WVU College of Law Magazine 2015

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TWO VIEWS ON THE EPA CLEAN POWER PLAN TWO EXPERTS ADDRESS PRESIDENT OBAMA’S CLIMATE CHANGE INITIATIVE’S IMPACT ON WEST VIRGINIA.

ALSO INSIDE:

Q&A WITH JACI GONZALES

Q&A WITH DEAN BOWMAN

LAWYERS AS LEADERS

The 2010 graduate was co-counsel in Obergefell v.

Hodges, the Supreme Court marriage equality case.

Gregory W. Bowman is the College of Law’s newly appointed dean.

Law professor and former WVU president David C. Hardesty, discusses building leadership.

Greetings from the Mountain State!

This is WVU Law’s second magazine, and the first under my permanent deanship. Like last year’s inaugural issue, this second issue shows what an incredibly dynamic institution WVU Law is. Many wonderful things happen here on Law School Hill, and we are proud of the many ways we improve legal education and promote justice.

My faculty colleagues and I work hard at what we do. Through our classroom teaching, our work on study abroad and exchange programs, our legal scholarship and presentations and our public service, we mentor and train the lawyers and leaders of tomorrow. In fact, we have been doing so for over 137 years, since WVU Law first opened its doors in 1878.

In honor of our long tradition of excellence, this issue includes an article on WVU Law’s first female graduate, Agnes Westbrook Morrison. Agnes earned her law degree exactly 120 years ago, in 1895. Following graduation, she pursued a fruitful legal career years before women had the right to vote — and in a time before many law schools even admitted women.

Another article in this issue addresses the national dialogue about America’s energy future.

The EPA’s Clean Power Plan lies at the center of this debate — and WVU Law Professor Jamie Van Nostrand, who serves as director of our Center for Energy and Sustainable Development, is actively engaged in this discussion. Power generation, environmental impacts and the future of the coal industry are critically important topics for West Virginia, and Jamie has a pragmatic, need-to-do approach to the Clean Power Plan. His friend and colleague Gene Trisko, an attorney for the United Mine Workers Association, has a different perspective based on the realities of the coal industry. The point of offering these different perspectives is that as West Virginia’s only law school, we are deeply committed to serving as a forum for discussion and analysis of this important topic. After all, West Virginia is an energy state that faces significant challenges and opportunities under the Clean Power Plan.

Another high-profile national issue is same-sex marriage. Earlier this summer, all eyes were focused on the United States Supreme Court’s landmark decision in Obergefell v. Hodges.

That decision, which made same-sex marriage legal in all 50 states, is the biggest civil rights case so far in the 21st century. In this issue we’ve included an article on WVU Law graduate Jaci Gonzales Martin, who served as co-counsel for Jim Obergefell. Jaci proudly attributes her inspiration to some of her professors at WVU Law. Jaci’s example underscores what I wrote above — that at WVU Law we train both lawyers and leaders. The work of my faculty colleague David Hardesty in this area is highlighted in this issue. David is one of the nation’s leading experts on lawyers and leadership, and he has written a guide to building leadership at law firms and law-related organizations. David’s entire life, in fact, has been a testament to leadership, including the 12 years he served as president of West Virginia University. David brings his lifetime of experience into the classroom and makes our law school better.

These are all great stories, and they truly reflect who we are at WVU Law, and what we do.

You’ll find a lot more to read in this issue too. We hope you enjoy the magazine! And if you find yourself in Morgantown, please come visit us on Law School Hill.

FALL 2015

Gregory W. Bowman

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Dean, WVU College of Law

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ADMINISTRATION E. Gordon Gee President, West Virginia University Joyce E. McConnell University Provost and Vice President for Academic Affairs

EDITORIAL BOARD Gregory W. Bowman Dean Gregory G. Elkins Associate Dean for Administration and Finance Atiba R. Ellis Professor of Law Vonda Kirby Class of 2009, Attorney Anne Marie Lofaso Professor of Law James A. McLaughlin Robert L. Shuman Professor of Law John E. Taylor Professor of Law

EDITORIAL STAFF James H. Jolly Director of Marketing and Communications

Kathy DeWeese University Editor

Tatsu Johnson

Web/Media Designer

Kaylyn Christopher

Public Relations Specialist

ART DIRECTION & DESIGN WVU University Relations-Design Sheree Wentz Multimedia Specialist

PHOTOGRAPHY WVU University Relations-Photography M.G. Ellis Senior Photojournalist Brian Persinger Photojournalist

EDITORIAL OFFICE College of Law 101 Law School Drive PO Box 6130 Morgantown, WV 26506 Phone: (304) 293-5301 Fax: (304) 293-6891 E-mail: wvulaw@mail.wvu.edu

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Cover image courtesy of Ben Long, Class of 2013

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CONTENTS

StrengthsQuest at 1L Orientation

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DEPARTMENTS

FALL 2015

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College Highlights Student Briefs Faculty Briefs Question and Answer Profiles Development

Coal trains in Bluefield, West Virginia (top) by Michael Quick, Creative Commons Attribution-NonCommercial-NoDerivs United States Supreme Court Building (right) by Ted Eytan, Creative Commons Attribution-ShareAlike WVU is an Equal Opportunity/Affirmative Action Institution. The WVU Board of Governors is the governing body of WVU. The Higher Education Policy Commission in West Virginia is responsible for developing, establishing, and overseeing the implementation of a public policy agenda for the state’s four-year colleges and universities. WVU is accredited by the Higher Learning Commission. Many WVU programs hold specialized accreditation. (119444)

FEATURES

Impacts of the EPA Clean Power Plan

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Agnes Westbrook Morrison

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Perspectives on the EPA Clean Power Plan

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Lawyers as Leaders

1L Orientation Includes StrengthsQuest

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An Inside Look at Obergefell v. Hodges

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HIGHLIGHTS

College Highlights

DEVELOPMENT

PROFILES

Q&A

BRIEFS

Eliminating the School to Prison Pipeline

FALL 2015

Paulette Brown, president of the American Bar Association.

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As the United States becomes more demographically diverse, legal education has a key role to play in the country’s growth and success.

That’s according to Paulette Brown, president of the American Bar Association, who spoke at the opening of the 15th annual Mid-Atlantic People of Color Conference at WVU Law earlier this year.

“More diversity and inclusion in the legal profession will bring new perspectives to our democracy and the judicial system,” she said. “Diversity and inclusion are important to the future prosperity and well-being of our nation.”

Brown went on to explain that “lawyers have a critical role to play in maintaining democracy and ensuring there is justice at all levels of society, and that includes bringing different types of people into the law.”

While the United States has made great legal strides for diversity and inclusion in recent history — including civil and LGBT rights — there is more work ahead, according to Brown.

“There is still a lot that needs to be done, it will take all of us to create a framework and a narrative that minimizes the challenges and focuses squarely on the opportunities and advantages of diversity and inclusion for our future.”

Brown cited the school to prison pipeline that plagues many American communities as a “critical” legal diversity and inclusion issue.

“Its impact on the future and our ability to have the well-educated and diverse workforce we so desperately need is too often overlooked,” she said.

Zero tolerance policies in public schools are disproportionately impacting students of color, according to Brown, and have gone beyond their original bans on weapons, drugs and threatening behavior. (The ABA has opposed zero tolerance policies in schools since 2001.)

As a result, “many of the children suspended [for breaking the rule] drop or are pushed out of school and eventually find their way to prison,” she said.

To stop this path through the courts, Brown says lawyers need to work to ensure that “children who are thrown out of school continue to have access to quality education.”

She also envisions a training system for lawyers (especially judges and prosecutors) to become more aware of diversity issues as a way to overcome the biases that result in disproportionate sentencing.

“Children of every background should be afforded the opportunity to use the education portal to access all that is available to the more privileged, ultimately resulting in a better nation for all of us,” said Brown. “It will take all of our creativity and commitment to make sure all children have opportunities.”

Energy LL.M. on the Road: Three Mile Island Students and faculty in the Energy and Sustainable Development LL.M. program visited the Three Mile Island reactor near Middletown, Pennsylvania, in the spring. They toured the site of the most serious nuclear accident on U.S. soil, including the shut-down reactor, and learned firsthand from experts about the facility and nuclear energy regulation. Three Mile Island is operated by Exelon.

Griffin: Regional Offices Are the NLRB’s Strength The NLRB’s divisions of Advice, Appeals, and OperationManagement provide the organizational structure that gives onthe-ground authority to its 26 regional offices around the country, according Griffin.

“The regional directors exercise prosecutorial discretion on behalf of the general counsel,” he said. “The litigation of complaints takes place usually without the involvement of Washington.”

The number of cases litigated by the NLRB is statistically low.

Griffin pointed out that in 2014 there were 20,415 unfair labor practice cases filed through the regional offices. Of these, more than 60 percent were found without merit, and 93 percent of the remaining cases were settled without litigation.

While the decentralization of power at the NLRB helps make it an effective agency, Griffin said that a daily challenge is guaranteeing the uniform application of the law. That, however, is managed by complete access across the NLRB to electronic versions of all case files, ensuring the delivery of the “same brand of justice.”

Griffin was sworn in as general counsel of the NLRB on November 4, 2013, for a four-year term.

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Richard F. Griffin, Jr., the general counsel of the National Labor Relations Board (NLRB), delivered the 24th annual Charles L. Ihlenfeld Lecture on Public Policy and Ethics at the College of Law in April.

Griffin noted that the NLRB general counsel technically has “unreviewable prosecutorial discretion,” but in reality, that power is limited by the organizational and administrative structure of the agency.

“The agency has no independent investigatory authority,” he said, “and the prosecutorial apparatus cannot be activated without the filing of an unfair labor practice charge.”

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FALL 2015

DEVELOPMENT

PROFILES

Q&A

BRIEFS

HIGHLIGHTS

May 2015 Hooding and Commencement

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WVU’s first class of LL.M. graduates in Energy and Sustainable Development Law.

Charlene Jennings Marshall, a former 14-year member of the West Virginia House of Delegates, received an honorary doctor of laws degree.

Order of the Coif: Class of 2015 Michael James Spooner — Orange, Massachusetts David Ray Stone — Morgantown, West Virginia Ralph Charles Surman — Pittsburgh, Pennslyvania Amanda Lauren Tomblyn — Elkins, West Virginia Jason William Turner — Morgantown, West Virginia Paige Kasmier Vagnetti — Morgantown, West Virginia Stephanie Lynn Zwerner — Cicero, Indiana

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Nicole Michelle Annan — Fairmont, West Virginia Jason Lee Holliday — Chicago, Illinois Joel Patrick Jones — Huntington, West Virginia Kate Michelle Lacy — Charleston, West Virginia Kaitlyn Nicole McKitrick —Wheeling, West Virginia Whitney Rachel Morgan — Austin, Texas John Dominic Pizzo — West Milford, New Jersey

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HIGHLIGHTS

Clinic Handling Cases from Faulty FBI Hair Analysis

FALL 2015

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Q&A

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Earlier this year, the FBI admitted to mistakes made by its Microscopic Hair Comparison Analysis Unit over a period of more than 20 years prior to 2000.

Forensic analysis of a suspect’s hair found at a crime scene can be the key evidence in murder and rape convictions.

However, the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project have said that the flawed FBI evidence was used in more than 250 trials and could have led to the conviction of hundreds of innocent people since the 1970s.

Two cases of faulty hair analysis are now being handled by the College’s West Virginia Innocence Project (WVIP) law clinic.

The clients are seeking new testing of the hair evidence used to convict them.

“Although previous hair analysis often relied on visual comparisons, now we have made the technological advances to be far more accurate, including DNA testing,” said Valena Beety, director of the WVIP. Beety points out that the Department of Justice (DOJ) also conducted its own internal evaluation beginning in 1994, when it created a task force to investigate hair analysis as part of an overall review of misconduct within the FBI. The evaluation was concluded after nine years, and the results were never made public. The DOJ officially stated they were under no obligation to inform defendants.

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According to Beety, the DOJ and FBI refused to expose their faulty behavior despite the fact that 22 percent of the first 200 DNA exoneration cases were convictions based on hair microscopy testimony.

Now, in collaboration with NACDL and the Innocence Project, further investigation is under way. As part of its review, the FBI is providing new DNA testing at no cost.

Charles R. “Manny” Kilmer of Martinsburg, West Virginia, is one the WVIP clients seeking new DNA testing of evidence used at his trial. Kilmer was convicted in 1991 of murder and sentenced to life without mercy. He has turned to the WVIP after spending the last two decades claiming his innocence and fighting to get his conviction overturned. The prosecuting attorney’s office is currently opposing Kilmer’s motion for DNA testing.

The WVIP’s other client, who wishes to remain anonymous, was alerted by the FBI that a lab analyst had given faulty testimony at his trial. The FBI is providing free DNA testing in order to discern the true perpetrator of the crime.

“FBI agents not only testified falsely in our courts, they trained our own state lab technicians fraudulently during those decades,” says Beety. “Now is the time to test the DNA evidence in these identified cold cases.”

FBI hair analysis cases for the West Virginia Innocence Project are one of many opportunities for students in WVU’s clinical law program.

EXCEL. LEAD. SERVE. West Virginia University’s LL.M. program will take your career into new territory.

ENERGY AND SUSTAINABLE DEVELOPMENT LAW Shape the future of energy right where it’s evolving, in the heart of the Marcellus Shale.

FORENSIC JUSTICE Become a more effective prosecutor, public defender or criminal defense attorney through the only ABA-accepted forensic justice LL.M. in the nation.

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law.wvu.edu/llm

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HIGHLIGHTS

Student Briefs

DEVELOPMENT

PROFILES

Q&A

BRIEFS

Small Town Girl, Big City Externship

Alyson Furey, Class of 2016, during her externship at The Wilderness Society in Washington, D.C.

FALL 2015

Perseverance and persistence are unlocking career opportunities for rising 3L Alyson Furey.

“I’ve been saying since the beginning of my first year that I was going to get an externship in a big city,” said Furey, a native of small Fort Ashby, West Virginia (population 1,380).

This summer, she made good on her word by taking a job at the Washington, D.C., headquarters of The Wilderness Society, the national conservation organization.

“To finally be able to back up all my talk was exciting,” said Furey. “I found this externship by going through the grind, job searching and guerilla marketing myself. I took a snowball’s chance at it, got the interview and it was a done deal.”

In her externship, Furey matched her career interest by conducting transactional work in the Office of the General Counsel at The Wilderness Society.

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“We handled anything from tax compliance issues to labor law issues,” she said.

Returning to law school, Furey is bringing with her a newfound confidence.

“I’m pretty shy, but it’s taught me to be an active voice and to not be afraid to speak up,” she said. “Washington, D.C., is a hustle-bustle city. From 7 a.m. to 9 p.m., people are working and moving, and that kind of atmosphere is contagious because everyone is trying to progress.”

Furey, who earned her bachelor’s degree in advertising from WVU, said opportunities like hers are out there for any student who is willing to put in the time and effort.

“You’ve got to reach out to people, and you can’t be afraid to put yourself out there,” she said. “You’re going to hear a hundred ‘no’s’ before you hear a ‘yes,’ but it’s that ‘yes’ that gets your foot in the door.”

Study Abroad: Brazil

WVU Law students spent three weeks in Brazil this summer. The comparative law trip took students to the Amazon, where they studied environmental and property law, before attending lectures at the University of Vila Velha in Vitoria. There was also a side trip to Rio de Janeiro.

“We were able to immerse ourselves into the culture and see the law through another country’s perspective,” said Paige Diggs, Class of 2017, of Amarillo, Texas. “It not only brought the issues that Brazil faces to the forefront, as it continues to rise on the international stage, but it also brought to light matters that — as attorneys — we can help change here in the United States. By looking into the issues Brazil faces, it highlights the value of a developed and stable legal system.”

Hogan to Lead the Law Review Dispute Resolution Society. Hogan is currently working in an externship for the legal division of the Centers for Disease Control and for Allan N. Karlin & Associates in Morgantown.

A graduate of Morgantown High School, Hogan earned his bachelor’s and master’s degrees in education from WVU. Founded in 1894, the student-run West Virginia Law Review is the fourth-oldest law review in the country.

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Ben Hogan ’16 of Morgantown, West Virginia, has been selected by his peers to serve as the editorin-chief of the West Virginia Law Review for the 2015-2016 academic year.

In addition to his role within the Law Review, Hogan is a graduate assistant at WVU Student Legal Services, the treasurer for the Public Interest Advocates, and a board member for the West Virginia Fund for Law in the Public Interest. He also participates in magistrate court mediations through the Alternative

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DEVELOPMENT

PROFILES

Q&A

BRIEFS

HIGHLIGHTS

Smith Quotes Celebrity Chef, Wins Baker Cup

The winner of this year’s George C. Baker Cup Moot Court Competition might forever be remembered for quoting a celebrity chef.

Chris Smith ’16 (right) of St. Albans, West Virginia, won the 2015 Baker Cup with a little help from Chef Rachel Ray. Michael Secret ’16 (left) of Clarksburg, West Virginia, was the runner-up.

Smith and Secret argued before the Justices of the Supreme Court of Appeals of West Virginia, who selected the winner. The problem this year involved warrantless government intrusions into kitchens.

At one point in his argument, Smith memorably used a partial quote he attributed to Ray: “Good food and a warm kitchen are what makes a house a home.”

“I thought it would be fun, and it highlights the importance of the familial kitchen,” said Smith.

The Baker Cup Best Brief Award was won by Ryan Shreve ’16, of Princeton, West Virginia, and the Best Oralist Award went to Owen Reynolds ’16, of Huntington, West Virginia.

Established in 1925, the Baker Cup recognizes the College’s highest student achievement in oral advocacy and brief writing.

The competition is managed by the College’s Moot Court Board.

FALL 2015

Faycurry Chosen for Washington AG Internship

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With two years of law school under her belt, Adriana Faycurry headed far west to Seattle this summer to work as a law clerk in the Washington State Office of the Attorney General.

She was selected to work in the Social and Health Affairs Division, focusing on mental health law.

“I want to move out to Washington and practice there after graduation,” Faycurry said. “So this seemed perfect.”

A graduate of Albion College in Michigan where she completed degrees in political science and English, Faycurry said she was initially drawn to WVU Law because of her desire to work in veterans’ affairs and benefits. Her work in Seattle included PTSD cases.

According to Faycurry, who is enrolled in WVU’s dual J.D./ Master’s of Public Administration program, the mentorship she receives at WVU Law is playing an important role in her legal career so far.

“Everybody that I’ve interacted with has really supported and encouraged me,” she said.

Burdette Awarded ABA Fellowship Rising 3L Bethany Burdette was a recipient of the American Bar Association’s Janet D. Steiger Fellowship this year.

She was one of just 38 Steiger Fellows nationwide chosen from a pool of over 200 applicants. Her fellowship this summer was with the West Virginia Attorney General in Charleston, working in consumer protection and antitrust law.

A native of Alderson, West Virginia, Burdette earned her bachelor’s degree in Criminal Justice and Criminology from Marshall University. Since enrolling in WVU Law, Burdette has found her interest lies in abuse and neglect law.

At WVU Law, Burdette is a Court Appointed Special Advocates volunteer, a member of moot court and Public Interest Advocates and a magistrate court mediator. She will be the community service representative for the Student Bar Association in 2015-16.

The ABA’s Janet D. Steiger Fellowship Project provides law students with the opportunity to work in consumer protection and antitrust departments of state and territorial Offices of Attorneys General throughout the United States. The eight-week paid fellowships were initiated in 2004 by the ABA Section of Antitrust Law in cooperation with the National Association of Attorneys General, as a consumer protection outreach initiative to introduce law students to the rewards of legal careers in public service.

LAW HOMECOMING 2015 Tailgate on Law School Hill two hours before kickoff!

WVU vs. Oklahoma State Saturday, October 10

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FOR MORE INFORMATION visit: law.wvu.edu/homecoming2015 | email: Margaret.Obuch@mail.wvu.edu

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HIGHLIGHTS

Faculty Briefs

BRIEFS

Rizer Earns Professor of the Year Honors

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Q&A

In just his second year of teaching at WVU Law, associate professor Arthur Rizer was selected Professor of the Year by the Class of 2015.

“Each professor here has made some sort of impact shaping us into the people we are now,” said class president Jared Dotson of Valrico, Florida.

“Dedicated, passionate and always willing to help, Professor Rizer has made his mark on our class. He took most of our class by storm on that first day of Evidence.”

In accepting his award at Commencement, Rizer thanked members of the Class of 2015 for what they have taught him and reminded them of their professional responsibilities.

“One of these newly minted lawyers will save an innocent person from incarceration, and others will put evil people in prison, and even more will ensure that their client is made whole when they are wronged,” said Rizer. “Ladies and gentlemen, these are our future leaders, who will ensure that might never makes right and even the most powerless among us have a voice in law.”

Rizer’s areas of expertise include criminal law, law enforcement and national security. Before joining the faculty at WVU Law, he worked at the U.S. Department of Justice for nine years as a trial attorney, most recently on narcotics and national security cases.

Before law school, Rizer served as a military police and armor officer in the U.S. Army. He was deployed to Fallujah, Iraq, where he was awarded the Bronze Star and Purple Heart. In 2015, he retired from the Army National Guard with the rank of lieutenant colonel. He has also served as a civilian police officer in Washington state.

Rizer holds an LL.M. with distinction from Georgetown University, a J.D. magna cum laude from Gonzaga University and a B.A. from Pacific Lutheran University.

Faculty Activity Valena Beety, associate professor of law, was appointed to the West Virginia Governor’s Indigent Defense Commission. She spent the spring 2015 semester as a Visiting Scholar at the University of Colorado Law School focused on the increasing role of judges in reversing the trend of mass incarceration and researched the wrongful convictions connection between forensic science and eyewitness identification. Beety presented “Andrew Taslitz and the Innocence Revolution” at The Taslitz Galaxy: A Gathering of Scholars at Howard University School of Law in Washington, D.C., in September 2014. In fall 2014, she participated in two WVU Race Symposium panel discussions hosted by the WVU Office for Diversity, Equity and Inclusion.

FALL 2015

Vince Cardi, Bowles Rice Professor of Law, was appointed to the West Virginia Commission of Uniform State Law and attended the National Conference of Commissioners on Uniform State Laws (aka Uniform Law Conference) annual meeting in Williamsburg, Virginia, in July 2015. He continues to serve on the West Virginia State Election Commission.

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Charles DiSalvo received a PROSE Award Honorable Mention in Law and Legal Studies from the Professional and Scholarly Publishing Division of the Association of American Publishers for his book “M. K. Gandhi, Attorney at Law” (University of California Press, 2013). He presented “Gandhi Across the Decades” at the Ninth Annual National Association of Appellate Court Attorneys Conference in Savannah, Georgia. DiSalvo also delivered the keynote speech “Gandhi Today” at the Gandhi Day Celebration at the India Center in Charleston, West Virginia, October 2014.

He received the West Virginia Association for Justice Consumer Attorney of the Year Award in 2014.

Atiba Ellis, professor of law, helped launch the Race and the Law Prof blog in spring 2015. He served as site chair for the MidAtlantic People of Color annual conference at WVU Law. Ellis also participated in two WVU Race Symposium panel discussions hosted by the WVU Office for Diversity, Equity and Inclusion in fall 2014.

Stacy Etheredge, reference and instructional librarian, was awarded a research grant from the American Association of Law

Libraries’ (AALL) Research and Publications Committee for “The Impact of the Lewis v. Casey Actual Injury Requirement on Litigation Involving Prison and Jail Law Libraries.” She was also appointed to a three-year position with the AALL Government Relations Committee and served as vice chair (future chair) of the AALL Social Responsibilities Special Interest Section.

Joshua Fershee, professor of law, was an invited discussant for a workshop on Power Shift: Regulating the Evolving Electricity Sector hosted by the Harvard Law School’s Environmental Law Program and Duke University’s Nicholas Institute in Washington, D.C., in February 2015.

Kendra Fershee, professor of law, presented “Let the Sun Shine In: How Family Court Confidentiality Harms Families” at the University of Akron School of Law in November 2014. She also presented “The Prima Facie Parent: Implementing a Simple, Fair, and Efficient Standing Test in Courts Considering Custody Disputes by Unmarried Gay or Lesbian Parents” at the SEALS Annual Conference in Amelia Island, Florida, in August 2014.

David Hardesty, WVU President Emeritus and professor of law, was named honorary dean of the 2015 Philanthropy West Virginia Summer Institute.

Anne Marie Lofaso, professor of law, was appointed the Leadership Research Fellow for the Arts, Humanities, and NonSTEM Disciplines at West Virginia University for fall 2015. In spring 2016, she will be on sabbatical at the University of Oxford serving as a visiting fellow on the law faculty and as the Keeley Visiting Fellow at Wadham College.

Jena Martin, professor of law, received the 2014-15 Dean’s Distinction for Teaching Award (adjunct faculty) from the WVU College of Business and Economics.

Lynn Maxwell, director of the law library and associate professor of law, presented “What to Expect When You’re Expecting (To Be an Academic Law Library Director)” at the 2015 Southeastern American Association of Law Libraries (SEAALL) annual meeting in Lexington, Kentucky, in April 2015.

Thomas Patrick, teaching professor of law, led an intensive 40-hour training program for attorneys, counselors, therapists and social workers who serve as family mediators in West Virginia in June. He also presented “Raising the Bar — Civility Leadership” at the West Virginia Bar Foundation’s Lawyer Leadership Institute in May. Patrick served as site director for the regional ABA Dispute Resolution Representation in Mediation Competition, hosted by WVU Law in February.

Mark Podvia, head of public services and instructional librarian, was granted professor emeritus status at Penn State Dickinson Schools of Law. Arthur Rizer, associate professor of law, was appointed to the International Bar Association Criminal Law Committee. He was also appointed Visiting Professor of Law at Georgetown University Law Center for 2015-2016. Rizer presented “Death at the Hands of the Police” at the International Bar Association Annual Conference in Tokyo, Japan, in October 2014. He also discussed “Lessons from Ferguson” at a National Bar Association Town Hall Meeting in August 2014. The Class of 2015 named Rizer the WVU Law Professor of the Year. He participated in two WVU Race Symposium panel discussions hosted by the WVU Office for Diversity, Equity and Inclusion in fall 2014.

Shine “Sean” Tu, associate professor of law, was an invited speaker on “Patent Examiners and Examination Quality” at the Roundtable on Empirical Methods in Intellectual Property in Chicago, Illinois, in September 2014. Tu received WVU Law’s Faculty Significant Scholarship Award for 2014-15.

James Van Nostrand, associate professor of law and director of the Center for Energy and Sustainable Development, attended NYU’s Energy Finance Conference in March 2015 and the National Association of County and City Health Officials Preparedness Summit in April 2015.

Elaine Wilson, associate professor of law, received the 201415 WVU Foundation Award for Excellence in Teaching. She presented “Legal and Ethical Issues in Maintaining and Adjusting Donor Intent” at the Philanthropy West Virginia Annual Meeting in Davis, West Virginia, in November 2014. She also conducted the ABA webinar “An Introduction to Social Enterprise for Estate Planners,” in January 2015. Wilson received WVU Law’s Faculty Significant Scholarship Award for 2014-15.

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Patrick McGinley, Charles H. Haden II Professor of Law, co-presented “Leading the New Normal: Clinical Education at the Forefront of Change” and “Integrating Non-Clinical Faculty Into Clinic and Experiential Courses: What’s the Recipe(s) for Success?” with Suzanne Weiss, visiting associate professor of law, at the Association of American Law Schools Conference on Clinical Legal Education in Rancho Mirage, California, in May 2015.

McGinley participated in the Carver Colloquium at the University of Denver Sturm College of Law, October 2014. He presented at the Human Rights and the Environment symposium in Lviv, Ukraine, in September 2014; the Appalachian Public

Interest Law Conference at the University of Tennessee, October 2014; and the Public Interest Environmental Law Conference at the University of Oregon, in March 2015. He also sat on discussion panel at the Associate Press Workshop for Legislators in Charleston, West Virginia, in January 2015.

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The following WVU College of Law faculty members published articles and books in 2014-15:

BRIEFS

HIGHLIGHTS

Faculty Bookshelf

JOSHUA FERSHEE, professor of law

Q&A

HIS BOOK: “ Energy Law, A Context and Practice

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PROFILES

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Casebook,” edited by Michael Hunter Schwartz, Carolina Academic Press (2014)

ABOUT: A comprehensive and practical introduction to energy law, this book is structured by industry sector (as opposed to natural resource) and features practice notes throughout the text.

It provides a practical overview and can support either a sole energy course or lay the foundation in a prerequisite course. Topics begin with key-word vocabulary followed by a variety of client issues to be examined, including ethical considerations.

HOLLEE TEMPLE, associate professor of law HER BOOK: “ West Virginia Legal Research” (teacher’s

manual), Carolina Academic Press, 2015

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ABOUT: T his is the companion teacher’s guide to

Temple’s 2013 book, “West Virginia Legal Research” (Carolina Academic Press), that offers legal professionals and students a onestop shop for learning about legal research in the Mountain State. Temple walks readers through key primary and secondary sources and teaches strategies for conducting comprehensive, effective legal research. She also explains federal legal research.

MICHAEL BLUMENTHAL, visiting professor of law HIS BOOKS: “ Greatest Jewish-American

Lover in Hungarian History,” Etruscan Press, 2014 “ Because They Needed Me: The Incredible Life of Rita Miljo and Her Struggle To Save The Orphaned Baboons of South Africa,” Aequitas Books, 2015

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ABOUT: F rom Israel and Hungary to Texas, the stories

in this book portray life in an increasingly connected and globalized world. It’s an amusing and poignant portrait of expatriate life, exploring the hazards that can occur when the Old World meets the New. ­— “Greatest Jewish American Lover In Hungarian History”

FALL 2015

Drawn from 30 years of private journals, this book explores the life of wildlife activist Rita Miljo and her quest to care for orphaned and injured baboons. Miljo, a former member of the Hitler Youth, collaborated with Blumenthal to tell her story. ­— “Because They Needed Me”

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Valena Beety, associate professor of law and director

Lynn Maxwell, director of the law library and

of the West Virginia Innocence Project

associate professor of law

“Judicial Dismissal and the Unexonerated,” Cornell L. Rev. Online, May 2015.

“The Whole Is Greater Than the Sum of Its Parts: Making the Most with What You Have.” 107 L.LIBR. J. (2015 forthcoming) .

“Pivoting Accountability in the Criminal Justice System” Mo. L. Rev., Summer 2015.

Book Review: “Drugs Unlimited: The Web Revolution That’s Changing How the World Gets High,” by Mike Power. 139 LIBR. J. (17) 107 (2014).

“Emergence from Civil Death: The Evolution of Expungement in West Virginia,” (with Judge Michael Aloi, WV 16th Judicial Circuit), W. Va. L. Rev. Online, 2015.

Vince Cardi, Bowles Rice Professor of Law “Litigation as Violence,” 49 Wake Forest L. Rev. 677 (2014).

Charles DiSalvo, Woodrow A. Potesta Professor of Law Book review: “Lewis Perry, Civil Disobedience: An American Tradition” (Yale University Press, 2013), Political Science Quarterly (Winter 2014).

“How the Law Changed Gandhi,” Seminar Publications, New Delhi, India (October 2014).

Robert “J.R.” Kearns, assistant university librarian

Book Review: “And Give Up Showbiz?: How Fred Levin Beat Big tobacco, Avoided Two Murder Prosecutions, Became a Chief of Ghana, Earned Boxing Manager of the Year and Transformed American Law,”

by Josh Young. 139 (15) LIBR. J. 94 (2014).

Book Review: “Redeeming the Dream,” by David Boies and Theodore B. Olson. 139 (12) LIBR. J.100 (2014).

Alison Peck, professor of law “The Cost of Cutting Agricultural Output: Interpreting the CapperVolstead Act,” 80 MO. L. REV. 451 (forthcoming 2015).

“Talking About Shale in Any Language,” Delivering Energy Law and Policy in the WCU and the U.S.: A Reader (Edinburgh University Press Ltd., Raphael Heffron & Gavin Little eds., forthcoming 2015)

“Crying Wolf: The Use of False Accusations of Abuse to Influence Child Custodianship and a Proposal to Protect the Innocent,” 56 S. Tex. L. Rev. (forthcoming).

“The Aftermath of Alt v. EPA: Unresolved Tensions in Poultry Farm Pollution Control,” 118 W.V. L. REV. (forthcoming 2016).

“Protecting the Faithful from Their Faith: A Proposal for SnakeHandling Law in West Virginia,” 116 W. Va. L. Rev. 561 (2014).

instructional librarian

“Griffins Law and Religion Cases and Materials” (3d ed. December 2014 supplement), Chapter 1, “Free Exercise of Religion, Part A. What is Free Exercise?,” pp. 1-2.

Kendra Fershee, professor of law

Mark Podvia, head of public services and “The Legal History and Rare Books Special Interest Section: Celebrating Twenty-Five Years of Excellence,” Unbound: An Annual Review of Legal History and Rare Books, Vol. 20.2, 2014.

“Bourbon and the Law,” Southeastern Chapter America Association of Law Libraries (SEAALL) annual meeting, Lexington, KY, 2015.

“Annual Survey of Periodical Literature,” 48 Fam. L.Q. 731 (2015).

Arthur Rizer, associate professor of law

“Lifting the Burden: Protecting Parental Rights in West Virginia,” 117 W.V. L. Rev. Online 29 (2015).

“Hannibal at the Gate: Border Kids, Drugs, and Guns — and the Mexican Cartel War Goes On,” 27 ST. THOMAS L. REV. (2015).

“Same-Sex Marriage in West Virginia, What’s Next?,” Jurist.org, (2015).

“Lawyering Wars: Failing Leadership, Risk Aversion, and Lawyer Creep — Should We Expect More Lone Survivors?,” 90 IND. L.J. (2015).

“The Prima Facie Parent: Implementing a Simple, Fair, and Efficient Standing Test in Courts Considering Custody Disputes

by Unmarried Gay or Lesbian Parents,” 48 Fam. L.Q. 435 (2014).

Nicholas Stump, staff librarian

Joshua Fershee, professor of law

“Following New Lights: Critical Legal Research Strategies as a Spark for Law Reform in Appalachia,” Am. U. J. Gender & Soc. Pol’y & L. (forthcoming).

“How Local is Local? A Response to Professor David B. Spence’s The Political Economy of Local Vetoes,” 93 TEXAS L. REV. SEE ALSO 61 (2015) (invited).

Shine “Sean” Tu, associate professor of law

Jena Martin, professor of law

“Understanding Requests for Continued Examination Practice,” Duke L. & Tech. Rev. (forthcoming).

“The Business and Human Rights Landscape: Moving Forward, Looking Back,” Co-editor, Cambridge University Press.

Elaine Wilson, associate professor of law “Better Late than Never: Incorporating LLCs into Section 4943,” 48 Akron Law Review (forthcoming 2015).

LAW.WVU.EDU

“Changing the Rules of the Game: Beyond a Disclosure Framework for Securities Regulation,” 117 W.V. L. Rev.

“Invalidated Patents and Associated Examiners,” Vand. J. Ent. & Tech. L. (forthcoming).

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HIGHLIGHTS

Ukraine’s Struggles Influence McGinley’s Work

DEVELOPMENT

PROFILES

Q&A

BRIEFS

For more than 20 years, WVU Law professor Patrick McGinley has been a regular visitor to Ukraine, helping the embattled country build and maintain a democracy.

McGinley, who teaches environmental law and environmental justice, says his trips to the former Soviet republic have had a deep influence on his teaching, service and scholarship.

“We need only look to the experiences of Ukraine to realize how easily democracy can slip away from us if we do not hew to the rule of law,” he said. “I try to emphasize in my work and in my teaching that judges, lawyers and law students each have an important role to play in insuring that all of us adhere to the highest ethical, professional and moral standards.”

McGinley’s involvement with Ukraine dates to the mid-1990s, when WVU established a partnership with Donetsk National University following the collapse of the Soviet Union. The relationship between the two universities, since discontinued, was initially established to encourage the growth of democracy and the rule of law.

“It was in Donetsk that I first gained insight into the character, culture and aspirations of the people of Ukraine,” McGinley said.

In 1996, following his first trip to Donetsk, McGinley was asked by the American Bar Association to serve as a presenter and facilitator at a public advocacy workshop for lawyers and judges.

At that workshop, McGinley met and became close friends with the late Svitlana Kravchenko, a law professor at Ivan Franko National University of Lviv in western Ukraine. Her husband was John Bonine, a renowned environmental law professor at the University of Oregon.

An international expert on human rights and environmental law, Kravchenko founded Environment People Law (EPL) in 1994. Based in Lviv, EPL has grown into a top public interest law organization in the Ukraine, protecting the environment and human rights while providing clinical experiences for law students.

McGinley serves on the EPL board and says the organization’s success has not been an easy path given the Ukraine’s political and economic turmoil over the last 20 years.

“They have built a body of legal and scientific expertise regarding environmental law, regulation and science,” McGinley said. “I have observed from a distance and up-close during my trips to Ukraine the deep commitment of EPL to the rule of law and a creation of a just society.”

Kravchenko passed away suddenly in 2012. When EPL invited McGinley to speak at an international symposium held in her honor last fall, he made the trip to Lviv in spite of Ukraine’s ongoing conflict with separatists.

At the symposium, which included legal scholars, judges and lawyers from 17 countries, McGinley gave a presentation on human rights and the environment. He also gave a lecture on human rights and the environment in the U.S. to law students at Ivan Franko National University.

Back home in Morgantown, McGinley keeps in touch with his Ukrainian colleagues and follows news about the war, which now stretches from the Crimea and the Russian-dominated Donetsk-Donbas in the east to Kiev and Lviv in the West.

“It is my fervent hope that the friends and colleagues I know and have worked with will find a road to peace and democracy,” he said. “For my part, I will continue to work with and support EPL as a way of offering some small measure of support during Ukraine’s struggle for democracy.”

FALL 2015

Fershee Oversees Editing of Family Law Quarterly

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West Virginia University College of Law has accepted editing responsibilities for the American Bar Association’s Family Law Quarterly (FLQ).

Professor Kendra H. Fershee, associate dean for academic affairs, will serve as the new editor-in-chief starting in fall 2016.

She is currently the associate editor.

FLQ is a scholarly journal designed to keep practitioners current with an analytical view of existing and emerging family law issues. It is published four times a year by the American Bar Association Section of Family Law. For more than 20 years, Professor Linda Elrod of Washburn University has been the editor-in-chief of FLQ. When Elrod announced that she would be stepping down from her position, Fershee was called on to fill her shoes.

“It is an incredible honor to take the helm of this important publication, and I will do my best to honor and uphold the hard work of Linda, all of the editors and board members,” said Fershee.

Fershee teaches Family Law courses at WVU and took on family law cases pro bono when she was in practice.

She said WVU Law students will have the opportunity to serve on the FLQ student editorial board.

“Our students will be able to engage with scholarly work that is written for — and often by — practitioners, and that has an incredibly broad readership,” said Fershee. “The FLQ is one of the most heavilycited legal scholarship publications in existence. Courts, lawyers and law professors rely on it extensively, and it helps shape policy throughout the country.”

Milestones New Associate Deans

New Faculty

Kendra H. Fershee Joshua P. Fershee

Kirsha Trychta, director of the Academic Excellence Center Valarie Blake, associate professor

Jena Martin

associate dean for Academic Affairs a ssociate dean for Faculty Research and Development associate dean for Innovation and Global Development

Promotion and Tenure Kendra H. Fershee, professor of law, J.D., Tulane Law School Matthew Titolo, professor of law, J.D., University of California, Berkeley Atiba Ellis, professor of law, J.D., Duke University School of Law Robert “J.R.” Kearns, (non-tenure promotion) assistant university librarian, J.D., West Virginia University

Retired Grace W. Wigal, professor of law Jean Dailey, writing specialist

UPCOMING EVENTS U.S. Court of Appeals for the Fourth Circuit Wednesday, October 7, 9 a.m.

Marlyn E. Lugar Courtroom

John W. Fisher II Lecture in Law and Medicine Christopher Hollman, professor of law, University of Missouri-Kansas City School of Law Friday, October 30, Noon Marlyn E. Lugar Courtroom

C. Edwin Baker Lecture for Liberty, Equality and Democracy Lani Guinier, Bennett Boskey Professor of Law, Harvard Law School Thursday, November 5, Noon College of Law Event Hall

Lani Guinier

National Energy and Sustainability Moot Court Competition Thursday, March 3 — Saturday, March 5 College of Law and Erickson Alumni Center

Friday, April 8, 8:30 a.m.

Center for Energy and Sustainable Development

FOR A COMPLETE SCHEDULE visit cal.wvu.edu and select College of Law.

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National Energy Conference 2016

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The College of Law’s First Female Graduate

Mary Beth Hickey

FALL 2015

University of Iowa College of Law

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Alice Rufie Jordan Blake Yale Law School

When Agnes Westbrook Morrison earned her LL.B. in 1895, the WVU College of Law became one of the first law schools in the country to admit and graduate women.

Almost a quarter century before the 19th Amendment granted universal suffrage, WVU Law was pioneering women’s rights through legal education. The College of Law had only been established for 17 years when Morrison earned her degree and paved the way for future women lawyers.

Many other law schools throughout the country would not graduate women until well into the 20th century. At WVU, two more women would graduate before the turn of the century, both in 1899: Lilian Ruth Wiles of Hayfield, Virginia, and Leila Jesse Frazier from Surrey, England.

Morrison passed the bar exam in 1896 and embarked on a successful career practicing in Wheeling, West Virginia. A fellow member of the Class of 1895 was her business partner, husband Charles Sumner Morrison.

In addition to, or probably because of, her legal career, Morrison was an advocate for women’s causes and education. She was a founder of Collegiate Alumnae of Wheeling, a women’s organization that to this day continues to encourage and assist young women in pursuit of higher education in West Virginia. The organization provides scholarships at West Liberty University and West Virginia Northern Community College. She also published The Woman’s Easter Herald, a monthly 50-page newsletter.

In the 120 years since Morrison’s milestone achievement, countless more WVU Law women have gone on to successful careers in private practice, government, business, the military and higher education.

Among those who followed in Morrison’s footsteps are judges Stephanie Thacker (U.S. Fourth Circuit), Margaret Workman (WV Supreme Court), Robin Davis (WV Supreme Court), Irene Berger (Southern District of West Virginia), Irene Keeley (Northern District of West Virginia), Gina Groh (Northern District of West Virginia) and Lucinda Masterton (Kentucky Circuit Court 22).

Morrison’s legacy also includes an eponymous scholarship that provides funds for female students at WVU Law who have demonstrated a financial need and have academic promise.

Flora Matteson and Marie McDermott University of Minnesota Law School

Agnes Westbrook Morrison West Virginia University College of Law

Etta Maddox Baltimore Law School

1873 1886 1893 1895 1901

West Virginia University College of Law’s 1895 graduating class including Agnes Westbrook Morrison (second row, third from left).

Sophonisba Breckinridge

University of North Carolina School of Law

Elizabeth Tompkins

Margaret Spahr

University of Virginia School of Law

Columbia Law School

Twelve female graduates Harvard Law School

1904 1915 1923 1929 1953

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The University of Chicago Law School

Margaret Berry Street

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1L Orientation Includes StrengthsQuest The transition to law school just became a little bit easier for incoming students at the West Virginia University College of Law. At orientation last August, the College introduced the incoming class to assessment program StrengthsQuest.

It helped the new law students identify their individual strengths and use them to their advantage so that they can succeed academically and professionally.

Following a brief online assessment, the StrengthsQuest program helps students identify their top five talents for success. It then guides them on how to develop and use those talents to meet their potential and achieve academic, professional and personal goals.

Bradley Wright, president of the Class of 2017, said StrengthsQuest delivered highly individualized results that proved to be valuable as he navigated his way through his first year of law school.

StrengthsQuest can make stressful environments, personal relationships and future jobs more manageable.

FALL 2015

— Bradley Wright ’17

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“StrengthsQuest is a useful tool that can make stressful environments, personal relationships and future jobs more manageable,” he said. “It supplies you with information that will help you apply each of your strengths. It provides tips for general academic life, study techniques, relationships, class selection and extracurricular activities that will enhance your experience and provide you with a baseline to be a successful law student.”

While only a handful of law schools use StrenghtsQuest, it is widely utilized at the undergraduate level. Based on the success of the program last year, it will continue to be a component of orientation at the College of Law for the foreseeable future.

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Bradley Wright says he and classmates benefited from the StrengthsQuest orientation program. 23

PERSPECTIVES

FALL 2015

on the EPA Clean Power Plan

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The EPA’s Clean Power Plan, issued in August, is designed to regulate greenhouse gas emissions from existing coalfired electric power plants. Through a series of pollution reduction measures, the EPA aims to lower carbon dioxide emission from the power sector 32 percent by 2030.

For West Virginia, that means reducing emission rates as a percentage from its 2012 levels. The EPA has given states until September 2018 to develop plans for achieving the required reductions. Emissions reductions must commence in 2022.

WVU Law’s Center for Energy and Sustainable Development (CESD), in partnership with Downstream Strategies, a Morgantown-based environmental consulting firm, has been analyzing the new rules.

Their conclusion is that the EPA’s emissions standards are attainable but will have a disproportionate impact on coal-dependent regions of the country, such as West Virginia. CESD is now working with Downstream Strategies to update their analysis to reflect the impact of the final rules on West Virginia.

In March, Senator Shelley Moore Capito (R-WV) chaired a U.S. Senate Environment and Public Works Committee Field Hearing on the EPA Clean Power Plan in Beckley, West Virginia. Testifying at the hearing were Jamie Van Nostrand, CESD director, and Gene Trisko, attorney for the United Mine Workers of America AFL-CIO. The following are excerpts from Van Nostrand’s and Trisko’s testimony.

To read their complete testimonies, visit law.wvu.edu/magazine2015.

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Photo by Chris Diers, Creative Commons Attribution-ShareAlike

In order to minimize the impact of the proposed rule on the state, policymakers will need to shape a strategy for West Virginia that reflects its unique circumstances and leverages its strengths.

FALL 2015

— James Van Nostrand

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Jamie Van Nostrand has more than 30 years of experience in energy law. He holds an LL.M. in Environmental Law from Pace University Law School and a J.D. from the University of Iowa College of Law.

Regional Impacts of EPA Carbon Regulations: The Case of West Virginia

by James M. Van Nostrand Associate Professor of Law Director, Center for Energy and Sustainable Development West Virginia University College of Law

Achieving compliance with the EPA Clean Power Plan would present significant challenges for West Virginia. Given the state’s heavy reliance on coal-fired electric generation and the portion of the state’s economy that depends on the coal extraction industry, West Virginia may bear a heavy burden associated with implementation of the Clean Power Plan, depending upon the extent to which the flexibility allowed under the Clean Power Plan is exercised.

In order to minimize the impact of the proposed rule on the state, policymakers will need to take advantage of that flexibility to shape a strategy for West Virginia that reflects its unique circumstances and leverages its strengths. West Virginia is fortunate in that it has tremendous energy resources in addition to coal, and these other resources — including natural gas, renewable energy (wind, solar, hydropower) and energy efficiency — are relatively untapped.

Developing a compliance strategy for the Clean Power Plan will require tapping into these other energy resources and crafting a comprehensive energy plan that will build upon the state’s coal resources — through co-firing natural gas with coal, for example — while stimulating investments in energy efficiency that will help West Virginians manage their energy costs in addition to reducing CO2 emissions.

Climate Change and the Regulation of Greenhouse Gases under the Clean Air Act Climate change, largely attributable to increasing concentrations of greenhouse gases (GHGs) in the atmosphere, is the most serious threat facing the planet. The National Climate Assessment, for example, presents compelling evidence of long-term climate trends, and the likely future for the remainder of the 21st century, if we fail to take action to reduce GHG emissions. Within the state of West Virginia, we are already seeing some of the impacts of climate change.

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At the same time, the Clean Air Act is a blunt instrument with which to regulate GHG emissions from power plants. The tools available to the EPA under the Clean Air Act to regulate GHGs do not provide a great fit for dealing with climate change; the regulation of GHGs would be better addressed through comprehensive energy and climate legislation, given the broad and disparate impacts on the economy and the ability through the legislative process to craft a solution that addresses the disparate impacts.

Coal producing states like West Virginia will be especially hard hit, and the EPA lacks the statutory authority and financial resources to help the disproportionately impacted regions to attract new investments, or diversify their economy to minimize the economic and social impacts of the decline in demand for coal.

There is no question that the EPA has the legal authority to regulate GHGs as a pollutant under the Clean Air Act, following the decision of the U.S. Supreme Court in Massachusetts v. EPA (2007) and the subsequent endangerment finding by the EPA in 2009. The EPA has moved beyond its endangerment finding to issue final rules under 111(b) of the Clean Air Act to regulate GHGs from new power plants and under 111(d) for existing power plants.

The practical effect of the proposed rules under 111(b) was to preclude the construction of a new coal plant in the U.S., given that the target emission rates for coal-fired plants could be achieved only with carbon capture and sequestration (CCS), which is a very costly process.

[NOTE: In the final rule issued in August, the EPA eased the target emission rate for new power plants considerably, and the new standard can be met with a highly efficient, supercritical pulverized coal plant with partial CCS.] The unlikelihood of new coal plant construction in the future has serious implications for the coal-producing regions of the country, including West Virginia. [NOTE: The final rule no longer requires CCS technology and does not necessarily preclude construction of a new coal plant.]

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The future domestic demand for coal, simply stated, is being curtailed, thereby leading to the push for new coal export terminals on the coasts to serve foreign markets for U.S. coal. There is a legitimate question as to whether CCS technology is commercially available, and whether it is lawful for the EPA to effectively preclude a particular electric generation technology (i.e., coal) on the basis of an assumed remedy that does not exist (or, alternatively, that is so expensive as to render coal uncompetitive with other fuels).

At the same time, it is not clear that the EPA proposed rule under 111(b) is the major deterrent for new coal plants in the U.S. If the EPA estimates of the regulatory impact of the proposed rule are true, no new coal-fired plants would have been built anyway, given the significant cost advantage that natural gas has over coal, both currently and based on longterm projections.

Impact on Energy Production

FALL 2015

Coal fired power plants generated 39 percent of U.S. electricity in 2013, down from over 50 percent in 2005. West Virginia generated approximately 96 percent of its electricity from 16 major coal fired power plants in 2012, with the remaining four percent coming (largely) from hydropower and wind.

Across the U.S., over 60 gigawatts of coal fired power plant capacity is scheduled to retire by 2016. In West Virginia, six of the 16 coal plants operating in 2012, representing approximately 17 percent of the state’s generating capacity, have either deactivated or are scheduled to deactivate by 2015. At the time of deactivation, those plants will be on average over 60 years old.

The national trend away from coal fired generation, and production declines in the Appalachian coal mining industry over the long-term, suggest that the broader socio-economic challenge for coal producing states is to prepare for a future that is less dependent upon coal — irrespective of the impact of more stringent environmental regulation. And while coal mining will continue to be an important part of West Virginia’s economy for the foreseeable future, the state must look for additional drivers of economic development to mitigate the impacts of the decadeslong decline in the coal industry.

West Virginia is a leading energy state that is uniquely positioned to mitigate the impacts flowing from the proposed Clean Power Plan and stimulate new economic opportunity throughout the state.

In addition to its coal resources, West Virginia sits atop abundant natural gas resources in the Marcellus Shale, has significant renewable energy and biomass potential, and virtually untapped energy efficiency resources.

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Despite the significant challenges facing West Virginia, the Clean Power Plan provides a framework through which West Virginia can align its energy policies to meet the carbon emission reductions required under the proposed rule. Doing so will stimulate new economic activity in regions of the state hit hard by declining coal production and ensure that its utilities are making investments that provide consumers clean, reliable and reasonably priced electricity.

Developing a compliance strategy for the Clean Power Plan will require drawing upon all of West Virginia’s energy resources, including natural gas, renewable energy and energy efficiency.

Impact on Electricity Generation and Cost With the passage of a statute in the 2013 West Virginia legislative session requiring integrated resource planning, the utilities in the state will soon be undertaking a more thorough energy planning process. In the short-term, however, the state is not well-positioned to cope with the consequences of the Clean Power Plan.

West Virginia’s rate-regulated utilities have increased their dependence on coal-fired generation, by acquiring coal-fired generating facilities from affiliated companies during the past few years.

As a result of these investments, West Virginia ratepayers will likely bear higher compliance costs under the proposed Clean Power Plan, given the inability to avoid the costs of owning these plants while at the same time bearing the increased costs of pursuing opportunities under the third and fourth building blocks of the proposed Clean Power Plan (i.e., renewable energy and energy efficiency).

Natural Gas The Clean Power Plan recognizes the emission benefits of natural gas relative to coal. West Virginia has significant natural gas resources in the Marcellus Shale. Developing West Virginia’s natural gas resources and investing in natural gas-based electricity generation will help the state comply with the Clean Power plan and grow the state’s energy economy.

Pennsylvania and West Virginia are the largest producers of Marcellus Shale natural gas, and West Virginia has enormous opportunity to capitalize on expanded use of its natural gas resources.

The construction of new natural gas combined cycle plants, co-firing existing coal plants with natural gas and building new CHP facilities would stimulate demand for West Virginia-produced natural gas, deliver consumers low-cost natural gas-fired electric generation and provide emission-reduction benefits under the Clean Power Plan.

Photo by Seiichi Ariga, Creative Commons Attribution-ShareAlike

Developing West Virginia’s renewable energy resources will contribute to the state’s ability to comply with the Clean Power Plan, grow the state economy and create new jobs.

— James Van Nostrand

Energy Efficiency

In the EPA’s calculation of Best System of Emissions Reduction for West Virginia under the proposed rule, it estimated that non-hydro renewable energy can produce 14 percent of West Virginia’s total generation by 2030, contributing over 60 percent of the state’s emission reduction goal.

West Virginia generated approximately 4 percent of total electricity produced in the state from wind and hydropower in 2012, but has significant potential for new wind, solar, biomass, geothermal, and hydropower development.

Developing West Virginia’s renewable energy resources will contribute to the state’s ability to comply with the Clean Power Plan, diversify the state’s energy portfolio, grow the state economy, and create new jobs.

Coal has long been the state’s near-exclusive source of electricity and historically, West Virginia’s coal plants have provided West Virginia consumers some of the lowest electricity rates in the country.

While our rates may be low, however, West Virginia is among the top 10 states in the country with the highest residential electricity expenditures as a percent of median income; and it has the highest residential energy consumption per household among the 13 Appalachian states.

The energy efficiency programs currently offered by the FirstEnergy and American Electric Power subsidiaries operating in West Virginia, however, are minimal, compared to the programs offered by these same companies’ subsidiaries in surrounding states.

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Renewable Energy

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Photo by Will Fisher, Creative Commons Attribution-ShareAlike

The Clean Power Plan is a neutron bomb aimed directly at the heart of West Virginia’s economy.

FALL 2015

— Eugene Trisko

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Gene Trisko has represented the United Mine Workers in domestic and international environmental and energy issues since 1985. He holds a B.A. in economics and politics from New York University and a J.D. from Georgetown University Law Center.

Impacts of U.S. EPA’s Clean Power Plan

by Eugene M. Trisko, Energy Economist Attorney at Law United Mine Workers of America (UMWA)

The Clean Power Plan (CPP) is a neutron bomb aimed directly at the heart of West Virginia’s economy and the coal miners, communities, electric generators and allied industries that depend on coal for their livelihoods.

EPA’s final carbon rule issued on August 3 calls for a CO2 reduction equivalent to a 32 percent cut from 2005 emissions, with reductions measured against each state’s 2012 emission rate in pounds of CO2 per Megawatt-hour (MWh) of fossil-based electric generation. EPA’s rule also provides for mass-based CO2 reduction targets measured in tons of CO2 emitted.

In its initial proposal, EPA assigned West Virginia a 20 percent reduction target by 2030. The final rule raised West Virginia’s rate-based reduction target to 29 percent. Compared to its 2020 projected base case emissions, West Virginia must achieve a 37 percent reduction of CO2 tons emitted by 2030, or a 35 percent reduction of its emissions in pounds of CO2 per MWh. U.S. EPA data indicate that West Virginia’s electric utilities and independent power producers achieved a 20 percent reduction of CO2 tons emitted between 2005 and 2012. EPA’s final rule gives no credit for these reductions because it uses a 2012 baseline for determining required emissions reductions.

EPA’s Regulatory Impact Analysis for the final CPP shows total U.S. coal-generating capacity declining from 336 GW in 2012 to 174 GW in 2030, an overall reduction of 162 GW. Of this total, EPA projects that 34 GW of coal capacity will retire due to the CPP. The balance of retirements are due to compliance with the 2011 Mercury and Air Toxics Standards (MATS) rule, lower natural gas prices and other factors.

EPA projects that the CPP would reduce U.S. coal production for electric generation by 123 million tons in 2025 relative to the base case in 2025, to a level of 606 million tons. Production for the overall Appalachian region, stretching from Pennsylvania to Alabama, is projected to decline to 69 million tons in 2025. West Virginia alone traditionally produces more than 100 million tons of coal annually.

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The fundamental problems that the EPA carbon rule poses for West Virginia are two-fold: first, the majority of West Virginia’s coal production is shipped to other states that have even larger emission reduction requirements than West Virginia; and second, the majority of the coal-based electricity generated in West Virginia is exported to other states affected by the rule.

In 2013, West Virginia produced 116 million tons of coal. West Virginia’s electric utilities and independent power producers consumed 30 million tons of coal from all sources in 2013, equivalent to just 26 percent of total production (DOE/ EIA Annual Coal Report 2013).

In 2014, West Virginia power plants generated 88,047 GWh of electricity, with total in-state retail electricity sales of 28,919 GWh, equivalent to one-third of total generation (DOE/EIA, Electric Power Monthly, March 2015).

In short, there is no compliance option for West Virginia — including potential interstate agreements or emissions “capand-trade” programs — that can effectively mitigate the adverse impacts of the EPA rule attributable to the compliance actions of other states.

The UMWA has long advocated increased investment in carbon capture and sequestration (CCS) technologies as a means to reduce carbon emissions while preserving coal as a mainstay of U.S. electric generation. Unfortunately, government funding and regulatory support for CCS projects have been disappointing, leaving natural gas as the principal option for future electric generation.

The stakes for West Virginia’s economy and jobs are very high. Coal mining in West Virginia generates more than $15 billion of gross state output, nearly $4 billion of household income and 75,000 direct and indirect jobs.

Our estimates of the national job impacts of the Clean Power rule, as initially proposed, indicated the potential loss of 52,000 permanent direct jobs by 2020 in the utility, rail and coal sectors due to power plant retirements, and the loss of 167,000

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total direct and indirect jobs. The impacts of the final rule are likely to be similar.

These direct jobs are all high-paying jobs, typically in rural communities such as those in West Virginia, without opportunities for comparable employment. These impacts do not consider any of the plant closures and job losses expected over the next few years due to the MATS rule and other factors, or the impacts of higher electricity and natural gas prices on other industries.

EPA’s proposals for major expansions of state renewable energy programs interfere with traditional state authority in energy planning and appear to be well beyond the agency’s authority under the Clean Air Act. West Virginia recently repealed its state renewable energy standard legislation.

In UMWA’s meetings with EPA prior to the August 2015 final rule, we urged EPA to focus the rule on options for reducing emissions within the plant fence line, such as heat rate efficiency improvements. This is consistent with our legal understanding of the scope of Section 111(d).

The agency has taken a much broader view of its authority.

We are mindful in this regard of the cautions recently raised by the Supreme Court in UARG v. EPA (2014) of an overly expansive

Estimates of the national job impacts of the Clean Power rule indicate the loss of 167,000 total direct and indirect jobs.

— Eugene Trisko

FALL 2015

interpretation of the authority to regulate greenhouse gases under the Clean Air Act. UMWA does not oppose efforts to reduce carbon emissions under the Clean Air Act. Our concerns are about the overall design and job impacts of the Clean Power Plan and its expansive reach into regulatory and policy arenas that traditionally are the province of state legislatures and regulators.

Finally, we do not know the extent to which other nations, particularly large developing countries, will be willing to commit to a truly global program of greenhouse gas reductions.

Our actions will have negligible climate impacts in a world economy that is using more coal and other fossil fuels every day.

All indications from the UN climate negotiation process point to extreme difficulty in reaching an agreement in Paris in December 2015 that would lead to meaningful — or enforceable — emission reduction commitments by the developing countries that are now the world’s largest emitters of greenhouse gases.

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Photo by Peabody Energy, Creative Commons Attribution 3.0 Unported

EPA Updates Senator Capito Proposes Rolling Back the Clean Power Plan

How Will Michigan v. EPA Impact the Clean Power Plan?

In May, U.S. Senator Shelley Moore Capito (R-WV), chairman of

The U.S. Supreme Court’s ruling in Michigan v. EPA will have

the Senate Environment and Public Works Committee’s Clean Air

little impact on the Clean Power Plan, EPA’s proposed rules to

and Nuclear Safety Subcommittee, introduced a bill to roll back the

regulate greenhouse gas (GHG) emissions from existing power

EPA’s Clean Power Plan. The bill is also supported by Senator Joe

plants. The decision was fairly narrow — requiring as a procedural

Manchin (D-WV) and other senators.

matter that EPA take costs into consideration when deciding to

The key provisions of the Affordable Reliable Energy Now Act

regulate mercury and other air toxics as hazardous pollutants

(ARENA) include:

under section 112 of the Clean Air Act. The case is now remanded

• Prevent mandates for unproven technology.

back to the D.C. Circuit, where it is unlikely that the Mercury and

• Extend compliance dates.

Air Toxic Standards (MATS) rule will be vacated. Rather, EPA will

• Hold the EPA accountable for state-specific model plans.

be given an opportunity to amend its analysis to take costs into

• Enable states to protect ratepayers.

account. MATS has been in place since 2011 with a compliance

• Prevent the EPA from withholding highway funds for

deadline of April 2015, and most utilities have already developed

noncompliance with the Clean Power Plan.

• Require the EPA to submit to Congress a report describing

strategies to comply with the rule. The Clean Power Plan rules, issued in August, are pursuant to a section of the Clean Air Act—

the quantity of greenhouse gas emissions the plan is expected

section 111(d)—different than the MATS rule. EPA has never taken

to reduce.

the position, for example, that it did not have to take costs into

• Require the EPA to conduct modeling to show the impacts of the rule on the climate indicators used to develop the rule.

account in developing its GHG regulations.

— Jamie Van Nostrand

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Lawyers as Leaders Building Leadership Capacity in Law-related Organizations

By David C. Hardesty, Jr., President Emeritus and Professor of Law West Virginia University

Professor Hardesty is a graduate of West Virginia University, Oxford University and Harvard Law School. He has practiced law, been a state cabinet officer, served as president of a large public university and led several not-for-profit organizations as a volunteer. He now teaches courses related to management and leadership at the WVU College of Law. He is a former partner in the law firm of Bowles Rice, LLP.

FALL 2015

Lawyers Lead

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Lawyers lead in America — they always have and probably always will.

Both nature and nurture propel lawyers into leadership positions in their profession and in many other arenas, both public and private.

Lawyers normally possess a fundamental understanding of complex legal structures, including our federal structure and our dispute resolution processes. Lawyers are also taught to think, communicate and advocate.

Many self-select into the profession because they have characteristics shared by most leaders: self-awareness, emotional stability, empathy and a desire to change the world. Lawyers are taught to systematically examine circumstances for ethical problems. Lawyers are comfortable with the multiplicity of decision-makers and decision forums in our “nation of laws.” Finally, lawyers often have the personal courage to stand up for what they believe is right in court or in public arenas.

The challenges facing lawyer-leaders are growing ever more complex. One reason is that technology is fundamentally changing the speed of decision making. Time for reflection is minimal. Leadership involves more than management of people and financial resources in a given context. Further, leadership addresses problems in many different contexts. Leadership results in choosing the right direction for an organization, establishing a vision that is compelling, and motivating others to act. Today, enhanced and refined leadership skills are sorely needed in most law-related organizations. These include law firms, the judiciary, government regulatory bodies and others entities where legal knowledge and skills are valued. Some of these organizations can be quite large; others can be tiny. But in all law-related organizations,

leadership skills are critical, just as they are important to organizations across all domains of expertise.

Increasingly, colleges of law are finding ways to identify and build leadership capacities for their students. Similarly, law-related organizations seek ways to continue leadership education in the workplace. This essay suggests just a few ways leadership skills can be introduced and refined during the course of a lawyer’s career, beginning in law school.

Set forth below are five of the more important leadership skill-building activities that can produce true enhancements of an organization’s leadership capacity at a relatively low cost. All can be taught on the job or in a formal educational environment. Two assumptions are made. One underlying assumption is that lawyers graduate from law school with the fundamental legal skills. A second assumption is that most law students do not have significant experience in leading, although some may well have developed leadership skills in the workplace, the military and through youth development organizations.

Assessing the Organization’s Leadership Talents and Strengths In recent years, the principles of psychology have been increasingly used to understand leadership in all domains. Among the most effective techniques that have been employed are what are commonly called personality assessment or strength inventories. These activities in which leadership team members answer a series of questions

and are thereafter offered feedback on aspects of their personality which might be considered true talents that could be developed into leadership strengths. Several companies and consulting firms offer this service in one form or another.

Our college of law offers the StrengthsQuest assessment to all incoming students. After answering questions online, students are provided with feedback as to their top five “talents,” i.e., aspects of their personality that have the potential to be honed into leadership strengths.

The process of discovery often excites students about their own potential to lead as a member of the profession. It also makes it clear that we are not all built the same way, and different talents can be used to develop different approaches to resolve workplace problems.

Encouraging Neutral Facilitation of Organization Discussions One primary venue for leadership is meetings. However, it is truly surprising how many workplace meetings are ineffective for lack of leadership. Organizations can increase their productivity by focusing on “neutral facilitation” of meetings. The idea of neutrality implies that the leader of a meeting should help structure a discussion in which all can participate, thus eliciting the best outputs from diverse inputs.

The Center for Entrepreneurial Studies and Development at the WVU Statler College of Engineering and Mineral Resources has taught this skill (which has origins in industrial engineering and project management) to its clients for years with great success. Simple ideas such as the use of an agenda and a process agreement setting forth the rules for the conduct for the meetings save enormous time. A typical process agreement incorporates normative values such as “everyone participates and no one dominates” and “build upon an idea before criticizing it.”

Lawyers find the facilitation skill helpful in planning group strategies in complex litigation and in helping client boards reach consensus when confronting serious problems. Interestingly, law students often find it easier to participate in Socratic inquiries and deep seminar discussions after learning the art of neutral facilitation.

Recognizing the Appropriate Uses of Different Forms of Planning

Developing a Culture of Appropriate Decision-making and Bias Avoidance Effective organizations should teach their leaders good decisionmaking processes and the common biases encountered when making organizational decisions and how to avoid them. A good overview of the reasons why familiarity with these problems is important can be found in the May 2015 issue of Harvard Business. Contributors John Beshears and Francesca Gino argue that leaders should be seen as “decision architects.”

They explain how this can be done and list biases commonly encountered in group decision making. Periodically reminding leaders of how decisions are made and how we can best avoid bias in making decisions takes an investment of time, but doing so can prevent costly mistakes and needless diversions.

Conducting Formal After Action Review The military is one of the older structured leadership domains in the world. It recruits, educates and nurtures leaders to handle complex and stressful tasks. One of its routine leadership activities is the “after action review,” a process whereby those participating in a mission participate in a post-action assessment of the job undertaken in an effort to learn from successes and mistakes and in the hope of continuously improving execution. Structured conversations, after the fact, or even “mid-action reviews” in the midst of an organizational project, are other tools that leaders can use to improve their organizational leadership capacity.

Building Leadership Capacity is a Wise Investment Finally, a word on followers. Barbara Kellerman of the Harvard Kennedy School has boldly stated, “I think followers [are] every bit as important as leaders.” An added benefit of teaching leadership theory and skills is that better followers emerge in well-led organizations. In reality, no one leads all the time. In the better led organizations, leaders take turns leading in the context which makes them a good choice to lead. As Professor Jim Kouzes of Santa Clara University is right to remind us, following is a voluntary activity. Good followers understand and recognize good leadership skills.

To sum up, lawyers are frequently involved in leadership activities. If lawyers are inevitably destined to lead, then investing in the quality of their leadership skills is a worthwhile endeavor. Leadership skills can be taught, not just to a few, but to many. Building leadership skills is a worthwhile investment for any organization, including lawrelated organizations.

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There are many traditional forms of planning, each designed to help a group confront the environment in which it operates and chart a course to achieve mutually arrived at goals and objectives. Forms of planning include the “big picture” strategic planning method, which employs the traditional mission, vision, values, goals, objectives and SWOT analysis (strengths, weaknesses, opportunities, threats); straightforward project planning; crisis management; initiatives planning (running several related planning projects on different schedules); scenario planning, and similar variations on these familiar themes. In fact, British author John Kay, in his book “Obliquity,” argues that the best way to achieve some ends is to act intentionally indirectly.

He argues that decision-makers should focus on organizational goals and values and adapt quickly to the inevitable changes in circumstance

that every group will encounter once a planning process is started.

Because many organizations engage in planning with the assumption one form of planning (usually strategic planning) can be used to contemplate and “solve” every problem its leaders face, acquainting leaders with the uses and abuses of different forms of planning can save enormous energy and time.

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HIGHLIGHTS

Question and Answer Gonzales Martin, an attorney with Gerhardstein & Branch in Cincinnati, Ohio, and co-counsel for lead plaintiff Jim Obergefell. Not long after the ruling, Martin talked about her involvement in the groundbreaking civil rights victory.

Q&A

BRIEFS

The Supreme Court of the United States’ historic 5-4 decision in Obergefell v. Hodges made same-sex marriage legal in all 50 states. On the front lines of the case was 2010 WVU Law graduate Jacklyn “Jaci”

PROFILES

with Jaci Gonzales Martin

DEVELOPMENT

When did you first meet Jim Obergefell?

I met Jim Obergefell and his husband, John Arthur, shortly after they were married in the summer of 2013. When the Windsor decision [declaring Section 3 of the Defense of Marriage Act unconstitutional] came down that summer, having been together for 20 years, Jim and John decided to make their union official.

John had ALS, and he did not have long to live. He was bedridden, so the couple took a medically equipped plane to Maryland and married on the tarmac. It wasn’t until Jim and John got home that it started to sink in for them that although their marriage was legal in Maryland and recognized by the federal government, their marriage did not exist in their home state of Ohio.

When did Gerhardstein & Branch get involved in the Obergefell case?

FALL 2015

My boss, Al Gerhardstein, was introduced to Jim and John through a mutual friend days after their wedding, and our firm started dreaming about how to ensure that their marriage would be recognized by their home state. We knew that the state’s system for recording deaths would be one inevitable and imminent way Ohio’s marriage equality bans would affect this couple. There is a place on a death certificate to mark whether a person was married and the name of their surviving spouse.

For John Arthur, unless we acted, he would be known on his last official record of his life as “single” and Jim Obergefell would not be recognized as his surviving spouse.

We filed a complaint and motion for temporary restraining order in the Federal District Court for the Southern District of Ohio preventing that outcome. Within three days, we won.

In February 2014, we brought a second lawsuit, Henry v. Hodges, representing four families seeking birth certificates for their children that recognized both same-sex, loving parents. We won temporary relief for those couples as well. Four similar cases in Michigan, Tennessee and Kentucky were also successful at the district court level around this same time.

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Later, the Sixth Circuit, which sits in Cincinnati, heard the appeals of all six Sixth Circuit marriage cases on the same day. Al Gerhardstein and others argued beautifully for the plaintiffs, but we lost at the Sixth Circuit.

We had two conservative judges on our three-judge panel. Judge Jeffrey Sutton, who wrote the Sixth Circuit opinion, did not believe it was the judiciary’s role to decide the marriage issue, and he wanted the right to marry to be left to a vote.

As a result, all six cases, including Obergefell and Henry, were consolidated, and the U.S. Supreme Court granted our petition for certiorari. The consolidated cases are called Obergefell v. Hodges.

What were the constitutional issues that this case decided, and what is the effect of that ruling going forward?

The questions presented to the U.S. Supreme Court were whether states are required to license same-sex couples to marry and whether states are obligated to recognize legal same-sex marriages. The Court answered “yes” to both questions. It held that under both due process and equal protection theories, same-sex couples have a right to marriage equal to that of opposite-sex couples. The Court overruled the Sixth Circuit’s holding that marriage equality should be left to the democratic process, finding that “the dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

What impact will Obergefell v. Hodges have on future cases involving LGBTQ rights?

Obergefell is an important step in the fight for full equality for LGBTQ people in this country, but there is much more work to do with respect to discrimination in employment, housing, businesses, schools and other areas of life.

The U.S. Supreme Court did not explicitly state what constitutional test was applied to the claim for LGBTQ equality by, for instance, recognizing LGBTQ people as a protected class, but by striking down marriage bans that marked same-sex couples as unequal, it established a strong precedent for equal rights.

What work did you do on this case?

I helped develop the theory and write the complaint and the briefs, all the way through the process, including the Supreme Court Petition for Writ of Certiorari and merits briefing. I was in the second row at the Court for the arguments. It was amazing to be in the same room with the Justices and the extensive legal teams and clients fighting for this issue.

What were some of the national organizations that worked with your firm on the case?

We co-counseled with Lambda Legal in the Henry case and with the ACLU in the Obergefell case. The national groups joined the suits once our win in the district court was on appeal in the Sixth Circuit. It was fantastic having their expertise and experience from other cases throughout the country. I met some really great attorneys, and everyone worked together really well-sharing in the drafting and editing process.

Jaci Gonzales with Jim Obergefell.

to work at Mountain State Justice in Charleston. There, her cases focused on representing low-income homeowners and reforming the state’s juvenile justice system.

Following the fellowship, Martin stayed on with Mountain State Justice for another year before moving to Ohio with her husband, Roy, where he had accepted a job with the Environmental Protection Agency in Cincinnati. Soon after, she began work at Gerhardstein & Branch.

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As a WVU Law student, Jaci Gonzales Martin was president of the Public Interest Advocates and the Women’s Law Caucus and an associate editor of the West Virginia Law Review. Among her most influential law professors, she lists Chuck DiSalvo, Bob Bastress, Anne Marie Lofaso and Patrick McGinley.

In 2010, the West Virginia Fund for Law in the Public Interest awarded Martin a one-year post-graduate fellowship

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HIGHLIGHTS BRIEFS Q&A PROFILES DEVELOPMENT FALL 2015

38

Gregory W. Bowman was named William J. Maier, Jr. Dean of the College of Law in May 2015 after an extensive national search. He had been serving as interim dean since July 2014. Bowman joined the College of Law faculty in 2009 and has taught law for more than a decade. He is a nationally

recognized scholar in international trade law and remedies.

Bowman holds a J.D. from Northwestern University, and he earned an M.A. from the University of Exeter in England and a B.A. from WVU. In 2014, he received the WVU Foundation Award for Outstanding Teaching.

with Dean Gregory Bowman What are the College’s strengths?

At our core, we are a student-centered law school that is innovative and dedicated to service. We provide a rigorous curriculum in an intense but collegial learning environment.

The faculty and staff at WVU Law work hard to prepare our students for personal and professional success. We are proud to offer forward-thinking programs like our Energy and Sustainable Development Law curriculum; our Public Interest Law Concentration; our LL.M. programs in Forensic Justice and Energy and Sustainable Development Law; our international study opportunities in Brazil, Mexico and Switzerland; and our world-class clinical law program.

As the only law school in the state, we provide our students with exceptional opportunities for externships, clinical experiences and networking. And because WVU is a land-grant institution, WVU Law has a clear and noble mission to serve the state, the country and the world. This clarity of purpose keeps us focused on our core values and goals, and that is critically important in today’s rapidly changing world.

Our clarity of purpose makes us better and keeps us relevant. It is a strength we do not take for granted.

What is your vision for the College?

What is the College’s role in the community?

At WVU Law, we train the lawyers and leaders of tomorrow. By that, I mean we mentor and train leading contributors and game-changers for society.

Lawyers have an inherently influential role in society. Lawyers are leaders in law firms, business and industry, all branches of government, higher education, the military and the communities we live in.

Lawyers are careful thinkers and thoughtful action-takers. Lawyers also understand justice — and that true justice requires the courage to make hard and sometimes unpopular decisions. People often forget that.

The knowledge and skills our students gain at WVU Law empower them to take on leadership roles in their communities and help make the world a better place.

How will legal education in the future be different, and how is WVU Law preparing for the future?

I believe public law schools like WVU Law are in many ways the future of legal education. For decades, America’s law schools have thrived as ivory tower silos. Law schools taught students, scholars engaged in research and the assumption was that what law schools did was correct and beneficial. Perhaps it was. But the world has changed significantly in recent years, and so has the public’s perception of law schools. So today’s law school must ask how it can serve society — and once it finds the answer, it has to act on it.

I believe today’s law school must be deeply connected to its community and the world through its service and leadership activities. If a law school is part of a larger university, it also must be deeply interconnected with other parts of the university through interdepartmental collaboration. Law schools that continue to operate as silos, on the old ivory tower model, will do a disservice to their students and society.

WVU Law is the only law school in West Virginia, and it is part of a proud land-grant university. We have a longstanding tradition of service, and we are deeply committed to that tradition, even as we innovate into the future. I think our future is bright.

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While our service mission will remain the same, I do envision some changes to WVU Law’s programs that will enhance our service, teaching and scholarship.

One change is that we will increase our outreach efforts to help the state economically and educationally. Our Entrepreneurship and Innovation Law Clinic is well positioned to boost the state’s knowledgebased economy by supporting start-up businesses and nonprofits, whether through WVU’s interdisciplinary LaunchLab or working directly for clients across the state.

Educationally, we will continue to produce lawyers who are leaders in their communities and who work for positive change. We plan to put even more emphasis on clinical legal education, especially in terms of statewide outreach. It’s through increased clinic outreach that we can really contribute to efforts to improve the state — from providing basic legal services to those in need, to helping towns and cities with land use and planning issues, to providing a framework to address energy and sustainable development issues, and more. Our clinics are a wonderful way for WVU Law to do well by doing good — by training the lawyers and leaders of tomorrow while also working to improve society.

Within the university, I see opportunities for more collaboration between WVU Law and other schools and departments — such as through research, joint degree programs, combined classrooms and global programming. WVU Law already does a great job of partnering

with other parts of WVU, like the LaunchLab and the Forensic and Investigative Science department in the Eberly College of Arts and Sciences, and we are actively developing more opportunities.

By doing all of these things, and doing them with a focus on service, WVU Law is in a prime position to do a lot of good — and to become a thought leader for American law schools. Our future, and our relevance, will depend on how well we innovate, while remaining true to our tradition of service.

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HIGHLIGHTS

Justitia Officium Profiles

BRIEFS

FRANKLIN D. CLECKLEY

DEVELOPMENT

PROFILES

Q&A

Franklin D. Cleckley is considered by many to be one of the state’s most influential legal scholars and practitioners. Born and raised with 10 brothers and sisters in Huntington, West Virginia, he received his undergraduate degree at Anderson College in Indiana in 1962 and his J.D. from Indiana University School of Law in 1965.

Following law school, Cleckley served three years as a Navy JAG officer, acquiring the reputation as the most-requested lawyer in Vietnam. After his military service, he earned an LL.M. from Harvard University in 1969.

In 1969, Cleckley joined the faculty at the West Virginia University College of Law, becoming the first holder of the Arthur B. Hodges Chair of Law. He was the first African-American member of the faculty and staff at the College of Law, and the first full-time African-American professor at West Virginia University.

A demanding legal educator, Cleckley was frequently selected by students for the Outstanding Teacher Award. He has influenced generations of lawyers who have gone on to serve at the bar, in the legislature, on the bench and in other leadership capacities around the world.

In 1994, Cleckley was appointed by the governor to serve on the Supreme Court of Appeals for West Virginia, where he served with distinction for two years. He was the first African American on the state’s highest court. During his tenure, Cleckley wrote over 100 majority opinions.

Cleckley is the author of the “Handbook on Evidence for West Virginia Lawyers” and the “Handbook on West Virginia Criminal Procedures,” volumes referred to as “the bible for West Virginia’s judges and attorneys” by the Supreme Court of Appeals of West Virginia.

Cleckley has successfully argued many important civil rights cases in the state and revived the Mountain State Bar Association, the oldest minority bar in the country, founded in 1915. Over the course of his career, he frequently served as a one-man legal aid society for clients who could not afford legal representation. He also established a foundation that gives former convicts educational and employment opportunities.

In 2013, Cleckley retired from the WVU College of Law, becoming a professor emeritus.

FALL 2015

DARRELL V. MCGRAW, JR.

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Darrell Vivian McGraw, Jr. has left an indelible mark on the law of West Virginia, serving as a supreme court justice and attorney general with distinction.

A native son of McGraws/Tipple in Wyoming County, West Virginia, he was educated at John McGraw School, Berea Academy and Pineville High School. He served three years in the U.S. Army before attending WVU. In 1959, as student body president, McGraw completed a student government project to obtain the mast of the USS West Virginia that stands as a landmark at the University.

He continued his education at WVU, earning a J.D. in 1964, and returning to earn a master’s degree in 1977.

Following law school, McGraw served as counsel to Governor Hulett C. Smith and to the Legislature while in private practice.

In 1976, he was elected to the Supreme Court of Appeals for West Virginia, serving until 1988.

At the Supreme Court, McGraw established himself as a progressive jurist. A few of the recognized landmark actions of the court during his time included the 1978 Mandolidis decision, which recognized the rights of injured workers to hold intentional violators of workplace safety laws accountable; the mandating of proper

funding of public education; the enforcing of human rights law; and the obligating of proper funding for public pensions. In 1987, he served as the state’s chief justice.

In 1992, McGraw was elected attorney general of West Virginia and served five terms in that office until 2013. The Consumer Protection Division under McGraw was greatly expanded, received national recognition and for two decades it engaged in exemplary work recovering multi-millions in dollars on behalf of West Virginia consumers, especially the state’s elderly and most vulnerable.

As attorney general, McGraw was involved in many highprofile national cases, including as a leader in the 1998 multibillion state tobacco settlement that ultimately entitled West Virginia to $1.8 billion.

In his public service, McGraw advanced the causes of civil rights, social justice, healthcare, environmental protection, governmental accountability, children’s welfare and employee protection to ensure benefit of their law to all West Virginians.

McGraw is married to educator Dr. Jorea Marple, who served as the first female West Virginia superintendent of schools.

Franklin D. Cleckley

Larry V. Starcher

Darrell V. McGraw

LARRY V. STARCHER Born near Henry’s Creek between Roane and Calhoun counties, West Virginia, Larry V. Starcher is a long-serving and distinguished member of the legal community in the state. He earned his bachelor’s degree in 1964 and his J.D. in 1967 from WVU. He was a justice on the Supreme Court of Appeals of West Virginia from 1997-2008, serving as chief justice in 1999 and 2003.

He retired from the Supreme Court at the end of 2008, becoming a senior status justice/judge. He served as a Monongalia County Circuit Court judge from 1977-1996 with 18 years as the Court’s chief judge.

Since January 2009 Starcher has been a lecturer in law at the West Virginia University College of Law, teaching trial advocacy and pre-trial litigation. He has served as an adjunct faculty in the College’s trial advocacy program since 1991. As a senior status justice/judge, Starcher has also served as judge on over 100 trial court cases since retiring from the Supreme Court.

Prior to his career as a jurist, Starcher was the director of the North Central West Virginia Legal Aid Society and a private lawyer.

He was also an assistant to the WVU vice president of Off-Campus Education in 1969.

As a circuit judge, Starcher was active in the area of juvenile justice reform, pioneered the use of work-release and community service as punishment for non-violent offenders, and handled several jail and prison conditions by appointment by the Supreme Court. He also presided over 20,000 asbestos injury cases and sat as judge on a six-month state buildings asbestos trial.

Serving on the Supreme Court as chief justice, Starcher promoted diversity of Court staff, developed the circuit judge law clerk program, worked for improvements in the administration of the judiciary, and reactivated the gender fairness task force.

Starcher has authored several hundred reported court opinions and many articles, including “Choosing West Virginia’s Judges,” Quinnipac Law Review (2001), and “A Judicial Philosophy: PeopleOriented Justice,” West Virginia Law Review (2009).

He and his wife, Becky, have three children who are all WVU graduates.

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Each year, the Justitia Officium Award is presented in recognition of outstanding contributions and service to the legal profession. It is the highest honor the West Virginia University College of Law bestows. The award was established in 1978 in commemoration of the 100th anniversary of the founding of the College of Law.

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FALL 2015

DEVELOPMENT

PROFILES

Q&A

BRIEFS

HIGHLIGHTS

Alumni Profiles

Katie Wilson, Class of 2014, in The Hague, Netherlands, during her internship at the ICTY.

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KATIE WILSON Class of 2014 Katie Wilson, Class of 2014, wrote the following while working as an intern at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, Netherlands. All views expressed herein are her own, and do not reflect those of the ICTY or the United Nations. As the 2014-15 Selinger Human Rights Fellow, Wilson is the second WVU Law student to hold an internship at the ICTY since 2013. She is now law clerk to the Honorable Eugene Strassburger, senior judge on the Superior Court of Pennsylvania.

purpose was to forcibly remove the Muslim population from the territory on which the Bosnian Croat leadership, with the leadership of Croatia, wanted to establish Croat domination.

Additionally, I have been exposed to the work of the trial teams, assisting with drafting motions in the Mladí case, and researching legal issues in the Šešelj case.

But my time in the Netherlands has not been limited to the halls of the Tribunal. My first week here, I went “native” and purchased a bicycle: Zelda, my trusty lavender omafiets (Dutch for “granny bike”), who helps me navigate a country where 31 percent of the population use bicycles as their main mode of transportation.

As an art lover, I couldn’t have asked for a better location — just 40 minutes from Amsterdam. I have spent many rainy afternoons in the Rijksmuseum and fawned over Fabritius’ Goldfinch at the Mauritshuis. I’ve come to love drinking karnemelk (buttermilk) for breakfast and snacking on stroopwafel alongside lazy canals in the afternoon.

Due to the ease and accessibility of travel in the Netherlands, I’ve had the chance to visit friends around Europe — most recently, a wonderful sunny trip to Lisbon to meet up with a fellow WVU alumna. I was also invited to serve as a judge for the Dutch National Rounds of the Jessup competition, coming full circle from when I was the one sitting on the other side of the bench.

Of course, none of this would have been possible without the support of my alma mater: as the 2014-2015 Selinger Human Rights Fellow, I was able to spend six months pursuing my ultimate goal of working within public international law.

As the ICTY approaches the end of its mandate, I am even more grateful for the opportunity to play a tiny part in the functioning of such an important landmark institution. Although the closure date is set for 2017, the legacy of the Tribunal will continue.

Whether I continue my law practice in the United States or abroad, I will be able to say that I bore witness to justice in action.

As Antonio Cassese, former president of the ICTY, remarked: “Justice is an indispensable ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution. Thus peace and justice go hand-in-hand.”

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If you had asked me during my last year of law school where I would be working four months after graduation, assisting in the prosecution of those accused of serious violations of international humanitarian law at the International Criminal Tribunal for the Former Yugoslavia (ICTY) would not have seemed possible.

Yet here I am: five months into a fantastic fellowship in the Appeals Division of the Office of the Prosecutor, in the capital of international justice, The Hague.

My path to the Tribunal truly began at WVU, specifically through appellate advocacy and my participation in the Philip C. Jessup International Law Moot Court Team and the National Moot Court Team. Both of these experiences helped to develop my legal writing and oral advocacy skills.

In 2014, our Jessup team advanced to the international rounds of the competition — the first time WVU had done so in over 40 years — presenting arguments on hot pursuit on the high seas and the legality of extraterritorial jurisdiction. Maybe it was the thrill of our team doing so well, or maybe it was the encouragement of my international law professor, Jim Friedburg, and criminal law professor, Arthur Rizer, but I brazenly applied for a position at the ICTY. Fast forward a few months (I won’t bore you with stories of studying for the bar exam) to early September, and I was on a plane bound for the Netherlands. From day-one of arriving at Churchillplein 1, where the Tribunal sits surrounded by the billowing, colorful flags of U.N. member states, I have been exposed to new challenges (learning how to research a legal issue across 15 domestic jurisdictions) and encouraged to step outside my comfort zone (bike riding through the rain, in high heels).

Under the supervision of attorneys from many different jurisdictions, my assignments have been varied, interesting and demanding.

Notably, I have assisted with response preparation for the appeal case of Prosecutor v. Prlic, one of the largest leadership cases the Tribunal has seen, with six appellants and a hefty 2,600 page trial judgement. In Prlic, the accused were found guilty of crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions committed in 1993, through their participation in a joint criminal enterprise (“JCE”) whose ultimate

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BRIEFS

HIGHLIGHTS

AARON MOSS and STEPHANIE WELSH

FALL 2015

DEVELOPMENT

PROFILES

Q&A

Class of 2015 graduates Stephanie Welsh and Aaron Moss have a few things in common.

First, while many of their classmates are headed to firms, clerkships or the government, they have chosen career paths in public interest law.

Second, they are passionate about using the law to better the condition of others.

Third, they have both been awarded year-long post-graduate fellowships from the West Virginia Fund for Law in the Public Interest (WVFLIPI).

Moss is spending his fellowship at Mountain State Justice in Clarksburg, West Virginia. He will concentrate on a prison reform project that aims to protect the rights of prisoners with mental illness.

Welsh’s fellowship is at Legal Aid of West Virginia in Wheeling, West Virginia, where she will focus on foster care and the educational rights of foster children.

“Ultimately, my fellowship hopes to advance the rights of mentally ill inmates by confronting the issues of lack of mental health treatment, prison overcrowding, extreme and excessive forms of punishment and the processes from which these injustices result,” said Moss, who has long-term career aspirations in the field of criminal justice reform.

Moss hopes his fellowship will serve to change an area of unmet need in the state’s system of incarceration.

“West Virginia’s criminal justice system poses serious problems to the rehabilitation and successful reintegration of mentally ill individuals,” he said. “However, I now have the opportunity to help those in dire need.”

Likewise, Welsh hopes her fellowship will improve a governmental service that falls short of helping the underrepresented.

Since before attending law school, Welsh had worked as a volunteer for the West Virginia Court Appointed Special Advocates for Children.

“I saw a lot of the failures of the system,” she said. “And I knew I would need a law degree to be able to make the changes that I want to see.”

Even so, Welsh acknowledges the challenges to the reform she envisions.

“We’re trying to change the way we handle foster care in West Virginia in the areas of education and transitioning to adulthood while becoming more in compliance with federal law,” she said. “That won’t happen overnight.”

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Aaron Moss President, Public Interest Advocates Volunteer, Appalachian Prison Book Project Externship, Federal Public Defender in the U.S. District Court for the Northern District of West Virginia Bachelor’s degree in anthropology, James Madison University

Stephanie Welsh Vice President, Public Interest Advocates Moot court participant ABA Law Student Division Lt. Governor of Public Interest Helped organize the WVU Law Veteran Thank You Project Bachelor’s degrees in political science and multidisciplinary studies in sociology, philosophy and economics, West Virginia University

PIA SUMMER FELLOWS In addition to supporting two one-year post-graduate law positions, the West Virginia Fund for Law in the Public Interest (WVFLIPI) awards 10-week paid summer fellowships. Here are the summer 2015 Public Interest Advocates (PIA) Fellows and where they are working in West Virginia: Kirk Auvil Class of 2016 West Virginia Advocates, Charleston Micki Biggs Class of 2016 Mountain State Justice, Clarksburg Jackson Butler Class of 2017 Childlaw Services, Princeton Katy Marcum Class of 2017 Mountain State Justice, Charleston Phil Wachowiak Class of 2016 Senior Legal Aid, Morgantown

Brittany Holstein Class of 2017 Huntington Aaron “AJ� Johnson Class of 2017 Clarksburg Alex Meade Class of 2016 Morgantown Meagan Preece Class of 2017 Logan Briana Stevens Class of 2017 Childlaw and Legal Aid of WV, Princeton For more information about the Public Interest Advocates, contact Jennifer Powell, director of the Center for Law and Public Service, at 304-293-8555 or jennifer.powell@mail.wvu.edu.

Jenny Thoma Class of 2016 Sprouse Fellow, Kanawha County Public Defender, Charleston Patrick Holbrook Class of 2016 Sprouse Fellow, Federal Public Defender, Clarksburg The following 2015 PIA Fellows are working at Legal Aid of West Virginia across the state: Lia Deane Class of 2016 Charleston Matt Gibbs Class of 2016 Charleston Lisa Hartline Class of 2017 Parkersburg LAW.WVU.EDU

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HIGHLIGHTS

College Development

Building Renovation is Under Way and alumni, and marketing and communications. Faculty offices on the second floor will also be renovated. Work on the first floor renovation will commence in 2016. This includes a new entrance in the Law lobby to the library, to a reconfigured student services area and to the College’s new Academic Excellence Center.

DEVELOPMENT

PROFILES

Q&A

BRIEFS

The next phase of the College’s $26 million expansion and renovation is under way. Work on the second floor of the existing building began in May and is expected to be completed by January 2016. This phase includes an expansion of the George R. Farmer, Jr. Law Library, a new student lounge, and offices for the West Virginia Law Review, student organizations, development

FALL 2015

New Dean’s Partners, 2014-2015

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Mr. and Mrs. H. Raymond Andrews

James J. and Helene Friedberg

Claudia and Norwood Bentley

Barbara B. Highland Charitable Lead Trust

Bill and Mary Booker

Raymond R. Hyre Memorial Trust

Brewer & Giggenbach, PLLC

Marilyn McClure-Demers

Harry Deitzler

Law Office of Stephen New

Dr. Gregory G. Elkins and Dr. Leann R. DiAndreth-Elkins

Bill Pepper

The Honorable Dr. and Mrs. David A. Faber

West Virginia Continuing Legal Education

Thomas Combs and Spann, PLLC

Alumni and Friends Gather for D.C. Reception In June, the College of Law held a reception for alumni and friends in Washington, D.C. It was hosted by Nelson Mullins, and Dean Gregory Bowman provided an update on the College of Law.

(Above) Matt Dunn ’10, Crystal Canterbury ’10 and Joe Funkhouser ’10.

(Right) Gene Irisari ’97, director of government relations for Texas Instruments.

Alumni Notes Carlos E. Mendoza, Class of 1997, was confirmed by the U.S. Senate in June 2014 to serve as the United States district judge for the Middle District of Florida. Prior to joining the federal court, he was a judge on the Seventh Circuit Court in Florida.

Richard A. Robinson, Class of 1984, was appointed an associate justice of the Connecticut Supreme Court on December 19, 2013. He had been a judge on the Connecticut Appellate Court since 2007.

Major General Jeffrey A. Rockwell, Class of 1987, is the deputy judge advocate general for the U.S. Air Force.

At the Pentagon, he assists the judge advocate general in the professional oversight of more than 2,200 judge advocates, 350 civilian attorneys, 1,400 enlisted paralegals and 500 civilians worldwide.

LAW.WVU.EDU

Jon D. Levy, Class of 1979, was confirmed by the U.S. Senate in April 2014 to serve as a United States district judge for Maine. He was previously an associate justice on the Maine Supreme Judicial Court.

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New FBI Building Named for Jerry Dove, Class of 1981

FALL 2015

The FBI’s new $194 million South Florida field office in Miramar was dedicated in April. It is named for agents Benjamin P. Grogan and Jerry L. Dove, who were killed on April 11, 1986, in a shootout with heavily armed bank robbers south of Miami. Five other FBI agents were wounded in what remains the bureau’s bloodiest single day. Dove graduated from WVU Law in 1981.

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Images courtesy of Krueck + Sexton Architects and Nick Merric, photographer at Hedrich Blessing

LAW.WVU.EDU

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Non-Profit Organization U.S. Postage PAID Morgantown, WV Permit No. 34 101 Law School Drive PO Box 6130 Morgantown, WV 26506

law.wvu.edu

WVU President and Professor of Law Dr. E. Gordon Gee speaking to students in the Lawyers as Leaders seminar.

The course is taught by David Hardesty, professor of law and WVU president emeritus.