the keynote speaker at the Texas Law Review’s annual banquet, which was held last March. He noted that when he was appointed to this position more than a few people expressed the lingering concern that he just didn’t look enough like a dean of the University of Texas Law School. At the banquet Sager offered as evidence to the contrary a portrait of O.M. Roberts, with whom he is photographed here, sporting a shock of white hair and a luxurious beard. Roberts, also called the Old Alcalde, was a former governor of Texas, one of the first two professors at UT Law School, and a primary force behind the establishment of the University of Texas.

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OUR NEW DEAN LAWRENCE G. SAGER Tom Henninger, ’92

inding time on Dean Larry lengthy tenure at NYU Law School, chairman of the UT System Board of Sager’s calendar is no easy where he was instrumental in building Regents, and advisor to several feat. Experience tells me that faculty into a national and interna- Republican presidents, including F that’s true of most deans, tional powerhouse, Sager brought with George W. Bush, was nothing short of but it seems particularly so for the new him an indisputable reputation as one effusive. “I am thrilled that Larry Sager dean of UT Law School. For one thing, of the nation’s greatest constitutional is our new dean at the Law School,” he he’s been on the road a lot since he theorists. He is held in high esteem by said. “He’s second-to-none as a scholar, officially took office in September of fellow scholars, by judges, and by the teacher, and leader. Larry is one of the last year—hosting law alumni members legal academy generally. But as much most dynamic individuals I have ever of the National Bar Association for as Sager had going for him, he faced, at met, and an outstanding Texan by breakfast during their annual convention least as I saw it, a few hurdles. First, he choice. I could not be happier with the in Detroit, or speaking to prospective was not a Texan. Indeed, he had come decision or more confident about the students and alumni in Washington to Texas from New York, and not just future of our great Law School.” DC, New York, Tyler, Dallas, Edinburg, New York, but New York City (although Sager’s predecessor, Bill Powers, who Brownsville, Harlingen, Los Angeles, he grew up, like Powers, in southern left the Law School to assume the San Francisco, Houston, and Fort California). Second, he did not look presidency of the University, had this to Worth. Before the summer is over he’ll like a Texan. He had long, curly, say: “We recruited Larry to the campus meet with alumni in Austin, El Paso, sometimes unruly, hair—and a beard about four years ago as one of the leading and Atlanta. At these events he talks a to match. And third, he was going to constitutional scholars in the country bit about himself, a bit about the state advance a new constitutional approach and, as a bonus, he also was enthusiastic of the Law School, and a great deal to the thorny issue of religious liberty. about being a major player in helping about his plans for the future. (See an excerpt from his recently build the Law School. That vision and In the fall of 2002, then-dean Bill published book, Religious Freedom ambition is a terrific asset we’re going Powers (now president of UT-Austin) and the Constitution, co-authored with to have under his leadership.” asked Larry Sager, the Law School’s Christopher L. Eisgruber, on page 12). Lawrence Gene Sager was born and new Alice Jane Drysdale Sheffield Despite these challenges, his reared in Southern California by Regents Chair, to make a presentation presentation to the Foundation’s parents who cared deeply about social to the board of trustees of the Board of Trustees was a great success, and political justice. These were, Sager University of Texas Law School and was like Sager himself—erudite, recalls, the dominating forces in their Foundation, the men and women who articulate, courteous. lives, and they passed their values and invest and oversee the Law School’s “An outstanding Texan by choice” passion on to their son. Even as a young endowment. The Foundation board is I don’t know what the trustees boy, he had a curious mind and he a Who’s Who of lawyers—all of them thought about Sager before his presen- loved books. He was an avid reader, gifted, all of them successful, all of tation that fall day in 2002. Perhaps consuming all the Sherlock Holmes them Texan. Legendary trial lawyer Joe they shared my concerns, perhaps not. and Father Brown mysteries, along with Jamail serves on the board. So does Kay But I do know that they became the seafaring adventures of Horatio Bailey Hutchison, Texas’s senior increasingly engaged with him during Hornblower. And he loved to take United States Senator. Harry Reasoner, the presentation, and that they asked things apart, figure out how they the former managing partner of specific and thoughtful questions worked, then put them back together Vinson & Elkins is a member, along afterward. They were genuinely taken again. His room was always filled with with Ken Roberts, current chair of the with the man and his message. So broken clocks and other gadgets Foundation and former general counsel much so that at the announcement of acquired through various means— of Exxon. In short, it’s an impressive Sager’s appointment as dean, Tom including screening the neighbors’ and distinguished group. And Sager is Loeffler, a UT Law graduate, trustee of garbage—each in some state of assem- an impressive and distinguished addition the Law School Foundation, former bly and repair. Sager knows that to

Photo: Marsha Miller to UT Law. Lured away from his Republican congressman, former understand the internal logic of issues

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and arguments—and clocks and volume of the Harvard Law Review. thanks to Sexton, Sager, Dworkin toasters—it helps to get inside things His subject: constitutional limitations (whom Sager helped recruit to the and learn how they work. on Congress’ ability to restrict the faculty), and others, NYU Law School Sager was also an accomplished jurisdiction of the courts. rose in the rankings from somewhere prankster when he was growing up and, Sager turned down a Woodrow around 30th during the mid-1970’s to not surprisingly, he most enjoyed playing Wilson Fellowship after college in favor 4th this year—surpassing Sager’s alma pranks that involved machinery, about of studying law at Columbia. His mater, Columbia. You don’t have to which anecdotes abound. In high decision was based in large part on a listen to Sager for very long to know school, one of Sager’s science teachers lack of interest in one of the fellowship’s that he has similar ambitions for UT bought a new car and, with an interest requirements—teaching. The irony is Law. Following the groundwork laid by unique for the time, spoke to his class not lost on Sager that three months his highly successful and popular at some length about the vehicle’s after graduating from Columbia, he predecessor, and employing the strategies excellent gas mileage. As the weeks was on the faculty of UCLA Law that led to success in New York, Sager is passed, the teacher became increasingly School, and he’s been teaching ever moving UT Law forward on several excited, then dismayed, as the car’s fuel since. After UCLA, Sager spent thirty tracks simultaneously. Under Powers, efficiency rose and rose, then declined years at New York University before the Law School committed itself to to below the expected mileage per gallon. arriving at UT. From the outset, he was reaching the very first rank of law Finally, Sager and a fellow classmate a superior student of the law. His lively schools in the United States, and under confessed. They had slipped out to the intellect is revealed in his many writings his leadership we made real progress in parking lot each day and added which include, besides the recently that direction. Sager is eager to see this gasoline to the tank and, when the published Religious Freedom and the progress extended, at a faster pace and teacher reported the car was averaging Constitution, the widely hailed Justice in on a greater scale. He sees the Law over fifty miles to the gallon, they Plain Clothes: A Theory of American School as “perched on the brink of began siphoning off the gas. In college, Constitutional Practice, dozens of law extraordinary distinction.” Because of Sager combated a dorm neighbor’s review articles, book reviews, and other its size—UT Law is one of the largest habit of playing his stereo loudly at all scholarly presentations. Ronald law schools in the country—Sager hours of the night by wiring it so that Dworkin, Sager’s colleague at NYU and believes we can create more opportunities when other residents on the floor one of the nation’s leading legal for specialized areas of study than is complained and the owner turned the philosophers, described Sager as “subtle, possible at smaller schools. As it is, the dial down, the volume increased. This fast, and deep.” core is bracketed by a terrific set of went on for a few minutes until the Sager is married to Jane Cohen, and clinical programs, by sophisticated stereo was turned off entirely, at which they have eleven-year-old twins remaining offerings at the intersections of law and point the machine came back to life, at home. Cohen is not only Sager’s philosophy, economics, and history, blasting Aaron Copland’s Fanfare for the wife, but also his colleague. Cohen is a and by programs with a global reach. Common Man. respected member of the law faculty, Sager will continue to strengthen the In high school Sager really discovered with academic interests in, among core curriculum with a particular focus the power of language. He was active other things, property and family law. on faculty retention and recruitment, on the debate team, and he began writing She is, like her husband, thoughtful creating new intellectual and practice in earnest. After high school, Sager and caring and deeply engaged with initiatives, and student support. attended Pomona College in the world around her. Sager and Faculty Claremont, California, where he studied Cohen enjoy a wide and diverse circle Sager proposes adding as many as government and international relations of friends—academics, actors, artists, fifteen distinguished hires to the faculty and was active in the Model United cab drivers, lawyers, musicians. They as a short-term goal. He notes that Nations program. But it was an are friends—truly friends—with a vast Harvard is adding between twenty-five assignment in a freshman government array of individuals, and all are welcome and forty members to their faculty, and course that first sparked Sager’s interest around their table. For eighteen years, that Yale and Stanford have begun in the law. He became “intellectually Sager commuted between Boston and expansions of their own. Given the indignant” on learning that Congress New York, teaching at NYU but living stature of the faculty at UT, it should be could take away the jurisdiction of the with Cohen and their family in no surprise that these law schools, and federal courts, including the Supreme Massachusetts, where she taught at others, are coming to Texas on recruiting Court—the doctrine of separation of Boston University School of Law. He expeditions. So a strong emphasis on powers notwithstanding. When Sager came to know the security personnel retaining faculty must be coupled with expressed skepticism about this to his who worked for the Delta Airlines recruitment efforts. professor, the teacher sent him to the Shuttle so well that he delivered to Faculty size is especially important at library to review cases on the subject, each of them during the holidays one this time in UT’s history. First, the and so began his lifelong love affair of his culinary specialties—apple pie. faculty/student ratio weighs heavily in with the law. Twenty years later, Sager During Sager’s tenure at NYU, and national rankings. At UT, this ratio would be given the honor of writing to a great degree because of his efforts, compares unfavorably not only to those the foreword to the Supreme Court that law school hired John Sexton and, at the top twenty law schools, but to law

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schools with lower rankings overall. To Recognizing that students learn from no less acute. In an effort to ease the the extent that both prospective extra-curricular projects, Sager has also space crunch, the administration has students and faculty rely on rankings increased support of student organiza- rented nearby, but off-site, space for when choosing among schools, UT is at tions across the board, enhancing both the Continuing Legal Education a disadvantage. Moreover, Sager the educational and social experience. offices, and it’s looking for other argues, the faculty/student ratio And because students learn from their remote space to further relieve the undermines the school’s efforts to peers as well, Sager will continue to squeeze. Factor in the goals of increasing achieve excellence in providing a build programs that enhance the diversity the size of the faculty and of increasing contemporary legal education. of the student body. One such program support for student initiatives, and the Emerging intellectual initiatives is the Law School’s summer pre-law lack of space becomes a crisis. Without Traditional casebook instruction institutes in El Paso, Houston, San a solution to the current space remains essential, but this core has Antonio, South Texas, and the Valley. problem, faculty and programmatic been expanded with the addition of We know that these programs are growth cannot be achieved. important new initiatives and responsible for an increase in minority A recently commissioned space approaches that are much more faculty applications and admission, and Sager study places the immediate space intensive. These programs include is committed to helping them flourish. deficit at about 45,000 square feet. clinical education and specialized A concern among prospective law Assuming no growth of the student interdisciplinary initiatives, such as Law students is the cost of a legal education. body and reasonable growth of the and Economics, Law and Philosophy, Even with substantial tuition increases faculty and programs, the deficit will be and Law and History, as well as global over the past three years, UT Law in excess of 60,000 square feet in legal studies like international, transna- remains a remarkable bargain in legal ten years. And like so many other tional, and comparative law. education. Texas residents pay nearly things—the quality of the faculty and of Sager supports these initiatives $10,000 a year less than do California the student body, the availability of wholeheartedly. The Law School residents, and $20,000 less than do scholarship support, cutting edge currently offers fourteen clinical students at our peer schools. A substantial scholarship and pedagogy—the infra- programs, and he has increased or portion of the recent tuition increases structure matters, too. We need more initiated funding for each. The newest is used for scholarships. Still, law school space. A variety of options are currently clinic is the Supreme Court Clinic, tuition is expensive. Sager intends under consideration, but addressing launched in September 2006, and led to increase scholarship assistance to these infrastructure issues is another by Professor Michael Sturley. In its first keep UT competitive in student challenge Sager will tackle. year of operation it can already claim a recruitment, and to lessen the growing The pursuit of excellence remarkable success: the first case burden of loans on our graduates. Sager’s ambitions for the Law appealed by the clinic was granted Any discussion of student loans raises School will ultimately benefit all of its certiorari by the United States the issue of loan repayment. UT is the constituencies, but these ambitions Supreme Court. That case was only school among the top twenty require resources. Without resources, ultimately settled, but it was a significant law schools that does not have a loan the pursuit of excellence remains a experience for the students involved. repayment assistance program (LRAP). goal incapable of being realized. Later And this fall, the Law School’s LRAPs provide varying levels of loan this year, the University of Texas will fifteenth clinic will open its doors. This forgiveness to graduates who accept undertake a multibillion dollar capital new clinic, focusing on the civil and lower-income jobs in the public interest. campaign and the Law School will be a human rights of the Guantanamo Bay Sager has noted that such a program, critical part of that endeavor. Sager will detainees, will be led by Professors though costly, has the dual benefit of lead the Law School during this effort, Derek Jinks and Jack Ratliff, who easing the loan burdens of those who and he has set a goal of historic size. co-taught a course entitled Rule of Law elect to work for the public interest and You’ll be hearing more about it in the in Wartime during the fall 2006 semester. of attracting students who contemplate months ahead, and when you do I UT Law’s preeminent constitutional careers in public service. He established hope you’ll remember everything law scholars will also be heavily a faculty-student committee to research behind the appeal—the need to involved in this effort. The clinic, LRAPs, one which will shortly make support our people so that our school combining experiential learning and recommendations on how to structure can continue to flourish. theoretical analysis, will be the first of a program that will best serve the Sager has a vision for transforming its kind in the nation. unique needs of UT Law students. this great Law School into the greatest Students Space law school. It’s an ambitious vision, but Sager is committed to recruiting the It isn’t news to current students, then Sager’s an ambitious fellow. best students and to creating a diverse faculty, and staff that the Law School Smart, charming, ambitious. UT Law and inclusive community. To that end, has run out of space. It is clear School deserves such a dean. and like Bill Powers before him, Sager evidence of our success that there is a has increased financial support of the growing shortage of adequate room for activities of the Admissions Office clinics, student journals, and faculty for prospective student outreach. offices—but that makes the problem

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Three Plastic Reindeer, and One Nation…Indivisible

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Constitutional analysis of religious arly one December day some these cases are purely symbolic, but freedom has been hobbled by the idea of years ago, the principal of a public religious conviction is a domain in elementary school somewhere on which symbols are often very important “a wall of separation” between church E Long Island called the executive to Americans. and state. That metaphor has been director of the New York Civil Liberties Whatever else is true, public exhibi- understood to demand that religion be Union. “Ira,” he said, “Please don’t tell tions of religious symbols excite intense treated far better than other concerns in anyone I’m calling you, but we’re having and heated controversy. The resulting some contexts, and far worse in others. an assembly next week, and I want to cases provide a starting point for know whether it is okay for us to sing a exploring Equal Liberty’s implications Sometimes it seems to insist on both few Christmas carols.” Ira replied: “Joe, for Establishment Clause jurispru- contrary forms of treatment simultaneously. please don’t tell anyone that I told you dence. At the outset of that Missing has been concern for the fair and this, but just go ahead and do it!” exploration, we need an account of how equal treatment of religion. In response, Some disputes about religious liberty religious symbols matter in American the authors offer an understanding of can seem either deeply important to a culture. It is to the task of developing pluralistic society or so trivial that the such an approach that we first turn. religious freedom called Equal Liberty. attention paid them is silly and This article is an excerpt from chapter exasperating. Constitutional questions PUBLIC DISPLAYS four of Religious Freedom and the about Christmas carols are like that, Constitution, written by Lawrence G. which is our point in recalling the brief Cases about crèche displays, town- Sager and Christopher L. Eisgruber, telephone exchange between two men, sponsored Christmas trees, and other who in different circumstances might public exhibitions of religious symbols published earlier this year by Harvard have been courtroom adversaries. So came to the Court relatively late in University Press. It is reprinted here too are the roiling controversies we its continuing effort to develop an without footnotes. The full text of this take up in this chapter: Ten attractive and workable approach to chapter, with footnotes, can be found on Commandment displays, crèches in Establishment Clause cases. Cases public parks, and Pledge of Allegiance about public aid to religious schools the University of Texas School of Law’s ceremonies. Perhaps this sense of first reached the Court in the late website, at www.utexas.edu/law/faculty/ vacillating between the profound and 1940s, and the Court’s first school lsager/religiousfreedom_excerpt.pdf. the irritating is inevitable: the stakes in prayer cases were decided in the 1960s;

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in contrast, the first Christmas display about a prayer at a public school public spaces. And governments might case arose in the 1980s. Now, however, graduation, Justice Scalia wrote a plausibly deny that they intend to the annual Holiday Wars—political and blistering dissent critiquing Justice disparage anybody with their displays; legal skirmishes over whether the gov- O’Connor’s endorsement test. Scalia Pawtucket claimed that its purpose was ernment can sponsor displays celebrat- would recognize Establishment Clause simply to attract holiday shoppers to ing Christmas, Hannukah, and so on— violations only in cases in which local stores, and that might have been have joined eggnog, greeting cards, somebody suffered “coercion…backed so. Why, then, should we single out the and fruitcake as staples of December by threat of penalty.” Pawtucket had public display of religious symbols as culture in America. not forced anybody to say a prayer, or a constitutionally impermissible form When Supreme Court justices to participate in a ritual, or to visit its of disparagement? analyze cases about the public display homage to the Christmas season. So We believe that this question has a of religious symbols, they tend to use where, Scalia asked, was the harm? sound answer, one consistent with Justice O’Connor’s reasoning in Lynch. The answer pertains to what we will call the social meaning of religious symbols in American culture. To answer Justice Equal Liberty is about O’Connor’s critics fully, we need to develop the idea of social meaning in finding fair rules of cooperation some detail. Our treatment of it will involve some subtle distinctions, but the basic idea has a venerable pedigree among a religiously diverse people. in American constitutional jurispru- dence and ought, we believe, to resonate with our readers’ understandings. We begin our discussion with a simple reasons and concepts that fit nicely “Taxpayers were forced to pay for example, one to which we will return with the precepts of Equal Liberty. In the display,” someone might say, “even several times. particular, they usually invoke some if they rejected its religious message.” version of the endorsement test that But this explanation is question-begging RELIGION, SOCIAL MEANING, AND DISPARAGEMENT Justice O’Connor developed in the at best; Pawtucket had not spent much Court’s very first holiday display case, taxpayer money on its crèche display. Imagine that the officials of a small Lynch v. Donnelly (1984). Lynch Suppose that the city had spent none at town—let’s say “Fineville”—have decided involved the display by the city of all, relying entirely on private contribu- to erect a handsome highway-spanning Pawtucket, Rhode Island, of a nativity tions to pay the modest expenses asso- arch as the portal to their municipality. scene or crèche in a park owned by a ciated with an officially sponsored Now imagine two different inscriptions nonprofit organization and located in display. Would that make a difference? they might choose to blaze across their the city’s shopping district. Justice Not under Justice O’Connor’s endorse- arch. One imagined slogan would be O’Connor said that the crucial question ment rationale and not, we think, to “Fineville—A Nuclear-Free Community.” was whether the display amounted to most citizens. Complaints about the The other would be “Fineville—A an endorsement of religion (or of a misuse of taxpayer dollars are a staple Christian Community.” Now it is particular religion): of American political rhetoric, but they certainly possible that in the Fineville The Establishment Clause prohibits do a poor job of capturing what is of our imagination questions of government from making adherence constitutionally troublesome about nuclear power and/or weapons are a to a religion relevant in any way to a crèche displays. matter of controversy—possibly even person’s standing in the political If endorsement per se amounts to heated controversy—and that advocates community. Government can run afoul a constitutional violation, then the fact of things nuclear might be irked at the of that prohibition … [by its] endorse- of disparagement must by itself— highly visible side-taking implicated in ment or disapproval of religion. unsupplemented by any concerns the nuclear-free-community sign. But it Endorsement sends a message to about coercion or the expenditure of would be odd in the extreme to regard nonadherents that they are outsiders, government money—be the relevant the losing side in the nuclear debate not full members of the political harm. To Scalia and other critics of the as disparaged in a way that should community, and an accompanying endorsement test, that injury seems invoke our constitutional sympathies. message to adherents that they are too flimsy and subjective to deserve When we shift our attention to the insiders, favored members of the constitutional attention. After all, Christian-community sign, it is not at political community. people can feel disparaged at the drop all odd to think that non-Christians are Justice O’Connor’s words are music of a hat. Indeed, as we shall discuss so disparaged. to an Equal Liberty enthusiast’s ears. later in this chapter, some religious What accounts for this difference? Not everyone finds them convincing, believers feel themselves disparaged by We suggest that public endorsements though. In Lee v. Weisman (1992), a case the absence of religious symbols from of religious belief must be understood

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against the background of four structural As we have observed throughout, groups and over time. Moreover, by features of religion in our society, Americans are keenly sensitive to making constitutional law so dependent features that, even if not common to distinctions in religious identity. upon personal reaction, we would risk everything that might be called Though most American faiths are creating a “tyranny of the squeamish”: “religion,” are nevertheless common to reconciled to the fact of religious an especially thin-skinned group would most of American religion. These pluralism and to the consequent need have a better chance of getting features affect the social meaning of for religious tolerance, they nonetheless doctrines offensive to it excised from religious displays—that is, they affect the continue to insist on the unique truth publicly sponsored speech. It might meanings that competent participants of their beliefs and the special signifi- seem more reasonable to tell the group in American culture may reasonably cance of their religious identity. In the to toughen up a bit. associate with the government display late 1950s the sociologist Will Herberg Nor does this understanding of a of religious symbols. said that in the United States, the public religious endorsement depend First, religions tend to be compre- hensive; they are not discrete propositions or theories, but large, expansive webs of belief and conduct. Second, despite Religious endorsements valorize the real diversity within American churches, there are still important respects in which one is either “in” or some religious beliefs and those who “out” of a religion. In some of the most cohesive faiths, churches distinguish hold them, and thereby disparage insiders and outsiders in a strictly enforced, institutional sense: the Mormon church, for example, excom- those who do not share those beliefs. municates those whom it deems unfaithful. Most American churches are more loosely structured. Catholics question “What are you?” usually calls on what the public officials had in can be relatively orthodox or quite secular, for an answer drawn from the list mind when they chose to make the and it is possible to be a “secular Jew.” “Protestant, Catholic or Jew.” The list endorsement. A particular official or Still, it makes little sense to “mix and may have grown—to include, for group of officials may not intend to match” religions, and groups that pretend example, “Muslim”—but the basic contribute to the disparagement of to do so, such as the evangelical point still holds: in the United States, persons in their community and yet do Christian group Jews for Jesus, only religion plays a major role in defining or say something that constitutes such a underscore the point. Third, open civic identity. disparagement, just as an individual ritual is prevalent in religion, and All this means that public endorse- speaker might overlook or misunderstand participation in ritual—standing up or ments of religion carry a special charge the linguistic meaning of her words. staying seated, bowing one’s head or valence. Such endorsements signify The pernicious element of dispar- or not, repeating designated words or who is “in” and “out” of competing agement that inheres in public remaining silent—plays an important large-scale social and ideological religious endorsements like Fineville’s role in signifying who is “in” or “out” of structures, and assign powerful and sign is a product of the social meaning these comprehensive structures in the pervasive judgments of identity and of such endorsements. The social eyes of individual believers, church stature to the status of being in or out. meaning of an event or a public expression communities, and the more general Religious endorsements valorize some is the meaning that a competent public. Fourth, the perceived stakes of religious beliefs and those who hold participant in the society in question being within or without these structures them, and thereby disparage those who would see in that event or expression. of belief and membership are often do not share those beliefs. Social meaning is in this respect like momentous: being chosen or not, being There is thus a deep and crucial linguistic meaning, which depends saved and slotted for eternal joyous life difference in the meaning of the two upon the understanding and use of or condemned to eternal damnation, Fineville signs, and the disparagement language by a competent practitioner leading a life of virtue or a life of sin, of non-Christians implicated in the in the relevant linguistic community. In acknowledging or repudiating one’s social meaning of the second sign is our national community, the structure deepest possible debt, fulfilling or inconsistent with the requirement of of religious belief and affiliation is such squandering one’s highest destiny. Or evenhandedness—of what we have that endorsements carry with them the the stakes may be less transcendental called “equal regard”—that lies at the taint of disparagement. And in our and more mundane, but no less heart of the Establishment Clause. national community, “Fineville—A categorical, such as being like us or very This understanding of public religious Christian Community” disparages different from us, or being or not being endorsements is not just a matter of a non-Christians, while “Fineville—A perniciously under the sway of particular statistical generalization about personal Nuclear-Free Community” merely leaders or worldwide movements. sensibilities. Sensitivities vary across irritates nuclear advocates.

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The concept of social meaning— meaning that contributed to the season, and the Fineville City Council whether invoked by that name or perpetuation of social caste, and for directs the Parks Department to display explicitly invoked at all—is important that reason, as plainly unconstitutional. a large crèche in a prominent location in thought and discourse about justice We think Harlan’s invocation of social in the public park that surrounds the in political communities, and in fact it has meaning was morally precocious, and City Hall; and second, in a remarkable a venerable pedigree in constitutional that his concept of such meaning was coup, the Fineville City Art Museum jurisprudence. The first Justice Harlan very similar to the one we are using borrows and displays one of called upon it in his justly famous here. Like us, he believed that certain Fra Angelico’s paintings of the dissent in Plessy v. Ferguson over a century practices had a disparaging effect that Annunciation as part of its “Treasures ago. Plessy involved a constitutional was “real” and not reducible either to of the Italian Renaissance” exhibition. challenge to a Louisiana law mandating the personal intentions of their sponsors These two events are likely to have very that whites and blacks ride in separate or to the personal perceptions of different social meanings. The social railway cars. The majority of the Court observers. These practices pertain to meaning of the crèche includes dispar- rejected the challenge, insisting that no important constituents of identity— agement of those who do not embrace Christianity as their religious belief, while the social meaning of the art exhibition does not. Why is this so? The display of the painting in We can begin to understand the difference when we realize that the a museum would properly be proper question is “What is the meaning of the display?” as opposed to “What is the meaning of the object that is being understood as an instance of framing displayed?” Ordinarily these questions produce the same answer, because gov- ernments will properly be understood rather than embracing the religious to express the meaning of the symbols they invoke. So when a government content of the painting, and thus erects a crèche, that act will have the social meaning of celebrating the birth of Jesus Christ and thereby affirming the display would not carry the bitter those faiths that embrace Jesus Christ as a figure of reverence. When this is social meaning of disparagement. true, the social meaning of the display will be more or less the same as the meaning of the object displayed, and with a sectarian object like a crèche, harm to constitutional equality was at most notably, race and religion—that, that meaning will include the dispar- stake. At one point, the majority came within American culture, function as agement of nonbelievers. close to the heart of the case, only to especially significant markers of social Sometimes, however, governments demonstrate a peculiar inability to see division… will properly be understood in effect to the world as it clearly was: be holding a religious object at arms We consider the underlying fallacy WHEN IS A DISPLAY AN ENDORSEMENT? length, to be putting quotation marks of the plaintiff’s argument to consist in around religious text or a contextual the assumption that the enforced In Lynch, after propounding the frame around a religious object. Our separation of the two races stamps the endorsement test, Justice O’Connor story about the Fineville City Art colored race with a badge of inferiority. went on to observe that not all public Museum’s display of one of Fra If this be so, it is not by reason of displays of religious material constitute Angelico’s paintings of the anything found in the act, but solely endorsements—or, as we would put it, Annunciation is like that. The content because the colored race chooses to that not all displays of this sort have a of the painting is exquisitely religious: put that construction upon it. social meaning that includes the the Annunciation—in which the Angel In response, Justice Harlan insisted disparagement of some members of Gabriel tells Mary that she will conceive that “the real meaning” of the the community on the basis of their the child Jesus—is a an event depicted Louisiana law was unduckable, namely, religious beliefs. and celebrated most prominently within “that colored citizens are so inferior We agree with Justice O’Connor Catholic theology. And Fra Angelico and degraded that they cannot be about this point (though not with the depictions are faithful to their allowed to sit in public coaches conclusion she ultimately drew from subject—Gabriel is undeniably an occupied by white citizens.” Harlan it). To see why, we return again to the angel, and his message spills forth in thus saw “separate but equal” railway fictional hamlet of Fineville and imagine explicit Hebraic text. But Fra Angelico cars as carrying an insidious social two more cases. First, it is the Christmas is a great painter, and his works

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are widely appreciated for their suppose that any constitutional violation crèches, Christmas trees, and other extraordinary artistic force and their results. “St. Paul” now has at least two holiday displays. The justices seem in importance in the evolution of Western meanings: it refers to a Christian saint those cases to be struggling to find a art. The display of the painting in a and to a city in Minnesota, and the latter way to distinguish between frames and museum, as a great and important meaning is secular. Acceptance of the fig leafs—between, that is, thinly disguised work of the Italian Renaissance, would city’s historical name does not imply cases of endorsement/disparagement, properly be understood as an instance that residents or officials admire or on the one hand, and cases in which of framing rather than embracing the venerate the eponymous saint—any the community in question is framing religious content of the painting, and more than use of the name or mentioning religious materials, on thus the display would not carry the bitter Germantown, Maryland, implies that the other. To date, the results have social meaning of disparagement. current residents are from, or support, been a bit clumsy. Consider what some This distinction—between invoking Germany. commentators have come to think of as the sacred meaning of a religious the “three plastic animals rule,” which object and framing that meaning— FIG LEAVES VERSUS FRAMES is yet another product of Lynch, the more or less tracks the distinction in case about Pawtucket’s crèche display. the philosophy of language between Having used the Italian Renaissance We have thus far emphasized the “using” and “mentioning.” In a later and Fra Angelico as our prime example more abstract parts of Justice section we will present some excerpts of the public framing of objects with O’Connor’s opinion, including its from the Ten Commandments. Were religious content, we are tempted to endorsement test. When it came time our project in this book different than borrow from an adjacent tradition of to decide upon the constitutionality of it is, we might be offering the Commandments to support a claim about theological truth. We would then be using the Commandments. In fact, Fig leaves come to mind because though, we include these quotations simply as a reminder of what the Commandments say, so that we can go sometimes public officials stick a kind on to discuss the constitutional status of their public display. We are not of fig leaf on religious displays. using the Ten Commandments; we are mentioning them. There are many examples of the public quoting or framing of religious Italian painting: in the late 1600s and Pawtucket’s display, Justice O’Connor material. The federal government thereafter for a century or so, church produced a conclusion about which we maintains the San Antonio Missions functionaries—more prudish than are less enthusiastic. She emphasized National Historical Park, which their predecessors had been—ordered that the crèche was part of a larger preserves for public appreciation four the addition of fig leaves to quite display, along with such items as missions, the greatest concentration of prominent works of art, like colored lights offering “Season’s Catholic missions in North America. Michelangelo’s Sistine Chapel ceiling Greetings,” a Santa, flying reindeer, a These were established by Franciscan and Masaccio’s depiction of Adam and clown, an elephant, and a teddy bear. friars bent on extending the influence Eve in the Brancacci Chapel in the Justice O’Connor—who cast the of Spain and of the Catholic church. church of Santa Maria del Carmine in decisive vote in the case—suggested The historical and architectural signifi- Florence. Modern restorations have that by surrounding a crèche with a few cance of these buildings makes them removed these fig leaves, leaving the Santas and flying reindeer, a town worthy objects of public appreciation. human figures in their original frames it in a way that separates the Their public presentation by the Park undressed state; but the fig leaf has crèche’s theological content from the Service—from the name of the park survived as a metaphor for a fairly government’s authority. That, we think, onward—makes them a clear instance flimsy disguise. is a mistake. The reindeer do subtly of historical framing. Fig leaves come to mind because change the meaning of the crèche The name San Antonio itself is an sometimes public officials stick a kind display—they suggest a less theologically instance of the framing of religious of fig leaf on religious displays. These rigorous, more commercialized form content. “Saint” or its equivalent is cover-ups do nothing to deflect the of religious belief, one that will be something of a commonplace in social meaning of the displays; in fact in offensive to some devout Christians as community names in the United States; some instances these thin disguises may well as to some non-Christians. But the other prominent examples include St. have the perverse effect of emphasizing Santa and his reindeer neither secularize Paul, San Diego, and San Francisco. the religious social meaning that lies the crèche nor mark it as only one There can be no doubt that these just underneath. This problem has been of several competing religious and names have religious origins, but we very much at the center of the Supreme philosophical symbols valued by citizens. think it would be just plain silly to Court’s unwieldy jurisprudence about They are at best a fig leaf, not a frame.

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Capital Punishment Clinic Law Professors, left to right: Jordan Steiker, Rob Owen, Maurie Levin, and Jim Marcus at the Supreme Court after oral arguments in January.

16 UTLAW Spring 2007 16-21_SupremePersuasion 6/11/07 9:08 PM Page 2 SUPREME PERSUASION UT LAW CLINICS ENJOY REMARKABLE SUCCESS AT THE UNITED STATES SUPREME COURT Laura Castro, ’97

hen third-year student Scott certiorari in three death penalty cases work at least ten hours a week under Keller joined the inaugural filed by the Capital Punishment Clinic. the supervision of attorneys handling class of the Law School’s Those cases were argued before the death penalty cases at trial, on appeal, W Supreme Court Clinic last Court in January by Professors Rob or in post-conviction review. fall, one of the first things he learned Owen and Jordan Steiker, assisted by Students perform tasks that are integral was how daunting the odds were students and faculty co-counsel. to effective defense representation, against taking a case all the way to the On April 25, the Court ruled in including visiting clients on death row Supreme Court. favor of three death-sentenced inmates or in local jails, interviewing witnesses, But Keller and his five classmates, represented by the Clinic. The three conducting other field investigations, supervised by Professor Michael Sturley inmates, Laroyce Smith, Brent Brewer, drafting legal pleadings, and helping and Washington DC lawyer David C. and Jalil Abdul-Kabir, had challenged attorneys prepare for trials, evidentiary Frederick, ’89, beat those odds in their sentences on the ground that the hearings, and appellate arguments. January when the U.S. Supreme Court instructions given at their trials failed “One of the things that distinguishes granted certiorari in the case Altadis to permit meaningful consideration of our Clinic from other capital punish- USA v. Sea Star Line, the first case taken mitigating evidence. ment law school clinics around the on by the young Clinic. With these three decisions, the country is simply the accelerated pace The opportunity to litigate at the Capital Punishment Clinic has now of the death penalty in Texas,” said highest level is uncommon. It’s even won five consecutive victories in the Owen, who along with Steiker codirects more unusual when the advocates are Supreme Court over the past three years. the University of Texas’s Capital still in law school. During its most “These three decisions confirm that Punishment Center, which houses the recent term the Supreme Court agreed the Supreme Court’s death penalty Capital Punishment Clinic. “We have a to hear only seventy-eight of the 8,517 jurisprudence is not optional or advisory lot more cases and there are a lot more cases filed, less than one percent. Of to the Texas courts and the Fifth people who are in imminent danger of the cases selected for review this term, Circuit Court of Appeals,” Steiker said. being executed, so students are working students and faculty in the Law “The victories are bittersweet, though, on cases with a certain urgency to them.” School’s Supreme Court Clinic and in light of the numerous inmates with Owen said it’s the steady stream Capital Punishment Clinic have been similar claims who have already been of Texas capital punishment cases involved in five—an unprecedented executed. We are gratified that the that allows students to gain valuable number of active Supreme Court cases Supreme Court has restated in experience at various stages of the at any law school in a single term. unequivocal terms its commitment to litigation process, including appellate full consideration of mitigating work at the Supreme Court level. CAPITAL PUNISHMENT CLINIC WINS evidence in capital cases.” “One of the unusual things about THREE CASES The Capital Punishment Clinic was death penalty litigation, and one of the established at the School of Law in reasons that I was interested in it as a In addition to agreeing to hear the 1987. Since then about 300 law students student and drawn to it as a lawyer, is Supreme Court Clinic’s case, the high have assisted in representing indigent that it is so Supreme Court focused,” court announced last fall it was granting defendants charged with or convicted Owen said. “The Supreme Court still of capital crimes. Students, who must devotes a surprisingly large proportion This article is based on a story that originally appeared on the University of Texas website, which can be found also attend a weekly class in the practical of its docket to capital cases, so you

Photos: Claire Duggan at http://www.utexas.edu/features/2007/supreme skills required to defend a capital case, need to be aware of what’s going on at

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the Supreme Court and be a closer Owen in oral arguments before the law clerk to Supreme Court Justice student of that body of law than you do Supreme Court, and to experience the Thurgood Marshall—argued Smith v. in other kinds of practice.” Court and the personalities of the jus- Texas in January before the Court with Eric Harrington is a third-year law tices in a way that isn’t possible from co-counsels Maurie Levin, a professor student who has worked in the Clinic opinions or through the media. “You with the Clinic, and Harvard University for three semesters and finds the range are really on the edge of your seat,” he Law Professor Carol Steiker, whose and depth of the Clinic’s legal training said. “It was an amazing experience to students also contributed to the effort. compelling. “I’ve researched whether a watch our professors spar with Justice Owen—who has defended people certain drug interacts with another Scalia and Justice Breyer.” facing the death penalty since 1989 and who also leads a Plan II Honors THE OPPORTUNITY TO LITIGATE AT THE HIGHEST LEVEL freshman seminar on the death penalty—argued the consolidated IS UNCOMMON. IT’S EVEN MORE UNUSUAL WHEN THE cases of Brewer v. Quarterman and Abdul-Kabir v. Quarterman with Steiker ADVOCATES ARE STILL IN LAW SCHOOL. serving as co-counsel. Smith, Brewer, and Abdul-Kabir all drug when talking to a physician about “The volleying of Supreme Court addressed the similar question of mitigation for one client,” Harrington litigation is just absolutely fascinating,” whether the sentencing instructions said, noting that he has penned several said Harrington, adding that Steiker given to the defendant’s jury during memos about issues critical to particular had barely started his argument when the punishment phase of the trial cases. “I’ve also had truly transformative Justice Scalia interrupted with a question. allowed jurors to consider mitigating client interactions on death row.” Capital Punishment Center directors evidence such as a defendant’s intellectual But for Harrington the culmination Steiker and Owen are nationally impairments, learning disabilities, of his clinical experience was traveling recognized experts on death penalty placement in special education, and to Washington DC with his classmates constitutional law. Steiker—who joined traumatic family background. Jurors earlier this year to observe Steiker and the law faculty in 1990 after serving as a allowed to consider such evidence,

Capital Punishment Clinic students and faculty standing in front of the U.S. Supreme Court after oral arguments in three of their cases in January. Left to right: Anna Baker, Jasmine Erdener, Eric Harrington, Linford Coates, Meghan Shapiro, Jamie Dickson, Sian Crichton, Kimberly Gustafson, Professor Jordan Steiker, Stefanie Collins, Professor Rob Owen, Mary Beth Hickcox-Howard, Chase Hamilton, Professor Maurie Levin, Paul Riffe, James Dowd, Daniel Gagarin, Christina Thoda, and Professor Jim Marcus.

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argued the Clinic’s attorneys, might highest levels of practice.” Steiker said. “It’s a very emotional experience talking choose to sentence the defendant to life “And our students come out of the to any one on death row, especially in prison rather than death by injection. Clinic much better equipped to wrestle someone like Panetti, who is visibly Another law student who attended with complicated legal issues and to mentally ill,” Thoda said. the oral arguments in January was work with others to refine their Thoda endeavors to get inmates a Meghan Shapiro, who will join the positions and advocacy.” He noted that fair trial. “Ninety-nine percent of the Clinic in the fall. As a first-year student many former students are now highly time, these people have not gotten a she volunteered to work on Smith. successful and highly respected fair shake from the justice system “Meghan jumped in and found terrific advocates in capital litigation. because their previous counsel or the process has been inept,” she said. “IT WAS AN AMAZING EXPERIENCE TO WATCH “They’ve never had anyone truly understand or fight for the issues in OUR PROFESSORS SPAR WITH JUSTICE SCALIA their cases.” Thoda helped produce a chart for AND JUSTICE BREYER.” the Supreme Court brief surveying the law related to competency for execution support for an important issue in the Shapiro said she can imagine in the country’s thirty-eight death case,” Steiker said. “And that issue becoming a Supreme Court litigator. penalty states. She said her work on became a very salient one at argument, “It becomes very real when you’re actually Panetti was much more advanced than where we were asked about how the Texas sitting there watching people you know the work she did for the Clinic’s three courts had traditionally treated a failure argue these cases,” she said. “You’re other Supreme Court litigation cases to make a contemporaneous objection.” sitting there the whole time thinking: I this year. “Contributing to a case that goes to guess I could have answered that question. “That made the experience of going the Supreme Court is such an exciting Then suddenly you start to think, to the Supreme Court the second time experience that when I was doing that I maybe I might be doing that one day.” so much more satisfying,” she said. “To couldn’t wait to finish the work for my see the law culminate at this level, to regular classes,” said Shapiro, a CAPITAL PUNISHMENT CLINIC ASSISTS see the process go all the way to the Virginia native who chose to attend the WITH A FOURTH CASE BEFORE THE COURT Supreme Court, this is what as a law Law School for the clinical opportuni- student I’ve been studying for. ties to work on death penalty cases. “It’s Under the supervision of professors It reminds me that what I’m doing really what motivated me to study hard, Maurie Levin and Jim Marcus, students is really important and this is why I so I could do something that was cur- in the Capital Punishment Clinic wanted to be a lawyer.” rent and affecting a real person and worked on another Supreme Court When Thoda graduates this May she possibly affecting history,” she said. case this term as well. The case, Panetti will join the New York office of Shapiro arrived outside the Supreme v. Quarterman, was argued by Gregory Fulbright & Jaworski in the firm’s Court building in the predawn hours Wiercioch, an attorney with the Texas litigation department, where she on the day of the oral arguments and Defender Service, a private, non-profit expects to have the opportunity to do stood in bitterly cold temperatures for law firm that represents death row pro bono death penalty work. hours with more than a dozen students inmates. Levin, an experienced death to ensure seats inside the Court. penalty lawyer, works part-time as a staff EARLY VICTORY FOR NEW SUPREME “We were thrilled that the students attorney at TDS, where Marcus was COURT CLINIC were able to attend the arguments in executive director before joining the the Supreme Court after working on Law School’s faculty. In 1977, the Law School’s first the cases and understanding the issues The issue in this case is whether Clinic, the Criminal Defense Clinic, from the inside out,” Steiker said. Scott Panetti is mentally competent to brought Acker v. Texas to the Supreme “They also got to see the evolution of be executed. Marcus said that Panetti, Court. The Court agreed to decide the what we had said in our moots and how with a long history of severe mental case (and ruled in favor of the Clinic’s we were encouraged to reframe or health problems, has been diagnosed client)—apparently the first time that change our argument. It’s great for our as a schizophrenic and doesn’t have a a clinic-generated case had been students to see us as students, too.” rational grasp of why Texas intends to accepted for review. Thirty years later, Owen often tells his students that execute him. one of the newest clinics at the law any one of them could end up arguing Several of the students have worked school, the Supreme Court Clinic, also a case before the Supreme Court. “You on the opening brief, including scored a huge victory when the Court should not assume that your life’s path Christina Thoda. During spring break announced in January that it had will not lead you to that podium. It can in March, she traveled with Marcus and agreed to review Altadis. surprise you.” other clinic students to death row at Word of the Clinic’s early success “One of the best things that our Texas Department of Criminal Justice’s quickly heightened the allure of Clinic can do is allow our students to Polunsky Unit in Livingston to meet Supreme Court advocacy among UT envision themselves involved in the Panetti face to face for the first time. Law students. Clinic student Keller

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reported, “I’ve already had ten 1Ls or other documents to be filed with the provides the rules to determine a carrier’s [first-year law students] come up and Court. The Clinic also includes liability for damaged cargo that is carried ask me, ‘How do you get into the traditional classroom sessions to by both ship and truck?” said Clinic Supreme Court Clinic?’” introduce students to Supreme Court supervisor Sturley, whose specialties The Clinic meets once or twice a practice and procedures. include maritime law, commercial law, week, often on the fifth floor of the law In its first case, the Clinic agreed last and Supreme Court practice. library in a corner room where pictures fall to represent a Florida company, Sturley, who clerked at the Supreme of Supreme Court justices cover the Altadis USA, which contracted with Sea Court for Justice Lewis F. Powell Jr. in walls. In the Clinic, students are Star Line to carry a sealed container of the 1982–1983 term, explained that the assigned to represent real clients cigars and cigar bands from San Juan, courts of appeals have been split on the seeking review of lower court decisions. Puerto Rico, to Tampa, Florida. answer to this question, with some courts applying the federal transportation “OUR STUDENTS COME OUT OF THE CLINIC MUCH law for land to determine a carrier’s liability and others applying the federal BETTER EQUIPPED TO WRESTLE WITH COMPLICATED law for ocean carriage. Disagreement in the lower courts over the issue made it a LEGAL ISSUES AND TO WORK WITH OTHERS TO REFINE good candidate for Supreme Court review. By deciding to represent Altadis, the THEIR POSITIONS AND ADVOCACY.” Clinic made it possible for an important case to proceed that would otherwise The cases may be in any substantive Although the shipment made the have been abandoned because the area of law ranging from transport law trip by sea without incident, the cigars amount of money at stake in the to the Fourth Amendment, although were stolen from a truck during individual case was too small to justify they are most likely to involve federal inland transport. the normal expense of Supreme Court statutory issues. The Clinic team took the case litigation. The client obtained the benefit Clinic faculty members retain the because the dispute raised important of first-rate legal representation at no ultimate responsibility for a case, but questions of liability involving goods charge and the Clinic obtained a perfect students take the lead in conducting shipped by sea and land—which total vehicle for the students to learn first-hand the legal research, developing the more than a trillion dollars in U.S. trade about Supreme Court practice. arguments that will be used, and each year. “The legal issue is difficult and For students in the Clinic, being a preparing the initial drafts of the briefs significant: Which federal legal regime part of the Supreme Court legal team meant working on almost every facet of the case. “We were finding case law on point, poring over statutory history, and crafting policy arguments that would help our client. Students also produced the entire first draft of the certiorari petition,” Keller said. The draft was then revised under the guidance of Sturley; Brendan Crimmins, ’03, an associate at Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington DC; and David Frederick, ’89, a partner in the DC office of Kellogg, Huber. Frederick clerked for Justice Byron R. White and now regularly represents private clients in the Supreme Court. Both he and Crimmins are Sturley’s former students. “At times I felt like Indiana Jones searching for a lost text when I was digging through statutory history from literally one hundred years ago,” said Keller. In its brief to the Court, the team needed to summarize a statute Members of the Supreme Court Clinic on the steps of the Court during their March visit. From known as the Carmack Amendment, left to right (front row): Clinic Co-Director David Frederick—a 1989 Law School graduate, which the Clinic argued was the Sammy Ford and Ashley McKeand; (second row) Scott Keller, Elizabeth Hardy, Aaron Liskin federal law that applied in Altadis. and Brendan Crimmins—supervising attorney and a 2003 Law School graduate; (third row) “We had to go back through the Tim Gerheim, Benjamin Wallfisch, and Joe Conley. legislative history and the changes to

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the Carmack Amendment to succinctly explain how the statute had become so convoluted that six separate statutory provisions really all stemmed from the same 1906 statute,” Keller explained. After the Court agreed to hear Altadis, but before the case could be argued, a settlement was reached between the parties. The Court did not issue an opinion, leaving the issue in the case unresolved. Sturley explained that the defendant offered Altadis USA a settlement that was more generous than the result that the client would have achieved if it had won the case before the Court. “It would have been gratifying to participate with the students in clarifying the law in this important and complicated area,” said Sturley, who has participated in several dozen Supreme Court cases. “But our real pedagogical goal is to train our students to be better lawyers, which means, among other things, best serving In the West Conference Room, Chief Deputy Clerk Chris Vasil (center) gives an inside perspective their client’s interests,” he said. “In this on the operation of the Court to visiting Supreme Court Clinic students in March. case, they learned that the best way to second petition for certiorari in March. Court litigation is teaching students to serve a client’s interest is not necessarily That case, United States ex rel. Bly-Magee figure out what cases the Court might to get a favorable opinion from the v. Premo, involves a whistleblower want to hear, and how to properly court.” Sturley added that at the time the seeking relief under the False Claims frame and brief cases. “So many clients settlement happened, the students had Act. On May 29, the Court invited the are represented at the Supreme Court already done the overwhelming bulk of Solicitor General to file a brief expressing by lawyers who have no experience in the work on writing a merits brief. “So the views of the federal government, Supreme Court practice,” Sturley said. in effect, they’ve had the experience of which is often a preliminary step “They may be good lawyers but they are writing a successful cert petition and before the petition is granted. not aware of what the Court is looking writing a merits brief.” for, or which aspects of the client’s case Despite the settlement, the students THE NATIONAL PICTURE need to be presented to the Court. traveled to Washington DC in late Working on these cases enables the March to see an argument at the While it’s still fairly unusual for a law students to learn what the Court is Supreme Court and meet with two school clinic to take a case to the looking for and also enables the clients Court officials—the Chief Deputy Supreme Court, the competition to to have their cases presented in a way Clerk and the Administrative Assistant work on this type of litigation has been that stresses their strongest arguments.” to the Chief Justice. “Seeing an oral growing recently. Stanford Law School Sturley added that he passes out argument for the first time gave me a established the first Supreme Court statistics on the first day of class showing greater appreciation of the skill Clinic in 2003. In the past year, how hard it is to persuade the Court to required of a Supreme Court advocate,” Supreme Court clinics have also been review a case, not to intimidate students said third-year law student Benjamin launched at Yale, Virginia, and but to give them a sense of realism. Wallfisch. “But it was priceless to hear Northwestern. Harvard announced it “The odds are against you,” he tells his the vivid stories of two Supreme Court will start one next fall. students. But, he also teaches students veterans, who gave us an inside perspective Students commented they were how to improve those odds. on the operation of the Court.” surprised at the amount of teamwork This leaves clinic student Keller The same students who worked on and interaction clinical work requires. optimistic as he searches for cases like Altadis are currently in the preliminary “Most people think of appellate lawyers Altadis that could once again beat the research stages of a new case involving as meticulous brief writers who are odds. Since October, Keller has been the Fourth Amendment. Another four holed up in an office poring over sorting through cases trying to find students who joined the Clinic in the cases,” Keller said. “That’s not exactly cert-worthy issues. In the process, he spring semester worked with Sturley, false—it’s just not the whole picture. discovered the Fourth Amendment Frederick, and Professor Lynn Blais We spent hours bouncing ideas and case on which he and his classmates are (who clerked for the late Justice Harry arguments off of each other.” currently working. Now he’s hoping A. Blackmun) to file the Clinic’s Part of the preparation for Supreme this will become another success story.

Spring 2007 UTLAW 21 22-26_JudicialClerkships 6/7/07 11:38 PM Page 1

From Law Student to Judicial Clerk (and how to get there) Tom Henninger, ’92

ollowing her graduation, Liz The creator of the judicial internship clerks. Just out of law school, taught in McKee, ’06, left Texas for program at the University of Texas, Bea the most advanced research techniques, Kentucky to begin a Ann Smith, ’75, a justice from 1991 clerks are able to ensure that the judge F prestigious judicial clerkship through 2006 on the Texas Court of does not miss the guiding precedents. with Judge John M. Rogers of the U.S. Appeals, Third District, knows what The dialogue aided by scholarship Court of Appeals for the Sixth Circuit. Elizabeth means. Speaking to students allows every angle of a case to be As a clerk, McKee said, her “primary recently about clerking, she told them, examined, in strict confidence, so that job is preparing bench memos for “It matures you as a lawyer. You see how the ultimate decision is enhanced to the Judge Rogers. [Such memos] provide law is made. It improves your writing fullest. The process makes the judge an overview of each case and the issues and analytical skills, and you gain and the justice system better.” on appeal. Another big part of our job composure—you see ‘the good, the Law firms also value the experience. is assisting in the drafting of opinions, bad, and the ugly’ with both advocacy “What better opportunity is there for a attending oral arguments, and confer- and writing.” young trial attorney to learn the law ring with Judge Rogers to discuss pend- ing cases.” “Clerking is a way to contribute, Now more than eight months into the clerkship, McKee has perspective using skills that law students on the value of clerking. “This job forces you to be a better, more succinct, uniquely have, as a citizen.” writer, and Judge Rogers has been a great teacher in that regard. Also, Judge Royal Furgeson, ’67, U.S. and legal writing, theory, and process being in a position to read and evaluate District Judge for the Western District than from those who interpret the laws briefs and to watch oral arguments is of Texas, believes clerks also benefit of our land?” asked Holt Foster III, ’95, extremely beneficial because it provides a judges and the judicial system. “Judges the hiring partner at Thompson & unique opportunity to get a good sense can get isolated. This is especially true Knight in Dallas. “Even a transactional of the difference between an effective of federal judges, who are appointed, attorney benefits from a clerkship as it brief and an ineffective brief, and not elected. While some isolation provides him/her a unique opportunity provides an opportunity to see how bestows the benefit of detachment, too to see the complicated manner in good oral advocacy is done—and much can hinder perspective. Law which business arrangements are not-so-good oral advocacy. Finally, it’s clerks are the best resource available to attacked and unwound.” been great to be able to work closely a federal judge to achieve the needed David Oelman, ’90, hiring partner with Judge Rogers. He’s a great mentor balance between detachment and at Vinson & Elkins in Houston, said, “In and teacher to his clerks, and he takes perspective. In the quiet of chambers, hindsight, I wish I had considered a a lot of time to ensure that we’re all the issues of a case can be thrashed clerkship. I think the experience is getting all we can from this experience.” out between the judge and the law incredibly valuable for a lawyer in

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whatever practice area he or she may Kravitch on the U.S. Court of Appeals for toward a judge whom [the student] ultimately choose. More than that, it is the Eleventh Circuit, this institutional might not have considered, but who a way to contribute, using skills that law attention to judicial clerkships “helped may turn out to be a great fit.” students uniquely have, as a citizen.” to generate a buzz among the students Over the summer, the students With all of these good reasons to that didn’t exist before.” prepare their applications, submitting clerk, it is not surprising that the faculty The process begins with an informa- their preliminary list of judges to clerkship advisors found a receptive tional meeting for 1Ls in March, before the faculty advisors and to their audience for their renewed efforts to they register for their 2L classes. recommenders for review. Before increase the number of UT students Faculty advisors and guest judges and school starts at the end of August, the applying for clerkships. In 2007, about clerks explain what clerks do and how the clerkship team organizes a huge fifty UT Law graduates will clerk at the federal and state level in courts around “It provides a unique opportunity the country, including twenty at the federal appellate level, a significant to get a good sense of the increase over previous years. difference between an effective Advisors Launch Innovative Clerkship Program brief and an ineffective brief.”

Last year, with the full support of students can best position themselves “Centralized Mail Out,” to which stu- Dean Sager and the Law School’s faculty to be attractive candidates. In the fall dents bring their applications so that and administration, Professors Emily semester, the advisors hold meetings they can be bundled and sent out to Kadens, Tony Reese, and Ernie Young for applying second- and third-year judges as a group. The following week, implemented a program to help UT students, during which they address the advisors and visiting clerks present a

2007 Judicial Clerks photographed at the Texas Supreme Court (left to right) Mark Dundon, Sammy Ford, Mansoor Bharmal, Neil Fuquay, Chase Hamilton, Brian Stoltz, Keith Henneke, Zeke DeRose, Ian Shelton, Mike Crnich, and Courtney Barksdale. Law students secure judicial clerkships. process-oriented questions, like obtaining program on how to prepare for interviews. Working with the Law School’s Career recommendation letters and application Then the waiting begins. As students Services Office and a designated clerkship deadlines. The group meeting is receive phone calls from judges requesting administrator in the dean’s office, the followed by interviews with Kadens, interviews, anticipation builds. “The day team centralized the application Young, and each student. In these the federal judges could first contact process, streamlined the obtaining of meetings, the advisors discuss the students for interviews, Ernie Young and faculty recommendation letters, met student’s interests and advise them I were pacing our offices waiting for one-on-one with applicants, and on those clerkships for which they are news,” said Kadens. Meanwhile, the organized a series of presentations by best positioned. students were clustered in journal judges and current and former law David Mader, a third-year law stu- offices and elsewhere anxiously waiting clerks. These initiatives increased student dent who will clerk in the coming term for their cell phones to ring. As the awareness of and excitement about for U.S. District Judge T.S. Ellis III of number of interviews, and then offers, clerkships. In the words of Sean the Eastern District of Virginia, had mounted, the students, advisors, Flammer, a third-year student who will this to say: “Professors Young and Career Services, and faculty all joined

Photo: Marsha Miller clerk after graduation for Judge Phyllis Kadens are able to guide students in the excitement. “We were thrilled by

Spring 2007 UTLAW 23 22-26_JudicialClerkships 6/13/07 12:40 PM Page 3

our success last year,” said Dean Sager, one that focuses on district courts and District Clerkship. “Students need “and I hope and expect that it will the other on appellate courts. Students experience writing the types of things continue in the future. Clerkships are a use actual case material—briefs, trial court clerks write. But they also valuable part of the education of young motions, and records—to learn to draft need to be familiar with the specific lawyers; it enables them to be partici- orders, bench memos, opinions, etc. issues and key areas of the law that often come up in these courts. So we talk about federal procedure “Clerkships are a valuable part and spend some time on issues of the education of young lawyers; like immunities that apply to government defendants, patent claim it enables them to be participants— construction, criminal sentencing, and habeas and death penalty cases. not merely spectators—in the process The ultimate goal is to give them confidence going in.” of American adjudication.” Judicial Clerkship Workshop pants—not merely spectators—in the And while developing writing skills is an process of American adjudication.” important goal, it isn’t the only one. To continue to generate enthusiasm To help prepare students who “There are two objectives,” said Betsy about clerking, and to let students receive clerkships for their new jobs, Chestney, ’02, who teaches a course learn what judges are like, Kadens and the Law School created two new courses, called Preparation for a Federal Young organize a number of events

Seated in the front row, (left to right): Nathan Bruggeman, Elizabeth Hardy, and Eugene Tanner. Standing, second row: Susana Canseco, Melissa Devine, Paige Bruton, Ruth Karper, Emily Jolly, Robert Bruner, Esther Sung, and Ryan Newman. Third row: Parisa Fatehi, Ben Wallfisch, Christian Hurt, Scott Keller, Carlos Romo, Benjamin Siegel, and Jacob Scheick. Fourth row: Adam Sencenbaugh and James Lebeck.

24 UTLAW Spring 2007 22-26_JudicialClerkships 6/13/07 12:41 PM Page 4

that put students in direct contact with sitting judges and former judicial clerks. This year, for instance, Justice Smith came to speak about clerkships with the Texas courts of appeals, and Judge Susan Braden came to speak about her court, the Court of Federal Claims. The largest such event is the annual two-day Judicial Clerkship Workshop. In April, fourteen judges from around the country, representing the federal appellate, magistrate, district, and bankruptcy courts, as well as state supreme courts, came to discuss what they and their clerks do. The Workshop began with a panel of recent UT Law graduates who clerked following graduation. The panelists discussed what day-to-day clerking was like for them and answered questions about the application process. Four judicial panels followed—a panel of U.S. Chief Justice Wallace Jefferson, left front, photographed with (first row, left to right) Kody bankruptcy and magistrate judges, Kleber and Sean Flammer; (second row, left to right) Mittie Jones, Alia Derrick, Melonie DeRose, and Ashley McKeand; (third row, left to right) Teddy Cory, Robert Romig, and Adam Nugent. a panel of state supreme court judges, another of federal district court judge,” said Jared Hubbard, a second-year was extraordinarily beneficial,” said judges, and, finally, a panel of federal law student. “We also had opportunities Samantha Porphy, a second-year law appellate judges. Many of the judges to talk with the judges in a more casual student. “The program provided also led discussion sessions about setting. It was great to have the chance opportunities to interact with the opinion writing. They discussed in to meet and get to know these judges as judges in several different contexts. detail the work of their respective people and not as the oracles of the law The small-group discussions, in courts, the work of clerks in that we might imagine in class.” particular, provided valuable insights their chambers, and the application “The Judicial Clerkship Workshop into the judicial decision making and interviewing process—including application strategies. “The competitive stress and tension that surrounds the hiring of law clerks is my least favorite part of the job,” said Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit, one of the Workshop participants. “So anything that makes that process easier is a blessing. There is real competition among judges for the best students, and programs like this increase the pool of well qualified applicants. Everybody benefits from that. UT Law has the most impressive clerkship program that I’ve seen—I don’t know of any other school that is doing anything even approaching it.” The workshop was also widely praised by participating students. “It offered us an excellent opportunity to meet with judges from all levels. The judges were very open and honest in the sessions about some of the frustrations of their courts, as well as Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit speaking about judicial what made them enjoy their life as a writing style.

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process. Additionally, the panelists were frank about what clerks in their chambers work on.” Come autumn, UT graduates will begin clerkships all over the country. One will head to California to clerk for Judge Alex Kozinski on the Ninth Circuit, another to New York City to clerk for Judge John Walker on the Second Circuit. Some will stay closer to home, clerking for the justices of the Texas Supreme Court, the judges of the Texas Court of Criminal Appeals, and many Fifth Circuit appellate, district, bankruptcy, and magistrate judges. One student will travel across the globe to serve as the American law clerk for Justice Johann van der Westhuizen of the South African Constitutional Court. At the same time, the rising 3Ls will submit their applications Judge Diana G. Motz of the U.S. Court of Appeals for the Fourth Circuit explaining her opinion and the process will begin again. in the case concerning the admission of women to the Virginia Military Institute.

Chief Judge Helen G. Berrigan of the U. S. District Court, Eastern District of Louisiana discussing sitting on death penalty cases.

26 UTLAW Spring 2007 27_LockeLiddell 6/11/07 9:31 PM Page 1

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Spring 2007 UTLAW 27 28-31_EmptyVoting 6/13/07 4:22 PM Page 1

Bernard Black and Henry Hu

28 UTLAW Spring 2007 28-31_EmptyVoting 6/12/07 4:29 PM Page 2

and the Foundations of Corporate Governance

he lead front-page story of the Wall Street Journal on January 26, 2007 was governance implications. We also offer a devoted to a new phenomenon now known as “empty voting.” The WSJ framework for thinking about decoupling, credited Professors Henry Hu and Bernard Black with coining the term and one that sets out the functional Tquoted repeatedly from their May 2006 law review article. A subsequent WSJ elements and a taxonomy of strategies. story noted that this phenomenon had been “thrust into the spotlight last year” by the UTL: Why might this be of interest to those same law review article. The Financial Times was already aware of the importance of these on Main Street, and not just Wall Street? matters, having scooped its American competitor with four stories that discussed Hu and Hu: The whole architecture of corporate Black’s research. The key FT story, which focused on Hu’s September 2006 speech to the governance largely rests on the notion Council of Institutional Investors, ran under the headline “Thesis on hedge fund tactics that there is a coupling of economic gives investors a shock—Professor’s warning on ‘empty voting’ has big impact in the U.S.” interest and voting power: a one share, This research is receiving exceptional recognition. one-vote structure. This structure gives Hu and Black’s term, “empty voting,” is coming into use worldwide among bankers, shareholders economic incentives to corporate executives, hedge funds, institutional investors, lawyers, and regulators. exercise their voting power well and Prominent outside observers, such as the London-based International Corporate helps to legitimate managers’ exercise Governance Network, have characterized the research as “ground-breaking” and “seminal.” of authority over property that the Recent published reports suggest that this research is sparking regulatory rethinking. managers do not own. In addition, Why this brouhaha? UT Law sat down recently with Professor Hu to find out. mechanisms rooted in the shareholder vote, including proxy fights and UTL: What’s the research about? between votes on common shares and takeover bids, constrain managers from Hu: Everyone’s aware of the increasing the economic interest in those shares straying too far from the goal of role of hedge funds in corporate gover- can now be “decoupled.” Hedge funds shareholder wealth maximization. nance. What’s less well known is the have been especially active in getting That is, all existing legal and emergence of new techniques for around the familiar “one share-one economic theories of the public either “buying” shareholder votes or vote” system. corporation presume a link between hiding ownership. Relying on financial Our research is the first systematic voting rights and economic ownership, innovations such as “equity swaps” and attempt to analyze this decoupling— a link that can no longer be relied

Photo: Marsha Miller other techniques, the traditional link the “new vote buying”—and its corporate on. Decoupling has potentially large

Spring 2007 UTLAW 29 28-31_EmptyVoting 6/7/07 11:53 PM Page 3

implications for the continued viability swaps and other means, thereby ending is a worldwide issue; hidden ownership of the corporate governance systems of up with 9.9% voting ownership but has even been litigated in Australia this and most other industrialized zero economic ownership. Including and New Zealand. countries. its position in King, Perry’s overall Our articles propose a set of UTL: Please explain what you mean by economic interest was thus negative. integrated disclosure rules which “decoupling.” The more Mylan (over)paid for King, would simplify and modernize the Hu: Decoupling comes in two basic the more Perry would profit. current rules. We anticipate the new forms, which we term “empty voting” Another example involves the use of rules would not only provide better and “hidden (morphable) ownership.” share borrowing, though there are information but may actually be less Empty voting occurs when an certain regulatory and other factors burdensome overall. investor holds more votes than limiting use of this technique in vote In contrast, an assessment of what economic ownership. In an extreme buying, especially in the U.S. Suppose responses beyond such disclosure case, an investor can hold votes with no that a shareholder is upset with reforms might be appropriate must economic interest, or potentially with a management and wants to support a reflect the fact that not all vote buying negative economic interest in the shareholder proposal or election of is bad. Vote buying could enhance company. These investors have minority directors. The shareholder shareholder oversight of management been emptied of an accompanying might be tempted to try to enhance his in certain circumstances. economic interest. voting power by borrowing shares just Moreover, the response must consider Think about the really extreme case: before the record date for a shareholder potential effects on the derivatives, a person with a negative economic vote, and return the shares afterwards. share borrowing, and short-selling interest would want to—and could— One example of this “record date markets on which the new vote buying exercise his votes to cause the company capture” occurred in the U.K. in 2002. depends. The derivatives, share to make bad decisions, not good ones. Laxey Partners, a hedge fund, held borrowing, and short-selling markets He might want someone totally about 1% of the shares of British Land, have valuable social roles. For instance, clueless—a Maxwell Smart or Mr. a large property company. At the annual some believe that short sellers can help Magoo—to be Chairman and CEO. general meeting, Laxey voted over 9% make stock prices more efficient. Hidden (morphable) ownership of British Land’s shares to support a Financial innovation and hedge occurs when investors have economic proposal to dismember British Land. funds make times interesting for the ownership, often undisclosed, that How was this possible? Just before world’s academics, corporate executives, exceeds their apparent voting rights. the record date, Laxey borrowed lawyers, and regulators. Using financial innovations such as almost 42 million shares. Laxey “equity swaps,” hedge funds can do perceived itself as calling weak manage- end runs around large shareholder ment into account; it believed that such ownership disclosure requirements—such vote buying was improving corporate as the familiar 5%-and-over disclosure governance. British Land’s chairman requirements under Schedule 13D so didn’t see matters the same way, important in takeover contexts. A lambasting Laxey’s “rent-a-vote” strategy hedge fund might, for instance, hold a as an abuse of the voting system. 9% economic stake in a company UTL: So what, if anything, should be done? without any public disclosure, even Hu: The current regulatory regime has though that ownership can often been undermined by financial innova- “morph” into a full 9% direct tion. Current state corporate law is shareholder ownership stake at any time. unlikely to reach much of the new vote UTL: So how have hedge funds actually buying by outside investors. For engaged in empty voting? instance, decoupling of the Hu: Let’s consider two examples, the Perry-Mylan sort would not even fall The Research: first involving a hedge fund called within the definition of vote buying Henry T. C. Hu and Bernard Black, “The New Vote Perry Corp. In late 2004, Perry owned under the leading Delaware case. Buying: Empty Voting and Hidden (Morphable) seven million shares of King The federal disclosure side is no Ownership,” 79 Southern California Law Review 811-908 (2006), also available at Pharmaceuticals. Mylan Laboratories better. The SEC has five discrete sets of http://ssrn.com/abstract =904004 agreed to buy King. King’s shares ownership disclosure rules that, taken Henry T. C. Hu and Bernard Black, “Empty Voting jumped, but Mylan’s shares dropped as a whole, are bewilderingly complex. and Hidden (Morphable) Ownership: Taxonomy, sharply. To help ensure that Mylan Key elements have been rendered Implications and Reforms,” 61 Business Lawyer 1011- 1070 (2006), also available at obtained the requisite shareholder obsolete by the emergence of equity http://ssrn.com/abstract=887173 approval, Perry bought 9.9% of Mylan, swaps and other financial innovations Henry T. C. Hu and Bernard Black, “Hedge Funds, thereby becoming Mylan’s largest known as “over-the-counter deriva- Insiders, and the Decoupling of Economic and shareholder. tives.” The transparency and level playing Voting Ownership: Empty Voting and Hidden (Morphable) Ownership,” Journal of Corporate However, Perry fully hedged its market field goals that motivate longstanding Finance (forthcoming 2007), also available at risk on the Mylan shares through equity disclosure rules are undermined. This http://ssrn.com/abstract=874098

30 UTLAW Spring 2007 28-31_EmptyVoting 6/7/07 11:53 PM Page 4 FACULTY NEWS Brian Leiter Nietzsche and Morality Alvaro Santos The New Law and (Oxford University Press 2007) Economic Development: A Critical RECENT (editor, with Neil Sinhababu) Appraisal (Cambridge University Press 2006) (editor, with David M. Naturalizing Jurisprudence: Essays on Trubek) FACULTY American Legal Realism and Naturalism in Legal Philosophy William M. Sage Medical Malpractice (Oxford University Press 2007) and the U.S. Health Care System BOOKS (Cambridge University Press 2006) Sanford Levinson Our Undemocratic (editor, with Rogan Kersh) Constitution: Where the Constitution Goes Wrong (And How We the People Wendy WagnerCommons Ignorance: Steve Bickerstaff Lines in the Sand: Can Correct It) (Oxford University The Failure of Environmental Law to Congressional Redistricting in Texas Press 2006) Provide the Information Needed to Protect and the Downfall of Tom DeLay Public Health and the Environment (University of Texas Press 2007) Ronald J. Mann Charging Ahead: (Vandeplas Publishing 2007) The Growth and Regulation of Jens C. Dammann Die Grenzen Payment Card Markets (Cambridge Rescuing Science from Politics: Zulässiger Diskriminierung Im University Press 2006) Regulation and the Distortion of Allgemeinen Zivilrecht Scientific Research (Cambridge (Duncker & Humblot 2005) Sir Basil Markesinis Good and Evil University Press 2006) (editor, in Art and Law: An Extended Essay with Rena Steinzor) John S. Dzienkowski Ethical (SpringerWien NewYork 2007) Dilemmas in the Practice of Law: Case Studies and Problems Patterns of Regionalism and (Thomson/West 2006) (with Amon Federalism: Lessons for the UK Burton) (Hart Publishing 2006) (editor, with Jörg Fedtke) Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, 2006- Lawrence G. Sager Religious 2007 (Thomson/West 2006) (with Freedom and the Constitution Ronald D. Rotunda) (Harvard University Press 2007) (with Christopher L. Eisgruber) Professional Responsibility: A Student’s Guide, 2006-2007 (Thomson/West 2006) (with Ronald D. Rotunda)

Jörg Fedtke Patterns of Regionalism and Federalism: Lessons for the UK (Hart Publishing 2006) (editor, with Basil Markesinis)

Francesco Francioni, editor, Biotechnologies and International Human Rights (Hart Publishing 2007)

Julius G. Getman Strike! (Plain View Press 2006)

Spring 2007 UTLAW 31 32-35_Levinson 6/11/07 9:42 PM Page 1

3432 UTLAW Spring 2007 32-35_Levinson 6/7/07 11:55 PM Page 2

It’s time to take a hard look at our much-venerated Constitution, Constitution offers us a language by which we can protect those rights that argues Sanford Levinson in his new book. Too many of its provisions we deem to be important. We need not reject the Constitution in order to promote either unjust or ineffective government. It offers the president carry on such a conversation. If the the power to overrule both houses of Congress on legislation he Constitution at the present time is viewed as insufficiently protective of disagrees with on political grounds. Under the existing blueprint, such rights, that is because of the limited we can neither rid ourselves of incompetent presidents nor assure imagination of those interpreters with the most political power, including members continuity of government following catastrophic attacks. Is this a of the Supreme Court. So I was willing in recipe for a republic that reflects the needs and wants of today’s Americans? effect to honor the memory of Douglass and the potential that was—and is— Sanford Levinson is one of the country’s preeminent Constitutional available in our Constitution, and I added my signature to the scroll law scholars, and the W. St. John Garwood and W. St. John Garwood, endorsing the 1787 Constitution. Jr. Centennial Chair in Law at the University of Texas School of Law. On July 3, 2004, I was back in Philadelphia, this time to participate in This article is the introduction to his book, Our Undemocratic the grand opening of the National Constitution: Where the Constitution Goes Wrong (And How We the Constitution Center. The exhibit culminates in “Signers’ Hall,” which People Can Correct It), published last year by Oxford University Press. It features life-sized (and life-like) statues of each of the delegates to the convention. is reprinted here without footnotes. The full text of this chapter, with Many of the delegates appear to be footnotes, can be found on the University of Texas School of Law’s holding animated conversations or, as in the case of Alexander Hamilton, website, at www.utexas.edu/law/faculty/slevinson/undemocratic/ striding forcefully toward George undemocratic_excerpt.pdf Washington—who quite literally, because of his height, towers over the room. As one walks through the hall n 1987, I went to a marvelous Agreement With Hell” because of those and brushes against James Madison, exhibit in Philadelphia compromises. So why did I choose to sign Hamilton, and other giants of our history, commemorating the bicentennial the scroll? As I explained in the final one can almost feel the remarkable of the drafting there of the U.S. chapter of a 1988 book, Constitutional energy that must have impressed itself on IConstitution. The visitor’s journey Faith, I was impressed that Frederick those actually in Independence Hall. through the exhibit concluded with Douglass, the great black abolitionist, As was true in 1987, the visitor is two scrolls, each with the same two after an initial flirtation with Garrison’s invited to join the signers by adding his questions: First, “Will You Sign This rejectionism, endorsed even the ante- or her own signature to the Constitution?” And then, “If you had been in Independence Hall on  September 17, 1787, would you have t is vitally important to engage in a endorsed the Constitution?” The second  question clarifies the antecedent for national conversation about the onstitution’s “this” in the first: It emphasizes that we are being asked to assess the 1787 adequacy rather than automatically to Constitution. This is no small matter inasmuch, for example, it did assume its fitness for our own times. not include any of the subsequent amendments, including the Bill of bellum Constitution. He argued that Constitution. Indeed, the center organized Rights. Moreover, the viewer had been the Constitution, correctly understood, a major project during September made aware in the course of the exhibit was deeply antislavery at its core. The 2004, cosponsored with the Annenberg that the 1787 Constitution included language of the Constitution—including, Center for Education and Outreach, several terrible compromises with slavery. most important, its magnificent called “I Signed the Constitution.” Fifty Even in 1987, I tended to regard the Preamble—allows us to mount a sites in all of the states were available original Constitution as what William critique of slavery, and much else, from for such a signing. Both the temporary Lloyd Garrison so memorably called within. I was convinced by Douglass— 1987 exhibit and the permanent one at “A Covenant with Death and an and many other later writers—that the the National Constitution Center leave

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little doubt about the proper stance And this is true even for readers who that vindicates the Constitution under that a citizen should take toward our disagree with me on what specific which we are governed today. Our founding document. rights are most important. It is always eighteenth-century ancestors had little This time, however, I rejected the the case that courts are perpetually trouble integrating slavery and the invitation to re-sign the Constitution. I open to new arguments about rights— rank subordination of women into have not changed my mind that the whether those of gays and lesbians or of their conception of a “republican” Constitution in many ways offers a rich, property owners—that reflect the political order. That vision of politics is even inspiring, language by which to dominant public opinion of the day. blessedly long behind us, but the envision and defend a desirable political Indeed, liberals should acknowledge Constitution is not. It does not deserve order. Nor does my decision not to sign that even a Supreme Court composed of rote support from Americans who the scroll at the National Constitution a majority of political conservatives—a properly believe that majority rule, Center necessarily mean that I would total of seven justices were appointed by even if tempered by the recognition of have preferred that the Constitution go Republican presidents—nonetheless minority rights, is integral to “consent down to defeat in the ratification votes broke new ground in protecting gays of the governed.” I invite you to ask the following ourts are perpetually open to new arguments questions by way of preparing yourself to scrutinize the adequacy of today’s about rights—whether those of gays and Constitution: 1. Even if you support having a lesbians or of property owners—that reflect the Senate in addition to the House of Representatives, do you support as well dominant public opinion of the day. giving Wyoming the same number of votes as California, which has roughly of 1787–1788. Rather, I treated the and lesbians by overturning Texas’s seventy times the population? center as asking me about my level of prohibition of “homosexual sodomy.” 2. Are you comfortable with an support for the Constitution today and, I applauded that decision; more Electoral College that, among other just as important, whether I wish to important is the fact that the public at things, has regularly placed in the encourage my fellow citizens to reaffirm large, by 2003, also seemed more than White House candidates who did not it in a relatively thoughtless manner. As willing to accept the Court’s views. The get a majority of the popular vote and, to the first, I realized that I had, country may be clearly divided about in at least two cases over the past fifty between 1987 and 2004, become far gay and lesbian marriage, but relatively years, who did not even come in first more concerned about the inadequacies few people any longer seem to endorse in that vote? of the Constitution. As to the second, I a constitutional vision that allows 3. Are you concerned that the think that it is vitally important to the criminalization of such sexual president might have too much power, engage in a national conversation practices as such. whether to spy on Americans without about its adequacy rather than So, what accounts for my change of any congressional or judicial authorization automatically to assume its fitness for views since 1987? The brief answer—to or to frustrate the will of a majority of our own times. Why I believe this is in be spelled out in the remainder of the both houses of Congress by vetoing a real sense the topic of this book. book—is that I have become ever more legislation with which he disagrees on My concern is only minimally related despondent about many structural political grounds? to the formal rights protected by the provisions of the Constitution that 4. Do you really want justices on the Constitution. Even if, as a practical place almost insurmountable barriers Supreme Court to serve up to four matter, the Supreme Court reads the in the way of any acceptable notion decades and, among other things, to be Constitution less protectively, with of democracy. I put it this way to able to time their resignations to mesh regard to certain rights, than I do, the acknowledge that “democracy” is most with their own political preferences as proper response is not to reject the certainly what political theorists call an to their successors? Constitution but to work within it by “essentially contested concept.” It 5. Do you support the ability of thirteen trying to persuade fellow Americans to would be tendentious to claim that legislative houses in as many states to share our views of constitutional possibility there is only one understanding—such block constitutional amendments and by supporting presidential as “numerical majorities always desired by the overwhelming majority candidates who will appoint (and get prevail”—that is consistent with of Americans as well as, possibly, eighty- through the Senate) judges who will be “democracy.” Liberal constitutionalists, six out of the ninety-nine legislative more open to better interpretations. for example, would correctly place houses in the American states? Given that much constitutional certain constraints on what majorities One might regard these questions as interpretation occurs outside the can do to vulnerable minorities. raising only theoretical, perhaps even courts, one also wants public officials at That being said, I believe that it is “aesthetic,” objections to our basic all levels to share one’s own visions of increasingly difficult to construct a theory institutional structures if we felt truly constitutional possibility—as well, of of democratic constitutionalism, applying satisfied by the outcomes generated by course, as of constitutional constraints. our own twenty-first-century norms, our national political institutions. But

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this is patently not the case. Polling expressed a “fair amount” of confidence. Congress could confront effectively. In data offer some insights, even as we Only 13 percent had a “great deal” of any event, we should resist the temptation must recognize both that they measure confidence. Interestingly, Kritzer simply to criticize specific inhabitants support for particular officials and that relates the general drop in support for of national offices, however easy that support levels go up as well as down. the Court to “the general demonization is for most of us to do, regardless of That being said, consider that, as I of government, particularly the federal political party. An emphasis on the write these lines in May 2006, a USA government, that took place over the deficiencies of particular officeholders Today-Gallup poll taken between April past 25 years.” suggests that the cure for what ails us is 28–30 finds that 34 percent of the A different sort of discontent is simply to win some elections and respondents approve of George Bush’s measured when one asks people if they replace those officeholders with conduct as President (though 39 believe that the country is generally presumptively more virtuous officials. percent still have a “favorable” view of headed in the right direction. In April But we are deluding ourselves if we him overall, as contrasted with the 60 2005, a full 62 percent of the respondents believe that winning elections is percent who regard him unfavorably). to a CBS poll indicated that they enough to overcome the deficiencies Only 41 percent find him “honest and believed that the country was headed of the American political system. trustworthy,” Yet President Bush has a higher approval rating than Congress. e must recognize that a substantial A slightly earlier CBS-Washington Post poll found that only 36 percent responsibility for the defects of our polity lies of those polled “approve” of the current Congress, while 62 percent in the onstitution itself. “disapprove.” Yet another poll found that Republican congressional leaders in “the wrong direction.” One doubts We must recognize that a substantial were approved by only 33 percent that the country is any more optimistic responsibility for the defects of our of the respondents, one point less a year later, given further setbacks in polity lies in the Constitution itself. A than their Democratic counterparts Iraq and the disasters generated by number of wrong turns were taken at (34 percent). Hurricanes Katrina and Rita, not to the time of the initial drafting of the Compared to the president and mention more general issues of national Constitution, even if for the best of reasons Congress, members of the Supreme security, global warming, and the ever given the political realities of 1787. Court might feel considerably better. higher cost of gas. One might feel that Even the most skilled and admirable Yet even there, the data are mixed. For the country is headed in the wrong leaders may not be able to overcome example, a May 2005 poll conducted by direction even if Congress were perceived the barriers to effective government Quinnipiac University found that only to be on top of all such issues if one constructed by the Constitution. No less a 44 percent of voters approved of the thought we were at the mercy of founder than Alexander Hamilton decisions of the Supreme Court, down events—like an oncoming asteroid— emphasized that “[a]ll observations” from 56 percent approval in a March 5, simply beyond any human intervention. critical of certain tendencies in the 2003, poll. An analysis of public opin- But surely the sense of dissatisfaction is Constitution “ought to be referred to ion and the Court during the period of related for most Americans to a belief the composition and structure of the William Rehnquist’s chief justiceship— that our political institutions are not government, not to the nature or 1986–2005—found a general diminution adequately responding to the issues at extent of its powers.” He is correct. In of support for the Court over those hand. Any reader can certainly construct many ways, we are like the police officer in years, though several polls continue to her own list of issues that are not seriously Poe’s classic The Purloined Letter, unable show that the majority of the public confronted at all—or, if confronted, to comprehend the true importance of retains “confidence” in the Court. Still, resolved in totally inadequate ways—by what is clearly in front of us. according to Wisconsin political the national government. Serious liberals If I am correct that the Constitution science professor Herbert Kritzer, a and conservatives would likely disagree is both insufficiently democratic, in a June 2005 poll by the Pew Research on the particular failings, but both, country that professes to believe in Center for the People and the Press increasingly, would share an attitude of democracy, and significantly dysfunctional, finding that 57 percent of its respondents profound disquiet about the capacity of in terms of the quality of government are favorable to the Court “is at the our institutions to meet the problems that we receive, then it follows that we lowest level since it began, falling confronting us as a society. should no longer express our blind under 60 percent for the first time.” As To be sure, most Americans seem to devotion to it. It is not, as Jefferson John Roberts took the helm of the approve of their particular members of properly suggested, the equivalent of Supreme Court in September 2005, Congress. The reason for such the Ark of the Covenant. It is a human almost a third of the population approval, alas, may be the representatives’ creation open to criticism and even to (31 percent) expressed “not very success in bringing home federally rejection. To convince you that you much” confidence (25 percent) or funded pork, which scarcely relates to should join me in supporting the call “none at all” (6 percent) in the judiciary, the great national and international for a new constitutional convention is even if this was offset by the 55 percent who issues that we might hope that what this book is about.

Spring 2007 UTLAW 35 36-37_FacultyProfiles 6/8/07 12:04 AM Page 1

ADVISES ON CURING FOCUS William M. HEALTH CARE CRISIS Sage FACULTY FACULTY

In the fall of 2006 the Law School welcomed two new scholars: Professor William M. innovation, and to the training of Sage, a leading expert in health law and policy, and Assistant Professor John M. Golden, health professionals.” Sage added, “In addition to collaborating with UT’s an expert in intellectual property law. dynamic group of law teachers and rofessor William M. Sage, with the UT Medical Branch in legal scholars, I look forward to recently arrived from biomedical engineering, cellular and working with faculty and students Columbia University, holds a molecular biology, and neuroscience. throughout the University, and to Pmedical degree and a law His evolving mandate will also include serving the community and state.” degree. His appointments at the working with faculty and students Sage’s work and scholarship in University of Texas call on him to from many UT-Austin schools and health care is impressive. He has edited combine the lessons of each. departments, with other UT campuses, two books, including Medical Sage joins the law school faculty as and with the Austin community to advance Malpractice and the U.S. Health Care the James R. Dougherty Chair for education, service, and research involving System (Cambridge University Press Faculty Excellence. He was also health care and public health. 2006), and has written more than “We live in a time eighty articles in legal, health policy, and place where the and medical publications. In 1993 he myriad questions chaired four working groups for the concerning the White House Task Force on Health delivery of medical Care Reform. From 2002 through services are of 2005, he was the principal investigator preeminent interest for the Project on Medical Liability and concern,” said in Pennsylvania funded by the Pew Dean Larry Sager. Charitable Trusts. “There is no one in In 1998, Sage received an legal education who Investigator Award in Health Policy is better versed or Research from the Robert Wood more influential in Johnson Foundation. He is an elected these matters than fellow of the Hastings Center on Bill Sage. That he bioethics, and he is a member of the joins us at the editorial board of Health Affairs. William M. Sage University of Texas Sage received his AB from Harvard appointed as the inaugural Vice is a cause for celebration.” College and his medical and law Provost for Health Affairs at UT-Austin. “I am delighted to become a degrees from Stanford University. He In that capacity, he will participate member of the UT faculty,” Sage said. completed his internship at Mercy in the development of the Dell “What happens to health care in Texas Hospital and Medical Center in San Pediatric Research Institute on the over the next decade will be critically Diego, and served as a resident in anes- newly designated University of Texas important for the people of the state thesiology and critical care medicine at Health Research Campus, the Clinical and for the nation as a whole. I believe the Johns Hopkins Hospital. Prior to Education Center at Brackenridge, and that the University of Texas at Austin joining the Columbia Law School interdisciplinary programs such as has a lot to contribute to the law and faculty in 1995, Sage practiced corporate UT-Austin’s joint MD-PhD program public policy of health care, to medical and securities law in Los Angeles.

36 UTLAW Spring 2007 36-37_FacultyProfiles 6/11/07 9:45 PM Page 2

PATENT John M. TENDING Golden

nterested from an early age in On his arrival at UT Law, Dean Law Review. Entitled “‘Patent Trolls’ complex systems, John Golden Larry Sager tallied the “remarkable and Patent Remedies,” the paper was drawn to the study of physics. and apt set of credentials” that Golden responds to concerns that patent I This led him all the way to a has amassed in his young career: “He holders who do not practice their PhD from Harvard University in began with a PhD in physics; followed inventions or compete with those who condensed matter physics. He then with a magna cum laude law degree do may generate an improper “tax” turned to study another complex from Harvard; and then turned to a on technological innovation. It is system—the law—and earned a JD high-powered practice in patent law.” commonly thought that some reform Golden’s patent-law practice, in U.S. patent law is needed to address undertaken at Wilmer Cutler Pickering the abuses and excesses of “patent Hale and Dorr in Boston, focused on trolls,” but there is considerable patent litigation at both the trial disagreement on what that ought to be. and appellate levels, and included In his paper, Golden analyzed some of involvement in the prosecution of the current reform proposals with an patent applications before the U.S. eye to recent trial court decisions. Patent and Trademark Office. “Patent litigation has been “I enjoyed my practice at WilmerHale,” described as the sport of kings,” Golden said. “It helped me develop a Golden remarked, acknowledging the sense of how both legal practice and fact that many companies choose to the commercial world operate.” license patents rather than risk Before beginning his practice infringement suits because of the high Golden clerked for Judge Michael cost of litigation. “There have been a Boudin of the U.S. Court of Appeals number of different suggestions on how for the First Circuit, and for U.S. to address problems with how patent Supreme Court Justice Stephen Breyer law operates. Part of the difficulty is during the October 2002 term. figuring out what combination of Golden arrives at the Law School proposals makes the most sense and experienced in academic matters as will not cause excessive risk to benefits well. He has written or co-written that patent law is meant to provide.” numerous articles on both physics and We may or may not get substantial John M. Golden the law, and in 2004 and 2005, served patent law reform from Congress. from Harvard, too. “In condensed as the Hieken Lecturer on Law at In the meantime, concerns with the matter physics, you work to model the Harvard Law School, where he taught current patent system will continue to most important aspects of complex patent law. be addressed by the Patent and systems,” Golden said. “In law, you He joined the faculty of UT Law in Trademark Office and the courts, and often look for the most significant fea- the fall of 2006 and immediately put his Golden hopes his research will prove tures of complicated fact patterns and unique synthesis of talents to work. In useful as these issues make their way social interactions. In both areas, one addition to teaching classes in through the system. As it will be, looks to understand how things are Administrative Law and Patent Law, he no doubt, to future lawyers who study organized, or how they could be—or recently presented a paper that will be here at UT Law. should be—organized.” published in Volume 85 of the Texas

Spring 2007 UTLAW 37 38-39_EmergingScholars_R2 6/11/07 5:09 PM Page 1

Scott Sullivan, Alvaro Santos, Philomila Tsoukala, and David Gamage

UT LAW’S EMERGING SCHOLARS PROGRAM

n an effort to encourage and and allows UT Law faculty to contribute at least one research paper to the faculty support young scholars, UT Law to the growth of the legal academy. during their time in residence. launched a program that awards Professor Mitch Berman chaired the The first Emerging Scholars Fellow, I fellowships for up to two years of committee charged with creating Sam Buell, completed the program in in-residence research and teaching. this program. Berman worked closely 2006 and joined the law faculty of “This program is largely the brainchild with other faculty members, including Washington University in St. Louis. of Professor Jane Cohen,” said Robert Professors Cohen and Willy Forbath, During the 2006-2007 academic year Peroni, the James A. Elkins Centennial to develop something that would there were four Fellows in residence at Chair in Law. “In three short years, the fully utilize UT Law’s unique strengths. UT Law: David Gamage, Alvaro Santos, Emerging Scholars Program has already established itself as one of the top initiatives of its kind. It provides “In three short years, the Emerging Scholars promising law teaching candidates with an opportunity to teach the Program has already established itself as one wonderful UT Law students and work on interesting legal scholarship of the top initiatives of its kind.” projects with the assistance of the permanent faculty members, who provide constructive critiques of their Treated like tenure-track faculty— Scott Sullivan, and Philomila Tsoukala. work and helpful advice about their they receive a stipend, a faculty office, Fellows enjoy substantial support scholarly agenda.” and administrative assistance—Fellows from the faculty in the furtherance of Initiated in 2004 under Dean Bill also have reduced teaching loads and their scholarly pursuits. “The most Powers, the Emerging Scholars Program no administrative responsibilities. This amazing thing about this program is the enriches legal education for students, gives them time to focus on scholarship, access to faculty,” said Scott Sullivan, hones the skills of participating Fellows, and it is expected that they will present who joined the Law School in the fall of

38 UTLAW Spring 2007 38-39_EmergingScholars_R2 6/11/07 9:49 PM Page 2

2006. “In my particular case, Derek Jinks to have such ready access to legislators legal norms in family law and how they has been incredibly helpful. I’ve been during that process.” Gamage is currently relate to market regulations. My time working on issues surrounding treaty working on a paper that analyzes the here at UT Law has been tremendously interpretation, arguing that the courts effects of economic fluctuations on state valuable in helping me understand how should take a much greater role in this budgets. He earned his undergraduate these things connect.” Next fall, Tsoukala process, despite a traditional deference and graduate degrees from Stanford and will begin at Georgetown University Law to the executive branch. Next fall I will his law degree from Yale. Gamage Center as a Visiting Assistant Professor. co-teach with Derek a course called ‘The accepted a tenure-track position at UC- “The Emerging Scholars Program was Rule of Law in Wartime,’ which addresses Berkeley’s Boalt Hall which he begins a fantastic way of starting my academic a large variety of issues relating to legal next fall. career,” said Alvaro Santos, who controversies in wartime.” Sullivan is a Because Fellows bring such extensive completed his fellowship at end of the graduate of the University of Kansas. He and varied scholarly experience, they spring 2007 semester and accepted a earned a JD from the University of expand and enrich the intellectual life of tenure-track appointment at the Chicago Law School and an LLM from the Law School. Philomila Tsoukala is a Georgetown University Law Center. He the European University Institute. graduate of the Conservatory of earned a JD from Universidad Nacional David Gamage, whose research Northern Greece and Aristotle University Autonoma de Mexico and an LLM from interests include taxation and the of Thessaloniki. She earned an LLM Harvard, where he is now an SJD candidate. tax lawmaking process, concurs with from Harvard Law School, where she is “It opened the door to a vibrant that assessment. “The faculty here is now an SJD candidate, and a master’s intellectual and collegial exchange phenomenal,” he said. “I’ve worked with degree in public law from Université with a first-rate faculty,” Santos continued. scholars who specialize in the theoretical Pantheon-Assas Paris II. Her approach is “Their feedback on my research was aspect of law, as well as scholars who interdisciplinary in nature. “I draw from invaluable. And, I had the privilege to understand how law works on the a wide variety of sources—legal history, teach an outstanding and diverse group ground.” He also appreciates the Law feminist theory, law and economics—to of students. I’m going to miss UT and School’s proximity to the state capital. understand how the legal system deals Austin a great deal. I might even miss the “Texas went through major tax reform last with issues such as unremunerated care Longhorns. But I take with me many

Photo: Mark Rutkowski year, and it was very useful to my research work,” said Tsoukala. “I’m interested in valuable friendships—and I’ll visit often.”

Spring 2007 UTLAW 39 40_Ads 6/11/07 9:56 PM Page 1

Andrews Kurth is proud to sponsor the 2007 UT Law School Alumni Reunion.

The people depicted above are not Andrews Kurth lawyers or staff.

Don’t mess with Texas Exes

We’re delighted that hundreds of UT’s best and brightest choose to build their careers at Vinson & Elkins. And we couldn’t be more proud to sponsor the UT Law 2007 Reunion.

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40 UTLAW Spring 2007 41_PortraitDean 6/8/07 12:31 AM Page 39

PORTRAIT OF A DEAN

In the Law School’s Sheffield Room you will find a portrait gallery that includes deans, patrons, and patriarchs. The most recent addition to this collection is a portrait of Bill Powers, painted in 2006 as he was transitioning from Dean of the Law School to President of the University of Texas at Austin.

The portrait was created by Nick Bashall, a man whose personal story is almost as interesting as that of his subject. Raised in Zimbabwe, Bashall studied law at Cambridge University. But after several years of practice he heard a different calling, and spent the next five years in Mallorca studying portrait painting. His career as an artist has led him to such varied places as Pristina, Kosovo to Basra, Iraq, and finally to Austin, Texas, where he created a fitting tribute to one of the Law School’s favorite deans.

Photos: Marsha Miller

Spring 2007 UTLAW 41 42-43_TexLezar 6/8/07 6:12 AM Page 1

Chief Justice of the United States WORTHY Keynotes at Tex Lezar

NOTE NOTE Memorial Lecture Series

he University of Texas Sandford as an example of the negative attending law school and, after earning School of Law hosted the consequences of judicial activism. This his law degree, went on to serve as third annual Tex Lezar was the second Law School-related Assistant Attorney General for Legal TMemorial Lecture at the event this year at which a sitting Policy and Chief of Staff to U.S. Belo Mansion in Dallas on Wednesday, member of the U.S. Supreme Court Attorney General William French March 7, 2007 with Chief Justice John participated. Smith in the Reagan Administration. G. Roberts, Jr. speaking. Chief Justice “At the 2005 Senate confirmation The Tex Lezar Memorial Lecture Roberts spoke to an invited audience of hearings occasioned by his nomination Series was conceived and is underwrit- approximately 400 people about the to the position of Chief Justice,” said ten by the many friends of Tex Lezar. appropriate role of the courts in society, UT Law School Dean Lawrence Sager According to its mission statement, the using the pivotal 1857 case Dred Scott v. in his introduction, “Chief Justice annual lecture is to be given by a “per- Roberts demonstrated son learned in affairs of government a dazzling mixture of whose work carries forward the ideals intelligence, subtlety, care, of constitutional government and a and charm. These are the free society.” qualities he brings with Theodore B. Olson, Solicitor him to his new office.” General of the United States from Sager thanked Roberts 2001–2004, was the inaugural lecturer. for bringing honor and Kenneth W. Starr, former Solicitor distinction to the lecture General of the United States, former series by his participation. judge on the U.S. Court of Appeals for Chief Justice Roberts, a the District of Columbia Circuit, and longtime friend of Lezar’s, now dean of Pepperdine University’s began his remarks by School of Law, delivered the second expressing his delight that lecture in the series. his first visit to Texas as Chief Justice Roberts’ complete Chief Justice was to deliver lecture is available for viewing on the the Tex Lezar Lecture. UT Law School’s website. Please visit The lecture series www.utexas.edu/law/news/2007/ honors the life and work of 030807_chief.html. Harold J. “Tex” Lezar, who died in 2004. Lezar was born in Dallas and was a 1976 graduate of the Law School. Always interested in public policy and politics, Lezar worked as a speechwriter in the Nixon Chief Justice John Roberts Administration before

42 UTLAW Spring 2007 42-43_TexLezar 6/11/07 10:06 PM Page 2

Texas Review of Law & Politics Celebrates its First Decade

ittle did anyone know when award—given annually to a member of among other things a pair of boots the Texas Review of Law & the legal profession who embodies the belonging to the late Lezar. Harold J. Politics was first organized conservative viewpoint—to Justice “Tex” Lezar, ’76, served in the L in 1996 that it would Antonin Scalia. Scalia, appointed to the presidential administrations of Richard become one of the most prominent Supreme Court by President Ronald Nixon and Ronald Reagan, was a conservative law journals in the country, Reagan in 1986, is the second most supporter of the journal from its or that its members would celebrate senior justice on the Court, and the inception, and enjoyed helping students their tenth anniversary with a United leader of its conservative wing. become active in support of conservative States Supreme Court justice as their Past recipients of the Jurist of the causes. Outgoing editor-in-chief Nigel honored guest. On March 3, 2007, the Year award include Texas Attorney Stark, ’07, introduced Eric Neuman, ’08, Review presented its Jurist of the Year General Greg Abbott, U.S. Senator as the editor-in-chief for the 2007–2008 John Cornyn, and Judge academic year. Other guests at the Edith Jones, ’74, of the awards banquet were Fifth Circuit U.S. Court of Appeals for Court of Appeals judges Will Garwood, the Fifth Circuit. ’55, and Priscilla Owen, Abbott, and Justice Scalia addressed Texas Solicitor General Ted Cruz. the invited audience on the topic of the inappropriate use of international law when interpreting the U.S. Constitution, as well as on the unique role the Review plays in legal academia. In addition to attending the journal awards banquet, Justice Scalia also spoke over lunch to the Catholic Law Students Association, and he participated in an informal question and answer session with members of the Texas Federalist Society. Third-year student Bonnie Rust received the 2007 Tex Lezar “Fill Your Boots” award as the best student editor, receiving Justice Antonin Scalia

Spring 2007 UTLAW 43 44-52_ClassNotes 6/12/07 4:27 PM Page 44 S E T O

N C L A S S S S A L

C N O T E S

commission, established by the Supreme 1957 Court in 2001, is tasked with developing 1965 Sheldon Anisman, an and implementing policy initiatives Marc E. Grossberg, an attorney at the attorney at the law firm of designed to expand access to, and law firm of Thompson & Knight LLP, has Jackson Walker LLP, has enhance the quality of, justice in civil been recognized as one of the Top 100 been recognized by Fort legal matters for low-income Texans. Houston Region Super Lawyers by Texas Worth, Texas magazine for excellence in Reasoner joined Vinson & Elkins in 1964 Monthly in the October 2006 issue. the fields of Administrative Land Use and and was the firm’s managing partner from Environmental Law. 1992-2001. Reasoner is a Fellow of the Pete Winstead, founding shareholder American College of Trial Lawyers; of Winstead Sechrest & Minick, received International Academy of Trial Lawyers; the Austin Business Journal’s Best of 1960 International Society of Barristers; and Business Attorneys Lifetime Achievement John L. Lancaster, an the American, Texas, and Houston Bar Award at an awards dinner on September attorney at the law firm of Foundations, and has served on the 21, 2006. The award recognizes top Jackson Walker LLP, has Texas Supreme Court Advisory lawyers in Central Texas. Winstead was been selected for inclusion in Committee; Supreme Court of Texas featured in the paper the following day. Super Lawyers for achievements in Judicial Campaign Finance Study During his tenure in Austin, Winstead has Business Litigation. Committee; and the Texas Supreme Court served as chairman of the Texas Turnpike Task Force on Civil Litigation. Reasoner is Authority, the Greater Austin Chamber of also a member of the Law School’s Commerce, the Real Estate Council of 1962 Foundation Board of Trustees. Austin, the United Way Capital Area, and George C. Chapman, Austin Area Research Organization. In senior counsel at the law firm Broadus A. Spivey has been presented 2005 he was chairman of Austin’s March of Thompson & Knight LLP, is with the inaugural Lifetime Achievement of Dimes “WalkAmerica” event. Winstead the 2007 recipient of the Award from the Texas Trial Lawyers has been involved with the Austin Heath Award presented by the Dallas Association. It was announced that the Symphony Orchestra, SafePlace, YMCA County Medical Society. The award is award would hereafter be known as the of Austin, Colorado River Foundation, the given annually to a lay person who has Broadus A. Spivey Lifetime Achievement Long Center, The Austin Community provided outstanding leadership and Award. Spivey practices with the Austin Foundation, and the Capital Area Council service to medicine and the community of law firm of Spivey & Grigg, LLP. Boy Scouts of America. This most recent Dallas. A major portion of Chapman’s honor caps off an impressive three-year practice has been in representing doctors span for Winstead. In 2004, he was and hospitals in medical malpractice 1963 named Austinite of the Year by the suits, defending peer review decisions of Tom Henson, a partner Greater Austin Chamber of Commerce, medical staffs, and supporting the Dallas at the law firm of Ramey & and was named one of the “25 most County Medical Society and the Texas Flock, P.C., has been elected influential people in Austin and Central Medical Association in litigation arising 2006–2007 Executive Vice Texas for the past 25 years,” by the from disciplinary decisions. President of the Texas Association of Austin Business Journal in 2005. Defense Counsel (TADC). TADC is a Harry Reasoner, a partner statewide association of private practice at Vinson & Elkins in attorneys specializing in civil defense 1967 Houston, was appointed to a trial law. Henson focuses his practice on Donald W. Griffis, an three-year term of the new complex tort and commercial litigation. attorney at the law firm of at-large attorney position on the Texas Jackson Walker LLP, has Access to Justice Commission. The been selected for inclusion in Super Lawyers for achievements in

44 UTLAW Spring 2007 44-52_ClassNotes 6/8/07 7:20 AM Page 45 C Personal Injury Defense and General Law. Larry W. Langley, an L In addition to this honor, he has also been attorney with the law firm of 1969 A selected for inclusion in The Best Lawyers Jackson Walker LLP, has Rodney C. Koenig, a S in America 2007 for Alternative Dispute been selected for inclusion in partner with Fulbright & S Resolution and Commercial Litigation. The Best Lawyers in America 2007 for Jaworski in Houston, was Health Care Law. elected as a member of the N Executive Council of the International O

1968 T Claud “Tex” McIver Academy of Estate and Trust Law. Byron F. Egan, an attorney was named to the 2007 Koenig’s term will last until 2010. E at the law firm of Jackson edition of The Best S Walker LLP, has been selected Lawyers in America. McIver is The Honorable Elizabeth for inclusion in Super Lawyers a partner at Fisher & Phillips and special- Lacy of the Virginia Supreme for achievements in Mergers & izes in labor and employment law. In 2004, Court received one of the Acquisitions. In addition to this honor, he he was selected as a “Legal Elite, Labor & 2006 awards of distinction has also been selected for inclusion in Employment Law” and he has been presented by the Virgina Women The Best Lawyers in America 2007 for selected as a “Georgia Super Lawyer, Attorneys Association (VWAA) as part of Corporate Law. Labor & Employment Law” since 2004. its 25th anniversary. The awards of dis- McIver is Vice Chair of the Georgia State tinction celebrate outstanding women David R. Keyes, a share Election Board and serves on the Georgia lawyers who have demonstrated profes- holder with Winstead PC, has Judicial Nominating Commission. sional excellence, advanced opportuni- joined the Banking & Credit ties for other women lawyers, or who Transactions Section of the committed themselves to exemplary pub- law firm. lic service on behalf of women. Justice Lacy was the first woman appointed to the Supreme Court of Virginia in 1989, after serving as Commissioner of the Lifetime Achievement Award Virginia State Corporate Commission, RUSH H. RECORD and as Deputy Attorney General for Rush Record was born in Hugo, Oklahoma in 1917. He died Judicial Affairs, and has served in leader- May 25, 2007. Record attended Schreiner Institute, and received ship roles for many legal and profession- his L.L.B. from the University of Texas School of Law in 1940. al associations, including the American RWhile in Law School, he was named to the Chancellors and was Bar Association, the National Association a member of Order of the Coif. After graduation, he began his legal practice of Women Judges, the Institute of near Wichita Falls, Texas and then enlisted in the military during the Second Judicial Administration, and the Lewis World War, where he served in Powell American Inn of Court. Justice Army Intelligence in Asia. In Lacy has been an adjunct professor at 1948 he moved to Houston and the T.C. Williams School of Law at the joined Vinson & Elkins, where University of Richmond, as well as on the he became a partner in 1953. faculty of the National Judicial College Record practiced with Vinson & and the New York University Institute of Elkins until he retired, after Judicial Administration. having been a long-term member of the firm’s 1970 Management Committee and the head of one of the firm’s Cullen M. (Mike) Godfrey principal business groups. was selected as the Texas utside of the law, A&M University System Record devoted his Board of Regents general energy and attention counsel on May 26, 2006. Godfrey was to a wide variety of previously a partner in the Austin office Otopics, including neuroscience of Jackson Walker. Prior to that, he was and psychiatric disorders. He Vice Chancellor and General Counsel of Rush H. Record served on the Texas Board of the University of Texas System for four Mental Health and Mental Retardation and on the President’s Cabinet of years and Chief Ethics Officer. Godfrey the University of Texas Medical Branch (UTMB). The Rush H. and Helen served for ten years as general counsel Record Symposium in Neurology has been established by the Baylor College for FINA, a multi-billion-dollar petroleum of Medicine. Record is survived by his wife, Helen. and petrochemical company.

Spring 2007 UTLAW 45 44-52_ClassNotes 6/8/07 7:20 AM Page 46

S Claiborne B. Gregory, Jr., Knight LLP. He serves as Practice Leader 1973 E an attorney with the law firm of the International Practice Group in the

T of Jackson Walker LLP, has Houston office. Robert M. Cohan, an

O been selected for inclusion in attorney at the law firm of

N The Best Lawyers in America 2007 for Glen Rosenbaum, a partner at Vinson Jackson Walker LLP, has Bankruptcy and Creditor-Debtor Rights Law. & Elkins in Houston, will be honored by been selected for inclusion in S the Anti-Defamation League (ADL) with Super Lawyers for achievements in S a partner its annual Torch of Liberty Award, Business Litigation. In addition to this

A M. Lawrence Hicks, Jr.,

L with the law firm of Thompson & Knight Thursday, November 16 at 7:00 p.m. at its honor he has also been selected for inclusion

C LLP, has been selected for inclusion in the Torch of Liberty Dinner, and attendees in The Best Lawyers in America 2007 for 2007 Chambers USA “Leaders in their of the dinner will learn more about the Antitrust Law and Commercial Litigation. Field” legal directory for Real Estate Law. wide-ranging contributions Glen has made to so many facets of the Houston Tom Hutcheson joined community. The ADL gives its Torch of Winstead Sechrest & Minick 1972 Liberty Award annually to a business or as a shareholder in the Dallas Parker, a partner with the law civic leader in recognition and appreciation Houston office. Hutcheson firm of Thompson & Knight LLP, has been for that leader’s efforts to promote was elected to serve on the Antitrust selected for inclusion in the 2007 respect, fight hatred and bigotry, and Council of the Antitrust Section of the Chambers USA “Leaders in their Field” support fair treatment for all. Rosenbaum Houston Bar Association. Hutcheson is legal directory for Technology Law. He has been an ADL board member for listed in the 2007 edition of Best Lawyers has also been named as one of the twenty-two years, and is a former ADL in America in Oil & Gas Law and he’s “Leading Lawyers in America” by board chair. Rosenbaum is a member of admitted to practice before the 5th, 10th Lawdragon, the legal services information the Law School’s Alumni Association and 11th U.S. Circuit Courts of Appeals as company. In addition, Parker has been Executive Committee. well as all U.S. District Courts and all U.S. elected to serve on the 2007 Bankruptcy Courts in Texas. Management Committee at Thompson & John S. Moody, president of Proterra Management in Houston, was elected to Potlatch’s board of directors.

Outstanding Alumnus Award Edward C. Small, an attorney JACK RATLIFF at the law firm of Jackson ack Ratliff is a native of Sonora, Texas, and an honors Plan II Walker LLP, has been selected graduate of the University of Texas at Austin. In 1957, he enlisted for inclusion in The Best with the United States Navy and served as a destroyer deck officer Lawyers in America 2007 for Energy Law. Jand a Navy SEAL. After he was honorably discharged, he attended the University of Texas School of Law where he was an officer and Comment 1974 Editor of the Texas Law Review. Jack graduated from the Law School in 1962. Jack was formerly an attorney John W. Cones has written a book with the El Paso firm of Ratliff, titled Hollywood Wars: How Insiders Haynes and Stadling before Gained and Maintain Illegitimate Control teaching at the Law School. Over the Film Industry. The book details He has served as counsel and the unethical and illegal business practices consulted on class action cases of major Hollywood studios and distributors involving asbestos, breast that hurt independent filmmakers and implants, gasoline spills, plant Hollywood outsiders. The book has been explosions, insurance practices, published by Marquette Books LLC. securities, usury, and deceptive Cones is in private practice as a securities trade practices. In 1999, he was and entertainment attorney in Los Angeles. appointed by Attorney General John Cornyn as Special David G. Dunlap, an attorney Counsel on complex litigation at the law firm of Jackson matters. He is Ben Gardner Walker LLP, has been selected Sewell Professor Emeritus in for inclusion in Super Lawyers Civil Trial Advocacy at the Law for achievements in Energy and Natural School. Professor Ratliff taught Resources Law. In addition to this honor, courses on Torts, Texas Civil he has also been selected for inclusion in Jack Ratliff Procedure, and advanced The Best Lawyers in America 2007 for courses in litigation strategies at the Law School, and was Director of Student Natural Resources Law and Oil & Gas Law. Advocacy Competitions. Ratliff lives in Dripping Springs with his wife, Clare.

46 UTLAW Spring 2007 44-52_ClassNotes 6/12/07 4:26 PM Page 47 C Stephen F. Fink, a partner with the law L firm of Thompson & Knight LLP, has been

Leon Green Award A selected for inclusion in the 2007

DAVID J. BECK S Chambers USA “Leaders in their Field” avid J. Beck, ’65, S legal directory for Employment Law.

received the Leon N

Green Award from the O John H. Martin, a partner at the law

2006–2007 Texas Law T firm of Thompson & Knight LLP, has been D

Review for outstanding contributions E selected as one of the Top 100 Dallas/Fort

to the legal profession. The award is S Worth Region Super Lawyers by Texas named for the great legal scholar and Monthly in the October 2006 issue. He longtime UT Law professor who, with has also been named President-Elect of Professors Ira Hildebrand and DRI—The Voice of the Defense Bar, the Charles Potts, was instrumental in nation’s largest organization of civil establishing the publication. Beck, a defense attorneys. Martin will serve a nationally renowned trial lawyer, is a one-year term as President-Elect and partner in the Houston law firm of become President in 2007. Beck, Redden & Secrest. He is the current president of the American 1975 College of Trial Lawyers and the immediate past president of the Thornton Hardie III, a partner with University of Texas Law School Thompson & Knight in Dallas, was named Foundation. Beck is also a generous one of the “Leading Lawyers in America” and active volunteer for a host of civic by Lawdragon, the legal services David J. Beck and professional organizations. information company.

The Honorable Charles W. and to promote improvement of appellate for a third-year student with special “Tim” McCoy was selected advocacy and appellate court administration. interest in family law. George is currently as assistant presiding judge the chair of the South Texas Task Force by a unanimous vote of the Governor Rick Perry appointed Jack on Family & Juvenile Clinical Activities. judges of the Los Angeles Superior Court. Arnold McGaughey as district attorney Judge McCoy began his two-year term on for the 97th Judicial District serving January 1, 2007. Archer, Clay, and Montague counties. 1978 McGaughey will serve until the next James B. Harris, a partner with the Bea Ann Smith has joined general election. law firm of Thompson & Knight LLP, has Brown McCarroll, LLP as Of been selected for inclusion in the 2007 Counsel. She recently retired James C. Morriss III, a Chambers USA “Leaders in their Field” as Justice from the Austin partner at Thompson & legal directory for Environmental Law. Court of Appeals, a position she held Knight, has been selected to since 1991. Judge Smith will work out serve on the Executive Michael P. Pearson, an of the firm’s Austin office and plans to Committee of the U.S. Business Council attorney at the law firm of conduct a mediation practice and assist for Sustainable Development (US BCSD). Jackson Walker LLP, has the appellate group. This is a non-profit association of been selected for inclusion in businesses whose purpose is to deliver The Best Lawyers in America 2007 for highly focused, collaborative projects Natural Resources Law. 1976 that help its members and partners Bryan C. Birkeland, an demonstrate leadership in the United John W. Rain, a partner with the law attorney with Jackson Walker States on sustainable development and firm of Thompson & Knight LLP, has been LLP, has been selected for realize business value. Morriss was also selected for inclusion in the 2007 inclusion in The Best Lawyers selected for inclusion in the 2007 Chambers USA “Leaders in their Field” in America 2007 for Real Estate Law. Chambers USA “Leaders in their Field” legal directory for Banking & Finance Law. legal directory for Environmental Law. Nina Cortell, a partner at 1979 Haynes and Boone, LLP, has 1977 been elected to the American Janiece Longoria was unanimously Academy of Appellate Lawyers. Pamela E. George, a professor at reappointed to the Port of Houston The academy was founded in 1990 to South Texas College of Law, is celebrating Authority Commission for a third term by recognize outstanding appellate lawyers twenty-five years of teaching by leading a fundraising drive to support a scholarship

Spring 2007 UTLAW 47 44-52_ClassNotes 6/8/07 7:20 AM Page 48

S Houston City Council. Longoria chairs the assistant to the president, director of Michael L. Kaufman, an

E commission’s international business task properties, and general counsel to the attorney at the law firm of

T force and serves on the community rela- Metropolitan Nashville Airport Authority. Jackson Walker L.L.P, has

O tions task force and small business been selected for inclusion in

N development committee. Longoria has Super Lawyers for achievements in been a partner at Ogden, Gibson, Broocks 1980 Estate Planning and Probate Law. S & Longoria since 1997. Longoria serves Jeffrey O. Bramlett, a partner at the S on the board of directors for the Pilot law firm of Bondurant Mixson & Elmore, A 1981

L Commissioners, Centerpoint Energy, and LLP in Atlanta, has received the Elbert P.

C the Greater Houston Partnership. Tuttle Award from The Anti-Defamation C. Wade Cooper, an attorney League (Southeast Region). at the law firm of Jackson Kirk Shaffer has been Walker LLP, has been selected appointed Associate Caroline C. Fuller was for inclusion in The Best Administrator of Airports for appointed managing director Lawyers in America 2007 for Bankruptcy the FAA. He is responsible for at Fairfield and Woods, P.C. in and Creditor-Debtor Rights Law. national airport planning, which includes Denver, the first female airport safety standards and airport managing director in the firm’s history. Jeff Lefkowitz has joined design and engineering. From 1986 to Fuller practices in the areas of financially- the Houston law firm of 2003, Shaffer served variously as executive distressed companies, including commercial Andrews Myers Coulter & bankruptcies and receiverships, and real Cohen as senior counsel. estate lending and development. 1982 Trey Nicoud has become a partner Distinguished Alumnus Award with the law firm of Gibson, Dunn & Crutcher LLP. He practices antitrust for Community Service and trade regulation law in the San FRANCI NEELY CRANE Francisco office. fter graduating Phi Beta Kappa from the University of Texas at Austin, Franci Crane worked her way through the University of 1983 Texas School of Law, where she was a member of the Texas Law A Review and graduated in 1978 with high honors. Franci joined David A. Furlow, an attorney at the law Susman Godfrey, becoming one of its first partners. During her twenty years firm of Thompson & Knight LLP, has been at the firm, she handled high profile and high dollar litigation, and earned recognized as one of the Top 100 a reputation as one of the best Houston Region Super Lawyers by Texas litigators in Texas. She currently Monthly in the October 2006 issue. serves on the Board of Houston Media Source. Alex Gonzales has been named Her contributions to the managing shareholder of the Austin non-profit world have been office at the law firm of Winstead PC. He extensive. To name just some represents financial institutions in of her activities: She serves regulatory and compliance matters and actively on many nonprofit he is the Austin section head of boards, including the Board of Winstead’s corporate section. Recipe for Success, a program aimed at reducing childhood On February 1, 2007 the U.S. Senate obesity, the Advisory Board of confirmed the nomination of Dean A. Bo’s Place, an organization Pinkert to the position of Commissioner, devoted to helping children U.S. International Trade Commission. who have suffered the loss of a Prior to this appointment Pinkert held loved one, and the boards of such positions as Senior Attorney at the various arts organizations. She U.S. Department of Commerce & Trade is the president of InPrint, and he was Judiciary Counsel to Senator Franci Neely Crane Houston’s most important Robert C. Byrd. He will serve a nine year literary organization. She conceived, organized, and implemented a term as Commissioner. Houston community outreach group called We’re All Neighbors. Franci is also a Fellow of the Texas and Houston Bar Foundations. She lives in Houston with her husband, Jim.

48 UTLAW Spring 2007 44-52_ClassNotes 6/11/07 10:10 PM Page 49 C

1984 L A Steve R. Martens, an Honorary Order of the Coif S attorney at the law firm of DEMETRIS SAMPSON S Jackson Walker LLP, has

eMetris Sampson is the managing partner of the Dallas office of N been selected for inclusion in

Linebarger Goggan Blair & Sampson, where she has practiced O The Best Lawyers in America 2007 for

since 1987. Sampson is the first African-American woman to T Real Estate Law. Dbecome a partner in a majority firm in the City of Dallas. E Sampson graduated from the University of Texas at Austin with a business S David T. Moran, an degree, and earned her law degree from Texas in 1980. She holds a Master attorney at the law firm of of Laws in Taxation from SMU Jackson Walker LLP, has School of Law. been selected for inclusion in Sampson serves on the board of Super Lawyers for achievements in the Greater Dallas Chamber of Appellate Law. Commerce and chairs its Local Government Committee. She also John H. Spurgin II, senior serves on the Charter Review vice president of legal, general Commission for the City of Dallas. counsel and secretary for She served as co-chair of the Mayor’s Administaff, was awarded Complete Count Committee for the Outstanding Corporate Counsel with an 2000 U. S. Census, appointed by Attorney Staff of 11 to 30 among all Dallas Mayor Ron Kirk, and has Houston-based companies. The award, served since 1987 on the City’s recognizing expertise and accomplish- Domestic Violence Task Force. She ment by in-house counsel in the field of is a former member of the University corporate law, was presented by the of Texas Law School Alumni Association of Corporate Counsel and the Association Executive Committee. Houston Business Journal. Spurgin Her numerous awards include the joined Administaff in 1997. Prior to joining DeMetris Sampson Dr. Martin Luther King, Jr. Justice Administaff, he was a partner with the Award given by the five local bar associations; the Maura Award from the Austin office of McGinnis, Lochridge & Women’s Center of Dallas; and the Outstanding Young Texas Ex Award Kilgore, where he served as Administaff’s from the University of Texas Ex-Students Association. Sampson lives in Dallas. outside counsel for more than nine years. Spurgin has been recognized as a “Texas Super Lawyer” by Texas Monthly for The Best Lawyers in America 2007 for Ann Benolken, previously a three consecutive years (2004-2006). Real Estate Law. partner with DuBois, Bryant, He formerly served as director of Campbell & Schwartz, joined the Employer Services Assurance Jeffrey A. Zlotky, an attorney at the Jackson Walker as a partner Corporation (ESAC). law firm of Thompson & Knight LLP, has in the Austin office of the Transactions been selected as one of the Top 100 section. Benolken serves on the Board of Dallas/Fort Worth Region Super Lawyers Directors of CASA of Travis County, and is 1985 by Texas Monthly in the October 2006 also a member of the State Bar of Texas Craig Glick was appointed executive issue. In addition, he has also been and the Colorado State Bar. vice president and general counsel of elected to serve on the 2007 Westside Energy. Previously, he served as Management Committee at Thompson & On March 1, Texas Deputy Attorney senior vice president and general counsel Knight LLP. Zlotky is a member of the General for Litigation Edward D. of Kosmos Energy and was president of Corporate and Securities Practice Group Burbach joined Gardere Wynne Sewell Hunt Resources. Glick began his career in the Dallas office. LLP as a partner in Austin. He was as an attorney with Vinson & Elkins appointed in 2003 to serve as the Texas where he made partner in 1993. Attorney General’s lead litigator. Burbach 1986 represented the state and its leadership Timothy C. Taylor, an David M. Bennett, a partner at the law in many high-profile suits including energy, attorney at the law firm of firm of Thompson & Knight LLP, has been insurance, financial services, environmen- Jackson Walker LLP, has selected for inclusion in the 2007 tal claims, and disputes regarding the been selected for inclusion in Chambers USA “Leaders in their Field” historic Texas Tobacco Settlement. Super Lawyers for achievements in Real legal directory for Bankruptcy Law. Estate Law. In addition to this honor, he Melody Cooper, current member of the has also been selected for inclusion in Corpus Christi City Council, was appointed

Spring 2007 UTLAW 49 44-52_ClassNotes 6/8/07 7:20 AM Page 50

S to the Resolutions Committee of the John R. Cohn, a partner at the law firm who devotes his law practice to mediating

E Texas Municipal League, the organization of Thompson & Knight LLP, has been and arbitrating civil disputes.

T of municipal governments in Texas. selected for inclusion in the 2007 O Chambers USA “Leaders in their Field” 1991 N William S. Dahlstrom, an legal directory for Tax Law. attorney with the law firm of Leonard H. Dougal, an S Jackson Walker LLP, has Susan M. Ponce was appointed senior attorney with the law firm of S been selected for inclusion in vice president, commercial law, for Jackson Walker LLP, has A

L The Best Lawyers in America 2007 for Halliburton’s Energy Services Group. been selected for inclusion in

C Land Use and Zoning Law and Real Based in Houston, she acts as the general The Best Lawyers in America 2007 for Estate Law. counsel for the oilfield services legal Water Law. function, leading 30 lawyers and 13 William H. Hornberger, offices worldwide. Ponce is a past chair an attorney at the law firm of of the American Bar Association Section 1992 Jackson Walker LLP, has of Energy, Environment and Resources’ David Jackson Ball, Jr. has been been selected for inclusion in Ethics Committee. elected a partner at the law firm of Weil, Super Lawyers for achievements in Tax Gotshal & Manges LLP. He is a member of Law. In addition to this honor, he has also Jay Rutherford, a partner the Litigation/Regulatory department in been selected for inclusion in The Best in the Labor and Employment the New York office. Lawyers in America 2007 for Tax Law. section in the Fort Worth office of Jackson Walker LLP, 1994 Stephen C. Rasch, an attorney at has been named Vice-President of Thompson & Knight LLP, has been elected Finance for the Texas Lyceum and will serve JoAnn Dalrymple has to serve on the Firm’s Management on the Executive and Operating committees. become a partner in the law Committee for 2007. He is a member The Texas Lyceum Association, Inc. is a firm of Jackson Walker LLP. of the Trail Practice Group in the non-profit, non-partisan, statewide She is a member of the firm’s Dallas office. organization whose purpose is to identify Litigation Section in the Austin office. and develop the next generation of top leadership in the State of Texas. In addition Nathan Schattman, an 1987 Rutherford has been elected Chairman of attorney with Johnston Legal Russ Stolle was appointed the Texas Association of Business (TAB) Group PC, has been recognized senior vice president of for 2007. He was also recognized for as one of the top attorneys in global public affairs and excellence in Labor Employment Law by Fort Worth by Fort Worth, Texas communications at Hunstman the Fort Worth, Texas magazine in the magazine in the area of Labor and Corporation in The Woodlands. Stolle December 2006 issue. Employment Law. currently serves as Vice President and Deputy General Counsel, and has frequently led the legal aspects of the 1989 1995 company’s extensive merger and acquisition Michael G. Adams, an attorney at Victor Alcorta III, a partner activities. Previously, he served as Vice Parker Poe Adams & Bernstein LLP, in the Austin office of President and Chief Technology Counsel, has been named to Law and Politics Thompson & Knight LLP, has and was responsible for the company’s magazine’s “North Carolina Super been elected President of the global intellectual property portfolio. Lawyers” for 2007 in the area of Texas State History Museum Foundation. Business Litigation. Super Lawyers are The Foundation is a nonprofit organization selected through a peer nomination and that supports the Bob Bullock Texas 1988 only five percent of North Carolina attorneys State History Museum by raising funding Roger B. Borgelt, formerly Assistant receive the honor. for the Museum’s educational programs. Attorney General of Texas in the Public Agency Representation Section of the Stacey Cownad Jernigan was Jason Davis has rejoined the law firm Consumer Protection Division, joined appointed as a U.S. bankruptcy court judge of Thompson & Knight LLP as a trial Potts & Reilly. Borgelt previously served for the Northern District of Texas in Dallas. partner in the Austin office. Previously he the Railroad Commission of Texas as a was running his own private practice in hearing examiner and the Texas Patrick Keel was elected San Antonio and serving as an Assistant Structural Pest Control Board as General president of the board of the United States Attorney for the Western Counsel before joining the Attorney Dispute Resolution Center and Southern Districts of Texas. Davis General’s staff in 1999. (DRC) of Austin. The DRC is a will lead Thompson & Knight’s White nonprofit organization that provides dispute Collar Crime Practice Specialty Group. resolution services and training in the Austin area. Keel is a sole practitioner

50 UTLAW Spring 2007 44-52_ClassNotes 6/8/07 7:20 AM Page 51 C William Everitt Hopkins, a partner in Dr. Eric Hall has become a partner in L the Health Law Department at the law 1998 the law firm of Fullbright & Jaworski LLP A firm of Thompson & Knight LLP, has been Michael Barrett has become a partner His practice focuses on patent law and S elected to serve as Chairman of the Board of in the law firm of Fullbright & Jaworski communication technology issues. S Directors for Big Brothers Big Sisters of LLP. He focuses on patent litigation, Central Texas for the 2006-2007 terms. prosecution, and analysis in various Laurie Jardine has been N technology areas. selected as a shareholder in O the law firm of Winstead PC. T

1996 E Kelly Dybala has been elected a partner She works in the Dallas office Alicia Duleba, a partner in at the law firm of Weil, Gotshal & Manges serving clients in the practice area of S the Labor and Litigation LLP. She is a member of the Banking and Litigation/Dispute Resolution. sections of Jackson Walker Finance group in the Dallas office. LLP, has been selected to Bradley S. Knippa has participate in the 2007 class of Mark Garrett has become a partner in become a partner in the law Leadership Texas. Leadership Texas the law firm of Fullbright & Jaworski LLP firm of Jackson Walker LLP. brings together Texas women who have His practice focuses on litigating He is a member of the firm’s demonstrated their leadership ability in and prosecuting patents in a variety of Business Transactions, Real Estate, and the profession, community, or workplace. technology areas. Tax section in the Austin office.

Robert B. Little has been Suzanne M. Scheuing has joined the 1997 elected a partner at the law law firm of Freeborn & Peters LLP as Sandra J. Creta has firm of Vinson & Elkins LLP. an associate in the Bankruptcy, become a partner in the law He is a member of the firm’s Restructuring, and Creditors’ Rights firm of Quarles & Brady LLP. corporate finance and securities law practice group in Chicago. Her practice focuses on labor section in the Dallas office. and employment law. Amy C. Welborn has William R. H. Merrill has become a joined the law firm of Cantey Jeffrey S. Johnston has partner in the law firm of Susman Godfrey Hanger LLP as an associate in become a partner in the law LLP in the Houston office. the Austin office. firm of Vinson & Elkins LLP. He is a member of the firm’s David S. Peck has been Scott A. Wheatley has Litigation section in the Houston office. elected a partner at the law become a partner at the law firm of Vinson & Elkins LLP. firm of Jackson Walker LLP. Sesha Kalapatapu has He is a member of the firm’s He is a member of the firm’s been named a shareholder in tax law section in the Dallas office. Litigation section in the Dallas office. the Litigation group of the Houston based law firm Boyar Jennifer B. Poppe has & Miller. been elected a partner at the 2000 law firm of Vinson & Elkins Harry R. Beaudry has become a partner Michael O’Donnell has become a LLP. Poppe is a member of the in the law firm of Thompson & Knight partner in the law firm of Fullbright & firm’s litigation section in the Austin LLP. He is a member of the firm’s Jaworski LLP. O’Donnell handles office. Corporate and Securities Practice Group commercial and class action lawsuits and in Houston. he maintains an active arbitration practice Carolyn A. Russell has focusing on commercial disputes. been elected a shareholder at William M. Fisher has been named a Ogletree, Deakins, Nash, shareholder at Cox Smith Matthews Brooke W. Quist has joined the law Smoak & Stewart, PC. She Incorporated. He is a member of the firm’s firm of Steptoe & Johnson LLP as part of focuses her practice on employment Employee Benefits and Tax Department the Intellectual Property Practice group litigation and consultation and commercial in San Antonio. in the Century City, California office. litigation. Karen Monsen was J. Christopher Wood has become a accepted to participate in the partner with the law firm of Gibson, Dunn 1999 Leadership San Antonio’s & Crutcher LLP. He practices antitrust Jeremy Gaston has become a partner 2006–2007 class. Candidates and international trade regulation and in the law firm of Mayer, Brown, Rowe & are selected annually to participate in a compliance law in the Washington DC office. Maw LLP. His focus is in the areas ten day curriculum over the course of of commercial litigation, antitrust, nine months through a rigorous application intellectual property, class actions, and securities law.

Spring 2007 UTLAW 51 44-52_ClassNotes 6/8/07 7:20 AM Page 52

S and interview process. Leadership San Joseph R. Marrs has Michael L. Laussade has

E Antonio, a ten-month community leadership joined the law firm of Jackson joined the law firm of Jackson

T program, trains participants in civic Walker LLP as an associate in Walker LLP as an associate in

O responsibilities by providing education on the Litigation section of the the Business Transactions

N issues in the San Antonio community Austin office. section of the Dallas office. such as economic development, criminal S justice, education, health care, human Schuyler B. Marshall V joined the S services, government, and politics. The 2003 Thompson & Knight’s trial practice group A

L program is designed to develop leadership Amanda Bush, an associ in Austin.

C and networking skills and foster collaborations ate at Jackson Walker LLP, addressing regional issues. has been recognized by Fort Sam L. Merrill joined the Thompson & Worth, Texas magazine for Knight’s tax practice group in Dallas. Gaye White has become a partner in excellence in Intellectual Property Law. the law firm of Thompson & Knight LLP. Sharon J. Murry-Roberts joined She is a member of the firm’s Oil and Gas Seth Kretzer has joined the law firm of Blackwell Sanders Peper Martin’s litigation Practice Group in Austin. Fulbright & Jaworski LLP as an associate department in the Kanas City office. in the Houston office. His practice focuses on business litigation with an emphasis Lauren E. Mutti has joined 2001 on antitrust and securities matters. the law firm of Jackson Victoria L. Cook has become a partner Walker LLP as an associate in in the law firm of Susman Godfrey LLP in the Labor & Employment the Houston office. 2005 section of the Dallas office. Michael Song was appointed U.S. President George W. Bush named federal prosecutor after serving as an Stephen T. Olson has joined the law Myriah Jordan as special assistant to assistant U.S. district attorney. firm of Baker Hostetler as an associate in the president for policy. Jordan recently the Houston office. served as special assistant for the chief 2006 of staff for policy at the White House. Gregory W. Palmer joined Thompson Reed A. Artim has joined & Knight’s real estate and banking practice Nickolas G. Spiliotis has the law firm of Winstead PC group in Dallas. joined the law firm of as an associate in the Real Winstead PC as an associate Estate/Real Estate Finance Travis R. Phillips has in the Labor & Employment Section of the Dallas office. joined the law firm of Section of the Houston office. Winstead PC as an associate Aron R. Burnett has joined in the Real Estate/Real Estate the law firm of Jackson Finance Section of the Dallas office. 2002 Walker LLP as an associate in Luke Ellis, an associate the Business Transactions Jill J. Robertson-Li joined the with Jackson Walker in Austin, section of the Austin office. Thompson & Knight’s Tax practice group was accepted to participate in Dallas. in the Leadership Austin’s Denyse J. Demel has 2006–2007 class. Fifty-five candidates joined the law firm of Jackson Zachary D. Sakas has are selected annually to participate in a Walker LLP as an associate in joined the Phoenix office of ten day curriculum over the course of the Business Transactions Snell & Wilmer LLP. nine months. The program is designed to section of the Dallas office. develop leadership and networking skills and foster collaborations addressing Joe F. Flack III joined the Thompson Tara M. Thompson joined the regional issues. & Knight’s oil and gas practice group Thompson & Knight’s real estate and in Houston. banking practice group in Dallas. Bernard J. Kearney III, an associate in the Milwaukee office of Quarles & Mason Hestor has joined David S. Wagner has Brady LLP, has been recognized by Law & the construction law firm of joined the law firm of Baker & Politics as a Wisconsin Rising Star 2006. Andrews Myers Coulter & Daniels LLP as an associate. Cohen as an associate He practices labor and in Houston. employment law from one of the firm’s Indianapolis offices.

52 UTLAW Spring 2007 53-55_InMemoriam 6/8/07 12:32 AM Page 63 IN MEMORIAM IN MEMORIAM

THROUGH 2006 W. David Ralston, ’38, died Department for twenty-six years as Dillard W. Baker, ’36, passed away December 5, 2005. Ralston practiced law Regional Personnel Manager, then as on January 29, 2007. He practiced law in Corsicana for fifty-four years. He also Director of Personnel in Washington DC. with his father and brother until he was served as Navarro County judge and He then went on to serve as an Assistant employed by the Law Department of Corsicana city attorney. City Attorney for the City of Dallas. Humble Oil and Refining Company. In 1961, he was appointed General Attorney Pendleton Gaines Baldwin, ’39, died William Edward Stapp, ’41, died in and remained in that position until he February 10, 2007 at the age of ninety-one. September 2006. A veteran of the retired from Exxon U.S.A., the successor After graduation he became an FBI agent Second World War, Stapp returned to company of Humble Oil and Refining for two years and then went on to serve in Texas to become an attorney, first serving Company, in 1977. the United States Air Force during World with the Attorney General’s office in War II. He was a member of the law firm Austin, and later joined Vinson & Elkins, Edward Wallace Austin, ’37, died Abney Abney and Baldwin where he where he became a senior partner. January 17, 2007 at the age of ninety-five. practiced oil and gas law until his After retiring from the military in 1966 he retirement in 1987. Darrell Lee Hemphill, ’42, passed worked for the Texas Rehabilitation away on November 6, 2006 at the age of Commission as General Counsel and as Doyle McDonald, ’40, died October ninety-three. He practiced law in Assistant Commissioner for Legal 13, 2006. McDonald joined his father in Brownsville, Texas for forty-five years Services. After retiring from the practicing law. Shortly after, he was until his retirement in 1991. Commission, he continued to serve as called for military service, where he was Administrative Hearing Judge for the stationed in England with the Eighth John Harold Whittington, ’42, died State Commission for the Blind and the Army Air Corps and was the bombardier December 20, 2006 at the age of eighty- Texas Rehabilitation Commission. of a Flying Fortress B-17 named The seven. Whittington enlisted in the Navy Paper Doll. The plane was shot down over during World War II while completing law Saunders Gregg, Jr., ’37, died Germany in 1944. McDonald was school. Upon retirement from the Navy he January 20, 2007 at the age of ninety-two. captured and served thirteen months as worked for the Veterans Administration’s Gregg practiced law in Houston before a prisoner of war. The Lone Star Flight legal department. He went on to serve as joining the United States Navy during the Museum was the site of a commemorative Dallas County judge and on the Irving Second World War. After the war, he ceremony honoring The Paper Doll’s crew City Council, the Dallas County finished his career with Entex in Houston as on March 24, 2003. Following liberation, Commissioners Court, the 5th District a Senior Vice President, General Counsel, Doyle returned to Galveston and resumed Court of Appeals, and the bench of state and member of the Board of Directors. law practice. district civil and family courts.

M. M. “Mack” Stripling, ’37, died Meyer Clyde Wagner, Jr., ’40, died E. Randolph Dale, ’43, passed away September 23, 2006. Stripling received January 22, 2007 at the age of eighty- on December 25, 2006. numerous awards and commendations eight. He practiced law at Jaffe, Wagner for various efforts and activities including & Lipscomb in Dallas. J. Talbot Rain, ’43, died September 3, being Texas Delegate to the National 2006. Following law school, Rain joined Democratic Party Convention in 1964 in Harry Wilbur Hobbs, ’41, died the Dallas law firm Thompson, Knight, Atlantic City. February 10, 2007 at the age of eighty- Wright & Simmons. In 1965, he founded eight. He served with the Post Office

Spring 2007 UTLAW 53 53-55_InMemoriam 6/8/07 12:32 AM Page 64

Rain Harrell Emery with his brother and Daniel Lindsay Rentfro, Sr., ’49, the bench in 1992, DeAnda continued to five other lawyers from his previous firm. died February 16, 2007. He served practice law with the Houston firm Solar The Rain Harrell Emery Young & Doke overseas with the 84th Infantry Division, & Associates and to be involved in the firm grew and in 1987 it merged with most notably in the Battle of the Bulge, struggle to secure civil rights for all citizens. Locke, Purnell, Boren, Laney & Neely to and was awarded numerous commendations. form Locke Purnell Rain Harrell. Rain After law school he joined the family firm, John Richard Dale III, ’50, died retired from practice in 1991. In 1999, his now known as Rentfro Faulk, where he September 5, 2006. Dale practiced law in firm merged again and became what is practiced until his retirement in 2004. Livingston and Lufkin, Texas, before

SPRING 2007 now Locke Liddell & Sapp. Throughout his life he was involved in moving to Kansas City to work for the a variety of church, community, and federal government. Ferinez Briminstool Phelps, ’44, philanthropic organizations. died January 12, 2006. William Bryan Finklea, ’50, passed Frates Slick Seeligson, ’49, passed away on December 21, 2006. Charles Edward Clark, ’48, passed away November 28, 2006 at the age of away November 24, 2006 at the age of eighty-three. He served in the Texas Hugh Patrick Shovlin, ’50, died eighty-five. Clark authored the 1954 Civil House of Representatives from January 28, 2007. Shovlin served in the Rights Act and co-authored the Bill in 1953–1960. He went on to serve as United States Attorney’s Office, serving 1964 with President Lyndon Johnson. He President of Santa Gertrudis Breeders as Chief of the Civil Section. In 1975, he was regional director of EEOC from 1966 International and of Texas and was appointed to serve as the interim until his retirement in 1979. Southwestern Cattle Raisers Association. United States Attorney of the Western District of Texas. Spearos Gus Kolius, ’48, of Houston, Edwin Leo Brahaney, ’50, of died December 24, 2006. Midland, Texas, died November 14, 2006. Robert Charles Connor, ’51, died December 4, 2006. The Honorable Charles Hale The Honorable James DeAnda, Store, ’48, died October 19, 2006. ’50, retired Chief Judge of the Southern Elwood Joe Gaus, ’53, died April 16, Justice Store began his law practice in District of Texas, died September 7, 2006. Weslaco and later moved his practice to 2006. Judge DeAnda graduated from UT Dallas in the early 1950s where he practiced Law in 1950 when there were only a Rogan Banton Giles, ’53, died law for over forty years. Justice Store handful of Hispanic law students. After February 16, 2007. He opened his own accepted his first judicial appointment to graduation from the Law School, DeAnda law practice in Austin and served on the the Dallas County Court at Law No. 3, and practiced with Houston attorney John J. State Bar Grievance Committee for six was appointed to the 95th Judicial Herrera. In the mid-1950s he moved to years. Giles also served as President of District Court and to the Court of Corpus Christi, and through his associations the Travis County Bar Association from Appeals, 5th Supreme Judicial District of with the American GI Forum, the League 1975–1976. Texas. After retiring from the Bench, he of United Latin American Citizens, and served for eight years in an appointment the Mexican American Legal Defense and Harold Francis Curtis, ’57, passed to the Texas Board of Law Examiners. Education Fund, DeAnda became away December 14, 2006 at the age of Elected to the Dallas City Council in 1973, involved in landmark cases dealing with seventy-five. He practiced law in his he served in numerous leadership capacities. discrimination in the public education hometown of Greenville, Texas. system in Texas. Those cases include Charles Richey Ebersole, ’49, of Hernandez v. State of Texas, Hernandez J. Lee Dittert, Jr., ’57, died November Houston, died December 5, 2006. v. Driscoll CISD, and Cisneros v. Corpus 3, 2006. Christi ISD. In Cisneros, the United States Ace Hill Alsup, Jr., ’49, died August Supreme Court extended for the first time Paul MacDonald Green, ’57, 31, 2006 after a brief illness. Alsup Brown v. Board of Education to Mexican died September 14, 2006. Green was a lit- practiced law in Temple and finished his Americans. In 1979 President Jimmy igation attorney, who honed his skills professional career as the Assistant Carter appointed DeAnda to the United under the tutelage of his mentor, Beb Executive Director of the Teacher States District Court for the Southern Ladon. Green served as president of the Retirement System. District of Texas. The judge became only the second Mexican American appointed to the federal bench. After retiring from

54 UTLAW Spring 2007 53-55_InMemoriam 6/8/07 12:32 AM Page 65 IN MEMORIAM Texas Association of Defense Attorneys Richard Allen Barras, ’62, died thirty years. Following his service to the (T.A.D.C.), and was a member of the February 3, 2002. Barras practiced law city he opened his own practice. American College of Trial Lawyers. until August 2001. He was managing partner of Lumpkin, Barras, Reavis and Thomas Owen Matlock, Jr., ’75, Robert H. “Bob” Manderson, ’57, Bunkley and later partner of Barras and died January 24, 2007. Matlock was died October 4, 2006. Manderson was a Bunkley. licensed by the Supreme Court of Texas retired attorney in Austin. as an Attorney and Counselor at Law in Malcolm Dade, ’62, died September 1975, and was a board certified Civil Trial David Hamilton Brune, ’58, died 26, 2006. Lawyer. January 13, 2007 at the age of seventy-six. He began his law career with a San Jim Bob Brookshire, ’66, died Luis Augusto Moreno, ’75, died Antonio law firm, during which time he December 14, 2006 at the age of sixty- January 9, 2007 at the age of fifty-seven. also served as general counsel for the five. He was employed as a prosecutor He practiced law at Villarreal, Moreno & San Antonio River Authority and later with the Williamson County Attorney’s Ruiz in San Antonio. became the general manager for the office, followed by ten years with the group. He helped develop the Las Colinas Federal Trade Commission in Dallas. In David Alan Dwyer, ’79, of Houston, project in Irving and he served as 1979 he established his own private died November 28, 2006. President and Chief Executive Officer of practice in Georgetown, Texas, where he the Dallas County Utility and Reclamation practiced criminal and family law for Charles Ronald Kalteyer, ’79, District until 1999. twenty-seven years. passed away December 16, 2006 at the age of fifty-three. After graduating he Donald N. Goldston, ’58, died Elwood Lawrence Munson, ’66, of was an attorney at the law firms of October 21, 2006. Goldston worked for Austin, died December 28, 2006. Jackson Walker LLP and Vinson & Elkins the General Land Office, where he served LLP. Kalteyer later went on to teach at as Executive Secretary of the Veterans’ David Jennings Shaw, ’67, died the SMU Dedman School of Law before Land Board and as Legal Director. From September 15, 2006. Shaw worked as an joining the Dallas office of Locke Liddell January of 1963 until his recent Assistant City Attorney for the City of & Sapp LLP. retirement he was an attorney in private Austin prior to entering private law practice. practice in Austin. William David Simmons, ’82, Gerald G. Huffaker, ’68, died August passed away December 15, 2006 at the Norma Fink-Huffaker, ’60, died 19, 2006. He practiced law in Tahoka, age of forty-eight. He had a twenty-year October 17, 2006. Texas at Huffaker Green & Huffaker. career as a partner at the law firm of Storey Armstrong Steger & Martin PC The Honorable Eduardo Santiago H. Lee Lewis, Jr., ’69, died and the law firm of McGuire, Craddock & Marquez, ’60, died September 18, September 11, 2006. Lee served as a law Strother, PC. 2006. Marquez made national headlines clerk for Federal District Judge John J. in 1994 when he convened a series of Fisher and joined the law firm of Michael David Reyna, ’93, died courts of inquiry and challenged the state Fulbright and Jaworski in 1970, where he October 10, 2006. of Texas to stop shortchanging his practiced Maritime Law. In 1978 he joined community in everything from money for the law firm Ross, Griggs, and Harrison, Marisol Soledad Moreno, ’00, died highways to social services for hundreds where he was a partner and enjoyed November 8, 2006 at the age of forty- of abused and emotionally traumatized a twenty-five year practice as a defense nine. She was a broker/owner of Gold children, the elderly, and mentally ill people. litigation attorney. Quest Realty & Gold Quest Mortgage in Houston. Glynn Ray Purtle, ’61, died January 6, W. Michael “Mike” Stephens, ’70, 2007. Purtle practiced law for forty-four died October 4, 2006. years in Wichita Falls. He was a member of Fillmore and Purtle and served as Steven William Arronge, ’72, passed president of the Wichita County Bar away January 14, 2007 at the age of fifty-nine. Association in 1972. He served as an Assistant City Attorney and City Attorney of San Antonio for

Spring 2007 UTLAW 55 56_ClosingArgument 6/11/07 10:17 PM Page 1

The Trial of Gold E. Locks Last March, UT-Austin hosted its annual open house—Explore UT. This day-long event for kids of all ages was filled with an astonishing variety of activities across the campus. One of UT Law’s contributions to the festivities that day included the mock trial of Gold E. Locks, accused of breaking and entering into the ARGUMENT home of The Three Bears. The trial was presided over by Judge Edward Prado, ’72, of the U.S. Court of Appeals for the Fifth Circuit. Participants included UT Law students as well as boys and girls chosen from the standing-room-only crowd.

CLOSING CLOSING Counsel for the defense (Betsy Keller, ’09) argued for the accused, Gold E. Locks (Lisa Holcombe, ’09).

Before the trial began, Judge Prado spoke on the role of the courts in American society. Papa Bear (Teo Seger, ’09) waited to testify while Judge Prado ruled on a motion.

Judge Prado and his judicial clerk (pictured here in sunglasses) There were concerns among court observers about the wisdom of assisted with jury selection. the defense calling the Big Bad Wolf (Mitch Hasenkampf, ’09) to serve as a character witness.

Counsel for the prosecution (David Currie, ’08) made his opening Gold E. Locks celebrated her acquittal by posing for paparazzi. arguments. Photos: Mark Rutkowski

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