law › ... › uploads › sites › 5 › archive › utlaw_2007_s… · 41 portrait of a dean:...

UTLAWS P R I N G 2007

T H E MAG A Z I N E

O F T H E U N I V E R S I T Y

O F T E X A SS C H O O L O F

L AW

T H E U N I V E R S I T Y O F T E X A S L AW S C H O O L F O U N D AT I O N , 7 2 7 E . D E A N K E E T O N S T R E E T, A U S T I N , T E X A S 7 8 7 0 5

Our New Dean:LAWRENCE G. SAGER

UT LAW at the

UNITED STATES SUPREME COURT

HU and BLACK on “EMPTY VOTING”

LEVINSON on Wherethe Constitution

Goes Wrong

Cover_Spring07 6/11/07 8:07 PM Page 2

C2_MarinaVillageLakeway 6/13/07 3:08 PM Page 1

UTLAWV O L U M E 6 • I S S U E 1

2 I N C A M E R A

UT Law at the United States Supreme Court and our dynamic new clerkship program

6 M E E T O U R N E W D E A N : L A W R E N C E G . S A G E R

1 0 T E N C O M M A N D M E N T S , T H R E E P L A S T I C

R E I N D E E R , A N D O N E N A T I O N … I N D I V I S I B L E

1 6 S U P R E M E P E R S U A S I O N : U T L A W C L I N I C S

E N J O Y R E M A R K A B L E S U C C E S S A T T H E

U N I T E D S T A T E S S U P R E M E C O U R T

2 2 F R O M L A W S T U D E N T T O J U D I C I A L C L E R K

( A N D H O W T O G E T T H E R E )

2 8 “ E M P T Y V O T I N G ” A N D T H E F O U N D A T I O N S

O F C O R P O R A T E G O V E R N A N C E

3 1 F A C U L T Y B O O K S

3 2 A T A L E O F T W O S I G N I N G S

3 6 N E W F A C U L T Y P R O F I L E S : W I L L I A M M . S A G E

A N D J O H N M . G O L D E N

3 8 N U R T U R I N G S C H O L A R S H I P : T H E E M E R G I N G

S C H O L A R S P R O G R A M

4 1 P O R T R A I T O F A D E A N : B I L L P O W E R S

4 2 C H I E F J U S T I C E O F T H E U N I T E D S T A T E S

K E Y N O T E S A T T E X L E Z A R M E M O R I A L

L E C T U R E S E R I E S

4 3 T E X A S R E V I E W O F L A W & P O L I T I C S

C E L E B R A T E S I T S F I R S T D E C A D E

4 4 C L A S S N O T E S

5 3 I N M E M O R I A M

5 6 G O L D E . L O C K S O N T R I A L

U T S C H O O L O F L A W

D e a n

L AW R E N C E S A G E R

U n i v e r s i t y o f Te x a s L a w S c h o o l Fo u n d a t i o nP r e s i d e n t , B o a r d o f Tr u s t e e s

C . K E N N E T H R O B E R T S , ’ 5 1

U T L a w S c h o o l A l u m n i A s s o c i a t i o n P r e s i d e n t

C A R R I N P A T M A N , ’ 8 2

U T L A W M A G A Z I N E

E d i t o r

K I R S T O N F O R T U N E

C o n t r i b u t i n g Wr i t e r s

L A U R A C A S T R O, ’ 9 7T O M H E N N I N G E R ’ 9 2

C o n t r i b u t i n g P h o t o g r a p h e r s

C L A I R E D U G G A NM A R S H A M I L L E R

M A R K R U T K O W S K I

C l a s s N o t e s E d i t o r

S H A N A N S T O R M

D e s i g n

V I S U A L I N G O

C o v e r p h o t o s

M A R S H A M I L L E R

C o v e r p h o t o i l l u s t r a t i o n

K R I S T I N E B R U I N S S L O T

C O M M E N T S ? W E W E L C O M E

Y O U R L E T T E R S .

P L E A S E E M A I L K I R S T O N F O R T U N EA T K F O R T U N E @ L AW. U T E X A S . E D U

O R W R I T E C A R E O F : T H E U N I V E R S I T Y O F T E X A S

S C H O O L O F L AW7 2 7 E A S T D E A N K E E T O N S T R E E T

A U S T I N , T E X A S 7 8 7 0 5

T O A D V E R T I S E , P L E A S E

C O N T A C T :

M I K E M C K E EA C C O U N T E X E C U T I V E

T E X A S M O N T H LY C U S T O MP U B L I S H I N G

P H O N E : 5 1 2 . 3 2 0 . 6 9 3 4F A X : 5 1 2 . 4 7 6 . 9 0 0 7

E M A I L : M M C K E E @ T E X A S M O N T H -LY. C O M

T O C H A N G E Y O U R C O N T A C T

I N F O R M A T I O N , P L E A S E C O N T A C T :

P H O N E : ( 5 1 2 ) 4 7 1 - 6 3 1 4E M A I L :

L AW A L U M N I @ L AW. U T E X A S . E D UO N L I N E :

H T T P : / / W W W. U T E X A S . E D U / L AW / D EP T S / A L U M N I / F O R M . H T M L

U T L a w M a g a z i n e i s p u b l i s h e d t w i c e a y e a r b y t h eU n i v e r s i t y o f Te x a s L a w S c h o o l Fo u n d a t i o n , a n o n p r o f i t

c o r p o r a t i o n , 7 2 7 E a s t D e a n Ke e t o n S t r e e t , A u s t i n ,Te x a s , 7 8 7 0 5 .

UTLAW T A B L E O F C O N T E N T S

01_Contents 6/7/07 10:54 PM Page 1

2 UT L AW S p r i n g 2 007

U T L A W A T T H E

U N I T E D S T A T E S S U P R E M E C O U R T

During its most recent term the Supreme Court agreed to hear only seventy-eight of the 8,517 casesfiled. Of the cases selected for review this term, students and faculty in the Law School’s SupremeCourt 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.

02-03_InCamera 6/11/07 8:41 PM

I N C A M E R A

Photo: Claire Duggan

02-03_InCamera 6/11/07 8:42 PM


FROM LAW STUDENT TO JUDICIAL CLERK

In 2007, fifty UT Law graduates will clerk at the federal and state level incourts around the country, including a record twenty at the federal appellate

level. The excitement about clerking among current students is the directresult of a dynamic new clerkships program. Story on page 22.

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

I N C A M E R A

Photo: Marsha Miller

04-05_InCamera2_R2 6/13/07 4:24 PM Page 5


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.

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

inding time on Dean LarrySager’s calendar is no easyfeat. Experience tells methat’s true of most deans,

but it seems particularly so for the newdean of UT Law School. For one thing,he’s been on the road a lot since heofficially took office in September oflast year—hosting law alumni membersof the National Bar Association forbreakfast during their annual conventionin Detroit, or speaking to prospectivestudents and alumni in WashingtonDC, New York, Tyler, Dallas, Edinburg,Brownsville, Harlingen, Los Angeles,San Francisco, Houston, and FortWorth. Before the summer is over he’llmeet with alumni in Austin, El Paso,and Atlanta. At these events he talks abit about himself, a bit about the stateof the Law School, and a great dealabout his plans for the future.

In the fall of 2002, then-dean BillPowers (now president of UT-Austin)asked Larry Sager, the Law School’snew Alice Jane Drysdale SheffieldRegents Chair, to make a presentationto the board of trustees of theUniversity of Texas Law SchoolFoundation, the men and women whoinvest and oversee the Law School’sendowment. The Foundation board isa Who’s Who of lawyers—all of themgifted, all of them successful, all ofthem Texan. Legendary trial lawyer JoeJamail serves on the board. So does KayBailey Hutchison, Texas’s seniorUnited States Senator. Harry Reasoner,the former managing partner ofVinson & Elkins is a member, alongwith Ken Roberts, current chair of theFoundation and former general counselof Exxon. In short, it’s an impressiveand distinguished group. And Sager isan impressive and distinguished additionto UT Law. Lured away from his

lengthy tenure at NYU Law School,where he was instrumental in buildingthat faculty into a national and interna-tional powerhouse, Sager brought withhim an indisputable reputation as oneof the nation’s greatest constitutionaltheorists. He is held in high esteem byfellow scholars, by judges, and by thelegal academy generally. But as muchas Sager had going for him, he faced, atleast as I saw it, a few hurdles. First, hewas not a Texan. Indeed, he had cometo Texas from New York, and not justNew York, but New York City (althoughhe grew up, like Powers, in southernCalifornia). Second, he did not looklike a Texan. He had long, curly, sometimes unruly, hair—and a beardto match. And third, he was going toadvance a new constitutional approachto the thorny issue of religious liberty.(See an excerpt from his recently published book, Religious Freedom and the Constitution, co-authored withChristopher L. Eisgruber, on page 12).Despite these challenges, his presentation to the Foundation’sBoard of Trustees was a great success,and was like Sager himself—erudite,articulate, courteous. “An outstanding Texan by choice”

I don’t know what the trusteesthought about Sager before his presen-tation that fall day in 2002. Perhapsthey shared my concerns, perhaps not.But I do know that they becameincreasingly engaged with him duringthe presentation, and that they askedspecific and thoughtful questions afterward. They were genuinely takenwith the man and his message. Somuch so that at the announcement ofSager’s appointment as dean, TomLoeffler, a UT Law graduate, trustee ofthe Law School Foundation, formerRepublican congressman, former

chairman of the UT System Board ofRegents, and advisor to severalRepublican presidents, includingGeorge W. Bush, was nothing short ofeffusive. “I am thrilled that Larry Sageris our new dean at the Law School,” hesaid. “He’s second-to-none as a scholar,teacher, and leader. Larry is one of themost dynamic individuals I have evermet, and an outstanding Texan bychoice. I could not be happier with thedecision or more confident about thefuture of our great Law School.”Sager’s predecessor, Bill Powers, wholeft the Law School to assume the presidency of the University, had this tosay: “We recruited Larry to the campusabout four years ago as one of the leadingconstitutional scholars in the countryand, as a bonus, he also was enthusiasticabout being a major player in helpingbuild the Law School. That vision andambition is a terrific asset we’re goingto have under his leadership.”

Lawrence Gene Sager was born andreared in Southern California by parents who cared deeply about socialand political justice. These were, Sagerrecalls, the dominating forces in theirlives, and they passed their values andpassion on to their son. Even as a youngboy, he had a curious mind and heloved books. He was an avid reader,consuming all the Sherlock Holmesand Father Brown mysteries, along withthe seafaring adventures of HoratioHornblower. And he loved to takethings apart, figure out how theyworked, then put them back togetheragain. His room was always filled withbroken clocks and other gadgetsacquired through various means—including screening the neighbors’garbage—each in some state of assem-bly and repair. Sager knows that tounderstand the internal logic of issues

S p r i n g 2 007 UT L AW 7

F

OUR NEWDEAN

L A W R E N C E G . S A G E RTom Henninger, ’92

Ph

oto:

Mar

sha

Mill

er



and arguments—and clocks and toasters—it helps to get inside thingsand learn how they work.

Sager was also an accomplishedprankster when he was growing up and,not surprisingly, he most enjoyed playingpranks that involved machinery, aboutwhich anecdotes abound. In highschool, one of Sager’s science teachersbought a new car and, with an interestunique for the time, spoke to his classat some length about the vehicle’sexcellent gas mileage. As the weekspassed, the teacher became increasinglyexcited, then dismayed, as the car’s fuelefficiency rose and rose, then declinedto below the expected mileage per gallon.Finally, Sager and a fellow classmateconfessed. They had slipped out to theparking lot each day and added gasoline to the tank and, when theteacher reported the car was averagingover fifty miles to the gallon, theybegan siphoning off the gas. In college,Sager combated a dorm neighbor’shabit of playing his stereo loudly at allhours of the night by wiring it so thatwhen other residents on the floor complained and the owner turned thedial down, the volume increased. Thiswent on for a few minutes until thestereo was turned off entirely, at whichpoint the machine came back to life,blasting Aaron Copland’s Fanfare for theCommon Man.

In high school Sager really discoveredthe power of language. He was activeon the debate team, and he began writingin earnest. After high school, Sagerattended Pomona College inClaremont, California, where he studiedgovernment and international relationsand was active in the Model UnitedNations program. But it was an assignment in a freshman governmentcourse that first sparked Sager’s interestin the law. He became “intellectuallyindignant” on learning that Congresscould take away the jurisdiction of thefederal courts, including the SupremeCourt—the doctrine of separation ofpowers notwithstanding. When Sagerexpressed skepticism about this to hisprofessor, the teacher sent him to thelibrary to review cases on the subject,and so began his lifelong love affairwith the law. Twenty years later, Sagerwould be given the honor of writingthe foreword to the Supreme Court

volume of the Harvard Law Review.His subject: constitutional limitationson Congress’ ability to restrict the jurisdiction of the courts.

Sager turned down a WoodrowWilson Fellowship after college in favorof studying law at Columbia. His decision was based in large part on alack of interest in one of the fellowship’srequirements—teaching. The irony isnot lost on Sager that three monthsafter graduating from Columbia, hewas on the faculty of UCLA LawSchool, and he’s been teaching eversince. After UCLA, Sager spent thirtyyears at New York University beforearriving at UT. From the outset, he wasa superior student of the law. His livelyintellect is revealed in his many writingswhich include, besides the recentlypublished Religious Freedom and theConstitution, the widely hailed Justice inPlain Clothes: A Theory of AmericanConstitutional Practice, dozens of lawreview articles, book reviews, and otherscholarly presentations. RonaldDworkin, Sager’s colleague at NYU andone of the nation’s leading legalphilosophers, described Sager as “subtle,fast, and deep.”

Sager is married to Jane Cohen, andthey have eleven-year-old twins remainingat home. Cohen is not only Sager’swife, but also his colleague. Cohen is arespected member of the law faculty,with academic interests in, amongother things, property and family law.She is, like her husband, thoughtfuland caring and deeply engaged withthe world around her. Sager andCohen enjoy a wide and diverse circleof friends—academics, actors, artists,cab drivers, lawyers, musicians. Theyare friends—truly friends—with a vastarray of individuals, and all are welcomearound their table. For eighteen years,Sager commuted between Boston andNew York, teaching at NYU but livingwith Cohen and their family inMassachusetts, where she taught atBoston University School of Law. Hecame to know the security personnelwho worked for the Delta AirlinesShuttle so well that he delivered toeach of them during the holidays oneof his culinary specialties—apple pie.

During Sager’s tenure at NYU, andto a great degree because of his efforts,that law school hired John Sexton and,

thanks to Sexton, Sager, Dworkin(whom Sager helped recruit to the faculty), and others, NYU Law Schoolrose in the rankings from somewherearound 30th during the mid-1970’s to4th this year—surpassing Sager’s almamater, Columbia. You don’t have to listen to Sager for very long to knowthat he has similar ambitions for UTLaw. Following the groundwork laid byhis highly successful and popular predecessor, and employing the strategiesthat led to success in New York, Sager ismoving UT Law forward on severaltracks simultaneously. Under Powers,the Law School committed itself toreaching the very first rank of lawschools in the United States, and underhis leadership we made real progress inthat direction. Sager is eager to see thisprogress extended, at a faster pace andon a greater scale. He sees the LawSchool as “perched on the brink ofextraordinary distinction.” Because ofits size—UT Law is one of the largestlaw schools in the country—Sagerbelieves we can create more opportunitiesfor specialized areas of study than ispossible at smaller schools. As it is, thecore is bracketed by a terrific set of clinical programs, by sophisticatedofferings at the intersections of law andphilosophy, economics, and history,and by programs with a global reach.Sager will continue to strengthen thecore curriculum with a particular focuson faculty retention and recruitment,creating new intellectual and practiceinitiatives, and student support.Faculty

Sager proposes adding as many asfifteen distinguished hires to the facultyas a short-term goal. He notes thatHarvard is adding between twenty-fiveand forty members to their faculty, andthat Yale and Stanford have begunexpansions of their own. Given thestature of the faculty at UT, it should beno surprise that these law schools, andothers, are coming to Texas on recruitingexpeditions. So a strong emphasis onretaining faculty must be coupled withrecruitment efforts.

Faculty size is especially important atthis time in UT’s history. First, the faculty/student ratio weighs heavily innational rankings. At UT, this ratiocompares unfavorably not only to thoseat the top twenty law schools, but to law


schools with lower rankings overall. Tothe extent that both prospective students and faculty rely on rankingswhen choosing among schools, UT is ata disadvantage. Moreover, Sagerargues, the faculty/student ratioundermines the school’s efforts toachieve excellence in providing a contemporary legal education.Emerging intellectual initiatives

Traditional casebook instructionremains essential, but this core hasbeen expanded with the addition ofimportant new initiatives andapproaches that are much more facultyintensive. These programs include clinical education and specializedinterdisciplinary initiatives, such as Lawand Economics, Law and Philosophy,and Law and History, as well as globallegal studies like international, transna-tional, and comparative law.

Sager supports these initiativeswholeheartedly. The Law School currently offers fourteen clinical programs, and he has increased or initiated funding for each. The newestclinic is the Supreme Court Clinic,launched in September 2006, and ledby Professor Michael Sturley. In its firstyear of operation it can already claim aremarkable success: the first caseappealed by the clinic was granted certiorari by the United StatesSupreme Court. That case was ultimately settled, but it was a significantexperience for the students involved.

And this fall, the Law School’s fifteenth clinic will open its doors. Thisnew clinic, focusing on the civil andhuman rights of the Guantanamo Baydetainees, will be led by ProfessorsDerek Jinks and Jack Ratliff, who co-taught a course entitled Rule of Lawin Wartime during the fall 2006 semester.UT Law’s preeminent constitutionallaw scholars will also be heavilyinvolved in this effort. The clinic, combining experiential learning andtheoretical analysis, will be the first ofits kind in the nation.Students

Sager is committed to recruiting thebest students and to creating a diverseand inclusive community. To that end,and like Bill Powers before him, Sagerhas increased financial support of theactivities of the Admissions Office for prospective student outreach.

Recognizing that students learn fromextra-curricular projects, Sager has alsoincreased support of student organiza-tions across the board, enhancing boththe educational and social experience.And because students learn from theirpeers as well, Sager will continue tobuild programs that enhance the diversityof the student body. One such programis the Law School’s summer pre-lawinstitutes in El Paso, Houston, SanAntonio, South Texas, and the Valley.We know that these programs areresponsible for an increase in minorityapplications and admission, and Sageris committed to helping them flourish.

A concern among prospective lawstudents is the cost of a legal education.Even with substantial tuition increasesover the past three years, UT Lawremains a remarkable bargain in legaleducation. Texas residents pay nearly$10,000 a year less than do Californiaresidents, and $20,000 less than do students at our peer schools. A substantialportion of the recent tuition increasesis used for scholarships. Still, law schooltuition is expensive. Sager intends to increase scholarship assistance tokeep UT competitive in studentrecruitment, and to lessen the growingburden of loans on our graduates.

Any discussion of student loans raisesthe issue of loan repayment. UT is theonly school among the top twenty law schools that does not have a loanrepayment assistance program (LRAP).LRAPs provide varying levels of loanforgiveness to graduates who acceptlower-income jobs in the public interest.Sager has noted that such a program,though costly, has the dual benefit ofeasing the loan burdens of those whoelect to work for the public interest andof attracting students who contemplatecareers in public service. He establisheda faculty-student committee to researchLRAPs, one which will shortly makerecommendations on how to structurea program that will best serve theunique needs of UT Law students.Space

It isn’t news to current students, faculty, and staff that the Law Schoolhas run out of space. It is clear evidence of our success that there is agrowing shortage of adequate room forclinics, student journals, and facultyoffices—but that makes the problem

no less acute. In an effort to ease thespace crunch, the administration hasrented nearby, but off-site, space forthe Continuing Legal Educationoffices, and it’s looking for otherremote space to further relieve thesqueeze. Factor in the goals of increasingthe size of the faculty and of increasingsupport for student initiatives, and thelack of space becomes a crisis. Withouta solution to the current space problem, faculty and programmaticgrowth cannot be achieved.

A recently commissioned spacestudy places the immediate spacedeficit at about 45,000 square feet.Assuming no growth of the studentbody and reasonable growth of the faculty and programs, the deficit will bein excess of 60,000 square feet in ten years. And like so many otherthings—the quality of the faculty and ofthe student body, the availability ofscholarship support, cutting edgescholarship and pedagogy—the infra-structure matters, too. We need morespace. A variety of options are currentlyunder consideration, but addressingthese infrastructure issues is anotherchallenge Sager will tackle.The pursuit of excellence

Sager’s ambitions for the LawSchool will ultimately benefit all of itsconstituencies, but these ambitionsrequire resources. Without resources,the pursuit of excellence remains agoal incapable of being realized. Laterthis year, the University of Texas willundertake a multibillion dollar capitalcampaign and the Law School will be acritical part of that endeavor. Sager willlead the Law School during this effort,and he has set a goal of historic size.You’ll be hearing more about it in themonths ahead, and when you do Ihope you’ll remember everythingbehind the appeal—the need to support our people so that our schoolcan continue to flourish.

Sager has a vision for transformingthis great Law School into the greatestlaw school. It’s an ambitious vision, butthen Sager’s an ambitious fellow.Smart, charming, ambitious. UT LawSchool deserves such a dean.

S p r i n g 2 007 UT L AW 9


1 0 UT L AW S p r i n g 2 007

Three Plastic Reindeer, and One Nation…Indivisible

10-15_Commandments 6/7/07 11:00 PM Page 1

Early one December day someyears ago, the principal of a publicelementary school somewhere onLong Island called the executive

director of the New York Civil LibertiesUnion. “Ira,” he said, “Please don’t tellanyone I’m calling you, but we’re havingan assembly next week, and I want toknow whether it is okay for us to sing afew Christmas carols.” Ira replied: “Joe,please don’t tell anyone that I told youthis, but just go ahead and do it!”

Some disputes about religious libertycan seem either deeply important to apluralistic society or so trivial that theattention paid them is silly and exasperating. Constitutional questionsabout Christmas carols are like that,which is our point in recalling the brieftelephone exchange between two men,who in different circumstances mighthave been courtroom adversaries. Sotoo are the roiling controversies wetake up in this chapter: TenCommandment displays, crèches inpublic parks, and Pledge of Allegianceceremonies. Perhaps this sense of vacillating between the profound andthe irritating is inevitable: the stakes in

these cases are purely symbolic, butreligious conviction is a domain inwhich symbols are often very importantto Americans.

Whatever else is true, public exhibi-tions of religious symbols excite intenseand heated controversy. The resultingcases provide a starting point forexploring Equal Liberty’s implicationsfor Establishment Clause jurispru-dence. At the outset of that exploration, we need an account of howreligious symbols matter in Americanculture. It is to the task of developingsuch an approach that we first turn.

PUBLIC DISPLAYS

Cases about crèche displays, town-sponsored Christmas trees, and otherpublic exhibitions of religious symbolscame to the Court relatively late in its continuing effort to develop anattractive and workable approach toEstablishment Clause cases. Casesabout public aid to religious schoolsfirst reached the Court in the late1940s, and the Court’s first schoolprayer cases were decided in the 1960s;

S p r i n g 2 007 UT L AW 1 1

Constitutional analysis of religious

freedom has been hobbled by the idea of

“a wall of separation” between church

and state. That metaphor has been

understood to demand that religion be

treated far better than other concerns in

some contexts, and far worse in others.

Sometimes it seems to insist on both

contrary forms of treatment simultaneously.

Missing has been concern for the fair and

equal treatment of religion. In response,

the authors offer an understanding of

religious freedom called Equal Liberty.

This article is an excerpt from chapter

four of Religious Freedom and the

Constitution, written by Lawrence G.

Sager and Christopher L. Eisgruber,

published earlier this year by Harvard

University Press. It is reprinted here

without footnotes. The full text of this

chapter, with footnotes, can be found on

the University of Texas School of Law’s

website, at www.utexas.edu/law/faculty/

lsager/religiousfreedom_excerpt.pdf.


1 2 UT L AW S p r i n g 2 007

in contrast, the first Christmas displaycase arose in the 1980s. Now, however,the annual Holiday Wars—political andlegal skirmishes over whether the gov-ernment can sponsor displays celebrat-ing Christmas, Hannukah, and so on—have joined eggnog, greeting cards,and fruitcake as staples of Decemberculture in America.

When Supreme Court justices analyze cases about the public displayof religious symbols, they tend to use

reasons and concepts that fit nicelywith the precepts of Equal Liberty. Inparticular, they usually invoke someversion of the endorsement test thatJustice O’Connor developed in theCourt’s very first holiday display case,Lynch v. Donnelly (1984). Lynchinvolved the display by the city ofPawtucket, Rhode Island, of a nativityscene or crèche in a park owned by anonprofit organization and located inthe city’s shopping district. JusticeO’Connor said that the crucial questionwas whether the display amounted toan endorsement of religion (or of aparticular religion):

The Establishment Clause prohibitsgovernment from making adherenceto a religion relevant in any way to aperson’s standing in the political community. Government can run afoulof that prohibition … [by its] endorse-ment or disapproval of religion.Endorsement sends a message to nonadherents that they are outsiders,not full members of the political community, and an accompanying message to adherents that they areinsiders, favored members of the political community.

Justice O’Connor’s words are musicto an Equal Liberty enthusiast’s ears.Not everyone finds them convincing,though. In Lee v. Weisman (1992), a case

about a prayer at a public school graduation, Justice Scalia wrote a blistering dissent critiquing JusticeO’Connor’s endorsement test. Scaliawould recognize Establishment Clauseviolations only in cases in which somebody suffered “coercion…backedby threat of penalty.” Pawtucket hadnot forced anybody to say a prayer, orto participate in a ritual, or to visit itshomage to the Christmas season. Sowhere, Scalia asked, was the harm?

“Taxpayers were forced to pay forthe display,” someone might say, “evenif they rejected its religious message.”But this explanation is question-beggingat best; Pawtucket had not spent muchtaxpayer money on its crèche display.Suppose that the city had spent none atall, relying entirely on private contribu-tions to pay the modest expenses asso-ciated with an officially sponsored display. Would that make a difference?Not under Justice O’Connor’s endorse-ment rationale and not, we think, tomost citizens. Complaints about themisuse of taxpayer dollars are a stapleof American political rhetoric, but theydo a poor job of capturing what is constitutionally troublesome aboutcrèche displays.

If endorsement per se amounts to a constitutional violation, then the factof disparagement must by itself—unsupplemented by any concernsabout coercion or the expenditure ofgovernment money—be the relevantharm. To Scalia and other critics of theendorsement test, that injury seems too flimsy and subjective to deserveconstitutional attention. After all, people can feel disparaged at the dropof a hat. Indeed, as we shall discusslater in this chapter, some religiousbelievers feel themselves disparaged bythe absence of religious symbols from

public spaces. And governments mightplausibly deny that they intend to disparage anybody with their displays;Pawtucket claimed that its purpose wassimply to attract holiday shoppers tolocal stores, and that might have beenso. Why, then, should we single out thepublic display of religious symbols as a constitutionally impermissible formof disparagement?

We believe that this question has asound answer, one consistent withJustice O’Connor’s reasoning in Lynch.The answer pertains to what we will callthe social meaning of religious symbolsin American culture. To answer JusticeO’Connor’s critics fully, we need todevelop the idea of social meaning insome detail. Our treatment of it willinvolve some subtle distinctions, butthe basic idea has a venerable pedigreein American constitutional jurispru-dence and ought, we believe, to resonatewith our readers’ understandings. Webegin our discussion with a simpleexample, one to which we will returnseveral times.

RELIGION, SOCIAL MEANING, AND DISPARAGEMENT

Imagine that the officials of a smalltown—let’s say “Fineville”—have decidedto erect a handsome highway-spanningarch as the portal to their municipality.Now imagine two different inscriptionsthey might choose to blaze across theirarch. One imagined slogan would be“Fineville—A Nuclear-Free Community.”The other would be “Fineville—AChristian Community.” Now it is certainly possible that in the Finevilleof our imagination questions ofnuclear power and/or weapons are amatter of controversy—possibly evenheated controversy—and that advocatesof things nuclear might be irked at thehighly visible side-taking implicated inthe nuclear-free-community sign. But itwould be odd in the extreme to regardthe losing side in the nuclear debate as disparaged in a way that shouldinvoke our constitutional sympathies.When we shift our attention to theChristian-community sign, it is not atall odd to think that non-Christians areso disparaged.

What accounts for this difference?We suggest that public endorsementsof religious belief must be understood

Equal Liberty is about

finding fair rules of cooperation

among a religiously diverse people.


against the background of four structuralfeatures of religion in our society, features that, even if not common toeverything that might be called “religion,” are nevertheless common tomost of American religion. These features affect the social meaning ofreligious displays—that is, they affect themeanings that competent participantsin American culture may reasonablyassociate with the government displayof religious symbols.

First, religions tend to be compre-hensive; they are not discrete propositionsor theories, but large, expansive websof belief and conduct. Second, despitethe real diversity within Americanchurches, there are still importantrespects in which one is either “in” or“out” of a religion. In some of the mostcohesive faiths, churches distinguishinsiders and outsiders in a strictlyenforced, institutional sense: theMormon church, for example, excom-municates those whom it deemsunfaithful. Most American churchesare more loosely structured. Catholicscan be relatively orthodox or quite secular,and it is possible to be a “secular Jew.”Still, it makes little sense to “mix andmatch” religions, and groups that pretendto do so, such as the evangelicalChristian group Jews for Jesus, onlyunderscore the point. Third, open ritual is prevalent in religion, and participation in ritual—standing up orstaying seated, bowing one’s head or not, repeating designated words orremaining silent—plays an importantrole in signifying who is “in” or “out” ofthese comprehensive structures in theeyes of individual believers, churchcommunities, and the more generalpublic. Fourth, the perceived stakes ofbeing within or without these structuresof belief and membership are oftenmomentous: being chosen or not, beingsaved and slotted for eternal joyous lifeor condemned to eternal damnation,leading a life of virtue or a life of sin,acknowledging or repudiating one’sdeepest possible debt, fulfilling orsquandering one’s highest destiny. Orthe stakes may be less transcendentaland more mundane, but no less categorical, such as being like us or verydifferent from us, or being or not beingperniciously under the sway of particularleaders or worldwide movements.

As we have observed throughout,Americans are keenly sensitive to distinctions in religious identity.Though most American faiths are reconciled to the fact of religious pluralism and to the consequent needfor religious tolerance, they nonethelesscontinue to insist on the unique truthof their beliefs and the special signifi-cance of their religious identity. In thelate 1950s the sociologist Will Herbergsaid that in the United States, the

question “What are you?” usually callsfor an answer drawn from the list“Protestant, Catholic or Jew.” The listmay have grown—to include, for example, “Muslim”—but the basicpoint still holds: in the United States,religion plays a major role in definingcivic identity.

All this means that public endorse-ments of religion carry a special chargeor valence. Such endorsements signifywho is “in” and “out” of competinglarge-scale social and ideological structures, and assign powerful andpervasive judgments of identity andstature to the status of being in or out.Religious endorsements valorize somereligious beliefs and those who holdthem, and thereby disparage those whodo not share those beliefs.

There is thus a deep and crucial difference in the meaning of the twoFineville signs, and the disparagementof non-Christians implicated in thesocial meaning of the second sign isinconsistent with the requirement ofevenhandedness—of what we havecalled “equal regard”—that lies at theheart of the Establishment Clause.

This understanding of public religiousendorsements is not just a matter of astatistical generalization about personalsensibilities. Sensitivities vary across

groups and over time. Moreover, bymaking constitutional law so dependentupon personal reaction, we would riskcreating a “tyranny of the squeamish”:an especially thin-skinned group wouldhave a better chance of getting doctrines offensive to it excised frompublicly sponsored speech. It mightseem more reasonable to tell the groupto toughen up a bit.

Nor does this understanding of apublic religious endorsement depend

on what the public officials had inmind when they chose to make theendorsement. A particular official orgroup of officials may not intend tocontribute to the disparagement ofpersons in their community and yet door say something that constitutes such adisparagement, just as an individualspeaker might overlook or misunderstandthe linguistic meaning of her words.

The pernicious element of dispar-agement that inheres in public religious endorsements like Fineville’ssign is a product of the social meaningof such endorsements. The socialmeaning of an event or a public expressionis the meaning that a competent participant in the society in questionwould see in that event or expression.Social meaning is in this respect likelinguistic meaning, which dependsupon the understanding and use oflanguage by a competent practitionerin the relevant linguistic community. Inour national community, the structureof religious belief and affiliation is suchthat endorsements carry with them thetaint of disparagement. And in ournational community, “Fineville—AChristian Community” disparages non-Christians, while “Fineville—ANuclear-Free Community” merely irritates nuclear advocates.

S p r i n g 2 007 UT L AW 1 3

Religious endorsements valorize

some religious beliefs and those who

hold them, and thereby disparage

those who do not share those beliefs.


1 4 UT L AW S p r i n g 2 007

The concept of social meaning—whether invoked by that name orexplicitly invoked at all—is importantin thought and discourse about justicein political communities, and in fact it hasa venerable pedigree in constitutionaljurisprudence. The first Justice Harlancalled upon it in his justly famous dissent in Plessy v. Ferguson over a centuryago. Plessy involved a constitutionalchallenge to a Louisiana law mandatingthat whites and blacks ride in separaterailway cars. The majority of the Courtrejected the challenge, insisting that no

harm to constitutional equality was atstake. At one point, the majority cameclose to the heart of the case, only todemonstrate a peculiar inability to seethe world as it clearly was:

We consider the underlying fallacyof the plaintiff’s argument to consist inthe assumption that the enforced separation of the two races stamps thecolored race with a badge of inferiority.If this be so, it is not by reason of anything found in the act, but solelybecause the colored race chooses toput that construction upon it.

In response, Justice Harlan insistedthat “the real meaning” of theLouisiana law was unduckable, namely,“that colored citizens are so inferiorand degraded that they cannot beallowed to sit in public coaches occupied by white citizens.” Harlanthus saw “separate but equal” railwaycars as carrying an insidious social

meaning that contributed to the perpetuation of social caste, and forthat reason, as plainly unconstitutional.We think Harlan’s invocation of socialmeaning was morally precocious, andthat his concept of such meaning wasvery similar to the one we are usinghere. Like us, he believed that certainpractices had a disparaging effect thatwas “real” and not reducible either tothe personal intentions of their sponsorsor to the personal perceptions ofobservers. These practices pertain toimportant constituents of identity—

most notably, race and religion—that,within American culture, function asespecially significant markers of socialdivision…

WHEN IS A DISPLAY AN ENDORSEMENT?

In Lynch, after propounding theendorsement test, Justice O’Connorwent on to observe that not all publicdisplays of religious material constituteendorsements—or, as we would put it,that not all displays of this sort have asocial meaning that includes the disparagement of some members ofthe community on the basis of theirreligious beliefs.

We agree with Justice O’Connorabout this point (though not with theconclusion she ultimately drew fromit). To see why, we return again to thefictional hamlet of Fineville and imaginetwo more cases. First, it is the Christmas

season, and the Fineville City Councildirects the Parks Department to displaya large crèche in a prominent locationin the public park that surrounds theCity Hall; and second, in a remarkablecoup, the Fineville City Art Museumborrows and displays one of Fra Angelico’s paintings of theAnnunciation as part of its “Treasuresof the Italian Renaissance” exhibition.These two events are likely to have verydifferent social meanings. The socialmeaning of the crèche includes dispar-agement of those who do not embraceChristianity as their religious belief,while the social meaning of the artexhibition does not. Why is this so?

We can begin to understand the difference when we realize that theproper question is “What is the meaningof the display?” as opposed to “What isthe meaning of the object that is beingdisplayed?” Ordinarily these questionsproduce the same answer, because gov-ernments will properly be understoodto express the meaning of the symbolsthey invoke. So when a governmenterects a crèche, that act will have thesocial meaning of celebrating the birthof Jesus Christ and thereby affirmingthose faiths that embrace Jesus Christas a figure of reverence. When this istrue, the social meaning of the displaywill be more or less the same as themeaning of the object displayed, andwith a sectarian object like a crèche,that meaning will include the dispar-agement of nonbelievers.

Sometimes, however, governmentswill properly be understood in effect tobe holding a religious object at armslength, to be putting quotation marksaround religious text or a contextualframe around a religious object. Ourstory about the Fineville City ArtMuseum’s display of one of FraAngelico’s paintings of theAnnunciation is like that. The contentof the painting is exquisitely religious:the Annunciation—in which the AngelGabriel tells Mary that she will conceivethe child Jesus—is a an event depictedand celebrated most prominently withinCatholic theology. And Fra Angelicodepictions are faithful to their subject—Gabriel is undeniably anangel, and his message spills forth inexplicit Hebraic text. But Fra Angelicois a great painter, and his works

The display of the painting in

a museum would properly be

understood as an instance of framing

rather than embracing the religious

content of the painting, and thus

the display would not carry the bitter

social meaning of disparagement.


are widely appreciated for theirextraordinary artistic force and theirimportance in the evolution of Westernart. The display of the painting in amuseum, as a great and importantwork of the Italian Renaissance, wouldproperly be understood as an instanceof framing rather than embracing thereligious content of the painting, andthus the display would not carry the bittersocial meaning of disparagement.

This distinction—between invokingthe sacred meaning of a religiousobject and framing that meaning—more or less tracks the distinction inthe philosophy of language between“using” and “mentioning.” In a latersection we will present some excerptsfrom the Ten Commandments. Wereour project in this book different thanit is, we might be offering theCommandments to support a claimabout theological truth. We would thenbe using the Commandments. In fact,though, we include these quotationssimply as a reminder of what theCommandments say, so that we can goon to discuss the constitutional statusof their public display. We are not using the Ten Commandments; we arementioning them.

There are many examples of thepublic quoting or framing of religiousmaterial. The federal governmentmaintains the San Antonio MissionsNational Historical Park, which preserves for public appreciation fourmissions, the greatest concentration ofCatholic missions in North America.These were established by Franciscanfriars bent on extending the influenceof Spain and of the Catholic church.The historical and architectural signifi-cance of these buildings makes themworthy objects of public appreciation.Their public presentation by the ParkService—from the name of the parkonward—makes them a clear instanceof historical framing.

The name San Antonio itself is aninstance of the framing of religiouscontent. “Saint” or its equivalent issomething of a commonplace in community names in the United States;other prominent examples include St.Paul, San Diego, and San Francisco.There can be no doubt that thesenames have religious origins, but wethink it would be just plain silly to

suppose that any constitutional violationresults. “St. Paul” now has at least twomeanings: it refers to a Christian saintand to a city in Minnesota, and the lattermeaning is secular. Acceptance of thecity’s historical name does not implythat residents or officials admire orvenerate the eponymous saint—anymore than use of the nameGermantown, Maryland, implies thatcurrent residents are from, or support,Germany.

FIG LEAVES VERSUS FRAMES

Having used the Italian Renaissanceand Fra Angelico as our prime exampleof the public framing of objects withreligious content, we are tempted toborrow from an adjacent tradition of

Italian painting: in the late 1600s andthereafter for a century or so, churchfunctionaries—more prudish thantheir predecessors had been—orderedthe addition of fig leaves to quiteprominent works of art, likeMichelangelo’s Sistine Chapel ceilingand Masaccio’s depiction of Adam andEve in the Brancacci Chapel in thechurch of Santa Maria del Carmine inFlorence. Modern restorations haveremoved these fig leaves, leaving thehuman figures in their originalundressed state; but the fig leaf has survived as a metaphor for a fairly flimsy disguise.

Fig leaves come to mind becausesometimes public officials stick a kindof fig leaf on religious displays. Thesecover-ups do nothing to deflect thesocial meaning of the displays; in fact insome instances these thin disguises mayhave the perverse effect of emphasizingthe religious social meaning that liesjust underneath. This problem has beenvery much at the center of the SupremeCourt’s unwieldy jurisprudence about

crèches, Christmas trees, and other holiday displays. The justices seem inthose cases to be struggling to find away to distinguish between frames andfig leafs—between, that is, thinly disguisedcases of endorsement/disparagement,on the one hand, and cases in whichthe community in question is framingor mentioning religious materials, onthe other. To date, the results havebeen a bit clumsy. Consider what somecommentators have come to think of asthe “three plastic animals rule,” whichis yet another product of Lynch, thecase about Pawtucket’s crèche display.

We have thus far emphasized themore abstract parts of JusticeO’Connor’s opinion, including itsendorsement test. When it came timeto decide upon the constitutionality of

Pawtucket’s display, Justice O’Connorproduced a conclusion about which weare less enthusiastic. She emphasizedthat the crèche was part of a larger display, along with such items as colored lights offering “Season’sGreetings,” a Santa, flying reindeer, aclown, an elephant, and a teddy bear.Justice O’Connor—who cast the decisive vote in the case—suggestedthat by surrounding a crèche with a fewSantas and flying reindeer, a townframes it in a way that separates thecrèche’s theological content from thegovernment’s authority. That, we think,is a mistake. The reindeer do subtlychange the meaning of the crèche display—they suggest a less theologicallyrigorous, more commercialized formof religious belief, one that will beoffensive to some devout Christians aswell as to some non-Christians. But theSanta and his reindeer neither secularizethe crèche nor mark it as only one of several competing religious andphilosophical symbols valued by citizens.They are at best a fig leaf, not a frame.

S p r i n g 2 007 UT L AW 1 5

Fig leaves come to mind because

sometimes public officials stick a kind

of fig leaf on religious displays.


1 6 UT L AW S p r i n g 2 007

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.

16-21_SupremePersuasion 6/11/07 9:05 PM Page 1

When third-year student ScottKeller joined the inauguralclass of the Law School’sSupreme Court Clinic last

fall, one of the first things he learnedwas how daunting the odds wereagainst taking a case all the way to theSupreme Court.

But Keller and his five classmates,supervised by Professor Michael Sturleyand Washington DC lawyer David C.Frederick, ’89, beat those odds inJanuary when the U.S. Supreme Courtgranted certiorari in the case AltadisUSA v. Sea Star Line, the first case takenon by the young Clinic.

The opportunity to litigate at thehighest level is uncommon. It’s evenmore unusual when the advocates arestill in law school. During its mostrecent term the Supreme Court agreedto hear only seventy-eight of the 8,517cases filed, less than one percent. Ofthe cases selected for review this term,students and faculty in the LawSchool’s Supreme Court Clinic andCapital Punishment Clinic have beeninvolved in five—an unprecedentednumber of active Supreme Court casesat any law school in a single term.

CAPITAL PUNISHMENT CLINIC WINSTHREE CASES

In addition to agreeing to hear theSupreme Court Clinic’s case, the highcourt announced last fall it was granting

certiorari in three death penalty casesfiled by the Capital Punishment Clinic.Those cases were argued before theCourt in January by Professors RobOwen and Jordan Steiker, assisted bystudents and faculty co-counsel.

On April 25, the Court ruled infavor of three death-sentenced inmatesrepresented by the Clinic. The threeinmates, Laroyce Smith, Brent Brewer,and Jalil Abdul-Kabir, had challengedtheir sentences on the ground that theinstructions given at their trials failedto permit meaningful consideration ofmitigating evidence.

With these three decisions, theCapital Punishment Clinic has nowwon five consecutive victories in theSupreme Court over the past three years.

“These three decisions confirm thatthe Supreme Court’s death penaltyjurisprudence is not optional or advisoryto the Texas courts and the FifthCircuit Court of Appeals,” Steiker said.“The victories are bittersweet, though,in light of the numerous inmates withsimilar claims who have already beenexecuted. We are gratified that theSupreme Court has restated inunequivocal terms its commitment tofull consideration of mitigating evidence in capital cases.”

The Capital Punishment Clinic wasestablished at the School of Law in1987. Since then about 300 law studentshave assisted in representing indigentdefendants charged with or convictedof capital crimes. Students, who mustalso attend a weekly class in the practicalskills required to defend a capital case,

work at least ten hours a week underthe supervision of attorneys handlingdeath penalty cases at trial, on appeal,or in post-conviction review.

Students perform tasks that are integralto effective defense representation,including visiting clients on death rowor in local jails, interviewing witnesses,conducting other field investigations,drafting legal pleadings, and helpingattorneys prepare for trials, evidentiaryhearings, and appellate arguments.

“One of the things that distinguishesour Clinic from other capital punish-ment law school clinics around thecountry is simply the accelerated paceof the death penalty in Texas,” saidOwen, who along with Steiker codirectsthe University of Texas’s CapitalPunishment Center, which houses theCapital Punishment Clinic. “We have alot more cases and there are a lot morepeople who are in imminent danger ofbeing executed, so students are workingon cases with a certain urgency to them.”

Owen said it’s the steady stream of Texas capital punishment cases that allows students to gain valuableexperience at various stages of the litigation process, including appellatework at the Supreme Court level.

“One of the unusual things aboutdeath penalty litigation, and one of thereasons that I was interested in it as astudent and drawn to it as a lawyer, isthat it is so Supreme Court focused,”Owen said. “The Supreme Court stilldevotes a surprisingly large proportionof its docket to capital cases, so youneed to be aware of what’s going on at

S p r i n g 2 007 UT L AW 1 7

SUPREMEPERSUASIONUT LAW CLINICS ENJOY REMARKABLE SUCCESS AT THE

UNITED STATES SUPREME COURT

This article is based on a story that originally appearedon the University of Texas website, which can be foundat http://www.utexas.edu/features/2007/supreme

Laura Castro, ’97

Ph

otos

: Cla

ire

Du

ggan


1 8 UT L AW S p r i n g 2 007

the Supreme Court and be a closer student of that body of law than you doin other kinds of practice.”

Eric Harrington is a third-year lawstudent who has worked in the Clinicfor three semesters and finds the rangeand depth of the Clinic’s legal trainingcompelling. “I’ve researched whether acertain drug interacts with another

drug when talking to a physician aboutmitigation for one client,” Harringtonsaid, noting that he has penned severalmemos about issues critical to particularcases. “I’ve also had truly transformativeclient interactions on death row.”

But for Harrington the culminationof his clinical experience was travelingto Washington DC with his classmatesearlier this year to observe Steiker and

Owen in oral arguments before theSupreme Court, and to experience theCourt and the personalities of the jus-tices in a way that isn’t possible fromopinions or through the media. “Youare really on the edge of your seat,” hesaid. “It was an amazing experience towatch our professors spar with JusticeScalia and Justice Breyer.”

“The volleying of Supreme Court litigation is just absolutely fascinating,”said Harrington, adding that Steikerhad barely started his argument whenJustice Scalia interrupted with a question.

Capital Punishment Center directorsSteiker and Owen are nationally recognized experts on death penaltyconstitutional law. Steiker—who joinedthe law faculty in 1990 after serving as a

law clerk to Supreme Court JusticeThurgood Marshall—argued Smith v.Texas in January before the Court withco-counsels Maurie Levin, a professorwith the Clinic, and Harvard UniversityLaw Professor Carol Steiker, whose students also contributed to the effort.Owen—who has defended people facing the death penalty since 1989 and who also leads a Plan II Honorsfreshman seminar on the death penalty—argued the consolidatedcases of Brewer v. Quarterman andAbdul-Kabir v. Quarterman with Steikerserving as co-counsel.

Smith, Brewer, and Abdul-Kabir alladdressed the similar question ofwhether the sentencing instructionsgiven to the defendant’s jury duringthe punishment phase of the trialallowed jurors to consider mitigatingevidence such as a defendant’s intellectualimpairments, learning disabilities,placement in special education, andtraumatic family background. Jurorsallowed to consider such evidence,

THE OPPORTUNITY TO LITIGATE AT THE HIGHEST LEVEL

IS UNCOMMON. IT’S EVEN MORE UNUSUAL WHEN THE

ADVOCATES ARE STILL IN LAW SCHOOL.

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.


argued the Clinic’s attorneys, mightchoose to sentence the defendant to lifein prison rather than death by injection.

Another law student who attendedthe oral arguments in January wasMeghan Shapiro, who will join theClinic in the fall. As a first-year studentshe volunteered to work on Smith.

“Meghan jumped in and found terrific

support for an important issue in thecase,” Steiker said. “And that issuebecame a very salient one at argument,where we were asked about how the Texascourts had traditionally treated a failureto make a contemporaneous objection.”

“Contributing to a case that goes tothe Supreme Court is such an excitingexperience that when I was doing that Icouldn’t wait to finish the work for myregular classes,” said Shapiro, aVirginia native who chose to attend theLaw School for the clinical opportuni-ties to work on death penalty cases. “It’sreally what motivated me to study hard,so I could do something that was cur-rent and affecting a real person andpossibly affecting history,” she said.

Shapiro arrived outside the SupremeCourt building in the predawn hourson the day of the oral arguments andstood in bitterly cold temperatures forhours with more than a dozen studentsto ensure seats inside the Court.

“We were thrilled that the studentswere able to attend the arguments inthe Supreme Court after working onthe cases and understanding the issuesfrom the inside out,” Steiker said.“They also got to see the evolution ofwhat we had said in our moots and howwe were encouraged to reframe orchange our argument. It’s great for ourstudents to see us as students, too.”

Owen often tells his students thatany one of them could end up arguinga case before the Supreme Court. “Youshould not assume that your life’s pathwill not lead you to that podium. It cansurprise you.”

“One of the best things that ourClinic can do is allow our students toenvision themselves involved in the

highest levels of practice.” Steiker said.“And our students come out of theClinic much better equipped to wrestlewith complicated legal issues and towork with others to refine their positions and advocacy.” He noted thatmany former students are now highlysuccessful and highly respected advocates in capital litigation.

Shapiro said she can imaginebecoming a Supreme Court litigator.“It becomes very real when you’re actuallysitting there watching people you knowargue these cases,” she said. “You’re sitting there the whole time thinking: Iguess I could have answered that question.Then suddenly you start to think,maybe I might be doing that one day.”

CAPITAL PUNISHMENT CLINIC ASSISTSWITH A FOURTH CASE BEFORE THE COURT

Under the supervision of professorsMaurie Levin and Jim Marcus, studentsin the Capital Punishment Clinicworked on another Supreme Courtcase this term as well. The case, Panettiv. Quarterman, was argued by GregoryWiercioch, an attorney with the TexasDefender Service, a private, non-profitlaw firm that represents death rowinmates. Levin, an experienced deathpenalty lawyer, works part-time as a staffattorney at TDS, where Marcus wasexecutive director before joining theLaw School’s faculty.

The issue in this case is whetherScott Panetti is mentally competent tobe executed. Marcus said that Panetti,with a long history of severe mentalhealth problems, has been diagnosedas a schizophrenic and doesn’t have arational grasp of why Texas intends toexecute him.

Several of the students have workedon the opening brief, includingChristina Thoda. During spring breakin March, she traveled with Marcus andother clinic students to death row atTexas Department of Criminal Justice’sPolunsky Unit in Livingston to meetPanetti face to face for the first time.

“It’s a very emotional experience talkingto any one on death row, especiallysomeone like Panetti, who is visiblymentally ill,” Thoda said.

Thoda endeavors to get inmates afair trial. “Ninety-nine percent of thetime, these people have not gotten afair shake from the justice systembecause their previous counsel or theprocess has been inept,” she said.“They’ve never had anyone trulyunderstand or fight for the issues intheir cases.”

Thoda helped produce a chart forthe Supreme Court brief surveying thelaw related to competency for executionin the country’s thirty-eight deathpenalty states. She said her work onPanetti was much more advanced thanthe work she did for the Clinic’s threeother Supreme Court litigation casesthis year.

“That made the experience of goingto the Supreme Court the second timeso much more satisfying,” she said. “Tosee the law culminate at this level, tosee the process go all the way to theSupreme Court, this is what as a law student I’ve been studying for. It reminds me that what I’m doing is really important and this is why Iwanted to be a lawyer.”

When Thoda graduates this May shewill join the New York office ofFulbright & Jaworski in the firm’s litigation department, where sheexpects to have the opportunity to dopro bono death penalty work.

EARLY VICTORY FOR NEW SUPREMECOURT CLINIC

In 1977, the Law School’s firstClinic, the Criminal Defense Clinic,brought Acker v. Texas to the SupremeCourt. The Court agreed to decide thecase (and ruled in favor of the Clinic’sclient)—apparently the first time that a clinic-generated case had beenaccepted for review. Thirty years later,one of the newest clinics at the lawschool, the Supreme Court Clinic, alsoscored a huge victory when the Courtannounced in January that it hadagreed to review Altadis.

Word of the Clinic’s early successquickly heightened the allure ofSupreme Court advocacy among UTLaw students. Clinic student Keller

S p r i n g 2 007 UT L AW 1 9

“IT WAS AN AMAZING EXPERIENCE TO WATCH

OUR PROFESSORS SPAR WITH JUSTICE SCALIA

AND JUSTICE BREYER.”


reported, “I’ve already had ten 1Ls[first-year law students] come up andask me, ‘How do you get into theSupreme Court Clinic?’”

The Clinic meets once or twice aweek, often on the fifth floor of the lawlibrary in a corner room where picturesof Supreme Court justices cover thewalls. In the Clinic, students areassigned to represent real clients seeking review of lower court decisions.

The cases may be in any substantivearea of law ranging from transport lawto the Fourth Amendment, althoughthey are most likely to involve federalstatutory issues.

Clinic faculty members retain theultimate responsibility for a case, butstudents take the lead in conductingthe legal research, developing the arguments that will be used, andpreparing the initial drafts of the briefs

or other documents to be filed with theCourt. The Clinic also includes traditional classroom sessions to introduce students to Supreme Courtpractice and procedures.

In its first case, the Clinic agreed lastfall to represent a Florida company,Altadis USA, which contracted with SeaStar Line to carry a sealed container ofcigars and cigar bands from San Juan,Puerto Rico, to Tampa, Florida.

Although the shipment made the trip by sea without incident, the cigarswere stolen from a truck during inland transport.

The Clinic team took the casebecause the dispute raised importantquestions of liability involving goodsshipped by sea and land—which totalmore than a trillion dollars in U.S. tradeeach year. “The legal issue is difficult andsignificant: Which federal legal regime

provides the rules to determine a carrier’sliability for damaged cargo that is carriedby both ship and truck?” said Clinicsupervisor Sturley, whose specialtiesinclude maritime law, commercial law,and Supreme Court practice.

Sturley, who clerked at the SupremeCourt for Justice Lewis F. Powell Jr. inthe 1982–1983 term, explained that thecourts of appeals have been split on theanswer to this question, with somecourts applying the federal transportationlaw for land to determine a carrier’s liability and others applying the federallaw for ocean carriage. Disagreement inthe lower courts over the issue made it agood candidate for Supreme Court review.

By deciding to represent Altadis, theClinic made it possible for an importantcase to proceed that would otherwisehave been abandoned because theamount of money at stake in the individual case was too small to justifythe normal expense of Supreme Courtlitigation. The client obtained the benefitof first-rate legal representation at nocharge and the Clinic obtained a perfectvehicle for the students to learn first-handabout Supreme Court practice.

For students in the Clinic, being apart of the Supreme Court legal teammeant working on almost every facet ofthe case. “We were finding case law onpoint, poring over statutory history,and crafting policy arguments thatwould help our client. Students alsoproduced the entire first draft of thecertiorari petition,” Keller said. Thedraft was then revised under the guidanceof Sturley; Brendan Crimmins, ’03, anassociate at Kellogg, Huber, Hansen,Todd, Evans & Figel in Washington DC;and David Frederick, ’89, a partner inthe DC office of Kellogg, Huber.Frederick clerked for Justice Byron R.White and now regularly represents privateclients in the Supreme Court. Both he andCrimmins are Sturley’s former students.

“At times I felt like Indiana Jonessearching for a lost text when I was digging through statutory history fromliterally one hundred years ago,” saidKeller. In its brief to the Court, theteam needed to summarize a statuteknown as the Carmack Amendment,which the Clinic argued was the federal law that applied in Altadis.

“We had to go back through the legislative history and the changes to

“OUR STUDENTS COME OUT OF THE CLINIC MUCH

BETTER EQUIPPED TO WRESTLE WITH COMPLICATED

LEGAL ISSUES AND TO WORK WITH OTHERS TO REFINE

THEIR POSITIONS AND ADVOCACY.”

Members of the Supreme Court Clinic on the steps of the Court during their March visit. From

left to right (front row): Clinic Co-Director David Frederick—a 1989 Law School graduate,

Sammy Ford and Ashley McKeand; (second row) Scott Keller, Elizabeth Hardy, Aaron Liskin

and Brendan Crimmins—supervising attorney and a 2003 Law School graduate; (third row)

Tim Gerheim, Benjamin Wallfisch, and Joe Conley.

2 0 UT L AW S p r i n g 2 007


the Carmack Amendment to succinctlyexplain how the statute had become soconvoluted that six separate statutoryprovisions really all stemmed from thesame 1906 statute,” Keller explained.

After the Court agreed to hearAltadis, but before the case could beargued, a settlement was reachedbetween the parties. The Court did notissue an opinion, leaving the issue inthe case unresolved. Sturley explainedthat the defendant offered Altadis USAa settlement that was more generousthan the result that the client wouldhave achieved if it had won the casebefore the Court.

“It would have been gratifying toparticipate with the students in clarifyingthe law in this important and complicatedarea,” said Sturley, who has participatedin several dozen Supreme Court cases.“But our real pedagogical goal is to trainour students to be better lawyers, whichmeans, among other things, best servingtheir client’s interests,” he said. “In thiscase, they learned that the best way toserve a client’s interest is not necessarilyto get a favorable opinion from thecourt.” Sturley added that at the time thesettlement happened, the students hadalready done the overwhelming bulk ofthe work on writing a merits brief. “Soin effect, they’ve had the experience ofwriting a successful cert petition andwriting a merits brief.”

Despite the settlement, the studentstraveled to Washington DC in lateMarch to see an argument at theSupreme Court and meet with twoCourt officials—the Chief DeputyClerk and the Administrative Assistantto the Chief Justice. “Seeing an oralargument for the first time gave me agreater appreciation of the skillrequired of a Supreme Court advocate,”said third-year law student BenjaminWallfisch. “But it was priceless to hearthe vivid stories of two Supreme Courtveterans, who gave us an inside perspectiveon the operation of the Court.”

The same students who worked onAltadis are currently in the preliminaryresearch stages of a new case involvingthe Fourth Amendment. Another fourstudents who joined the Clinic in thespring semester worked with Sturley,Frederick, and Professor Lynn Blais(who clerked for the late Justice HarryA. Blackmun) to file the Clinic’s

second petition for certiorari in March.That case, United States ex rel. Bly-Mageev. Premo, involves a whistleblower seeking relief under the False ClaimsAct. On May 29, the Court invited theSolicitor General to file a brief expressingthe views of the federal government,which is often a preliminary stepbefore the petition is granted.

THE NATIONAL PICTURE

While it’s still fairly unusual for a lawschool clinic to take a case to theSupreme Court, the competition towork on this type of litigation has beengrowing recently. Stanford Law Schoolestablished the first Supreme CourtClinic in 2003. In the past year,Supreme Court clinics have also beenlaunched at Yale, Virginia, andNorthwestern. Harvard announced itwill start one next fall.

Students commented they were surprised at the amount of teamworkand interaction clinical work requires.“Most people think of appellate lawyersas meticulous brief writers who areholed up in an office poring overcases,” Keller said. “That’s not exactlyfalse—it’s just not the whole picture.We spent hours bouncing ideas andarguments off of each other.”

Part of the preparation for Supreme

Court litigation is teaching students tofigure out what cases the Court mightwant to hear, and how to properlyframe and brief cases. “So many clientsare represented at the Supreme Courtby lawyers who have no experience inSupreme Court practice,” Sturley said.“They may be good lawyers but they arenot aware of what the Court is lookingfor, or which aspects of the client’s caseneed to be presented to the Court.Working on these cases enables the students to learn what the Court islooking for and also enables the clientsto have their cases presented in a waythat stresses their strongest arguments.”

Sturley added that he passes out statistics on the first day of class showinghow hard it is to persuade the Court toreview a case, not to intimidate studentsbut to give them a sense of realism.“The odds are against you,” he tells hisstudents. But, he also teaches studentshow to improve those odds.

This leaves clinic student Keller optimistic as he searches for cases likeAltadis that could once again beat theodds. Since October, Keller has beensorting through cases trying to findcert-worthy issues. In the process, hediscovered the Fourth Amendmentcase on which he and his classmates arecurrently working. Now he’s hopingthis will become another success story.

S p r i n g 2 007 UT L AW 2 1

In the West Conference Room, Chief Deputy Clerk Chris Vasil (center) gives an inside perspective

on the operation of the Court to visiting Supreme Court Clinic students in March.


2 2 UT L AW S p r i n g 2 007

x x UT L AW S p r i n g 2 007

ollowing her graduation, LizMcKee, ’06, left Texas forKentucky to begin a prestigious judicial clerkship

with Judge John M. Rogers of the U.S.Court of Appeals for the Sixth Circuit.As a clerk, McKee said, her “primaryjob is preparing bench memos forJudge Rogers. [Such memos] providean overview of each case and the issueson appeal. Another big part of our jobis assisting in the drafting of opinions,attending oral arguments, and confer-ring with Judge Rogers to discuss pend-ing cases.”

Now more than eight months intothe clerkship, McKee has perspectiveon the value of clerking. “This jobforces you to be a better, more succinct,writer, and Judge Rogers has been agreat teacher in that regard. Also,being in a position to read and evaluatebriefs and to watch oral arguments isextremely beneficial because it provides aunique opportunity to get a good senseof the difference between an effectivebrief and an ineffective brief, and provides an opportunity to see howgood oral advocacy is done—and not-so-good oral advocacy. Finally, it’sbeen great to be able to work closelywith Judge Rogers. He’s a great mentorand teacher to his clerks, and he takesa lot of time to ensure that we’re getting all we can from this experience.”

The creator of the judicial internshipprogram at the University of Texas, BeaAnn Smith, ’75, a justice from 1991through 2006 on the Texas Court ofAppeals, Third District, knows whatElizabeth means. Speaking to studentsrecently about clerking, she told them,“It matures you as a lawyer. You see howlaw is made. It improves your writingand analytical skills, and you gain composure—you see ‘the good, thebad, and the ugly’ with both advocacyand writing.”

Judge Royal Furgeson, ’67, U.S.District Judge for the Western Districtof Texas, believes clerks also benefitjudges and the judicial system. “Judgescan get isolated. This is especially trueof federal judges, who are appointed,not elected. While some isolationbestows the benefit of detachment, toomuch can hinder perspective. Lawclerks are the best resource available toa federal judge to achieve the neededbalance between detachment and perspective. In the quiet of chambers,all the issues of a case can be thrashedout between the judge and the law

clerks. Just out of law school, taught inthe most advanced research techniques,clerks are able to ensure that the judgedoes not miss the guiding precedents.The dialogue aided by scholarshipallows every angle of a case to be examined, in strict confidence, so thatthe ultimate decision is enhanced to thefullest. The process makes the judgeand the justice system better.”

Law firms also value the experience.“What better opportunity is there for ayoung trial attorney to learn the law

and legal writing, theory, and processthan from those who interpret the lawsof our land?” asked Holt Foster III, ’95,the hiring partner at Thompson &Knight in Dallas. “Even a transactionalattorney benefits from a clerkship as itprovides him/her a unique opportunityto see the complicated manner inwhich business arrangements areattacked and unwound.”

David Oelman, ’90, hiring partnerat Vinson & Elkins in Houston, said, “Inhindsight, I wish I had considered aclerkship. I think the experience isincredibly valuable for a lawyer in

FromLaw Student

toJudicial Clerk(and how to get there)

Tom Henninger, ’92

F

“Clerking is a way to contribute,using skills that law studentsuniquely have, as a citizen.”

22-26_JudicialClerkships 6/7/07 11:38 PM Page 1

whatever practice area he or she mayultimately choose. More than that, it isa way to contribute, using skills that lawstudents uniquely have, as a citizen.”

With all of these good reasons toclerk, it is not surprising that the facultyclerkship advisors found a receptiveaudience for their renewed efforts toincrease the number of UT studentsapplying for clerkships. In 2007, aboutfifty UT Law graduates will clerk at thefederal and state level in courts aroundthe country, including twenty at thefederal appellate level, a significantincrease over previous years.

Advisors Launch InnovativeClerkship Program

Last year, with the full support ofDean Sager and the Law School’s facultyand administration, Professors EmilyKadens, Tony Reese, and Ernie Youngimplemented a program to help UT

Law students secure judicial clerkships.Working with the Law School’s CareerServices Office and a designated clerkshipadministrator in the dean’s office, theteam centralized the applicationprocess, streamlined the obtaining offaculty recommendation letters, metone-on-one with applicants, and organized a series of presentations byjudges and current and former lawclerks. These initiatives increased studentawareness of and excitement aboutclerkships. In the words of SeanFlammer, a third-year student who willclerk after graduation for Judge Phyllis

Kravitch on the U.S. Court of Appeals forthe Eleventh Circuit, this institutionalattention to judicial clerkships “helpedto generate a buzz among the studentsthat didn’t exist before.”

The process begins with an informa-tional meeting for 1Ls in March, beforethey register for their 2L classes.Faculty advisors and guest judges andclerks explain what clerks do and how the

students can best position themselvesto be attractive candidates. In the fallsemester, the advisors hold meetingsfor applying second- and third-year students, during which they address

process-oriented questions, like obtainingrecommendation letters and applicationdeadlines. The group meeting is followed by interviews with Kadens,Young, and each student. In thesemeetings, the advisors discuss the student’s interests and advise them on those clerkships for which they arebest positioned.

David Mader, a third-year law stu-dent who will clerk in the coming termfor U.S. District Judge T.S. Ellis III ofthe Eastern District of Virginia, hadthis to say: “Professors Young andKadens are able to guide students

toward a judge whom [the student]might not have considered, but whomay turn out to be a great fit.”

Over the summer, the students prepare their applications, submittingtheir preliminary list of judges to the faculty advisors and to their recommenders for review. Beforeschool starts at the end of August, theclerkship team organizes a huge

“Centralized Mail Out,” to which stu-dents bring their applications so thatthey can be bundled and sent out tojudges as a group. The following week,the advisors and visiting clerks present a

program on how to prepare for interviews.Then the waiting begins. As students

receive phone calls from judges requestinginterviews, anticipation builds. “The daythe federal judges could first contact students for interviews, Ernie Young andI were pacing our offices waiting fornews,” said Kadens. Meanwhile, the students were clustered in journaloffices and elsewhere anxiously waitingfor their cell phones to ring. As thenumber of interviews, and then offers,mounted, the students, advisors,Career Services, and faculty all joinedin the excitement. “We were thrilled by

S p r i n g 2 007 UT L AW 2 3

“It provides a unique opportunity to get a good sense of the

difference between an effective brief and an ineffective brief.”

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.

Ph

oto:

Mar

sha

Mill

er


our success last year,” said Dean Sager,“and I hope and expect that it will continue in the future. Clerkships are avaluable part of the education of younglawyers; it enables them to be partici-

pants—not merely spectators—in theprocess of American adjudication.”

To help prepare students whoreceive clerkships for their new jobs,the Law School created two new courses,

one that focuses on district courts andthe other on appellate courts. Studentsuse actual case material—briefs,motions, and records—to learn to draftorders, bench memos, opinions, etc.

And while developing writing skills is animportant goal, it isn’t the only one.“There are two objectives,” said BetsyChestney, ’02, who teaches a coursecalled Preparation for a Federal

District Clerkship. “Students needexperience writing the types of thingstrial court clerks write. But they alsoneed to be familiar with the specificissues and key areas of the law thatoften come up in these courts. So we talk about federal procedure and spend some time on issues like immunities that apply to government defendants, patent claimconstruction, criminal sentencing, and habeas and death penalty cases.The ultimate goal is to give them confidence going in.”

Judicial Clerkship Workshop

To continue to generate enthusiasmabout clerking, and to let studentslearn what judges are like, Kadens andYoung 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.

“Clerkships are a valuable part of the education of young lawyers;

it enables them to be participants—not merely spectators—in the process

of American adjudication.”

2 4 UT L AW S p r i n g 2 007


that put students in direct contact withsitting judges and former judicialclerks. This year, for instance, JusticeSmith came to speak about clerkshipswith the Texas courts of appeals, andJudge Susan Braden came to speakabout her court, the Court of FederalClaims. The largest such event is theannual two-day Judicial ClerkshipWorkshop. In April, fourteen judgesfrom around the country, representingthe federal appellate, magistrate, district, and bankruptcy courts, as wellas state supreme courts, came to discusswhat they and their clerks do.

The Workshop began with a panelof recent UT Law graduates whoclerked following graduation. The panelists discussed what day-to-dayclerking was like for them andanswered questions about the application process. Four judicial panels followed—a panel of U.S. bankruptcy and magistrate judges, a panel of state supreme court judges, another of federal district courtjudges, and, finally, a panel of federalappellate judges. Many of the judgesalso led discussion sessions about opinion writing. They discussed indetail the work of their respectivecourts, the work of clerks in their chambers, and the applicationand interviewing process—includingapplication strategies.

“The competitive stress and tensionthat surrounds the hiring of law clerksis my least favorite part of the job,” saidJudge Ed Carnes of the U.S. Court ofAppeals for the Eleventh Circuit, oneof the Workshop participants. “So anything that makes that process easieris a blessing. There is real competitionamong judges for the best students,and programs like this increase thepool of well qualified applicants.Everybody benefits from that. UT Lawhas the most impressive clerkship program that I’ve seen—I don’t knowof any other school that is doing anything even approaching it.”

The workshop was also widelypraised by participating students. “Itoffered us an excellent opportunity to meet with judges from all levels. The judges were very open and honestin the sessions about some of the frustrations of their courts, as well aswhat made them enjoy their life as a

judge,” said Jared Hubbard, a second-yearlaw student. “We also had opportunitiesto talk with the judges in a more casualsetting. It was great to have the chanceto meet and get to know these judges aspeople and not as the oracles of the lawthat we might imagine in class.”

“The Judicial Clerkship Workshop

was extraordinarily beneficial,” saidSamantha Porphy, a second-year lawstudent. “The program providedopportunities to interact with thejudges in several different contexts.The small-group discussions, in particular, provided valuable insightsinto the judicial decision making

Chief Justice Wallace Jefferson, left front, photographed with (first row, left to right) Kody

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.

Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit speaking about judicial

writing style.

S p r i n g 2 007 UT L AW 2 5


process. Additionally, the panelistswere frank about what clerks in theirchambers work on.”

Come autumn, UT graduates willbegin clerkships all over the country.One will head to California to clerk forJudge Alex Kozinski on the NinthCircuit, another to New York City toclerk for Judge John Walker on theSecond Circuit. Some will stay closer tohome, clerking for the justices of theTexas Supreme Court, the judges ofthe Texas Court of Criminal Appeals,and many Fifth Circuit appellate, district, bankruptcy, and magistratejudges. One student will travel acrossthe globe to serve as the American lawclerk for Justice Johann van derWesthuizen of the South AfricanConstitutional Court. At the same time,the rising 3Ls will submit their applicationsand the process will begin again.

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

Judge Diana G. Motz of the U.S. Court of Appeals for the Fourth Circuit explaining her opinion

in the case concerning the admission of women to the Virginia Military Institute.

2 6 UT L AW S p r i n g 2 007


S p r i n g 2 007 UT L AW 2 7

PROUDLY SUPPORTS

THE UNIVERSITY OF TEXAS

ALUMNI ASSOCIATION

LAW SCHOOL

SPRING REUNION.

www.lockeliddell.com

AUSTIN

DALLAS

HOUSTON

NEW ORLEANS

WASHINGTON, D.C.

27_LockeLiddell 6/11/07 9:31 PM Page 1

2 8 UT L AW S p r i n g 2 007

Bernard Black and Henry Hu

28-31_EmptyVoting 6/13/07 4:22 PM Page 1

UTL: What’s the research about?Hu: Everyone’s aware of the increasingrole of hedge funds in corporate gover-nance. What’s less well known is theemergence of new techniques foreither “buying” shareholder votes orhiding ownership. Relying on financialinnovations such as “equity swaps” andother techniques, the traditional link

between votes on common shares andthe economic interest in those sharescan now be “decoupled.” Hedge fundshave been especially active in gettingaround the familiar “one share-onevote” system.

Our research is the first systematicattempt to analyze this decoupling—the “new vote buying”—and its corporate

governance implications. We also offer aframework for thinking about decoupling,one that sets out the functional elements and a taxonomy of strategies.UTL: Why might this be of interest to thoseon Main Street, and not just Wall Street?Hu: The whole architecture of corporategovernance largely rests on the notionthat there is a coupling of economicinterest and voting power: a one share,one-vote structure. This structure givesshareholders economic incentives toexercise their voting power well andhelps to legitimate managers’ exerciseof authority over property that themanagers do not own. In addition,mechanisms rooted in the shareholdervote, including proxy fights andtakeover bids, constrain managers fromstraying too far from the goal of shareholder wealth maximization.

That is, all existing legal and economic theories of the public corporation presume a link betweenvoting rights and economic ownership,a link that can no longer be relied on. Decoupling has potentially large

S p r i n g 2 007 UT L AW 2 9

and the Foundations of Corporate Governance

he lead front-page story of the Wall Street Journal on January 26, 2007 wasdevoted to a new phenomenon now known as “empty voting.” The WSJ credited Professors Henry Hu and Bernard Black with coining the term and quoted repeatedly from their May 2006 law review article. A subsequent WSJ

story noted that this phenomenon had been “thrust into the spotlight last year” by thesame law review article. The Financial Times was already aware of the importance of thesematters, having scooped its American competitor with four stories that discussed Hu andBlack’s research. The key FT story, which focused on Hu’s September 2006 speech to theCouncil of Institutional Investors, ran under the headline “Thesis on hedge fund tacticsgives investors a shock—Professor’s warning on ‘empty voting’ has big impact in the U.S.”This research is receiving exceptional recognition.

Hu and Black’s term, “empty voting,” is coming into use worldwide among bankers, corporate executives, hedge funds, institutional investors, lawyers, and regulators.Prominent outside observers, such as the London-based International CorporateGovernance Network, have characterized the research as “ground-breaking” and “seminal.”Recent published reports suggest that this research is sparking regulatory rethinking.

Why this brouhaha? UT Law sat down recently with Professor Hu to find out.

T

Ph

oto:

Mar

sha

Mill

er


3 0 UT L AW S p r i n g 2 007

implications for the continued viabilityof the corporate governance systems ofthis and most other industrializedcountries.UTL: Please explain what you mean by“decoupling.”Hu: Decoupling comes in two basicforms, which we term “empty voting”and “hidden (morphable) ownership.”

Empty voting occurs when aninvestor holds more votes than economic ownership. In an extremecase, an investor can hold votes with noeconomic interest, or potentially with anegative economic interest in the company. These investors have been emptied of an accompanying economic interest.

Think about the really extreme case:a person with a negative economicinterest would want to—and could—exercise his votes to cause the companyto make bad decisions, not good ones.He might want someone totally clueless—a Maxwell Smart or Mr.Magoo—to be Chairman and CEO.

Hidden (morphable) ownershipoccurs when investors have economicownership, often undisclosed, thatexceeds their apparent voting rights.Using financial innovations such as“equity swaps,” hedge funds can do end runs around large shareholderownership disclosure requirements—suchas the familiar 5%-and-over disclosurerequirements under Schedule 13D soimportant in takeover contexts. Ahedge fund might, for instance, hold a9% economic stake in a company without any public disclosure, eventhough that ownership can often“morph” into a full 9% direct shareholder ownership stake at any time.UTL: So how have hedge funds actuallyengaged in empty voting?Hu: Let’s consider two examples, thefirst involving a hedge fund calledPerry Corp. In late 2004, Perry ownedseven million shares of KingPharmaceuticals. Mylan Laboratoriesagreed to buy King. King’s sharesjumped, but Mylan’s shares droppedsharply. To help ensure that Mylanobtained the requisite shareholderapproval, Perry bought 9.9% of Mylan,thereby becoming Mylan’s largestshareholder.

However, Perry fully hedged its marketrisk on the Mylan shares through equity

swaps and other means, thereby endingup with 9.9% voting ownership butzero economic ownership. Includingits position in King, Perry’s overall economic interest was thus negative.The more Mylan (over)paid for King,the more Perry would profit.

Another example involves the use ofshare borrowing, though there are certain regulatory and other factorslimiting use of this technique in votebuying, especially in the U.S. Supposethat a shareholder is upset with management and wants to support ashareholder proposal or election ofminority directors. The shareholdermight be tempted to try to enhance hisvoting power by borrowing shares justbefore the record date for a shareholdervote, and return the shares afterwards.

One example of this “record datecapture” occurred in the U.K. in 2002.Laxey Partners, a hedge fund, heldabout 1% of the shares of British Land,a large property company. At the annualgeneral meeting, Laxey voted over 9%of British Land’s shares to support aproposal to dismember British Land.

How was this possible? Just beforethe record date, Laxey borrowedalmost 42 million shares. Laxey perceived itself as calling weak manage-ment into account; it believed that suchvote buying was improving corporategovernance. British Land’s chairmandidn’t see matters the same way, lambasting Laxey’s “rent-a-vote” strategyas an abuse of the voting system.UTL: So what, if anything, should be done?Hu: The current regulatory regime hasbeen undermined by financial innova-tion. Current state corporate law isunlikely to reach much of the new votebuying by outside investors. Forinstance, decoupling of the Perry-Mylan sort would not even fallwithin the definition of vote buyingunder the leading Delaware case.

The federal disclosure side is no better. The SEC has five discrete sets ofownership disclosure rules that, takenas a whole, are bewilderingly complex.Key elements have been renderedobsolete by the emergence of equityswaps and other financial innovationsknown as “over-the-counter deriva-tives.” The transparency and level playingfield goals that motivate longstandingdisclosure rules are undermined. This

is a worldwide issue; hidden ownershiphas even been litigated in Australia and New Zealand.

Our articles propose a set of integrated disclosure rules whichwould simplify and modernize the current rules. We anticipate the newrules would not only provide betterinformation but may actually be lessburdensome overall.

In contrast, an assessment of whatresponses beyond such disclosurereforms might be appropriate mustreflect the fact that not all vote buyingis bad. Vote buying could enhanceshareholder oversight of managementin certain circumstances.

Moreover, the response must considerpotential effects on the derivatives,share borrowing, and short-selling markets on which the new vote buyingdepends. The derivatives, share borrowing, and short-selling marketshave valuable social roles. For instance,some believe that short sellers can helpmake stock prices more efficient.

Financial innovation and hedgefunds make times interesting for theworld’s academics, corporate executives,lawyers, and regulators.

The Research:

Henry T. C. Hu and Bernard Black, “The New VoteBuying: Empty Voting and Hidden (Morphable)Ownership,” 79 Southern California Law Review 811-908 (2006), also available athttp://ssrn.com/abstract =904004

Henry T. C. Hu and Bernard Black, “Empty Votingand Hidden (Morphable) Ownership: Taxonomy,Implications and Reforms,” 61 Business Lawyer 1011-1070 (2006), also available athttp://ssrn.com/abstract=887173

Henry T. C. Hu and Bernard Black, “Hedge Funds,Insiders, and the Decoupling of Economic andVoting Ownership: Empty Voting and Hidden(Morphable) Ownership,” Journal of CorporateFinance (forthcoming 2007), also available athttp://ssrn.com/abstract=874098


Steve Bickerstaff Lines in the Sand:Congressional Redistricting in Texasand the Downfall of Tom DeLay (University of Texas Press 2007)

Jens C. Dammann Die GrenzenZulässiger Diskriminierung ImAllgemeinen Zivilrecht (Duncker & Humblot 2005)

John S. Dzienkowski EthicalDilemmas in the Practice of Law: Case Studies and Problems (Thomson/West 2006) (with AmonBurton)

Legal Ethics: The Lawyer’s Deskbookon Professional Responsibility, 2006-2007 (Thomson/West 2006) (withRonald D. Rotunda)

Professional Responsibility: AStudent’s Guide, 2006-2007 (Thomson/West 2006) (withRonald D. Rotunda)

Jörg Fedtke Patterns of Regionalismand Federalism: Lessons for the UK (Hart Publishing 2006) (editor, withBasil Markesinis)

Francesco Francioni, editor, Biotechnologies and InternationalHuman Rights (Hart Publishing2007)

Julius G. Getman Strike! (Plain ViewPress 2006)

Brian Leiter Nietzsche and Morality (Oxford University Press 2007) (editor, with Neil Sinhababu)

Naturalizing Jurisprudence: Essays onAmerican Legal Realism andNaturalism in Legal Philosophy (Oxford University Press 2007)

Sanford Levinson Our UndemocraticConstitution: Where the ConstitutionGoes Wrong (And How We the PeopleCan Correct It) (Oxford UniversityPress 2006)

Ronald J. Mann Charging Ahead:The Growth and Regulation ofPayment Card Markets (CambridgeUniversity Press 2006)

Sir Basil Markesinis Good and Evilin Art and Law: An Extended Essay (SpringerWien NewYork 2007)

Patterns of Regionalism andFederalism: Lessons for the UK (Hart Publishing 2006) (editor, with Jörg Fedtke)

Lawrence G. Sager ReligiousFreedom and the Constitution(Harvard University Press 2007)(with Christopher L. Eisgruber)

Alvaro Santos The New Law andEconomic Development: A CriticalAppraisal (Cambridge UniversityPress 2006) (editor, with David M.Trubek)

William M. Sage Medical Malpracticeand the U.S. Health Care System (Cambridge University Press 2006)(editor, with Rogan Kersh)

Wendy WagnerCommons Ignorance:The Failure of Environmental Law toProvide the Information Needed to ProtectPublic Health and the Environment(Vandeplas Publishing 2007)

Rescuing Science from Politics:Regulation and the Distortion ofScientific Research (CambridgeUniversity Press 2006) (editor, with Rena Steinzor)

S p r i n g 2 007 UT L AW 3 1

FA

CU

LT

Y

NE

WS

RECENT

FACULTY

BOOKS


3 4 UT L AW S p r i n g 2 0073 2 UT L AW S p r i n g 2 007

32-35_Levinson 6/11/07 9:42 PM Page 1

n 1987, I went to a marvelousexhibit in Philadelphia commemorating the bicentennialof the drafting there of the U.S.

Constitution. The visitor’s journeythrough the exhibit concluded withtwo scrolls, each with the same twoquestions: First, “Will You Sign ThisConstitution?” And then, “If you hadbeen in Independence Hall onSeptember 17, 1787, would you haveendorsed the Constitution?” The secondquestion clarifies the antecedent for“this” in the first: It emphasizes that weare being asked to assess the 1787Constitution. This is no small matterinasmuch, for example, it did not include any of the subsequentamendments, including the Bill ofRights. Moreover, the viewer had beenmade aware in the course of the exhibitthat the 1787 Constitution includedseveral terrible compromises with slavery.

Even in 1987, I tended to regard theoriginal Constitution as what WilliamLloyd Garrison so memorably called “A Covenant with Death and an

Agreement With Hell” because of thosecompromises. So why did I choose to signthe scroll? As I explained in the finalchapter of a 1988 book, ConstitutionalFaith, I was impressed that FrederickDouglass, the great black abolitionist,after an initial flirtation with Garrison’srejectionism, endorsed even the ante-

bellum Constitution. He argued thatthe Constitution, correctly understood,was deeply antislavery at its core. Thelanguage of the Constitution—including,most important, its magnificentPreamble—allows us to mount a critique of slavery, and much else, fromwithin. I was convinced by Douglass—and many other later writers—that the

Constitution offers us a language bywhich we can protect those rights thatwe deem to be important. We need notreject the Constitution in order tocarry on such a conversation. If theConstitution at the present time isviewed as insufficiently protective ofsuch rights, that is because of the limitedimagination of those interpreters with themost political power, including membersof the Supreme Court. So I was willing ineffect to honor the memory of Douglassand the potential that was—and is—available in our Constitution, and I added my signature to the scrollendorsing the 1787 Constitution.

On July 3, 2004, I was back inPhiladelphia, this time to participate inthe grand opening of the NationalConstitution Center. The exhibit culminates in “Signers’ Hall,” whichfeatures life-sized (and life-like) statuesof each of the delegates to the convention.Many of the delegates appear to beholding animated conversations or, asin the case of Alexander Hamilton,striding forcefully toward GeorgeWashington—who quite literally,because of his height, towers over theroom. As one walks through the halland brushes against James Madison,Hamilton, and other giants of our history,one can almost feel the remarkableenergy that must have impressed itself onthose actually in Independence Hall.

As was true in 1987, the visitor isinvited to join the signers by adding hisor her own signature to the

Constitution. Indeed, the center organizeda major project during September2004, cosponsored with the AnnenbergCenter for Education and Outreach,called “I Signed the Constitution.” Fiftysites in all of the states were availablefor such a signing. Both the temporary1987 exhibit and the permanent one atthe National Constitution Center leave

S p r i n g 2 007 UT L AW 3 3

I

It’s time to take a hard look at our much-venerated Constitution,

argues Sanford Levinson in his new book. Too many of its provisions

promote either unjust or ineffective government. It offers the president

the power to overrule both houses of Congress on legislation he

disagrees with on political grounds. Under the existing blueprint,

we can neither rid ourselves of incompetent presidents nor assure

continuity of government following catastrophic attacks. Is this a

recipe for a republic that reflects the needs and wants of today’s Americans?

Sanford Levinson is one of the country’s preeminent Constitutional

law scholars, and the W. St. John Garwood and W. St. John Garwood,

Jr. Centennial Chair in Law at the University of Texas School of Law.

This article is the introduction to his book, Our Undemocratic

Constitution: Where the Constitution Goes Wrong (And How We the

People Can Correct It), published last year by Oxford University Press. It

is reprinted here without footnotes. The full text of this chapter, with

footnotes, can be found on the University of Texas School of Law’s

website, at www.utexas.edu/law/faculty/slevinson/undemocratic/

undemocratic_excerpt.pdf

�t is vitally important to engage in a national conversation about the �onstitution’s

adequacy rather than automatically to assume its fitness for our own times.

32-35_Levinson 6/7/07 11:55 PM Page 2

3 4 UT L AW S p r i n g 2 007

little doubt about the proper stancethat a citizen should take toward ourfounding document.

This time, however, I rejected theinvitation to re-sign the Constitution. Ihave not changed my mind that theConstitution in many ways offers a rich,even inspiring, language by which toenvision and defend a desirable politicalorder. Nor does my decision not to signthe scroll at the National ConstitutionCenter necessarily mean that I wouldhave preferred that the Constitution godown to defeat in the ratification votes

of 1787–1788. Rather, I treated the center as asking me about my level ofsupport for the Constitution today and,just as important, whether I wish toencourage my fellow citizens to reaffirmit in a relatively thoughtless manner. Asto the first, I realized that I had,between 1987 and 2004, become farmore concerned about the inadequaciesof the Constitution. As to the second, Ithink that it is vitally important toengage in a national conversationabout its adequacy rather than automatically to assume its fitness forour own times. Why I believe this is in a real sense the topic of this book.

My concern is only minimally relatedto the formal rights protected by theConstitution. Even if, as a practical matter, the Supreme Court reads theConstitution less protectively, withregard to certain rights, than I do, theproper response is not to reject theConstitution but to work within it bytrying to persuade fellow Americans toshare our views of constitutional possibilityand by supporting presidential candidates who will appoint (and getthrough the Senate) judges who will bemore open to better interpretations.Given that much constitutional interpretation occurs outside thecourts, one also wants public officials atall levels to share one’s own visions ofconstitutional possibility—as well, ofcourse, as of constitutional constraints.

And this is true even for readers whodisagree with me on what specificrights are most important. It is alwaysthe case that courts are perpetuallyopen to new arguments about rights—whether those of gays and lesbians or ofproperty owners—that reflect the dominant public opinion of the day.Indeed, liberals should acknowledgethat even a Supreme Court composed ofa majority of political conservatives—atotal of seven justices were appointed byRepublican presidents—nonethelessbroke new ground in protecting gays

and lesbians by overturning Texas’sprohibition of “homosexual sodomy.” I applauded that decision; more important is the fact that the public atlarge, by 2003, also seemed more thanwilling to accept the Court’s views. Thecountry may be clearly divided aboutgay and lesbian marriage, but relativelyfew people any longer seem to endorsea constitutional vision that allows the criminalization of such sexual practices as such.

So, what accounts for my change ofviews since 1987? The brief answer—tobe spelled out in the remainder of thebook—is that I have become ever moredespondent about many structural provisions of the Constitution thatplace almost insurmountable barriersin the way of any acceptable notion of democracy. I put it this way toacknowledge that “democracy” is mostcertainly what political theorists call an“essentially contested concept.” Itwould be tendentious to claim thatthere is only one understanding—suchas “numerical majorities always prevail”—that is consistent with“democracy.” Liberal constitutionalists,for example, would correctly place certain constraints on what majoritiescan do to vulnerable minorities.

That being said, I believe that it isincreasingly difficult to construct a theoryof democratic constitutionalism, applyingour own twenty-first-century norms,

that vindicates the Constitution underwhich we are governed today. Our eighteenth-century ancestors had littletrouble integrating slavery and therank subordination of women intotheir conception of a “republican”political order. That vision of politics isblessedly long behind us, but theConstitution is not. It does not deserverote support from Americans whoproperly believe that majority rule,even if tempered by the recognition ofminority rights, is integral to “consentof the governed.”

I invite you to ask the followingquestions by way of preparing yourselfto scrutinize the adequacy of today’sConstitution:

1. Even if you support having aSenate in addition to the House ofRepresentatives, do you support as wellgiving Wyoming the same number ofvotes as California, which has roughlyseventy times the population?

2. Are you comfortable with anElectoral College that, among otherthings, has regularly placed in theWhite House candidates who did notget a majority of the popular vote and,in at least two cases over the past fiftyyears, who did not even come in first in that vote?

3. Are you concerned that the president might have too much power,whether to spy on Americans withoutany congressional or judicial authorizationor to frustrate the will of a majority ofboth houses of Congress by vetoing legislation with which he disagrees onpolitical grounds?

4. Do you really want justices on theSupreme Court to serve up to fourdecades and, among other things, to beable to time their resignations to meshwith their own political preferences asto their successors?

5. Do you support the ability of thirteenlegislative houses in as many states toblock constitutional amendmentsdesired by the overwhelming majorityof Americans as well as, possibly, eighty-six out of the ninety-nine legislativehouses in the American states?

One might regard these questions asraising only theoretical, perhaps even“aesthetic,” objections to our basicinstitutional structures if we felt trulysatisfied by the outcomes generated byour national political institutions. But

�ourts are perpetually open to new argumentsabout rights—whether those of gays and

lesbians or of property owners—that reflect thedominant public opinion of the day.

32-35_Levinson 6/7/07 11:55 PM Page 3

this is patently not the case. Pollingdata offer some insights, even as wemust recognize both that they measuresupport for particular officials and thatsupport levels go up as well as down.That being said, consider that, as Iwrite these lines in May 2006, a USAToday-Gallup poll taken between April28–30 finds that 34 percent of therespondents approve of George Bush’sconduct as President (though 39 percent still have a “favorable” view ofhim overall, as contrasted with the 60percent who regard him unfavorably).Only 41 percent find him “honest andtrustworthy,” Yet President Bush has ahigher approval rating than Congress.A slightly earlier CBS-Washington Postpoll found that only 36 percent of those polled “approve” of the current Congress, while 62 percent“disapprove.” Yet another poll foundthat Republican congressional leaderswere approved by only 33 percent of the respondents, one point less than their Democratic counterparts(34 percent).

Compared to the president andCongress, members of the SupremeCourt might feel considerably better.Yet even there, the data are mixed. Forexample, a May 2005 poll conducted byQuinnipiac University found that only44 percent of voters approved of thedecisions of the Supreme Court, downfrom 56 percent approval in a March 5,2003, poll. An analysis of public opin-ion and the Court during the period ofWilliam Rehnquist’s chief justiceship—1986–2005—found a general diminutionof support for the Court over thoseyears, though several polls continue toshow that the majority of the publicretains “confidence” in the Court. Still,according to Wisconsin political science professor Herbert Kritzer, aJune 2005 poll by the Pew ResearchCenter for the People and the Pressfinding that 57 percent of its respondentsare favorable to the Court “is at the lowest level since it began, fallingunder 60 percent for the first time.” AsJohn Roberts took the helm of theSupreme Court in September 2005,almost a third of the population (31 percent) expressed “not verymuch” confidence (25 percent) or“none at all” (6 percent) in the judiciary,even if this was offset by the 55 percent who

expressed a “fair amount” of confidence.Only 13 percent had a “great deal” ofconfidence. Interestingly, Kritzerrelates the general drop in support forthe Court to “the general demonizationof government, particularly the federalgovernment, that took place over thepast 25 years.”

A different sort of discontent ismeasured when one asks people if theybelieve that the country is generallyheaded in the right direction. In April2005, a full 62 percent of the respondentsto a CBS poll indicated that theybelieved that the country was headed

in “the wrong direction.” One doubtsthat the country is any more optimistica year later, given further setbacks inIraq and the disasters generated byHurricanes Katrina and Rita, not tomention more general issues of nationalsecurity, global warming, and the everhigher cost of gas. One might feel thatthe country is headed in the wrongdirection even if Congress were perceivedto be on top of all such issues if onethought we were at the mercy ofevents—like an oncoming asteroid—simply beyond any human intervention.But surely the sense of dissatisfaction isrelated for most Americans to a beliefthat our political institutions are notadequately responding to the issues athand. Any reader can certainly constructher own list of issues that are not seriouslyconfronted at all—or, if confronted,resolved in totally inadequate ways—bythe national government. Serious liberalsand conservatives would likely disagreeon the particular failings, but both,increasingly, would share an attitude ofprofound disquiet about the capacity ofour institutions to meet the problemsconfronting us as a society.

To be sure, most Americans seem toapprove of their particular members ofCongress. The reason for suchapproval, alas, may be the representatives’success in bringing home federallyfunded pork, which scarcely relates tothe great national and internationalissues that we might hope that

Congress could confront effectively. Inany event, we should resist the temptationsimply to criticize specific inhabitantsof national offices, however easy that is for most of us to do, regardless ofpolitical party. An emphasis on the deficiencies of particular officeholderssuggests that the cure for what ails us issimply to win some elections andreplace those officeholders with presumptively more virtuous officials.But we are deluding ourselves if webelieve that winning elections isenough to overcome the deficiencies of the American political system.

We must recognize that a substantialresponsibility for the defects of ourpolity lies in the Constitution itself. Anumber of wrong turns were taken atthe time of the initial drafting of theConstitution, even if for the best of reasonsgiven the political realities of 1787.Even the most skilled and admirableleaders may not be able to overcomethe barriers to effective governmentconstructed by the Constitution. No less afounder than Alexander Hamiltonemphasized that “[a]ll observations”critical of certain tendencies in theConstitution “ought to be referred tothe composition and structure of thegovernment, not to the nature orextent of its powers.” He is correct. Inmany ways, we are like the police officer inPoe’s classic The Purloined Letter, unableto comprehend the true importance ofwhat is clearly in front of us.

If I am correct that the Constitutionis both insufficiently democratic, in acountry that professes to believe indemocracy, and significantly dysfunctional,in terms of the quality of governmentthat we receive, then it follows that weshould no longer express our blinddevotion to it. It is not, as Jeffersonproperly suggested, the equivalent ofthe Ark of the Covenant. It is a humancreation open to criticism and even torejection. To convince you that youshould join me in supporting the callfor a new constitutional convention iswhat this book is about.

S p r i n g 2 007 UT L AW 3 5

�e must recognize that a substantial responsibility for the defects of our polity lies

in the �onstitution itself.

32-35_Levinson 6/7/07 11:55 PM Page 4

3 6 UT L AW S p r i n g 2 007

rofessor William M. Sage,recently arrived fromColumbia University, holds amedical degree and a law

degree. His appointments at theUniversity of Texas call on him to combine the lessons of each.

Sage joins the law school faculty asthe James R. Dougherty Chair forFaculty Excellence. He was also

appointed as the inaugural ViceProvost for Health Affairs at UT-Austin.In that capacity, he will participate in the development of the DellPediatric Research Institute on thenewly designated University of TexasHealth Research Campus, the ClinicalEducation Center at Brackenridge, andinterdisciplinary programs such as UT-Austin’s joint MD-PhD program

with the UT Medical Branch in biomedical engineering, cellular andmolecular biology, and neuroscience.His evolving mandate will also includeworking with faculty and students from many UT-Austin schools anddepartments, with other UT campuses,and with the Austin community to advanceeducation, service, and research involvinghealth care and public health.

“We live in a timeand place where themyriad questionsconcerning thedelivery of medicalservices are of preeminent interestand concern,” saidDean Larry Sager.“There is no one inlegal education whois better versed ormore influential inthese matters thanBill Sage. That hejoins us at theUniversity of Texas

is a cause for celebration.”“I am delighted to become a

member of the UT faculty,” Sage said.“What happens to health care in Texasover the next decade will be criticallyimportant for the people of the stateand for the nation as a whole. I believethat the University of Texas at Austinhas a lot to contribute to the law andpublic policy of health care, to medical

innovation, and to the training ofhealth professionals.” Sage added, “Inaddition to collaborating with UT’sdynamic group of law teachers andlegal scholars, I look forward to working with faculty and studentsthroughout the University, and to serving the community and state.”

Sage’s work and scholarship inhealth care is impressive. He has editedtwo books, including MedicalMalpractice and the U.S. Health CareSystem (Cambridge University Press2006), and has written more thaneighty articles in legal, health policy,and medical publications. In 1993 hechaired four working groups for theWhite House Task Force on HealthCare Reform. From 2002 through2005, he was the principal investigatorfor the Project on Medical Liability in Pennsylvania funded by the PewCharitable Trusts.

In 1998, Sage received anInvestigator Award in Health PolicyResearch from the Robert WoodJohnson Foundation. He is an electedfellow of the Hastings Center onbioethics, and he is a member of theeditorial board of Health Affairs.

Sage received his AB from HarvardCollege and his medical and lawdegrees from Stanford University. Hecompleted his internship at MercyHospital and Medical Center in SanDiego, and served as a resident in anes-thesiology and critical care medicine atthe Johns Hopkins Hospital. Prior tojoining the Columbia Law School faculty in 1995, Sage practiced corporateand securities law in Los Angeles.

William M.Sage

A D V I S E S O N C U R I N G

H E A L T H C A R E C R I S I S

P

FA

CU

LT

Y

FO

CU

S

William M. Sage

In the fall of 2006 the Law School welcomed two new scholars: Professor William M.

Sage, a leading expert in health law and policy, and Assistant Professor John M. Golden,

an expert in intellectual property law.

36-37_FacultyProfiles 6/8/07 12:04 AM Page 1

S p r i n g 2 007 UT L AW 3 7

nterested from an early age incomplex systems, John Goldenwas drawn to the study of physics.This led him all the way to a

PhD from Harvard University in condensed matter physics. He thenturned to study another complex system—the law—and earned a JD

from Harvard, too. “In condensed matter physics, you work to model themost important aspects of complex systems,” Golden said. “In law, youoften look for the most significant fea-tures of complicated fact patterns andsocial interactions. In both areas, onelooks to understand how things areorganized, or how they could be—orshould be—organized.”

On his arrival at UT Law, DeanLarry Sager tallied the “remarkableand apt set of credentials” that Goldenhas amassed in his young career: “Hebegan with a PhD in physics; followedwith a magna cum laude law degreefrom Harvard; and then turned to ahigh-powered practice in patent law.”

Golden’s patent-law practice, undertaken at Wilmer Cutler PickeringHale and Dorr in Boston, focused onpatent litigation at both the trial and appellate levels, and includedinvolvement in the prosecution ofpatent applications before the U.S.Patent and Trademark Office. “I enjoyed my practice at WilmerHale,”Golden said. “It helped me develop asense of how both legal practice andthe commercial world operate.”

Before beginning his practiceGolden clerked for Judge MichaelBoudin of the U.S. Court of Appealsfor the First Circuit, and for U.S.Supreme Court Justice Stephen Breyerduring the October 2002 term.

Golden arrives at the Law Schoolexperienced in academic matters aswell. He has written or co-writtennumerous articles on both physics andthe law, and in 2004 and 2005, servedas the Hieken Lecturer on Law atHarvard Law School, where he taughtpatent law.

He joined the faculty of UT Law inthe fall of 2006 and immediately put hisunique synthesis of talents to work. Inaddition to teaching classes inAdministrative Law and Patent Law, herecently presented a paper that will bepublished in Volume 85 of the Texas

Law Review. Entitled “‘Patent Trolls’and Patent Remedies,” the paperresponds to concerns that patent holders who do not practice theirinventions or compete with those whodo may generate an improper “tax” on technological innovation. It is commonly thought that some reformin U.S. patent law is needed to addressthe abuses and excesses of “patenttrolls,” but there is considerable disagreement on what that ought to be.In his paper, Golden analyzed some ofthe current reform proposals with aneye to recent trial court decisions.

“Patent litigation has beendescribed as the sport of kings,”Golden remarked, acknowledging thefact that many companies choose tolicense patents rather than riskinfringement suits because of the highcost of litigation. “There have been anumber of different suggestions on howto address problems with how patentlaw operates. Part of the difficulty is figuring out what combination of proposals makes the most sense andwill not cause excessive risk to benefitsthat patent law is meant to provide.”

We may or may not get substantialpatent law reform from Congress. In the meantime, concerns with the current patent system will continue tobe addressed by the Patent andTrademark Office and the courts, andGolden hopes his research will proveuseful as these issues make their waythrough the system. As it will be, no doubt, to future lawyers who studyhere at UT Law.

John M.Golden

P A T E N T

T E N D I N G

I

John M. Golden

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

3 8 UT L AW S p r i n g 2 007

n an effort to encourage andsupport young scholars, UT Lawlaunched a program that awardsfellowships for up to two years of

in-residence research and teaching.“This program is largely the brainchildof Professor Jane Cohen,” said RobertPeroni, the James A. Elkins CentennialChair in Law. “In three short years, theEmerging Scholars Program has alreadyestablished itself as one of the topinitiatives of its kind. It providespromising law teaching candidateswith an opportunity to teach thewonderful UT Law students andwork on interesting legal scholarshipprojects with the assistance of thepermanent faculty members, whoprovide constructive critiques of theirwork and helpful advice about theirscholarly agenda.”

Initiated in 2004 under Dean BillPowers, the Emerging Scholars Programenriches legal education for students,hones the skills of participating Fellows,

and allows UT Law faculty to contributeto the growth of the legal academy.Professor Mitch Berman chaired thecommittee charged with creatingthis program. Berman worked closelywith other faculty members, includingProfessors Cohen and Willy Forbath,to develop something that wouldfully utilize UT Law’s unique strengths.

Treated like tenure-track faculty—they receive a stipend, a faculty office,and administrative assistance—Fellowsalso have reduced teaching loads andno administrative responsibilities. Thisgives them time to focus on scholarship,and it is expected that they will present

at least one research paper to the facultyduring their time in residence.

The first Emerging Scholars Fellow,Sam Buell, completed the program in2006 and joined the law faculty ofWashington University in St. Louis.During the 2006-2007 academic yearthere were four Fellows in residence atUT Law: David Gamage, Alvaro Santos,

Scott Sullivan, and Philomila Tsoukala. Fellows enjoy substantial support

from the faculty in the furtherance oftheir scholarly pursuits. “The mostamazing thing about this program is theaccess to faculty,” said Scott Sullivan,who joined the Law School in the fall of

I

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

U T L A W ’ S E M E R G I N G S C H O L A R S P R O G R A M

“In three short years, the Emerging Scholars

Program has already established itself as one

of the top initiatives of its kind.”

38-39_EmergingScholars_R2 6/11/07 5:09 PM Page 1

S p r i n g 2 007 UT L AW 3 9

2006. “In my particular case, Derek Jinkshas been incredibly helpful. I’ve beenworking on issues surrounding treatyinterpretation, arguing that the courtsshould take a much greater role in thisprocess, despite a traditional deferenceto the executive branch. Next fall I willco-teach with Derek a course called ‘TheRule of Law in Wartime,’ which addressesa large variety of issues relating to legalcontroversies in wartime.” Sullivan is agraduate of the University of Kansas. Heearned a JD from the University ofChicago Law School and an LLM fromthe European University Institute.

David Gamage, whose researchinterests include taxation and thetax lawmaking process, concurs withthat assessment. “The faculty here isphenomenal,” he said. “I’ve worked withscholars who specialize in the theoreticalaspect of law, as well as scholars whounderstand how law works on theground.” He also appreciates the LawSchool’s proximity to the state capital.“Texas went through major tax reform lastyear, and it was very useful to my research

to have such ready access to legislatorsduring that process.” Gamage is currentlyworking on a paper that analyzes theeffects of economic fluctuations on statebudgets. He earned his undergraduateand graduate degrees from Stanford andhis law degree from Yale. Gamageaccepted a tenure-track position at UC-Berkeley’s Boalt Hall which he beginsnext fall.

Because Fellows bring such extensiveand varied scholarly experience, theyexpand and enrich the intellectual life ofthe Law School. Philomila Tsoukala is agraduate of the Conservatory ofNorthern Greece and Aristotle Universityof Thessaloniki. She earned an LLMfrom Harvard Law School, where she isnow an SJD candidate, and a master’sdegree in public law from UniversitéPantheon-Assas Paris II. Her approach isinterdisciplinary in nature. “I draw froma wide variety of sources—legal history,feminist theory, law and economics—tounderstand how the legal system dealswith issues such as unremunerated carework,” said Tsoukala. “I’m interested in

legal norms in family law and how theyrelate to market regulations. My timehere at UT Law has been tremendouslyvaluable in helping me understand howthese things connect.” Next fall, Tsoukalawill begin at Georgetown University LawCenter as a Visiting Assistant Professor.

“The Emerging Scholars Program wasa fantastic way of starting my academiccareer,” said Alvaro Santos, whocompleted his fellowship at end of thespring 2007 semester and accepted atenure-track appointment at theGeorgetown University Law Center. Heearned a JD from Universidad NacionalAutonoma de Mexico and an LLM fromHarvard, where he is now an SJD candidate.

“It opened the door to a vibrantintellectual and collegial exchangewith a first-rate faculty,” Santos continued.“Their feedback on my research wasinvaluable. And, I had the privilege toteach an outstanding and diverse groupof students. I’m going to miss UT andAustin a great deal. I might even miss theLonghorns. But I take with me manyvaluable friendships—and I’ll visit often.” P

hot

o: M

ark

Ru

tkow

ski

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

4 0 UT L AW S p r i n g 2 007

Andrews Kurth is proud to

sponsor the 2007 UT Law

School Alumni Reunion.

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

Vinson & Elkins LLP Attorneys at Law Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Shanghai Tokyo Washington www.velaw.com

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.

Don’t mess with Texas Exes

40_Ads 6/11/07 9:56 PM Page 1

S p r i n g 2 007 UT L AW 4 1

P O R T R A I T O F A D E A N

In the Law School’s Sheffield Room you will find a portraitgallery that includes deans, patrons, and patriarchs. The mostrecent addition to this collection is a portrait of Bill Powers,

painted in 2006 as he was transitioning from Dean of the LawSchool to President of the University of Texas at Austin.

The portrait was created by Nick Bashall, a man whose personalstory is almost as interesting as that of his subject. Raised in

Zimbabwe, Bashall studied law at Cambridge University. But afterseveral years of practice he heard a different calling, and spentthe 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

41_PortraitDean 6/8/07 12:31 AM Page 39

4 2 UT L AW S p r i n g 2 007

he University of TexasSchool of Law hosted thethird annual Tex LezarMemorial Lecture at the

Belo Mansion in Dallas on Wednesday,March 7, 2007 with Chief Justice JohnG. Roberts, Jr. speaking. Chief JusticeRoberts spoke to an invited audience ofapproximately 400 people about theappropriate role of the courts in society,using the pivotal 1857 case Dred Scott v.

Sandford as an example of the negativeconsequences of judicial activism. Thiswas the second Law School-relatedevent this year at which a sitting member of the U.S. Supreme Courtparticipated.

“At the 2005 Senate confirmationhearings occasioned by his nominationto the position of Chief Justice,” saidUT Law School Dean Lawrence Sagerin his introduction, “Chief Justice

Roberts demonstrated a dazzling mixture of intelligence, subtlety, care,and charm. These are thequalities he brings withhim to his new office.”

Sager thanked Robertsfor bringing honor anddistinction to the lectureseries by his participation.Chief Justice Roberts, alongtime friend of Lezar’s,began his remarks byexpressing his delight thathis first visit to Texas asChief Justice was to deliverthe Tex Lezar Lecture.

The lecture series honors the life and work ofHarold J. “Tex” Lezar, whodied in 2004. Lezar wasborn in Dallas and was a1976 graduate of the LawSchool. Always interestedin public policy and politics, Lezar worked as aspeechwriter in the NixonAdministration before

attending law school and, after earninghis law degree, went on to serve asAssistant Attorney General for LegalPolicy and Chief of Staff to U.S.Attorney General William FrenchSmith in the Reagan Administration.

The Tex Lezar Memorial LectureSeries was conceived and is underwrit-ten by the many friends of Tex Lezar.According to its mission statement, theannual lecture is to be given by a “per-son learned in affairs of governmentwhose work carries forward the idealsof constitutional government and afree society.”

Theodore B. Olson, SolicitorGeneral of the United States from2001–2004, was the inaugural lecturer.Kenneth W. Starr, former SolicitorGeneral of the United States, formerjudge on the U.S. Court of Appeals forthe District of Columbia Circuit, andnow dean of Pepperdine University’sSchool of Law, delivered the secondlecture in the series.

Chief Justice Roberts’ complete lecture is available for viewing on theUT Law School’s website. Please visitwww.utexas.edu/law/news/2007/030807_chief.html.

Chief Justice of the United StatesKeynotes at Tex Lezar

Memorial Lecture Series

NO

TE

W

OR

TH

Y

T

Chief Justice John Roberts

42-43_TexLezar 6/8/07 6:12 AM Page 1

S p r i n g 2 007 UT L AW 4 3

ittle did anyone know whenthe Texas Review of Law &Politics was first organizedin 1996 that it would

become one of the most prominentconservative law journals in the country,or that its members would celebratetheir tenth anniversary with a UnitedStates Supreme Court justice as theirhonored guest. On March 3, 2007, theReview presented its Jurist of the Year

award—given annually to a member ofthe legal profession who embodies theconservative viewpoint—to JusticeAntonin Scalia. Scalia, appointed to theSupreme Court by President RonaldReagan in 1986, is the second most senior justice on the Court, and theleader of its conservative wing.

Past recipients of the Jurist of theYear award include Texas AttorneyGeneral Greg Abbott, U.S. Senator

John Cornyn, and JudgeEdith Jones, ’74, of theU.S. Court of Appeals forthe Fifth Circuit.

Justice Scalia addressedthe invited audience on thetopic of the inappropriateuse of international lawwhen interpreting the U.S.Constitution, as well as onthe unique role the Reviewplays in legal academia. Inaddition to attending thejournal awards banquet,Justice Scalia also spokeover lunch to the CatholicLaw Students Association,and he participated in an informal question and answer session with members of the TexasFederalist Society.

Third-year studentBonnie Rust received the2007 Tex Lezar “Fill YourBoots” award as the beststudent editor, receiving

among other things a pair of bootsbelonging to the late Lezar. Harold J.“Tex” Lezar, ’76, served in the presidential administrations of RichardNixon and Ronald Reagan, was a supporter of the journal from its inception, and enjoyed helping studentsbecome active in support of conservativecauses. Outgoing editor-in-chief NigelStark, ’07, introduced Eric Neuman, ’08,as the editor-in-chief for the 2007–2008academic year. Other guests at theawards banquet were Fifth CircuitCourt of Appeals judges Will Garwood,’55, and Priscilla Owen, Abbott, andTexas Solicitor General Ted Cruz.

Justice Antonin Scalia

L

Texas Review of Law & PoliticsCelebrates its First Decade

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

1 9 5 7Sheldon Anisman, an attorney at the law firm of Jackson Walker LLP, has been recognized by Fort

Worth, Texas magazine for excellence inthe fields of Administrative Land Use andEnvironmental Law.

1 9 6 0John L. Lancaster, an attorney at the law firm ofJackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements inBusiness Litigation.

1 9 6 2George C. Chapman,senior counsel at the law firm of Thompson & Knight LLP, isthe 2007 recipient of the

Heath Award presented by the DallasCounty Medical Society. The award isgiven annually to a lay person who hasprovided outstanding leadership andservice to medicine and the community ofDallas. A major portion of Chapman’spractice has been in representing doctorsand hospitals in medical malpracticesuits, defending peer review decisions ofmedical staffs, and supporting the DallasCounty Medical Society and the TexasMedical Association in litigation arisingfrom disciplinary decisions.

Harry Reasoner, a partnerat Vinson & Elkins in Houston, was appointed to athree-year term of the new

at-large attorney position on the TexasAccess to Justice Commission. The

commission, established by the SupremeCourt in 2001, is tasked with developingand implementing policy initiativesdesigned to expand access to, andenhance the quality of, justice in civillegal matters for low-income Texans.Reasoner joined Vinson & Elkins in 1964and was the firm’s managing partner from1992-2001. Reasoner is a Fellow of theAmerican College of Trial Lawyers;International Academy of Trial Lawyers;International Society of Barristers; andthe American, Texas, and Houston BarFoundations, and has served on theTexas Supreme Court AdvisoryCommittee; Supreme Court of TexasJudicial Campaign Finance StudyCommittee; and the Texas Supreme CourtTask Force on Civil Litigation. Reasoner isalso a member of the Law School’sFoundation Board of Trustees.

Broadus A. Spivey has been presentedwith the inaugural Lifetime AchievementAward from the Texas Trial LawyersAssociation. It was announced that theaward would hereafter be known as theBroadus A. Spivey Lifetime AchievementAward. Spivey practices with the Austinlaw firm of Spivey & Grigg, LLP.

1 9 6 3Tom Henson, a partner at the law firm of Ramey & Flock, P.C., has been elected2006–2007 Executive Vice

President of the Texas Association ofDefense Counsel (TADC). TADC is astatewide association of private practiceattorneys specializing in civil defensetrial law. Henson focuses his practice oncomplex tort and commercial litigation.

1 9 6 5Marc E. Grossberg, an attorney at thelaw firm of Thompson & Knight LLP, hasbeen recognized as one of the Top 100Houston Region Super Lawyers by TexasMonthly in the October 2006 issue.

Pete Winstead, founding shareholderof Winstead Sechrest & Minick, receivedthe Austin Business Journal’s Best ofBusiness Attorneys Lifetime AchievementAward at an awards dinner on September21, 2006. The award recognizes toplawyers in Central Texas. Winstead wasfeatured in the paper the following day.During his tenure in Austin, Winstead hasserved as chairman of the Texas TurnpikeAuthority, the Greater Austin Chamber ofCommerce, the Real Estate Council ofAustin, the United Way Capital Area, andAustin Area Research Organization. In2005 he was chairman of Austin’s Marchof Dimes “WalkAmerica” event. Winsteadhas been involved with the AustinSymphony Orchestra, SafePlace, YMCAof Austin, Colorado River Foundation, theLong Center, The Austin CommunityFoundation, and the Capital Area CouncilBoy Scouts of America. This most recenthonor caps off an impressive three-yearspan for Winstead. In 2004, he wasnamed Austinite of the Year by theGreater Austin Chamber of Commerce,and was named one of the “25 most influential people in Austin and CentralTexas for the past 25 years,” by theAustin Business Journal in 2005.

1 9 6 7Donald W. Griffis, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements in

4 4 UT L AW S p r i n g 2 007

CL

AS

SN

OT

ES

C L A S SN O T E S

44-52_ClassNotes 6/12/07 4:27 PM Page 44

Personal Injury Defense and General Law.In addition to this honor, he has also beenselected for inclusion in The Best Lawyersin America 2007 for Alternative DisputeResolution and Commercial Litigation.

1 9 6 8Byron F. Egan, an attorney at the law firm of Jackson Walker LLP, has been selectedfor inclusion in Super Lawyers

for achievements in Mergers &Acquisitions. In addition to this honor, hehas also been selected for inclusion inThe Best Lawyers in America 2007 forCorporate Law.

David R. Keyes, a shareholder with Winstead PC, has joined the Banking & CreditTransactions Section of the

law firm.

Larry W. Langley, an attorney with the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forHealth Care Law.

Claud “Tex” McIverwas named to the 2007 edition of The Best Lawyers in America. McIver is

a partner at Fisher & Phillips and special-izes in labor and employment law. In 2004,he was selected as a “Legal Elite, Labor &Employment Law” and he has beenselected as a “Georgia Super Lawyer,Labor & Employment Law” since 2004.McIver is Vice Chair of the Georgia StateElection Board and serves on the GeorgiaJudicial Nominating Commission.

1 9 6 9Rodney C. Koenig, a partner with Fulbright & Jaworski in Houston, waselected as a member of the

Executive Council of the InternationalAcademy of Estate and Trust Law.Koenig’s term will last until 2010.

The Honorable Elizabeth Lacy of the Virginia Supreme Court received one of the2006 awards of distinction

presented by the Virgina WomenAttorneys Association (VWAA) as part ofits 25th anniversary. The awards of dis-tinction celebrate outstanding womenlawyers who have demonstrated profes-sional excellence, advanced opportuni-ties for other women lawyers, or whocommitted themselves to exemplary pub-lic service on behalf of women. JusticeLacy was the first woman appointed tothe Supreme Court of Virginia in 1989,after serving as Commissioner of theVirginia State Corporate Commission,and as Deputy Attorney General forJudicial Affairs, and has served in leader-ship roles for many legal and profession-al associations, including the AmericanBar Association, the National Associationof Women Judges, the Institute ofJudicial Administration, and the LewisPowell American Inn of Court. JusticeLacy has been an adjunct professor atthe T.C. Williams School of Law at theUniversity of Richmond, as well as on thefaculty of the National Judicial Collegeand the New York University Institute ofJudicial Administration.

1 9 7 0Cullen M. (Mike) Godfreywas selected as the Texas A&M University SystemBoard of Regents general

counsel on May 26, 2006. Godfrey waspreviously a partner in the Austin officeof Jackson Walker. Prior to that, he wasVice Chancellor and General Counsel ofthe University of Texas System for fouryears and Chief Ethics Officer. Godfreyserved for ten years as general counselfor FINA, a multi-billion-dollar petroleumand petrochemical company.

CL

AS

SN

OT

ES

Lifetime Achievement AwardRUSH H. RECORD

RRush Record was born in Hugo, Oklahoma in 1917. He diedMay 25, 2007. Record attended Schreiner Institute, and receivedhis L.L.B. from the University of Texas School of Law in 1940.While in Law School, he was named to the Chancellors and was

a member of Order of the Coif. After graduation, he began his legal practicenear Wichita Falls, Texas and then enlisted in the military during the Second

World War, where he served inArmy Intelligence in Asia. In1948 he moved to Houston andjoined Vinson & Elkins, wherehe became a partner in 1953.Record practiced with Vinson &Elkins until he retired, afterhaving been a long-termmember of the firm’sManagement Committee andthe head of one of the firm’sprincipal business groups.

Outside of the law,Record devoted hisenergy and attentionto a wide variety of

topics, including neuroscienceand psychiatric disorders. Heserved on the Texas Board of

Mental Health and Mental Retardation and on the President’s Cabinet ofthe University of Texas Medical Branch (UTMB). The Rush H. and HelenRecord Symposium in Neurology has been established by the Baylor Collegeof Medicine. Record is survived by his wife, Helen.

Rush H. Record

S p r i n g 2 007 UT L AW 4 5

44-52_ClassNotes 6/8/07 7:20 AM Page 45

Claiborne B. Gregory, Jr.,an attorney with the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forBankruptcy and Creditor-Debtor Rights Law.

M. Lawrence Hicks, Jr., a partnerwith the law firm of Thompson & KnightLLP, has been selected for inclusion in the2007 Chambers USA “Leaders in theirField” legal directory for Real Estate Law.

1 9 7 2Dallas Parker, a partner with the lawfirm of Thompson & Knight LLP, has beenselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Technology Law. Hehas also been named as one of the“Leading Lawyers in America” byLawdragon, the legal services informationcompany. In addition, Parker has beenelected to serve on the 2007Management Committee at Thompson &

Knight LLP. He serves as Practice Leaderof the International Practice Group in theHouston office.

Glen Rosenbaum, a partner at Vinson& Elkins in Houston, will be honored bythe Anti-Defamation League (ADL) withits annual Torch of Liberty Award,Thursday, November 16 at 7:00 p.m. at itsTorch of Liberty Dinner, and attendees of the dinner will learn more about thewide-ranging contributions Glen hasmade to so many facets of the Houstoncommunity. The ADL gives its Torch ofLiberty Award annually to a business orcivic leader in recognition and appreciationfor that leader’s efforts to promoterespect, fight hatred and bigotry, andsupport fair treatment for all. Rosenbaumhas been an ADL board member for twenty-two years, and is a former ADLboard chair. Rosenbaum is a member ofthe Law School’s Alumni AssociationExecutive Committee.

1 9 7 3Robert M. Cohan, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements inBusiness Litigation. In addition to thishonor he has also been selected for inclusionin The Best Lawyers in America 2007 forAntitrust Law and Commercial Litigation.

Tom Hutcheson joined Winstead Sechrest & Minick as a shareholder in theHouston office. Hutcheson

was elected to serve on the AntitrustCouncil of the Antitrust Section of theHouston Bar Association. Hutcheson islisted in the 2007 edition of Best Lawyersin America in Oil & Gas Law and he’sadmitted to practice before the 5th, 10thand 11th U.S. Circuit Courts of Appeals aswell as all U.S. District Courts and all U.S.Bankruptcy Courts in Texas.John S. Moody, president of ProterraManagement in Houston, was elected toPotlatch’s board of directors.

Edward C. Small, an attorneyat the law firm of Jackson Walker LLP, has been selectedfor inclusion in The Best

Lawyers in America 2007 for Energy Law.

1 9 7 4John W. Cones has written a booktitled Hollywood Wars: How InsidersGained and Maintain Illegitimate ControlOver the Film Industry. The book detailsthe unethical and illegal business practicesof major Hollywood studios and distributorsthat hurt independent filmmakers andHollywood outsiders. The book has beenpublished by Marquette Books LLC.Cones is in private practice as a securitiesand entertainment attorney in Los Angeles.

David G. Dunlap, an attorney at the law firm of Jackson Walker LLP, has been selectedfor inclusion in Super Lawyers

for achievements in Energy and NaturalResources Law. In addition to this honor,he has also been selected for inclusion inThe Best Lawyers in America 2007 forNatural Resources Law and Oil & Gas Law.

CL

AS

SN

OT

ES

Outstanding Alumnus AwardJACK RATLIFF

Jack Ratliff is a native of Sonora, Texas, and an honors Plan IIgraduate of the University of Texas at Austin. In 1957, he enlistedwith the United States Navy and served as a destroyer deck officerand a Navy SEAL. After he was honorably discharged, he attended

the University of Texas School of Law where he was an officer and CommentEditor of the Texas Law Review. Jack graduated from the Law School in 1962.

Jack was formerly an attorneywith the El Paso firm of Ratliff,Haynes and Stadling beforeteaching at the Law School. He has served as counsel andconsulted on class action casesinvolving asbestos, breastimplants, gasoline spills, plantexplosions, insurance practices,securities, usury, and deceptivetrade practices. In 1999, he wasappointed by Attorney GeneralJohn Cornyn as SpecialCounsel on complex litigationmatters. He is Ben GardnerSewell Professor Emeritus inCivil Trial Advocacy at the LawSchool. Professor Ratliff taughtcourses on Torts, Texas CivilProcedure, and advanced

courses in litigation strategies at the Law School, and was Director of StudentAdvocacy Competitions. Ratliff lives in Dripping Springs with his wife, Clare.

Jack Ratliff

4 6 UT L AW S p r i n g 2 007


Stephen F. Fink, a partner with the lawfirm of Thompson & Knight LLP, has beenselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Employment Law.

John H. Martin, a partner at the lawfirm of Thompson & Knight LLP, has beenselected as one of the Top 100 Dallas/FortWorth Region Super Lawyers by TexasMonthly in the October 2006 issue. Hehas also been named President-Elect ofDRI—The Voice of the Defense Bar, thenation’s largest organization of civildefense attorneys. Martin will serve aone-year term as President-Elect andbecome President in 2007.

1 9 7 5Thornton Hardie III, a partner withThompson & Knight in Dallas, was namedone of the “Leading Lawyers in America”by Lawdragon, the legal services information company.

The Honorable Charles W.“Tim” McCoy was selectedas assistant presiding judgeby a unanimous vote of the

judges of the Los Angeles Superior Court.Judge McCoy began his two-year term onJanuary 1, 2007.

Bea Ann Smith has joined Brown McCarroll, LLP as Of Counsel. She recently retiredas Justice from the Austin

Court of Appeals, a position she heldsince 1991. Judge Smith will work out of the firm’s Austin office and plans toconduct a mediation practice and assistthe appellate group.

1 9 7 6Bryan C. Birkeland, an attorney with Jackson Walker LLP, has been selected forinclusion in The Best Lawyers

in America 2007 for Real Estate Law.

Nina Cortell, a partner at Haynes and Boone, LLP, has been elected to the AmericanAcademy of Appellate Lawyers.

The academy was founded in 1990 to recognize outstanding appellate lawyers

and to promote improvement of appellateadvocacy and appellate court administration.

Governor Rick Perry appointed JackArnold McGaughey as district attorneyfor the 97th Judicial District servingArcher, Clay, and Montague counties.McGaughey will serve until the next general election.

James C. Morriss III, a partner at Thompson & Knight, has been selected toserve on the Executive

Committee of the U.S. Business Councilfor Sustainable Development (US BCSD).This is a non-profit association of businesses whose purpose is to deliverhighly focused, collaborative projectsthat help its members and partnersdemonstrate leadership in the UnitedStates on sustainable development andrealize business value. Morriss was alsoselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Environmental Law.

1 9 7 7Pamela E. George, a professor atSouth Texas College of Law, is celebratingtwenty-five years of teaching by leading afundraising drive to support a scholarship

for a third-year student with specialinterest in family law. George is currentlythe chair of the South Texas Task Forceon Family & Juvenile Clinical Activities.

1 9 7 8James B. Harris, a partner with thelaw firm of Thompson & Knight LLP, hasbeen selected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Environmental Law.

Michael P. Pearson, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forNatural Resources Law.

John W. Rain, a partner with the lawfirm of Thompson & Knight LLP, has beenselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Banking & Finance Law.

1 9 7 9Janiece Longoria was unanimouslyreappointed to the Port of HoustonAuthority Commission for a third term by

S p r i n g 2 007 UT L AW 4 7

CL

AS

SN

OT

ES

Leon Green AwardDAVID J. BECK

David J. Beck, ’65,received the LeonGreen Award from the2006–2007 Texas Law

Review for outstanding contributionsto the legal profession. The award isnamed for the great legal scholar andlongtime UT Law professor who, withProfessors Ira Hildebrand andCharles Potts, was instrumental inestablishing the publication. Beck, anationally renowned trial lawyer, is apartner in the Houston law firm ofBeck, Redden & Secrest. He is thecurrent president of the AmericanCollege of Trial Lawyers and theimmediate past president of theUniversity of Texas Law SchoolFoundation. Beck is also a generousand active volunteer for a host of civicand professional organizations.David J. Beck


Houston City Council. Longoria chairs thecommission’s international business taskforce and serves on the community rela-tions task force and small businessdevelopment committee. Longoria hasbeen a partner at Ogden, Gibson, Broocks& Longoria since 1997. Longoria serveson the board of directors for the PilotCommissioners, Centerpoint Energy, andthe Greater Houston Partnership.

Kirk Shaffer has been appointed Associate Administrator of Airports forthe FAA. He is responsible for

national airport planning, which includesairport safety standards and airportdesign and engineering. From 1986 to2003, Shaffer served variously as executive

assistant to the president, director ofproperties, and general counsel to theMetropolitan Nashville Airport Authority.

1 9 8 0Jeffrey O. Bramlett, a partner at thelaw firm of Bondurant Mixson & Elmore,LLP in Atlanta, has received the Elbert P.Tuttle Award from The Anti-DefamationLeague (Southeast Region).

Caroline C. Fuller was appointed managing director at Fairfield and Woods, P.C. inDenver, the first female

managing director in the firm’s history.Fuller practices in the areas of financially-distressed companies, including commercialbankruptcies and receiverships, and realestate lending and development.

Michael L. Kaufman, an attorney at the law firm of Jackson Walker L.L.P, hasbeen selected for inclusion in

Super Lawyers for achievements inEstate Planning and Probate Law.

1 9 8 1C. Wade Cooper, an attorney at the law firm of Jackson Walker LLP, has been selectedfor inclusion in The Best

Lawyers in America 2007 for Bankruptcyand Creditor-Debtor Rights Law.

Jeff Lefkowitz has joined the Houston law firm of Andrews Myers Coulter &Cohen as senior counsel.

1 9 8 2Trey Nicoud has become a partnerwith the law firm of Gibson, Dunn & Crutcher LLP. He practices antitrustand trade regulation law in the SanFrancisco office.

1 9 8 3David A. Furlow, an attorney at the lawfirm of Thompson & Knight LLP, has beenrecognized as one of the Top 100Houston Region Super Lawyers by TexasMonthly in the October 2006 issue.

Alex Gonzales has been named managing shareholder of the Austinoffice at the law firm of Winstead PC. Herepresents financial institutions in regulatory and compliance matters andhe is the Austin section head ofWinstead’s corporate section.

On February 1, 2007 the U.S. Senate confirmed the nomination of Dean A.Pinkert to the position of Commissioner,U.S. International Trade Commission.Prior to this appointment Pinkert heldsuch positions as Senior Attorney at theU.S. Department of Commerce & Tradeand he was Judiciary Counsel to SenatorRobert C. Byrd. He will serve a nine yearterm as Commissioner.

CL

AS

SN

OT

ES

Distinguished Alumnus Awardfor Community ServiceFRANCI NEELY CRANE

After graduating Phi Beta Kappa from the University of Texas atAustin, Franci Crane worked her way through the University ofTexas School of Law, where she was a member of the Texas LawReview and graduated in 1978 with high honors. Franci joined

Susman Godfrey, becoming one of its first partners. During her twenty yearsat the firm, she handled high profile and high dollar litigation, and earned

a reputation as one of the bestlitigators in Texas. She currentlyserves on the Board ofHouston Media Source.

Her contributions to thenon-profit world have beenextensive. To name just someof her activities: She servesactively on many nonprofitboards, including the Board ofRecipe for Success, a programaimed at reducing childhoodobesity, the Advisory Board ofBo’s Place, an organizationdevoted to helping childrenwho have suffered the loss of aloved one, and the boards ofvarious arts organizations. Sheis the president of InPrint,Houston’s most important

literary organization. She conceived, organized, and implemented aHouston community outreach group called We’re All Neighbors. Franci isalso a Fellow of the Texas and Houston Bar Foundations. She lives inHouston with her husband, Jim.

Franci Neely Crane

4 8 UT L AW S p r i n g 2 007


1 9 8 4Steve R. Martens, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forReal Estate Law.

David T. Moran, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements inAppellate Law.

John H. Spurgin II, seniorvice president of legal, general counsel and secretary forAdministaff, was awarded

Outstanding Corporate Counsel with anAttorney Staff of 11 to 30 among allHouston-based companies. The award,recognizing expertise and accomplish-ment by in-house counsel in the field ofcorporate law, was presented by theAssociation of Corporate Counsel and theHouston Business Journal. Spurginjoined Administaff in 1997. Prior to joiningAdministaff, he was a partner with theAustin office of McGinnis, Lochridge &Kilgore, where he served as Administaff’soutside counsel for more than nine years.Spurgin has been recognized as a “TexasSuper Lawyer” by Texas Monthly forthree consecutive years (2004-2006).He formerly served as director of the Employer Services AssuranceCorporation (ESAC).

1 9 8 5Craig Glick was appointed executivevice president and general counsel ofWestside Energy. Previously, he served assenior vice president and general counselof Kosmos Energy and was president ofHunt Resources. Glick began his careeras an attorney with Vinson & Elkinswhere he made partner in 1993.

Timothy C. Taylor, an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements in RealEstate Law. In addition to this honor, hehas also been selected for inclusion in

The Best Lawyers in America 2007 forReal Estate Law.

Jeffrey A. Zlotky, an attorney at thelaw firm of Thompson & Knight LLP, hasbeen selected as one of the Top 100Dallas/Fort Worth Region Super Lawyersby Texas Monthly in the October 2006issue. In addition, he has also been elected to serve on the 2007Management Committee at Thompson &Knight LLP. Zlotky is a member of theCorporate and Securities Practice Groupin the Dallas office.

1 9 8 6David M. Bennett, a partner at the lawfirm of Thompson & Knight LLP, has beenselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Bankruptcy Law.

Ann Benolken, previously a partner with DuBois, Bryant, Campbell & Schwartz, joinedJackson Walker as a partner

in the Austin office of the Transactionssection. Benolken serves on the Board ofDirectors of CASA of Travis County, and isalso a member of the State Bar of Texasand the Colorado State Bar.

On March 1, Texas Deputy AttorneyGeneral for Litigation Edward D.Burbach joined Gardere Wynne SewellLLP as a partner in Austin. He wasappointed in 2003 to serve as the TexasAttorney General’s lead litigator. Burbachrepresented the state and its leadershipin many high-profile suits including energy,insurance, financial services, environmen-tal claims, and disputes regarding the historic Texas Tobacco Settlement.

Melody Cooper, current member of theCorpus Christi City Council, was appointed

S p r i n g 2 007 UT L AW 4 9

CL

AS

SN

OT

ES

Honorary Order of the CoifDEMETRIS SAMPSON

DeMetris Sampson is the managing partner of the Dallas office ofLinebarger Goggan Blair & Sampson, where she has practicedsince 1987. Sampson is the first African-American woman tobecome a partner in a majority firm in the City of Dallas.

Sampson graduated from the University of Texas at Austin with a businessdegree, and earned her law degree from Texas in 1980. She holds a Master

of Laws in Taxation from SMUSchool of Law.

Sampson serves on the board ofthe Greater Dallas Chamber ofCommerce and chairs its LocalGovernment Committee. She alsoserves on the Charter ReviewCommission for the City of Dallas.She served as co-chair of the Mayor’sComplete Count Committee for the2000 U. S. Census, appointed byDallas Mayor Ron Kirk, and hasserved since 1987 on the City’sDomestic Violence Task Force. Sheis a former member of the Universityof Texas Law School AlumniAssociation Executive Committee.Her numerous awards include theDr. Martin Luther King, Jr. Justice

Award given by the five local bar associations; the Maura Award from theWomen’s Center of Dallas; and the Outstanding Young Texas Ex Awardfrom the University of Texas Ex-Students Association. Sampson lives in Dallas.

DeMetris Sampson


to the Resolutions Committee of theTexas Municipal League, the organizationof municipal governments in Texas.

William S. Dahlstrom, an attorney with the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forLand Use and Zoning Law and RealEstate Law.

William H. Hornberger,an attorney at the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

Super Lawyers for achievements in TaxLaw. In addition to this honor, he has alsobeen selected for inclusion in The BestLawyers in America 2007 for Tax Law.

Stephen C. Rasch, an attorney atThompson & Knight LLP, has been electedto serve on the Firm’s ManagementCommittee for 2007. He is a member of the Trail Practice Group in the Dallas office.

1 9 8 7Russ Stolle was appointed senior vice president of global public affairs and communications at Hunstman

Corporation in The Woodlands. Stollecurrently serves as Vice President andDeputy General Counsel, and has frequently led the legal aspects of thecompany’s extensive merger and acquisitionactivities. Previously, he served as VicePresident and Chief Technology Counsel,and was responsible for the company’sglobal intellectual property portfolio.

1 9 8 8Roger B. Borgelt, formerly AssistantAttorney General of Texas in the PublicAgency Representation Section of theConsumer Protection Division, joinedPotts & Reilly. Borgelt previously servedthe Railroad Commission of Texas as ahearing examiner and the TexasStructural Pest Control Board as GeneralCounsel before joining the AttorneyGeneral’s staff in 1999.

John R. Cohn, a partner at the law firmof Thompson & Knight LLP, has beenselected for inclusion in the 2007Chambers USA “Leaders in their Field”legal directory for Tax Law.

Susan M. Ponce was appointed seniorvice president, commercial law, forHalliburton’s Energy Services Group.Based in Houston, she acts as the generalcounsel for the oilfield services legalfunction, leading 30 lawyers and 13offices worldwide. Ponce is a past chairof the American Bar Association Sectionof Energy, Environment and Resources’Ethics Committee.

Jay Rutherford, a partner in the Labor and Employment section in the Fort Worthoffice of Jackson Walker LLP,

has been named Vice-President ofFinance for the Texas Lyceum and will serveon the Executive and Operating committees.The Texas Lyceum Association, Inc. is anon-profit, non-partisan, statewideorganization whose purpose is to identifyand develop the next generation of topleadership in the State of Texas. In additionRutherford has been elected Chairman ofthe Texas Association of Business (TAB)for 2007. He was also recognized forexcellence in Labor Employment Law bythe Fort Worth, Texas magazine in theDecember 2006 issue.

1 9 8 9Michael G. Adams, an attorney atParker Poe Adams & Bernstein LLP,has been named to Law and Politicsmagazine’s “North Carolina SuperLawyers” for 2007 in the area ofBusiness Litigation. Super Lawyers areselected through a peer nomination andonly five percent of North Carolina attorneysreceive the honor.

Stacey Cownad Jernigan wasappointed as a U.S. bankruptcy court judgefor the Northern District of Texas in Dallas.

Patrick Keel was elected president of the board of the Dispute Resolution Center(DRC) of Austin. The DRC is a

nonprofit organization that provides disputeresolution services and training in theAustin area. Keel is a sole practitioner

who devotes his law practice to mediatingand arbitrating civil disputes.

1 9 9 1Leonard H. Dougal, an attorney with the law firm of Jackson Walker LLP, hasbeen selected for inclusion in

The Best Lawyers in America 2007 forWater Law.

1 9 9 2David Jackson Ball, Jr. has beenelected a partner at the law firm of Weil,Gotshal & Manges LLP. He is a member ofthe Litigation/Regulatory department inthe New York office.

1 9 9 4JoAnn Dalrymple has become a partner in the law firm of Jackson Walker LLP.She is a member of the firm’s

Litigation Section in the Austin office.

Nathan Schattman, an attorney with Johnston Legal Group PC, has been recognizedas one of the top attorneys in

Fort Worth by Fort Worth, Texasmagazine in the area of Labor andEmployment Law.

1 9 9 5Victor Alcorta III, a partnerin the Austin office of Thompson & Knight LLP, hasbeen elected President of the

Texas State History Museum Foundation.The Foundation is a nonprofit organizationthat supports the Bob Bullock TexasState History Museum by raising fundingfor the Museum’s educational programs.

Jason Davis has rejoined the law firmof Thompson & Knight LLP as a trial partner in the Austin office. Previously hewas running his own private practice inSan Antonio and serving as an AssistantUnited States Attorney for the Westernand Southern Districts of Texas. Daviswill lead Thompson & Knight’s WhiteCollar Crime Practice Specialty Group.

5 0 UT L AW S p r i n g 2 007

CL

AS

SN

OT

ES


William Everitt Hopkins, a partner inthe Health Law Department at the lawfirm of Thompson & Knight LLP, has beenelected to serve as Chairman of the Board ofDirectors for Big Brothers Big Sisters ofCentral Texas for the 2006-2007 terms.

1 9 9 6Alicia Duleba, a partner in the Labor and Litigation sections of Jackson WalkerLLP, has been selected to

participate in the 2007 class ofLeadership Texas. Leadership Texasbrings together Texas women who havedemonstrated their leadership ability inthe profession, community, or workplace.

1 9 9 7Sandra J. Creta has become a partner in the law firm of Quarles & Brady LLP.Her practice focuses on labor

and employment law.

Jeffrey S. Johnston has become a partner in the law firm of Vinson & Elkins LLP.He is a member of the firm’s

Litigation section in the Houston office.

Sesha Kalapatapu has been named a shareholder in the Litigation group of theHouston based law firm Boyar

& Miller.

Michael O’Donnell has become apartner in the law firm of Fullbright &Jaworski LLP. O’Donnell handles commercial and class action lawsuits andhe maintains an active arbitration practicefocusing on commercial disputes.

Brooke W. Quist has joined the lawfirm of Steptoe & Johnson LLP as part ofthe Intellectual Property Practice groupin the Century City, California office.

J. Christopher Wood has become apartner with the law firm of Gibson, Dunn& Crutcher LLP. He practices antitrustand international trade regulation andcompliance law in the Washington DC office.

1 9 9 8Michael Barrett has become a partnerin the law firm of Fullbright & JaworskiLLP. He focuses on patent litigation, prosecution, and analysis in various technology areas.

Kelly Dybala has been elected a partnerat the law firm of Weil, Gotshal & MangesLLP. She is a member of the Banking andFinance group in the Dallas office.

Mark Garrett has become a partner inthe law firm of Fullbright & Jaworski LLPHis practice focuses on litigating and prosecuting patents in a variety oftechnology areas.

Robert B. Little has been elected a partner at the law firm of Vinson & Elkins LLP.He is a member of the firm’s

corporate finance and securities law section in the Dallas office.

William R. H. Merrill has become apartner in the law firm of Susman GodfreyLLP in the Houston office.

David S. Peck has been elected a partner at the law firm of Vinson & Elkins LLP.He is a member of the firm’s

tax law section in the Dallas office.

Jennifer B. Poppe has been elected a partner at the law firm of Vinson & ElkinsLLP. Poppe is a member of the

firm’s litigation section in the Austinoffice.

Carolyn A. Russell has been elected a shareholder at Ogletree, Deakins, Nash,Smoak & Stewart, PC. She

focuses her practice on employment litigation and consultation and commerciallitigation.

1 9 9 9Jeremy Gaston has become a partnerin the law firm of Mayer, Brown, Rowe &Maw LLP. His focus is in the areas of commercial litigation, antitrust, intellectual property, class actions, andsecurities law.

Dr. Eric Hall has become a partner inthe law firm of Fullbright & Jaworski LLPHis practice focuses on patent law andcommunication technology issues.

Laurie Jardine has been selected as a shareholder in the law firm of Winstead PC.She works in the Dallas office

serving clients in the practice area ofLitigation/Dispute Resolution.

Bradley S. Knippa has become a partner in the law firm of Jackson Walker LLP.He is a member of the firm’s

Business Transactions, Real Estate, andTax section in the Austin office.

Suzanne M. Scheuing has joined thelaw firm of Freeborn & Peters LLP as an associate in the Bankruptcy,Restructuring, and Creditors’ Rightspractice group in Chicago.

Amy C. Welborn has joined the law firm of Cantey Hanger LLP as an associate inthe Austin office.

Scott A. Wheatley has become a partner at the law firm of Jackson Walker LLP.He is a member of the firm’s

Litigation section in the Dallas office.

2 0 0 0Harry R. Beaudry has become a partnerin the law firm of Thompson & KnightLLP. He is a member of the firm’sCorporate and Securities Practice Groupin Houston.

William M. Fisher has been named ashareholder at Cox Smith MatthewsIncorporated. He is a member of the firm’sEmployee Benefits and Tax Departmentin San Antonio.

Karen Monsen was accepted to participate in the Leadership San Antonio’s2006–2007 class. Candidates

are selected annually to participate in aten day curriculum over the course ofnine months through a rigorous application

S p r i n g 2 007 UT L AW 5 1

CL

AS

SN

OT

ES


and interview process. Leadership SanAntonio, a ten-month community leadershipprogram, trains participants in civicresponsibilities by providing education onissues in the San Antonio communitysuch as economic development, criminaljustice, education, health care, humanservices, government, and politics. Theprogram is designed to develop leadershipand networking skills and foster collaborationsaddressing regional issues.

Gaye White has become a partner inthe law firm of Thompson & Knight LLP.She is a member of the firm’s Oil and GasPractice Group in Austin.

2 0 0 1Victoria L. Cook has become a partnerin the law firm of Susman Godfrey LLP inthe Houston office.

President George W. Bush namedMyriah Jordan as special assistant tothe president for policy. Jordan recentlyserved as special assistant for the chiefof staff for policy at the White House.

Nickolas G. Spiliotis has joined the law firm of Winstead PC as an associatein the Labor & Employment

Section of the Houston office.

2 0 0 2Luke Ellis, an associate with Jackson Walker in Austin, was accepted to participatein the Leadership Austin’s

2006–2007 class. Fifty-five candidatesare selected annually to participate in aten day curriculum over the course ofnine months. The program is designed todevelop leadership and networking skillsand foster collaborations addressingregional issues.

Bernard J. Kearney III, an associatein the Milwaukee office of Quarles &Brady LLP, has been recognized by Law &Politics as a Wisconsin Rising Star 2006.

Joseph R. Marrs has joined the law firm of Jackson Walker LLP as an associate inthe Litigation section of the

Austin office.

2 0 0 3Amanda Bush, an associate at Jackson Walker LLP, has been recognized by FortWorth, Texas magazine for

excellence in Intellectual Property Law.

Seth Kretzer has joined the law firm ofFulbright & Jaworski LLP as an associatein the Houston office. His practice focuseson business litigation with an emphasison antitrust and securities matters.

2 0 0 5Michael Song was appointed U.S. federal prosecutor after serving as anassistant U.S. district attorney.

2 0 0 6Reed A. Artim has joined the law firm of Winstead PC as an associate in the RealEstate/Real Estate Finance

Section of the Dallas office.

Aron R. Burnett has joined the law firm of Jackson Walker LLP as an associate inthe Business Transactions

section of the Austin office.

Denyse J. Demel has joined the law firm of Jackson Walker LLP as an associate inthe Business Transactions

section of the Dallas office.

Joe F. Flack III joined the Thompson & Knight’s oil and gas practice group in Houston.

Mason Hestor has joined the construction law firm of Andrews Myers Coulter &Cohen as an associate

in Houston.

Michael L. Laussade has joined the law firm of Jackson Walker LLP as an associate inthe Business Transactions


Schuyler B. Marshall V joined theThompson & Knight’s trial practice groupin Austin.

Sam L. Merrill joined the Thompson &Knight’s tax practice group in Dallas.

Sharon J. Murry-Roberts joinedBlackwell Sanders Peper Martin’s litigationdepartment in the Kanas City office.

Lauren E. Mutti has joined the law firm of Jackson Walker LLP as an associate in the Labor & Employment


Stephen T. Olson has joined the lawfirm of Baker Hostetler as an associate inthe Houston office.

Gregory W. Palmer joined Thompson& Knight’s real estate and banking practicegroup in Dallas.

Travis R. Phillips has joined the law firm of Winstead PC as an associate in the Real Estate/Real Estate

Finance Section of the Dallas office.

Jill J. Robertson-Li joined theThompson & Knight’s Tax practice groupin Dallas.

Zachary D. Sakas has joined the Phoenix office of Snell & Wilmer LLP.

Tara M. Thompson joined theThompson & Knight’s real estate andbanking practice group in Dallas.

David S. Wagner has joined the law firm of Baker & Daniels LLP as an associate.He practices labor and

employment law from one of the firm’sIndianapolis offices.

CL

AS

SN

OT

ES

5 2 UT L AW S p r i n g 2 007


T H R O U G H 2 0 0 6

Dillard W. Baker, ’36, passed away

on January 29, 2007. He practiced law

with his father and brother until he was

employed by the Law Department of

Humble Oil and Refining Company. In

1961, he was appointed General Attorney

and remained in that position until he

retired from Exxon U.S.A., the successor

company of Humble Oil and Refining

Company, in 1977.

Edward Wallace Austin, ’37, died

January 17, 2007 at the age of ninety-five.

After retiring from the military in 1966 he

worked for the Texas Rehabilitation

Commission as General Counsel and as

Assistant Commissioner for Legal

Services. After retiring from the

Commission, he continued to serve as

Administrative Hearing Judge for the

State Commission for the Blind and the

Texas Rehabilitation Commission.

Saunders Gregg, Jr., ’37, died

January 20, 2007 at the age of ninety-two.

Gregg practiced law in Houston before

joining the United States Navy during the

Second World War. After the war, he

finished his career with Entex in Houston as

a Senior Vice President, General Counsel,

and member of the Board of Directors.

M. M. “Mack” Stripling, ’37, died

September 23, 2006. Stripling received

numerous awards and commendations

for various efforts and activities including

being Texas Delegate to the National

Democratic Party Convention in 1964 in

Atlantic City.

W. David Ralston, ’38, died

December 5, 2005. Ralston practiced law

in Corsicana for fifty-four years. He also

served as Navarro County judge and

Corsicana city attorney.

Pendleton Gaines Baldwin, ’39, died

February 10, 2007 at the age of ninety-one.

After graduation he became an FBI agent

for two years and then went on to serve in

the United States Air Force during World

War II. He was a member of the law firm

Abney Abney and Baldwin where he

practiced oil and gas law until his

retirement in 1987.

Doyle McDonald, ’40, died October

13, 2006. McDonald joined his father in

practicing law. Shortly after, he was

called for military service, where he was

stationed in England with the Eighth

Army Air Corps and was the bombardier

of a Flying Fortress B-17 named The

Paper Doll. The plane was shot down over

Germany in 1944. McDonald was

captured and served thirteen months as

a prisoner of war. The Lone Star Flight

Museum was the site of a commemorative

ceremony honoring The Paper Doll’s crew

on March 24, 2003. Following liberation,

Doyle returned to Galveston and resumed

law practice.

Meyer Clyde Wagner, Jr., ’40, died

January 22, 2007 at the age of eighty-

eight. He practiced law at Jaffe, Wagner

& Lipscomb in Dallas.

Harry Wilbur Hobbs, ’41, died

February 10, 2007 at the age of eighty-

eight. He served with the Post Office

Department for twenty-six years as

Regional Personnel Manager, then as

Director of Personnel in Washington DC.

He then went on to serve as an Assistant

City Attorney for the City of Dallas.

William Edward Stapp, ’41, died in

September 2006. A veteran of the

Second World War, Stapp returned to

Texas to become an attorney, first serving

with the Attorney General’s office in

Austin, and later joined Vinson & Elkins,

where he became a senior partner.

Darrell Lee Hemphill, ’42, passed

away on November 6, 2006 at the age of

ninety-three. He practiced law in

Brownsville, Texas for forty-five years

until his retirement in 1991.

John Harold Whittington, ’42, died

December 20, 2006 at the age of eighty-

seven. Whittington enlisted in the Navy

during World War II while completing law

school. Upon retirement from the Navy he

worked for the Veterans Administration’s

legal department. He went on to serve as

Dallas County judge and on the Irving

City Council, the Dallas County

Commissioners Court, the 5th District

Court of Appeals, and the bench of state

district civil and family courts.

E. Randolph Dale, ’43, passed away

on December 25, 2006.

J. Talbot Rain, ’43, died September 3,

2006. Following law school, Rain joined

the Dallas law firm Thompson, Knight,

Wright & Simmons. In 1965, he founded

I N M E M O R I A M

S p r i n g 2 007 UT L AW 5 3

IN

M

EM

OR

IA

M

53-55_InMemoriam 6/8/07 12:32 AM Page 63

5 4 UT L AW S p r i n g 2 007

SP

RI

NG

2

00

7 Rain Harrell Emery with his brother and

five other lawyers from his previous firm.

The Rain Harrell Emery Young & Doke

firm grew and in 1987 it merged with

Locke, Purnell, Boren, Laney & Neely to

form Locke Purnell Rain Harrell. Rain

retired from practice in 1991. In 1999, his

firm merged again and became what is

now Locke Liddell & Sapp.

Ferinez Briminstool Phelps, ’44,

died January 12, 2006.

Charles Edward Clark, ’48, passed

away November 24, 2006 at the age of

eighty-five. Clark authored the 1954 Civil

Rights Act and co-authored the Bill in

1964 with President Lyndon Johnson. He

was regional director of EEOC from 1966

until his retirement in 1979.

Spearos Gus Kolius, ’48, of Houston,

died December 24, 2006.

The Honorable Charles Hale

Store, ’48, died October 19, 2006.

Justice Store began his law practice in

Weslaco and later moved his practice to

Dallas in the early 1950s where he practiced

law for over forty years. Justice Store

accepted his first judicial appointment to

the Dallas County Court at Law No. 3, and

was appointed to the 95th Judicial

District Court and to the Court of

Appeals, 5th Supreme Judicial District of

Texas. After retiring from the Bench, he

served for eight years in an appointment

to the Texas Board of Law Examiners.

Elected to the Dallas City Council in 1973,

he served in numerous leadership capacities.

Charles Richey Ebersole, ’49, of

Houston, died December 5, 2006.

Ace Hill Alsup, Jr., ’49, died August

31, 2006 after a brief illness. Alsup

practiced law in Temple and finished his

professional career as the Assistant

Executive Director of the Teacher

Retirement System.

Daniel Lindsay Rentfro, Sr., ’49,

died February 16, 2007. He served

overseas with the 84th Infantry Division,

most notably in the Battle of the Bulge,

and was awarded numerous commendations.

After law school he joined the family firm,

now known as Rentfro Faulk, where he

practiced until his retirement in 2004.

Throughout his life he was involved in

a variety of church, community, and

philanthropic organizations.

Frates Slick Seeligson, ’49, passed

away November 28, 2006 at the age of

eighty-three. He served in the Texas

House of Representatives from

1953–1960. He went on to serve as

President of Santa Gertrudis Breeders

International and of Texas and

Southwestern Cattle Raisers Association.

Edwin Leo Brahaney, ’50, of

Midland, Texas, died November 14, 2006.

The Honorable James DeAnda,

’50, retired Chief Judge of the Southern

District of Texas, died September 7,

2006. Judge DeAnda graduated from UT

Law in 1950 when there were only a

handful of Hispanic law students. After

graduation from the Law School, DeAnda

practiced with Houston attorney John J.

Herrera. In the mid-1950s he moved to

Corpus Christi, and through his associations

with the American GI Forum, the League

of United Latin American Citizens, and

the Mexican American Legal Defense and

Education Fund, DeAnda became

involved in landmark cases dealing with

discrimination in the public education

system in Texas. Those cases include

Hernandez v. State of Texas, Hernandez

v. Driscoll CISD, and Cisneros v. Corpus

Christi ISD. In Cisneros, the United States

Supreme Court extended for the first time

Brown v. Board of Education to Mexican

Americans. In 1979 President Jimmy

Carter appointed DeAnda to the United

States District Court for the Southern

District of Texas. The judge became only

the second Mexican American appointed

to the federal bench. After retiring from

the bench in 1992, DeAnda continued to

practice law with the Houston firm Solar

& Associates and to be involved in the

struggle to secure civil rights for all citizens.

John Richard Dale III, ’50, died

September 5, 2006. Dale practiced law in

Livingston and Lufkin, Texas, before

moving to Kansas City to work for the

federal government.

William Bryan Finklea, ’50, passed

away on December 21, 2006.

Hugh Patrick Shovlin, ’50, died

January 28, 2007. Shovlin served in the

United States Attorney’s Office, serving

as Chief of the Civil Section. In 1975, he

was appointed to serve as the interim

United States Attorney of the Western

District of Texas.

Robert Charles Connor, ’51, died

December 4, 2006.

Elwood Joe Gaus, ’53, died April 16,

2006.

Rogan Banton Giles, ’53, died

February 16, 2007. He opened his own

law practice in Austin and served on the

State Bar Grievance Committee for six

years. Giles also served as President of

the Travis County Bar Association from

1975–1976.

Harold Francis Curtis, ’57, passed

away December 14, 2006 at the age of

seventy-five. He practiced law in his

hometown of Greenville, Texas.

J. Lee Dittert, Jr., ’57, died November

3, 2006.

Paul MacDonald Green, ’57,

died September 14, 2006. Green was a lit-

igation attorney, who honed his skills

under the tutelage of his mentor, Beb

Ladon. Green served as president of the


S p r i n g 2 007 UT L AW 5 5

IN

M

EM

OR

IA

M

Texas Association of Defense Attorneys

(T.A.D.C.), and was a member of the

American College of Trial Lawyers.

Robert H. “Bob” Manderson, ’57,

died October 4, 2006. Manderson was a

retired attorney in Austin.

David Hamilton Brune, ’58, died

January 13, 2007 at the age of seventy-six.

He began his law career with a San

Antonio law firm, during which time he

also served as general counsel for the

San Antonio River Authority and later

became the general manager for the

group. He helped develop the Las Colinas

project in Irving and he served as

President and Chief Executive Officer of

the Dallas County Utility and Reclamation

District until 1999.

Donald N. Goldston, ’58, died

October 21, 2006. Goldston worked for

the General Land Office, where he served

as Executive Secretary of the Veterans’

Land Board and as Legal Director. From

January of 1963 until his recent

retirement he was an attorney in private

practice in Austin.

Norma Fink-Huffaker, ’60, died

October 17, 2006.

The Honorable Eduardo Santiago

Marquez, ’60, died September 18,

2006. Marquez made national headlines

in 1994 when he convened a series of

courts of inquiry and challenged the state

of Texas to stop shortchanging his

community in everything from money for

highways to social services for hundreds

of abused and emotionally traumatized

children, the elderly, and mentally ill people.

Glynn Ray Purtle, ’61, died January 6,

2007. Purtle practiced law for forty-four

years in Wichita Falls. He was a member

of Fillmore and Purtle and served as

president of the Wichita County Bar

Association in 1972.

Richard Allen Barras, ’62, died

February 3, 2002. Barras practiced law

until August 2001. He was managing

partner of Lumpkin, Barras, Reavis and

Bunkley and later partner of Barras and

Bunkley.

Malcolm Dade, ’62, died September

26, 2006.

Jim Bob Brookshire, ’66, died

December 14, 2006 at the age of sixty-

five. He was employed as a prosecutor

with the Williamson County Attorney’s

office, followed by ten years with the

Federal Trade Commission in Dallas. In

1979 he established his own private

practice in Georgetown, Texas, where he

practiced criminal and family law for

twenty-seven years.

Elwood Lawrence Munson, ’66, of

Austin, died December 28, 2006.

David Jennings Shaw, ’67, died

September 15, 2006. Shaw worked as an

Assistant City Attorney for the City of

Austin prior to entering private law practice.

Gerald G. Huffaker, ’68, died August

19, 2006. He practiced law in Tahoka,

Texas at Huffaker Green & Huffaker.

H. Lee Lewis, Jr., ’69, died

September 11, 2006. Lee served as a law

clerk for Federal District Judge John J.

Fisher and joined the law firm of

Fulbright and Jaworski in 1970, where he

practiced Maritime Law. In 1978 he joined

the law firm Ross, Griggs, and Harrison,

where he was a partner and enjoyed

a twenty-five year practice as a defense

litigation attorney.

W. Michael “Mike” Stephens, ’70,

died October 4, 2006.

Steven William Arronge, ’72, passed

away January 14, 2007 at the age of fifty-nine.

He served as an Assistant City Attorney

and City Attorney of San Antonio for

thirty years. Following his service to the

city he opened his own practice.

Thomas Owen Matlock, Jr., ’75,

died January 24, 2007. Matlock was

licensed by the Supreme Court of Texas

as an Attorney and Counselor at Law in

1975, and was a board certified Civil Trial

Lawyer.

Luis Augusto Moreno, ’75, died

January 9, 2007 at the age of fifty-seven.

He practiced law at Villarreal, Moreno &

Ruiz in San Antonio.

David Alan Dwyer, ’79, of Houston,

died November 28, 2006.

Charles Ronald Kalteyer, ’79,

passed away December 16, 2006 at the

age of fifty-three. After graduating he

was an attorney at the law firms of

Jackson Walker LLP and Vinson & Elkins

LLP. Kalteyer later went on to teach at

the SMU Dedman School of Law before

joining the Dallas office of Locke Liddell

& Sapp LLP.

William David Simmons, ’82,

passed away December 15, 2006 at the

age of forty-eight. He had a twenty-year

career as a partner at the law firm of

Storey Armstrong Steger & Martin PC

and the law firm of McGuire, Craddock &

Strother, PC.

Michael David Reyna, ’93, died

October 10, 2006.

Marisol Soledad Moreno, ’00, died

November 8, 2006 at the age of forty-

nine. She was a broker/owner of Gold

Quest Realty & Gold Quest Mortgage in

Houston.


Last March, UT-Austin hosted its annual open house—ExploreUT. This day-long event for kids of all ages was filled with anastonishing variety of activities across the campus. One of UTLaw’s contributions to the festivities that day included the mocktrial of Gold E. Locks, accused of breaking and entering into thehome of The Three Bears. The trial was presided over by JudgeEdward Prado, ’72, of the U.S. Court of Appeals for the FifthCircuit. Participants included UT Law students as well as boysand girls chosen from the standing-room-only crowd.

CL

OS

IN

G

AR

GU

ME

NT

The Trial of Gold E. Locks

Before the trial began, Judge Prado spoke on the role of the courts

in American society.

Judge Prado and his judicial clerk (pictured here in sunglasses)

assisted with jury selection.

Counsel for the prosecution (David Currie, ’08) made his opening

arguments.

5 6 UT L AW S p r i n g 2 007

Gold E. Locks celebrated her acquittal by posing for paparazzi.

There were concerns among court observers about the wisdom of

the defense calling the Big Bad Wolf (Mitch Hasenkampf, ’09) to

serve as a character witness.

Papa Bear (Teo Seger, ’09) waited to testify while Judge Prado

ruled on a motion.

Counsel for the defense (Betsy Keller, ’09) argued for the accused,

Gold E. Locks (Lisa Holcombe, ’09).

Photos: Mark Rutkowski

56_ClosingArgument 6/11/07 10:17 PM Page 1

Michael SugarmanConnect-the-Dots

Longhorn Pendant $2,100

Limited Edition Bevo & Roses,

Sterling & 14kt. Gold $975

Limited Edition Bevo National Champions

Buckle, Sterling & 14kt. Gold $1,250

Limited Edition Tower National Champions

Buckle, Sterling & 14kt. Gold $1,250

Questa, Sterling $270

Gator, Sterling $350

Lariat, Sterling $430

Gold Ribbon, Sterling & 14kt. Gold $650

Engraved Prestige, Sterling & 14kt. Gold $750

9722 Great Hills TrailAustin, Texas 78759

Next to Saks Fifth Avenue

University of TexasNecklace

Lone Star Lady Necklace StoryWheels™ sold individually

StoryWheels™

Rewards features over 350 sterling silver and solid gold buckles by America’s most famous makers;

an incredible selection of money clips, wallets, cuff links, watches and jewelry; belts in alligator, hornback alligator, ostrich, lizard, hand-carved

leather, bison and calf, in all sizes up to 60.“Bevo National Championship Buckle,”

“Tower National Championship Buckle,” “Bevo & Roses”& “UT StoryWheel” officially licensed by the University of Texas.

Connect-the-DotsEarrings $1,650

Pin/Pendants

Call to order or for our free belt buckle and jewelry catalogs.

(512) 502-9799WWW.SHOPREWARDS.COM

Cowboy, Sterling Engraved & 14kt. Gold $750

Sunset, Sterling & 14 kt. Gold Engraved $750

14kt.Courage with

Diamonds $1,120

14kt.Patience with

Diamonds $990

07 REWARDS UTlaw.indd 1 5/16/07 5:42:59 PMutl_rewards_0507.indd 1 6/7/07 2:35:35 PM

THANK YOU, REUNION SPONSORS

Michelle & Bryan Goolsby

Locke Liddell & Sapp LLP

Bracewell & Giuliani LLP

Akin Gump Strauss Hauer & Feld LLP

Andrews Kurth

Vinson & Elkins

Steve Tatum

David J. Beck

University of Texas School of Law727 East Dean Keeton StreetAustin, Texas 78705

www.utexas.edu/law

PRSRT STDU.S. POSTAGE

PAIDDALLAS, TX

PERMIT NO. 3013

Cover_Spring07 6/12/07 4:42 PM Page 1

law › ... › uploads › sites › 5 › archive › utlaw_2007_s… · 41 portrait of a dean:...

Documents