Faculty Available for Comment on 2017 Supreme Court Term

Supreme Court
October 2, 2017

University of Virginia School of Law faculty listed here are available to speak to the media about the 2017-18 Supreme Court term. The list will be updated as more cases are announced.

 

Artis v. District of Columbia

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Ayestas v. Davis

Garrett's research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law.

Garrett: "Ayestas made resoundingly clear that federal judges should provide investigative funding in death penalty cases when it is reasonably needed. The statute's language was clear, but some the Fifth Circuit had imposed a higher 'substantial' need standard to deprive inmates of those resources. Unfortunately, death penalty cases have long been plagued by incompetent and under-resourced representation at trial. The only way to uncover what went wrong has been to conduct a meaningful investigation post-conviction. Ayestas helps to cement the obligation of federal judges to ensure that a proper investigation occurs when constitutional claims are brought by a death row inmate."

Carpenter v. U.S.

Coughlin's primary research and teaching interests are in the areas of criminal law, criminal procedure, feminist jurisprudence and law and humanities.

Turner, co-founder of the Center for National Security Law, has taught undergraduate courses at Virginia on international law, U.S. foreign policy, the Vietnam War and foreign policy and the law in what is now the Woodrow Wilson Department of Politics.

Collins v. Virginia

Coughlin's primary research and teaching interests are in the areas of criminal law, criminal procedure, feminist jurisprudence and law and humanities.

Currier v. Virginia

Brown teaches Criminal Law, Criminal Adjudication and Evidence at UVA Law, among other courses.

Garrett's research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law.

District of Columbia v. Wesby

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; National Labor Relations Board v. Murphy Oil USA

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Rutherglen teaches admiralty, civil procedure, employment discrimination and professional responsibility.

Rutherglen: "The decision in Epic Systems continues the onward march of the presumption in favor of arbitration in the Supreme Court. This trend, now several decades old, has extended to fields as varied as employment discrimination, antitrust, consumer protection, admiralty and securities regulation. In each of these fields, the court has interpreted the Federal Arbitration Act to require enforcement of arbitration agreeemens in the face of arguments that that doing so would be inconsistent with competing federal statutes or state law. In Epic Systems, ironically enough, this presumption returns to where it began — in labor arbitration decisions from the 1950s. Those earlier decisions, however, favored workers and unions while Epic Systems goes in the opposite direction, favoring employers and management. The court rejected the argument that the right to 'mutual aid and protection' under the National Labor Relations Act prevented the enforcement of arbitration clauses that waived any right to proceed in collective proceedings, such as class actions."

Verkerke is a professor of law and director of the Program for Employment and Labor Law Studies at the University of Virginia School of Law.

Gill v. Whitford

Gilbert teaches courses on legislation, election law, direct democracy and judicial decision-making. 

Kendrick's work focuses on torts, property rights and freedom of expression, particularly the scope and structure of free speech rights.

Husted v. A. Philip Randolph Institute

Gilbert teaches courses on legislation, election law, direct democracy and judicial decision-making. 

Gilbert: "Husted lies in the stormy seas of law and politics. Ohio mails cards to registered voters who fail to vote in an election. If voters do not return the cards and do not vote in the subsequent two elections, Ohio removes them from the registration rolls. Does Ohio’s voter 'purge' comply with a pair of federal statutes? The conservative majority of the court said yes, emphasizing one slice of statutory language. The liberal minority said no, emphasizing another slice of language and, in the case of Justice Sotomayor, the sordid history of voter suppression. The meaning of the federal statutes is clearer than before, but the wisdom of Ohio’s practice — is it sound governance or partisan gamesmanship? — remains debatable."

Janus v. AFSCHME

Verkerke is a professor of law and director of the Program for Employment and Labor Law Studies at the University of Virginia School of Law.

Jennings v. Rodriguez

Cope’s research focuses on international relations, international law, and immigration, including how domestic law and politics impact international institutions.

Cope: "Rodriguez addressed whether the Immigration and Nationality Act (INA) gives certain aliens in lengthy detentions a right to periodic bond hearings. By a 5-3 margin (with Justice Kagan not participating), the court held that it does not. Notably (and contrary to how some commentators have characterized the decision), Justice Alito’s majority opinion did not conclude that the government may detain aliens indefinitely without a hearing. The court distinguished the case from its 2001 decision in Zadvydas v. Davis, which concerned indefinite detention of aliens under different circumstances and interpreted the statute in question to require periodic review. But the Rodriguez Court left open the possibility that prolonged detention could raise constitutional concerns, and it remanded to the Ninth Circuit to consider both the constitutional question and whether the case can proceed as a class. On remand, the circuit panel will likely hold that such detentions are unconstitutional; assuming the Supreme Court grants certiorari, it is plausible based on their October 2017 oral argument comments that at least Justice Kennedy and/or Justice Roberts will agree."

Jesner v. Arab Bank, PLC

Rutherglen teaches admiralty, civil procedure, employment discrimination and professional responsibility.

Stephan is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems. 

Stephan: "The court followed a recent pattern of rolling back the limited exception recognized in Sosa v. Alvarez-Machain, a 2004 case, to the general rule refusing to recognize right to sue under federal law in the absence of congressional authorization. For three justices (Kennedy, Roberts and Thomas) the jurisdictional statute (the so-called Alien Tort Statute) that Sosa read as implying a right to sue has to be interpreted as not applying to suits brought against legal (as opposed to physical) persons, based on the absence of a well-settled principle under international law providing for such suits. For Justices Alito and Gorsuch, Sosa was incorrect and no implied right to sue exists at all. Four justices dissented. At least for now, the ability of victims of human rights violations to bring federal suits against foreign corporations is barred. Aliens may continue to sue U.S. corporations, but it is not clear if their claims can rest on federal law (in the absence of a statute) or instead must come from state or foreign law. For more on this, see my blog post with Pierre-Hugues Verdier."

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Kendrick's work focuses on torts, property rights and freedom of expression, particularly the scope and structure of free speech rights. 

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

  • Laycock Says Ruling Is Both a Huge, Narrow Win for Conscientious Objectors (SCOTUSBlog) More
  • Laycock's Animal Sacrifices Argument Set Foundation for Masterpiece Cakeshop (Miami Herald) More
  • Laycock Analyzes How Case Affects Future Plaintiffs (National Catholic Register) More

Schwartzman teaches constitutional law and the First Amendment (Religion Clauses). His areas of interest include law and religion, jurisprudence and political philosophy.

  • Schwartzman Discusses if Anti-Bias Laws, Religious Freedom Can Be Reconciled (American Constitution Society) More

Murphy v. NCAA

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

  • Laycock Outlines Ramifications on Sports Betting Case (WINA Radio) More
  • Laycock Discusses Ruling's Possible Effect on Sports Gambling (UVA Today) More

Murphy v. Smith

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

National Association of Manufacturers v. Department of Defense

Livermore's primary teaching and research interests are in administrative law, computational analysis of legal texts, environmental law, cost-benefit analysis and regulation. 

Patchak v. Zinke

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Rubin v. Islamic Republic of Iran

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Stephan is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems.

Stephan: "In interpreting the Foreign Sovereign Immunities Act, the Rubin Court took a cautious approach to the scope of a court’s authority to seize property belonging to a foreign state to enforce a judgment based on support for terrorism. The court read the statute as keeping the place the limitations on seizure power generally applicable with respect to other kinds of judgments permitted by the act. The effect was to make it harder for successful plaintiffs (here the beneficiaries of default judgments) to collect against these sovereigns."

Sessions v. Dimaya

Cope’s research focuses on international relations, international law, and immigration, including how domestic law and politics impact international institutions.

Cope: "In a 5-4 decision, Sessions v. Dimaya slightly narrowed the set of offenses that can render a non-citizen deportable. Under the federal immigration laws, non-citizens who have committed a so-called 'aggravated felony' are deportable. One type of aggravated felony is a 'crime of violence,' which includes 'any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.' 18 U.S.C. § 16(b). Justice Kagan's majority opinion (joined by Justices Ginsburg, Breyer, Sotomayor and, in large part, Gorsuch) held that the provision is unconstitutionally vague. The decision follows the court's 2015 holding in Johnson v. U.S., which reached the same conclusion for similar language in the Armed Career Criminal Act. But Dimaya may be most notable for Justice Gorsuch's concurrence. He argued that void-for-vagueness review should not be confined to criminal or deportation laws; it should be extended to other laws with significant civil consequences: 'Why ... would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?' Gorsuch wrote."

Trump v. Int'l Refugee Assistance Project; Trump v. Hawaii

Cope’s research focuses on international relations, international law, and immigration, including how domestic law and politics impact international institutions.

Cope: “Opponents of the travel ban will obviously be disappointed by the court’s decision. But it’s important to remember how activists, lawyers and the courts have succeeded in weakening it since Mr. Trump imposed the initial version a year-and-a-half ago. A string of lower-court decisions since February 2017 have forced the administration to make important concessions, which significantly reduced the ban’s harmful impact on many would-be immigrants. Recall that, on Jan. 27, 2017, thousands of longtime lawful permanent U.S. residents found themselves unexpectedly stranded, banned from their own country without notice. In response to legal and political backlash, the two revised orders exempted them, restored the visas of thousands of others and exempted several other categories of migrants.

“Of course, this is cold comfort to the thousands of citizens of majority-Muslim countries who are still excluded from the country. It also doesn’t diminish the fact that the ban was certainly born of anti-Muslim bigotry. And as Justice Sonia Sotomayor notes, the proclamation’s waiver program for certain classes of would-be migrants appears — at least thus far — to be ‘nothing more than a sham.’ Whether that’s deliberate or a result of bureaucratic incompetence is unclear. Regardless, the best recourse now for immigrant advocates is probably to keep pushing the departments of State and Homeland Security to adopt a good-faith, effective process for considering those waivers — and of course, to work for changes in leadership through the democratic process.”

Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times.

Laycock: “The fundamental news is that the majority chose to treat this president as though he were a normal president. He got the same deference as all the others.

“There is traditionally a lot of deference [to the president] in the immigration context, so that also makes the [travel ban] cases different [than Masterpiece Cakeshop]. So [the justices] have a bit of cover. But the bottom line is that the five conservatives who condemned Colorado for bigoted statements against conservative Christians were just fine with the president’s more numerous bigoted statements against Muslims. And Justice Sonia Sotomayor called them out on it.”

Schragger has authored articles on the Establishment and Free Exercise clauses, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement.

Schragger: “Though the Establishment Clause is supposed to apply to violations of religious neutrality and especially when public officials denigrate or disparage a particular religion as Donald Trump has repeatedly done with Muslims, the justices are often unwilling to review public officials’ bigoted statements. [Schragger wrote about this in 2011, in “The Relative Irrelevance of the Establishment Clause."] Justice Anthony Kennedy’s concurrence in Trump v. Hawaii, in which he observes that ‘there are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny,’ simply confirms that reality.

“Kennedy essentially concedes that the president’s statements — which arguably violate the Establishment Clause — are unreviewable in this context. The court has — in the words of Justice Sonia Sotomayor — ‘thrown the Establishment Clause out the window.’”

Schwartzman helped lead amicus briefs on the travel ban.

“In the travel ban cases, the Supreme Court abdicated its responsibility to uphold religious neutrality under the First Amendment. It ignored President Trump’s unprecedented and pervasive religious hostility toward Muslims. As a result, the court has made a mockery of its decision in Masterpiece Cakeshop, where it demanded ‘neutral and respectful’ consideration of religious minorities.

“In Masterpiece, the court cited as evidence of religious hostility the state’s disparate treatment of a Christian baker, who lost his appeal, and secular bakers, who were not required to bake cakes that they opposed in conscience. But in siding with the religious freedom of Christians but not Muslims, the court has raised the same concerns about religious hostility that it so recently condemned under the First Amendment.”

  • Schwartzman Criticizes Court for Ignoring Trump's Anti-Muslim Comments (National Catholic Reporter) More
  • Schwartzman Says Travel Ban Ruling an Affront to First Amendment Rights (WINA Radio) More

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mfox@law.virginia.edu / (434) 982-6832

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