Current Faculty Headlines
Notable Faculty Quotes, July and August 2014
Barbara Armacost wrote a July 10 Richmond Times-Dispatch commentary on Burwell v. Hobby Lobby, arguing that it “is an important, but relatively narrow, decision.” She explained that the holding was “unlikely to invite many free exercise claims involving other aspects of health coverage. . . . 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.”
Josh Bowers was quoted in a July 30 Time article about the defense strategy of former Virginia Governor Bob McDonnell and his wife, Maureen, that they didn’t conspire to accept gifts but only did so because Mrs. McDonnell had a “crush” on the donor. “This strikes me as a more atypical defense, but that doesn’t mean it’s a Hail Mary pass,” he said. “It could very well be the truth, and sometimes the truth is stranger than fiction.” Bowers commented in an Aug. 11 CBS News story about a convicted defendant’s attempt to withdraw his guilty plea. "At least if the system is operating as it should, the plea bargain is a consensual agreement," he said. "Approximately 95 percent of all convictions are a result of guilty pleas, not trial. The chances of success in withdrawing a guilty plea after sentence are extremely low."
Darryl Brown was quoted in a July 14 Richmond Times-Dispatch article about the broad transactional immunity granted to Jonnie R. Williams Sr. in the McDonnell conspiracy trial, protecting him from prosecution for the crimes at issue and not just against the use of his testimony. “They certainly have the power to grant transactional immunity and they certainly don’t do it often,” he said. “The government always prefers to give only use immunity in exchange for a witness’s testimony, but if a witness is important enough to the government, he can sometimes drive a hard bargain and get complete transactional immunity.”
Anne Coughlin commented in a Aug. 9 Washington Post story about whether former Governor McDonnell and his wife had the requisite “corrupt intent” for conviction. “This case comes down to motive, intent, purpose, knowledge,” she said. In an Aug. 24 Newport News Daily Press article, Coughlin discussed the trial’s treatment of Maureen McDonnell as a mercurial and mentally disturbed person. "There is a long tradition of women defendants being portrayed in a way that focuses on their mental state in order to suggest that they are irrational, incompetent creatures," she said. "To the extent that the defense suggests that women lack the capacity for responsible conduct, it is disrespectful and may support arguments for limiting women's autonomy in general."
In an Aug. 29 NPR story, Ashley Deeks discussed whether the U.S. could rely on a legal theory of self-defense in taking military action against the Islamic State in Iraq and Syria. "To have a solid self-defense theory, you either have to have already suffered an armed attack by the people you are targeting, or you have to think that they pose an imminent threat of armed attack," she said.
John Duffy was quoted in a July 7 Wall Street Journal article about proposals to loosen the Federal Circuit’s monopoly on patent appeals, amid growing complaints that the court has made some areas of patent law hard for lawyers and lower courts to follow. "The Federal Circuit is a grand experiment, and you rarely get experiments exactly right on the first shot," he said. "Thirty-plus years later, it's time to move to version 2.0."
In an Aug. 15 Greenville News story about a proposed Senate resolution advocating increased recruiting and interviewing of minorities for top job openings, Kim Forde-Mazrui said the resolution would probably not run afoul of federal civil rights laws that prohibit discrimination in hiring. "It's more of a recruiting tool than an actual point of awarding a benefit," he said, but added that the Supreme Court might say race cannot be used to determine who gets a job interview. "If you had case where someone could prove that . . . they would have gotten the interview and had a plausible chance of getting the job,” he said, “there are people probably on the Court today who are receptive to at least taking that argument seriously.”
Brandon Garrett was quoted in a July 1 Corporate Crime Reporter article about a guilty plea by BNP Paribas, under which the bank will pay nearly $9 billion in penalties for violations of U.S. economic sanctions. “This is the Gargantua of bank prosecutions,” he said. “The BNP plea will provide the largest forfeiture ever in a criminal case. It will amount to the largest total monetary payment in a corporate prosecution agreement.” Garrett said in a July 16 ABC News story that it should come as no surprise that bank robbers serve hard time while bank executives have avoided criminal charges for their role in the financial collapse. “There is a real moral concern with the difference in treatment of corporate offenders and the small fry that gets caught up in the criminal justice system,” he said. “I don’t think that fines alone are deterrents, even really big fines. Fines can be passed on to shareholders.” In an Aug. 29 Raleigh News & Observer article about the exoneration of two men imprisoned for decades, Garrett noted that one of the hallmark risk factors for false confessions is the absence of video or audio recording of an interrogation. “It’s extremely troubling that nothing is documented as to what exactly these men said to police,” he said. “They should be able to describe what they did.”
In an Aug. 26 ABC News story about federal prosecutions in police shootings, Rachel Harmon noted that investigations are complicated by the fact that police officers are given latitude in their use of force, including in circumstances where an officer had a good basis to fear his life was in imminent danger. "In order to prove that there was a constitutional violation,” she said, “the government would have to prove that from a reasonable officer's perspective, those circumstances didn't exist and that a reasonable officer wouldn't believe that they existed."
John Harrison was quoted in a July 16 article in The Hill about whether House Speaker John Boehner would have standing to bring his their lawsuit against President Obama’s use of executive action. “I would be surprised if any court would find that Boehner can bring this action,” he said. “It will be hard for him to persuade the courts that the House experienced a harm from the president’s action that the Constitution authorizes them to sue over.”
In a July 28 Charlottesville Newsplex story about litigation against Virginia’s gay same-sex marriage ban, Deborah Hellman discussed issues that might arise if the case went to the Supreme Court. “This case, like the case is California, has a complicated standing question,” she said. “Normally the state defends its own law, and with the elected officials in Virginia no longer wanting to defend the law it has an additional complication. It won't just be about the issue of same sex marriage.”
John Jeffries was quoted in a July 26 Richmond Times-Dispatch article about the then-upcoming McDonnell trial. “I think it’s an aggressive prosecution, on facts that are not clearly distinguishable from everyday politics,” he said. “That’s not to say the governor’s conduct wasn’t stupid or sleazy — I think that’s clear, but it’s not clear to me it was illegal.” In an Aug. 18 Charlottesville Daily Progress article, Jeffries described new Virginia Chief Justice Donald W. Lemons as an impartial judge who is not driven by ideology. “He is, first and foremost, a lawyer, and a good one,” he said. “Additionally, he has excellent judgment — balanced in perspective, grounded in fact and animated by common sense.”
Leslie Kendrick was quoted in a July 17 Christian Science Monitor article about attempts in Massachusetts to protect access to abortion clinics after its 35-foot buffer zone law was struck down by the Supreme Court. She said that the Court was “pushing Massachusetts toward a more tailored and nuanced solution. But with nuance comes some risk of vagueness.” In a July 29 Bloomberg article, Kendrick discussed a Court of Appeals decision rejecting arguments that a USDA rule mandating labels showing where an animal was born, raised and slaughtered violated meat producers’ First Amendment rights by forcing them to issue statements against their will. Exactly what the government may require businesses to disclose, or what it can prevent them from saying, remains unsettled, she said, making this “the kind of case the Supreme Court could well be interested in.”
In the July 7 Norfolk Virginian-Pilot, Douglas Laycock said not to expect many businesses to try to carve out health care changes for religious reasons as a result of the Supreme Court’s Hobby Lobby decision. "I don't think much is going to happen," he said. "The religious side is treating this as a much bigger victory than it was, and the secular left is going crazy and treating it as a much bigger loss than it was." Laycock also discussed the case in a July 14 National Catholic Reporter story. "I think the best way to understand it is that the owners of closely held corporations have religious liberty rights, and they don't surrender those rights when they incorporate into a business," he said. In an Aug. 29 Minneapolis Star-Tribune story, Laycock discussed a Minnesota suburb’s refusal to let Muslims hold meetings in the basement of an office building on the grounds that they wanted to preserve the city’s limited industrial space for business. “The city’s stated reason is nonsense; no one is going to put an industrial operation in the basement of an office building,” he said. “Cases like this are why RLUIPA [the Religious Land Use and Institutionalized Persons Act] was enacted.”
David Martin was quoted in a July 8 Politifact article about claims that the number of children at the border would increase to 150,000 to 200,000 next year. "I’d guess this is just a straight-line projection applying the growth rate we’ve seen this year," he said. "But the administration is trying hard to break and reverse that trend." In a July 16 Real Clear Politics story about whether women and children from Central America are entitled to legal representation in removal proceedings, despite the general rule that there is no right to counsel in civil cases, Martin said that“a much stronger individualized claim would arise when the individual’s own capacity is weakened, say, by mental illness or tender age.” In an Aug. 6 Business Insider article about the possibility of President Obama moving on immigration reform without congressional approval, Martin said that such a move “could be a significant challenge to the scope of presidential power.” He pointed out that deporting fewer undocumented immigrants than the number authorized by congressional appropriations could be problematic. “The situation requires faithful execution of appropriation laws,” he said. “If they drop far below that, then there’d be real legal issues.”
Gregory Mitchell was quoted in an Aug. 11 Charlottesville Daily Progress article about research said to show that most people unconsciously favor their own racial and religious groups. The research assumed that slower responses to questions meant that people had to overcome implicit biases, but Mitchell was skeptical whether reaction time actually told psychologists anything about bias. “The inherent problem is that associations between concepts may form for many different reasons,” he said. “Without linking the associations to other behaviors and thoughts, they remain ambiguous.”
In an Aug. 23 Norfolk Virginian-Pilot article, Daniel Ortiz said that it was likely the Supreme Court would take up at least one of the recent cases overturning state bans on same-sex marriage. He also noted the shifting attitudes toward gay marriage: “The country has become more comfortable with something it was anxious about just a few years ago.”
Margaret Riley was quoted in a July 3 USA Today article about a senator’s lawsuit asserting that the Obama administration overstepped its authority when it gave members of Congress and their staff subsidies to help pay for health insurance. She doubted the senator could prove that he was personally harmed by the administration's actions, thereby giving him standing to sue. "Just because he thinks something is illegal, that doesn't give you standing; that doesn't give you an injury in fact," she said. "And the substance of this case is frankly somewhat bizarre."
In a July 2 Christian Post article about the roots of the Civil Rights Act of 1964 in Reconstruction-era legislation, George Rutherglen explained that “the success of the 1964 act, and modern civil rights legislation that followed it, would not have been possible if Congress had not first tried out enforcement through the Reconstruction civil rights act, which provided instructive models of what did and didn't work in this field." Rutherglen was also quoted in a July 15 Vox story about updated guidance released by the EEOC on employment discrimination against expectant parents. "In practical impact, it's going to be the first thing that personnel officers, equal employment officers are going to look to when they get an inquiry about this kind of problem,” he said. “An employer who hasn't taken the trouble to learn compliance will have a lot of difficulty."
Richard Schragger and Micah Schwartzman were co-authors of a July 1 New York Daily News commentary on the Supreme Court’s Hobby Lobby decision, which they called “the most sweeping religious exemption case in modern constitutional history.” “The full significance of the decision will rest on how its scope is extended (or limited) in future cases,” they and co-author Nelson Tebbe wrote. “But for now, Hobby Lobby has unsettled the law by greatly expanding the rights of corporations, presenting serious risks for employees, and imposing costs upon us all.” The three also wrote a July 3 Slate commentary on the case, arguing that the Court for the first time “has interpreted a federal statute, the Religious Freedom Restoration Act (or RFRA), as affording more protection for religion than has ever been provided under the First Amendment. While some have read Hobby Lobby as a narrow statutory ruling, it is much more than that. The court has eviscerated decades of case law and, having done that, invites a new generation of challenges to federal laws, including those designed to protect civil rights.”
Ben Spencer was quoted in a July 25 Inside Business article about a lawsuit seeking an injunction against ridesharing apps for operating without Virginia brokers' licenses. "I'd expect the court to grant the requested preliminary injunction in light of the fact that the DMV has previously ordered the defendants to cease and desist, an order it appears that the defendants have thus far ignored," he said. In an Aug. 12 U.S. Law Week story, Spencer discussed a Minnesota Supreme Court decision refusing to apply federal plausibility standards to state pleadings. He said that he agreed with the view that “a plausibility requirement is found nowhere in the rule, is counter to other rules and sample forms that suggest the ordinary pleading standard is not a heightened one, and is counter to the original vision of the rule, which was to simplify pleading and facilitate litigant access to courts.’’ He added that whether raising the bar to entry to courts for plaintiffs “is a policy question that each state should be able to answer for themselves.”
In an Aug. 12 article in The Hill about President Obama’s legal grounds for attacking the Islamic State in Iraq and Syria without approval from Congress, Robert Turner said that Obama can continue ordering airstrikes against ISIS because they are not a foreign state but a terrorist group. “What he’s doing, it’s not an act of war,” he said. “He’s essentially coming to the defense of Iraq.” He noted though that Obama might well choose to go to Congress for political reasons. “Just because the Constitution doesn’t require it, a wise president will still go to Congress and tell them what he’s doing and why he’s doing it, and then urge Congress to endorse it,” he said.
In a July 8 Richmond Style Weekly article about an “ambassadors” program in which residents volunteered to work at the Washington NFL team’s training camp, Rip Verkerke said that it looked like "an amusing instance of a for-profit company using free labor in its commercial activities," structured in a way that creatively skirts federal employment laws that forbid for-profit corporations from using unpaid laborers such as volunteers and interns. If the program were created “to recruit free help in the stadium on game days," he said,"there is little doubt it would violate federal wage and hour law."
In a July 31 BNA Securities Law Daily article about a class action asserting that national securities exchanges and large brokerage firms gave high-frequency traders preferred access and other advantages in exchange for kickbacks, Andrew Vollmer noted that the traders in question may have received their information faster because they invested in more advanced computer systems and technology. “Private investments in faster receiving systems do not amount to preferential access,” he said. “That is the kind of initiative and diligence we should encourage and not condemn.”
For more information on faculty in the news, see the Media Guide.
Faculty in the News is compiled by Kent Olson, Law Library Director of Reference, Research and Instruction; and the Law School Communications department.
Links to websites external to the University of Virginia should not be considered endorsement of those websites or any information contained therein.