News & Events
Posted July 3, 2014

UVA Law Professors React to Key Supreme Court Decisions

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Contact: Mary Wood

University of Virginia School of Law experts reacted to a number of significant U.S. Supreme Court cases this month. (Professors available to the media)

Burwell v. Hobby Lobby Stories Inc. and Conestoga Wood Specialties Corp. v. Burwell (aka Sebelius v. Hobby Lobby Stores Inc.and Conestoga Wood Specialties Corp. v. Sebelius) (cases involving religious exemption to contraceptive insurance)
Barbara Armacost
Brandon Garrett
Douglas Laycock

Richard Schragger
Micah Schwartzman

McCullen v. Coakley (involving free speech and protests at abortion clinics)
Leslie Kendrick

American Broadcasting Companies Inc. v. Aereo Inc. (use of new technology for unauthorized rebroadcast)
John Duffy
Dotan Oliar

Halliburton v. Eric P. John Fund (whether to abolish fraud-on-the-market theory, with implications for class action lawsuits for securities fraud)
Dean Paul G. Mahoney
Andrew Vollmer

Southeastern Legal Foundation v. EPA, Texas v. EPA, Energy-Intensive Manufacturers Working Group v. EPA, Chamber of Commerce v. EPA, American Chemistry Council v. EPA, and Utility Air Regulatory Group v. EPA (environmental cases)
Michael Livermore


ArmacostBarbara E. Armacost
Professor of Law
(434) 924-3413
bea4k@virginia.edu

Barbara Armacost, an expert in the First Amendment (religion clauses) and law and morality, is available to speak about Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores Inc., cases involving religious exemption to contraceptive insurance. Armacost in the Media

On Hobby Lobby:

"Burwell v. Hobby Lobby
is an important, but relatively narrow, decision. It is important because it extends free exercise protection to at least some for-profit entities. (Surely the kosher butcher is not precluded from raising a free exercise claim simply because he operates for profit or operates his business in corporate form.) It is also important because the holding — that in some circumstances religious claimants will be relieved of obligations to third parties — means that sometimes free exercise exemptions will impose costs. (More on this point below.)

"It is narrow, however, because – practically speaking — it will permit a relatively small category of claims.

"First, only a sole proprietor or closely held corporation will be able to bring a plausible claim that regulating the corporation compromises the free exercise rights of its managers and/or owners.  Only then is the corporation sufficiently synonymous with those who own and control it. (The majority says as much in its opinion.)  

"Second, the holding is narrow because — despite the dissent’s parade-of-horribles — the holding is unlikely to invite many free exercise claims involving other aspects of health coverage. Such claims are possible but not likely. The contraception claim is in some sense sui generis. Forcing plaintiffs to provide contraceptives that could cause the destruction of a human embryo arguably makes them complicit in an abortion, in other words, 'has the effect of enabling or facilitating the commission of an immoral act by another.' It is hard to think of other examples that would have the same implications. For example, the dissent worries that corporate owners could refuse to provide other health services, such as vaccines and blood transfusions. But these kinds of treatments do not raise plausible free exercise claims by employers who are forced to cover them. The free exercise right implicated by vaccines and blood transfusions is the right of a patient (or parent of a minor) to decline medical treatments she believes are prohibited by her faith. Religious people do not argue that it is immoral for other people to get vaccines or blood transfusions. Thus, unlike in the case of alleged abortifacients, the employer is not likely to argue that she has 'enabled an immoral act by another.'

"Third, the court’s holding is narrow in another way. The majority’s — and Justice Kennedy’s —  analysis relies heavily on the fact that the government already had in place what it deemed a satisfactory accommodation for religious organizations that objected on free exercise grounds to providing contraception coverage. When the justices (applying the Religious Freedom Restoration Act known as 'RFRA') considered whether the government’s denial of the plaintiffs’ free exercise claim was the 'least restrictive means' of furthering the government’s “compelling interest” in providing contraception coverage, they concluded that the existing accommodation undermined the government’s claim that exempting the plaintiffs would compromise this interest. Indeed, the majority took the government at its word that the accommodation would cost the women employed by Hobby Lobby exactly 'zero' — it would preserve religious freedom and guarantee contraception coverage with no net economic burden on the insurance companies that are required to provide or secure coverage. Thus, while in dicta the majority rejects the argument that RFRA never requires the government to spend money to accommodate free exercise claims, the case the court actually decided imposed no costs at all.

"In sum, I believe the holding in the case will be (or should be) read as limited by its facts, three in particular: that the claimant was a closely held corporation, that a claim involving abortifacient contraceptives raises unique free exercise issues, and that the government had a plausible accommodation in place. Admittedly, however the majority made some broad statements that could be read more expansively by lower courts. And perhaps the biggest uncertainty raised by the majority’s holding is how lower courts should (or will) handle free exercise claims involving exemptions from civil rights laws. For example, what happens when Christians who own a photography business refuse to photograph a gay wedding, the facts of a case that was decided against a religious claimant by the New Mexico Supreme Court? One response is that RFRA, which was the basis of the claim in Hobby Lobby, has nothing to say about local situations like this because RFRA only applies to federal law. (It remains to be seen, however, how the opinion in Hobby Lobby might affect the interpretation of state RFRA statutes.) And — depending on the context — in cases that do involve a clash between religious rights and rights involving race, national origin, gender or sexual orientation, the courts might find that the government has a compelling interest in denying claimed religious exemptions. Whether you think future courts get the right result in such cases might depend on your views of the proper balance between religious rights and civil rights involving these other interests."


DuffyJohn F. Duffy
Samuel H. McCoy II Professor of Law
Armistead M. Dobie Professor of Law
(434) 243-8544
jfduffy@virginia.edu

John Duffy, an expert in intellectual property, is available to speak about American Broadcasting Companies Inc. v. Aereo Inc., which involves the use of new technology for unauthorized rebroadcast. Duffy in the Media  

On Aereo:

"This spells the end of the Aereo business model. If you think you've pieced together a way around the copyright law, you should think again."


GarrettBrandon L. Garrett
Roy L. and Rosamond Woodruff Morgan Professor of Law
(434) 924-4153
bgarrett@virginia.edu

Brandon L. Garrett, an expert in constitutional law and federal courts, is available to speak aboutavailable to speak about Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores Inc., cases involving religious exemption to contraceptive insurance. Garrett in the Media  

On Hobby Lobby:

"Now a corporation can have sincere religious beliefs of legal significance. Was yesterday’s long-awaited ruling in the Hobby Lobby case, a 'narrow' ruling? The Supreme Court majority did suggest that perhaps just 'closely-held' for-profit companies, as believers, would be exempt from contraceptive coverage under the Affordable Care Act of 2010. And the court said it would not address whether a company could have First Amendment free exercise rights. Was that notable restraint? Even if so, the court utterly lacked restraint in silently dodging a larger constitutional question: whether a company has standing under Article III of the Constitution to sue based on the religious beliefs of its separate owners."  


KendrickLeslie Kendrick
Professor of Law
(434) 243-8633
kendrick@virginia.edu

Leslie Kendrick, an expert in the First Amendment, is available to speak about McCullen v. Coakley, buffer zones for abortion clinic protests, and Susan B. Anthony List v. Driehaus, on false election speech. Kendrick in the Media

On McCullen:

"In McCullen v. Coakley, the Supreme Court issued a relatively modest opinion with potentially large implications. The court struck down a Massachusetts law that created a 35-foot buffer zone around the entrance to abortion clinics. The law was enacted after a previous, more permissive law proved difficult to enforce, and the state argued that the new law was justified by interests in patient safety, healthcare access, and unobstructed streets and sidewalks.

"The Supreme Court decided that the law was content-neutral: That is, that it did not target speech on account of its message but instead regulated all activity in a given zone for reasons that were not related to the message of speech. In so holding, the Supreme Court remained consistent with earlier precedents and implicitly declined an invitation to overrule an earlier case involving a somewhat similar law. To that extent, the court’s majority opinion — authored by the chief justice and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan — was surprisingly modest, to the displeasure of the four remaining justices, who concurred in the judgment but believed that the law was content-based.

"In other ways, however, the opinion is more far-reaching. For the most part, in the past the Supreme Court has historically given only cursory scrutiny to content-neutral laws. In this case, it gave the law a harder look and concluded that it was not sufficiently narrow — that although it was not targeting particular messages, it burdened speakers’ rights too much.

"This more skeptical approach to content-neutral laws may have a few effects. First, it may increase confusion in the lower courts, which already apply content-neutral analysis with differing levels of bite. Second, it calls into question the court’s longstanding approach to all sorts of speech regulations, such as regulations of pamphleteering, demonstrations, financial solicitation and so forth. In McCullen, it seemed to matter to the court that the Massachusetts law regulated expressive activities on public streets and sidewalks. But many content-neutral laws regulate activities in these places. The court has historically cast a permissive eye on these regulations, but consistency with this opinion would demand a harder look.

"Finally, one might note that when dignitaries like Supreme Court justices go into public to give speeches, they are often the beneficiaries of so-called 'free-speech zones,' where demonstrators and other citizens are cordoned off in a location some distance away from the dignitary. Like the Massachusetts buffer zone, these free-speech zones are supported by arguments about physical safety and traffic flow. Like the Massachusetts buffer zone, they burden the speech opportunities of citizens. We might ask whether the Supreme Court Justices would subject themselves to the same rule they laid down today."


LaycockDouglas Laycock
Robert E. Scott Distinguished Professor of Law
Professor of Religious Studies
(434) 243-8546
dlaycock@virginia.edu

Douglas Laycock, one of the nation's leading authorities on religious liberty, has argued a number of cases before the U.S. Supreme Court, including the recent Town of Greece v. Galloway. He is available to speak about Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores Inc., cases involving religious exemption to contraceptive insurance. Laycock in the Media

On Hobby Lobby:

"The court has found and pointed to the live-and-let-live solution: Women get free contraception, and the religious objectors donít have to pay for it, contract for it or arrange for it. The governmentís solution for religious nonprofits can simply be extended to the much smaller number of objecting for-profit corporations.

"Of course many of the nonprofits are objecting to that solution, claiming that they shouldnít even have to file the form claiming the exemption. The court carefully refrained from deciding that claim, but thatís a vastly harder claim for the religious side. Itís hard to get an exemption without asking for it; allowing their claim would deprive women of contraceptives; and it would unsettle the solution in todayís decision. Itís hard to believe after today that there arenít at least five votes against that."


LivermoreMichael A. Livermore
Associate Professor of Law
(718) 913-0833 (cell)
(434) 982-6224
mlivermore@virginia.edu

Michael Livermore, an expert in environmental law and air pollution regulation, is available to speak about Southeastern Legal Foundation v. EPA, Texas v. EPA, Energy-Intensive Manufacturers Working Group v. EPA, Chamber of Commerce v. EPA, American Chemistry Council v. EPA, and Utility Air Regulatory Group v. EPA. Livermore in the Media

On Utility Air:

"EPA wanted to set technology-based requirements on large (but not small) sources under a particular Clean Air Act program. It did that by finding that the statutory language (that EPA must issue guidelines for 'any air pollutant') included GHGs, but that the statutory threshold of 100 (or 250) tons was too small. So EPA issued a 'tailoring rule' that restricted its requirements to only the largest sources.

"The court found that 'any air pollutant' in this particular program could be limited, and so EPA was not compelled to regulate, and actually couldn’t regulate the small sources. But it could regulate sources that are already required to get a permit under this program, which are basically the large sources. It is quite possible that that EPA considered this approach and rejected it as too legally risky. In any case, it gets to almost exactly the same outcome: 87 percent of emissions from stationary sources will be covered, and EPA’s original approach would only have reached 3 percent more.

"But, in the course of the opinion, Justice Scalia characterized EPA’s approach as an unprecedented power grab. So there is plenty of text that opponents of the agency can use to argue that the court reprimanded EPA, when in reality it just supplied an alternative legal basis to get to the same place.

"Note that the court left as settled Mass. v. EPA. Also note that only Justices Alito and Thomas appear to have a taste to revisit that decision."



MahoneyPaul G. Mahoney
Dean, David and Mary Harrison Distinguished Professor of Law
Arnold H. Leon Professor of Law
(434) 924-7343
pmahoney@virginia.edu

Paul Mahoney, an expert in securities regulation and corporations, has written about market fraud ("Precaution Costs and the Law of Fraud in Impersonal Markets"), teaches Securities Regulation at the Law School and was frequently quoted in the media during the height of the financial crisis. Mahoney in the Media

On Halliburton:

"Allowing anyone who trades a stock in the aftermarket to sue based on an allegedly misleading statement and then dispensing with individualized proof of reliance creates potential liability far out of proportion to the actual social harm caused. The court took a small step toward pruning securities fraud class actions down to a more reasonable size."
 

OliarDotan Oliar
Class of 1966 Research Professor
(434) 924-3219
oliar@virginia.edu

Dotan Oliar, an expert in intellectual property and cyberlaw who has written about the trade-off between copyright and innovation, is available to speak about American Broadcasting Companies Inc. v. Aereo Inc., which involves the use of new technology for unauthorized rebroadcast. Oliar in the Media

 

SchraggerRichard Schragger
Perre Bowen Professor of Law
Barron F. Black Research Professor of Law
(434) 924-3641
schragger@virginia.edu

Richard Schragger, an expert on government, constitutional law and the separation of church and state, is available to speak about Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores Inc., cases on religious exemption to providing contraceptive insurance. Schragger in the Media

On Hobby Lobby:

"Hobby Lobby is a very significant decision. For the first time, the court holds that a for-profit corporation can be relieved of the obligation to provide government-mandated entitlements even if vindicating the company owners' religious beliefs imposes substantial costs on their employees. In this case, the court holds that the government itself can easily provide the contraception benefits that are required under the Affordable Care Act and so burdening the owners' religious beliefs is unnecessary. But the reasoning of the opinion goes far beyond contraception under the ACA.

"First, the opinion completely elides the distinction between for-profit corporations and churches or other nonprofit religious organizations. Corporate owners now have the same rights as individuals and religious associations under the Religious Freedom Restoration Act. This constitutes a fairly dramatic departure from settled doctrine.

"Second, the opinion invites the possibility of publicly traded corporations bringing exemption claims as well. The court observes that such claims might not be brought as a practical matter, but it does not categorically reject them, nor does the majority seem at all troubled by the size of the exemption-seeking business. Hobby Lobby, though family-owned, has over 13,000 employees.

"And third, the majority suggests that if the government can easily pay for an employee benefit through a separate scheme, than it must do so in the face of a business owner's religious objection. In other words, employer religious objections must be accommodated if they can be paid for by taxpayers — an obvious shifting of financial burdens from religious corporate owners to the rest of us. Courts going forward will now have to wrestle with a whole range of exemption demands from many different kinds of corporate employers. Hobby Lobby indicates that a non-trivial number of these claims will be successful and that the costs of these accommodations will be shifted either to employees or to taxpayers."


SchwartzmanMicah Schwartzman
Edward F. Howrey Professor of Law
(434) 924-7848
schwartzman@virginia.edu

Micah Schwartzman, an expert on constitutional law and issues relating to church and state, is available to speak about Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores Inc., cases on religious exemption to providing contraceptive insurance. Schwartzman in the Media



VollmerAndrew N. Vollmer
Director, John W. Glynn, Jr. Law & Business Program
(434) 982-2543
anv3de@virginia.edu

Andrew Vollmer is an expert in securities litigation and enforcement and former deputy general counsel at the Securities and Exchange Commission. Vollmer in the Media

On Halliburton:

"The opinions in today’s Halliburton decision answer some questions but raise new ones. Will differences in the efficiency of the markets for particular types of information or particular companies ('market efficiency is a matter of degree') mean that district courts will find that some markets are not efficient or will those differences affect the dates to define the class period? Does the discussion in the different opinions about the categories of investors that do not rely on price integrity, such as value investors, affect the selection of the lead plaintiff, and does it open new areas for the defendant to explore with discovery with the aim of excluding entire portions of the putative class on the ground they were indifferent to whether the market price would incorporate public information within a reasonable period?"