A Conversation with Professor Jayne Barnard
By Ami Dodson
William & Mary Law School Professor Jayne Barnard has spent more than three decades working with the ACLU, fighting for civil rights and civil justice around the country. On September 17, 2010, she was elected President of the American Civil Liberties Union of Virginia, the culmination of a 30-year commitment to the cause.
Barnard is the James Goold Cutler Professor of Law and the Herbert V. Kelly, Sr., Professor of Teaching Excellence. She holds a J.D. from the University of Chicago and a B.S. from the University of Illinois. She has written extensively about white-collar crime, securities regulation, corporate finance, and behavioral economics.
Barnard says she first got involved with the ACLU when she was a young associate with Jenner & Block in Chicago, IL. “I was becoming something of an expert in election law, and ballot access issues in particular,” she recalls. “At the time, in the mid 1970s, the rules were skewed against third party and independent party candidates. I’d had some success in getting candidates’ names on the ballots and making sure their votes were counted. I was a second year associate at a big law firm and I was winning some cases on behalf of some very disfavored candidates. This brought me to the attention of the civil rights community in general and the ACLU in particular.”
In 1985, Barnard relocated to Virginia to join the faculty of the William & Mary Law School and quickly became active in the Virginia chapter of the ACLU. She became a member of the Board in the late 1980s. She chaired the nominating committee and served on the investment committee, but she says, “My biggest commitment to the organization was to chair the Legal Panel for nearly a decade. This is the group of board members and volunteers who sort through the many requests submitted to the ACLU each month and determine which matters warrant litigation. It’s a big job, made possible by the many, many volunteers and dedicated staffers who review the work.”
In her new capacity as President of the Virginia chapter, Barnard will not only keep track of the ACLU’s litigation function, but also steer policy development, navigate financial concerns, encourage public education, enhance legislative advocacy, and develop the chapter’s relationship with the national ACLU. “The ACLU of Virginia is extremely fortunate to have someone with Jayne's exceptional capabilities at the helm,” says Kent Willis, Executive Director of the ACLU of Virginia. “She possesses that combination of organizational expertise, commitment to cause, and legal insight that defines a successful ACLU leader. Jayne is passionate about civil liberties, civil rights, and the rule of law, making her a perfect fit with the ACLU. Having served in a number of leadership roles at the ACLU of Virginia, this was a natural next step.”
“Jayne is book smart, street smart, and politically savvy,” says John Vail, Vice President and Senior Litigation Counsel at the Center for Constitutional Litigation and the outgoing President of the ACLU of Virginia. “Her academic study of corporations has only deepened her understanding of real ones. She approaches the law with humanity, and, most important in any volunteer organization, she does what she says she will do.”
Barnard says she is grateful for the opportunity to lead the ACLU of Virginia into its next era. One of her primary focuses will be nurturing the future leadership of the organization. “The ACLU of Virginia has more than 10,000 members,” she notes. “We are working hard with our student chapters and young professionals to impress upon them the importance of the work the ACLU does to keep our Constitution strong and our people free from unwarranted intrusion into their lives. We actively welcome the interest and participation of young lawyers – and non-lawyers – in our programs and leadership groups.
“We currently have projects involving Voting Rights Restoration for Felons, Women’s Rights, and Immigrants’ Rights,” she continues. “We are always watching what’s going on in the Virginia General Assembly and have a full-time legislative advocate there to bat back bad legislation and to build coalitions for good legislation. We have a strong public education team that works with students and teachers and maintains our excellent website. And, of course, we are always being asked to bring lawsuits or defend individuals charged with some crime. We do all this very, very well,” she says.
One interesting aspect of Barnard’s lifetime of work with the ACLU is how rarely it has intersected with her work as an academic. Her scholarly publications, for example, do not focus on civil rights. “I love the material I teach, and I’m enriched by the work I do on the side,” says Barnard. “There are occasional overlaps between corporate law and civil rights principles; they are rare but fruitful.” She suggests that her civil rights interests have also shaped her thinking on some corporate law issues in creative and nuanced ways. “Because I work so much with the ACLU on one side of my life,” she explains, “those concepts and that way of thinking have migrated into the other side of my life to the advantage of my scholarship.”
As an academic and a scholar, Barnard has been a critical player in the evolution of our understanding of white collar crime and its societal implications. She is a nationally recognized expert in corporations, corporate governance, and securities regulation law. Barnard was the first to propose that people harmed by economic crimes should be able to present victim-impact testimony (also known as victim allocution) at sentencing hearings. (To read an excerpt from “Allocution for Victims of Economic Crimes,” please click here.) Her work was instrumental in Congress ultimately passing the Crime Victims Rights Act of 2004, which allowed victims of Bernie Madoff, for example, to offer victim impact statements prior to his sentencing.
Barnard says her scholarship has “evolved into two clear paths: I began with traditional corporate governance – how corporations are run, who is in charge, what makes boards act the way they do, for example, and how they become dysfunctional.” She wrote about the appropriate sanction regime for corporate leaders who “behave badly.” (To read an excerpt from “Rule 10B-5 and the ‘Unfitness’ Question,” please click here.) Barnard notes, however, that her current research projects are moving away from questions about traditional corporate governance toward “a preoccupation with the victims of financial misconduct, specifically, victims of smaller businesses that turn out to be Ponzi schemes.” She has been directing her energies especially to “small, one man operations that over the last decade have sucked up billions of dollars. Some of them have been utterly invisible except to the victims, but now we’re seeing mega-victim frauds everywhere. I’ve been working for a decade on the rights of victims, the legal and psychological problems that confront them, and how victims can get a better sense of satisfaction with the legal system and their own personal integrity when victimized.
“My current project talks about what happens when people suddenly find out all their money is gone. It is very much like a death in the family. The whole grieving process unfolds in the same way – some people make healthy adjustments, but others get stuck in their grief. The analogies between losing your money and losing a loved one may seem disrespectful but it’s exactly what happens with these victims.”
In addition to her commitments to the ACLU of Virginia and her success as a scholar, Barnard has also been a memorable teacher and mentor to many years' worth of students. "While all law professors encourage precise legal thinking," recalls Thomas Fitzpatrick, '10, Dunn Legal Fellow at the ACLU of Virginia, "Professor Barnard was the rare educator who would also encourage analysis of questions on the margins of the legal field; questions of morality, the limitations of law, and societal injustice."
“Jayne Barnard was larger than life to me when I was her student in the early 1990s,” remembers Luz E. Nagle, ’95, a law professor at Stetson University College of Law. “Her dignity and classiness, her kind personality, and the way she treated everyone with such a high degree of regard and professionalism gave me a lasting impression of how I wanted to conduct myself as a lawyer and professional woman. But it was her teaching style, her total command of the subject matter, and her incredible class preparation that made Professor Barnard my role model for the kind of law professor I hoped to be in the future. She empowered me to be a better lawyer, a better professor and legal scholar, and a better woman, and for that I will always be grateful.”
To read an excerpt from Professor Barnard's article "Deception, Decisions, and Investor Education," please click here.