Faculty Available for Comment on 2018 Supreme Court Term

Supreme Court

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January 24, 2019

University of Virginia School of Law faculty listed here are available to speak to the media about the 2018-19 Supreme Court term. The list will be updated as more cases are announced.

Apple v. Pepper

Whether consumers may sue anyone who delivers goods to them for antitrust damages

Nachbar’s research focuses on the nature of regulation: how the law is used (and by whom) to shape and control behavior. His early work addressed how the availability of new technologies alters conceptions of regulation. His current work is on the relationship between public and private regulation.

In the News:

  • Justices' App Store Ruling Leaves Some In Tech On Edge (Law360) More

Fort Bend County, T​exas v. Davis

Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit or a waivable claim-processing rule

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

Rutherglen: “The Court held that the need to file a charge with the Equal Employment Opportunity Commission before suing in court was a ‘mandatory claim-processing rule subject to forfeiture’ rather than a ‘jurisdictional prescription’ that could not be waived. The plaintiff in Fort Bend had attempted to amend her charge of discrimination to add discrimination on the basis of religious discrimination. Several years into the litigation, the defendant argued that her attempted amendment was ineffective. The Court held that the defendant had forfeited this objection by waiting too long to raise it. The Court followed a line of recent decisions generally reserving the term “jurisdictional,” absent long-time practice or statutory language to the contrary, ‘to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction).’”

Fourth Estate Public Benefit Corp. v. Wall-Street.com

The extent of the “registration of [a] copyright claim has been made” within the meaning of federal law

Oliar’s scholarship focuses on human creativity. He teaches courses on intellectual property law, entrepreneurship, and law and economics. He writes on those topics and their intersection with empirical and behavioral methods, legal history, property theory and cyberlaw.

Oliar: “In this case, the Supreme Court clarified that copyright registration happens when the Copyright Office processes an application to register a work (whether favorably or not for the applicant), rather than at the earlier moment in which the application is merely submitted to the office. What satisfies registration matters to copyright owners of U.S. works because they can file infringement actions only after they register their works. It takes the copyright office several months to process registration applications, and one effect of this decision is that copyright owners would often be unable to sue infringers while their application is pending. As registration is permissible, this decision should make copyright owners more inclined to register their works and do so early in order to be able to effectively file infringement actions, when needed.”

Gamble v. U.S.

Whether the “separate sovereigns” exception to the double jeopardy clause should be overruled

Brown teaches Criminal Law, Criminal Adjudication and Evidence at UVA Law, among other courses. He is the author of “Free Market Criminal Justice: How Democracy and Laissez Faire Undermine the Rule of Law.”

Home Depot v. Jackson

Permitting a third-party counterclaim defendant to remove a class-action claim from state to federal court

Spencer is an expert in the field of civil procedure and federal jurisdiction and has authored two books in the area of civil procedure: “Acing Civil Procedure” and “Civil Procedure: A Contemporary Approach.”

Spencer: “In Home Depot v. Jackson, the Supreme Court held that only original defendants may remove actions (including CAFA class actions) to federal court. This decision is correct and unsurprising, given the language of the relevant statutes. Although Justice Alito and his fellow dissenters (Roberts, Gorsuch and Kavanaugh) argued that the text and intent of Congress supported permitting third-party counterclaim defendants to remove CAFA claims lodged against them, Justice Thomas — who penned the majority opinion — rightly rebuked the dissenters as attempting to legislate from the bench by using their policy preferences to shape their view of how the removal statutes should be read.”  

Iancu v. Bru​netti

Whether prohibiting the federal registration of “immoral” or “scandalous” trademarks is invalid under the First Amendment

Vice Dean Kendrick is an expert in the First Amendment and freedom of expression, particularly the scope and structure of free speech rights. She writes and teaches courses in torts, property and constitutional law.

Kendrick: “In Iancu v. Brunetti, the Supreme Court invalidated on First Amendment grounds a portion of the Lanham Act, which regulates the registration of federal trademarks. In its 6-3 opinion, the Court elaborated on both vagueness and content discrimination, two important aspects of First Amendment doctrine. The Court also signaled that it is serious about bringing those First Amendment concepts to bear on trademark, an area of law that until recently had lived in peaceful co-existence with the First Amendment for a long time.”

Schauer is an expert in constitutional law, evidence and legal reasoning, and the philosophy of law.

Schauer: “In holding that the Lanham (trademark) Act’s authorization to deny trademark registration to ‘immoral and scandalous’ trademarks was unconstitutional viewpoint discrimination in violation of the First Amendment, the Court did not break new ground, especially given its similar decision two years ago in Matal v. Tam, the case dealing with the rock group ‘The Slants.’ And thus the Court’s decision overturning the denial of trademark registration for the clothing brand FUCT was only to be expected. But Justice Alito’s concurring opinion, most plausibly read as a call to arms against what he perceives as increased intolerance and a rising tide of political correctness, signals a Court very willing to take a stand against attempts to restrict speech perceived to be racist, sexist, homophobic, etc.”

Knick v. Township o​f Scott

Whether a government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim at that time

Brady’s primary interests are in property law, land use law, local government law, legal history and intellectual property law.

Lamone v. Benisek

If a Maryland congressional district was gerrymandered in retaliation of political views

Gilbert teaches courses on election law, legislation, and law and economics. His current research focuses on constitutional entrenchment, campaign finance law, corruption and the design of courts.

Lamps Plus Inc. v​. Varela

Whether an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration

Spencer is an expert in the field of civil procedure and federal jurisdiction and has authored two books in the area of civil procedure: “Acing Civil Procedure” and “Civil Procedure: A Contemporary Approach.”

Spencer: “The Federal Arbitration Act clearly states that ‘an appeal may not be taken from an interlocutory order ... directing arbitration to proceed ...’ Yet the Court majority strained to find jurisdiction by finding that the order to arbitrate via a class was a ‘fundamental’ change that ‘sacrifices the principal advantage of arbitration.’ That is a policy view that is found nowhere within the text as a basis for circumventing the prohibition against interlocutory review. The Court majority then goes on to rule against permitting class arbitration when the agreement is silent on that point based again on its own policy views regarding the fundamental attributes of arbitration, which it sees as a quintessentially one-on-one process.”

In the News:

  • Supreme Court Backs Businesses, Curbs Class Arbitration (Bloomberg Law) More

Mitchell v. Wisc​onsin

Whether a law authorizing drawing blood from an unconscious motorist without a warrant is constitutional

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

Coughlin:Mitchell v. Wisconsin is the Court’s most recent effort to apply the Fourth Amendment to sobriety tests of drunk-driving suspects. Both breath tests and blood tests are ‘searches’ that must be constitutionally ‘reasonable.’ Since breath tests are less invasive than blood tests, police may administer the former, but not the latter, under the search-incident-to-arrest exception. By contrast, to do a blood test, police have been required to obtain a warrant or identify some exception to the warrant requirement other than search incident to arrest. In Mitchell, police could not breath-test the suspect because he was unconscious. Acting without a warrant, police took him to a hospital and asked hospital staff to draw a blood sample. The Wisconsin courts found that the blood test was reasonable under the state’s ‘implied-consent’ statute, and the Supreme Court took the case to consider the constitutionality of such statutes. However, a divided Court did not pass on the implied-consent theory, but, instead, relied on the exigent-circumstances exception. Justice Alito announced the judgment in an opinion joined by three other justices, with Justice Thomas concurring in the judgment only. The case appears to create a general rule under which police do not need to get a warrant to blood-test an unconscious driver, but the plurality opinion explicitly refused to ‘rule out the possibility’ that there may be ‘unusual case[s]’ where a suspect may be able to show that the general rule does not apply. The Court remanded the case to give Mitchell the opportunity to make that showing.”

Mount Lemmon Fire District v. Guido

If state and local governments are covered employers under the Age Discrimination in Employment Act of 1967

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

Rutherglen: “The Court held that the Age Discrimination in Employment Act covered all state and local government employers, regardless of size. The government unit need not have 20 or more employees, as private employers must in order to be covered by the Act. The Court gave a literal interpretation to the provision that ‘[t]he term ‘employer’ ... also means ... a State or political subdivision of a State.’ The Court distinguished a corresponding provision in Title VII that does not use the phrase ‘also means.’”

Nieves v. Bartlett

Whether probable cause defeats a First Amendment retaliatory-arrest claim under Section 1983

Schauer is an expert in constitutional law, evidence and legal reasoning, and the philosophy of law.

Schauer: “It is widely accepted that people are arrested solely because of their otherwise-protected speech activity. And it is equally widely accepted that engaging in otherwise-protected speech activity cannot be used to avoid what would otherwise be a valid arrest. So it turns out that everything turns on the burden of proof when legitimate grounds for arrest are conjoined with protected speech activity. And because the issue is thus procedural and in some sense technical, it is not surprising that the justices did not divide along predicted ideological lines.”

Rimini Street Inc. v. Oracle USA Inc.

Extent of the Copyright Act’s allowance of “full costs” to a prevailing party

Oliar’s scholarship focuses on human creativity. He teaches courses on intellectual property law, entrepreneurship, and law and economics. He writes on those topics and their intersection with empirical and behavioral methods, legal history, property theory and cyberlaw.

Oliar: “In this case, the Supreme Court clarified the meaning of the term ‘costs’ that courts may award to winning parties in a copyright lawsuits. A general federal ‘costs’ statute enumerates six types of costs that courts can generally award. The Copyright Act states that winners in copyright litigation can recoup their ‘full costs.’ The Ninth Circuit understood the term ‘full costs’ to broaden the types of costs available, and thus awarded litigation expenses for expert witnesses, e-discovery and jury consultants. The Supreme Court clarified that the Copyright Act does not expand the types of costs recoupable beyond those available under the general federal costs statute absent explicit language to that end. Copyright litigants should take this ruling into account when they spend in preparation for trial.”

Rucho v. Common Cause

Whether North Carolina’s 2016 congressional map is an unconstitutional partisan gerrymander

Gilbert teaches courses on election law, legislation, and law and economics. His current research focuses on constitutional entrenchment, campaign finance law, corruption and the design of courts.

The American Legion v. American Humanist Association | Maryland-National Capital Park and Planning Commission v. American Humanist Association

Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross

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. He has co-authored an amicus brief in these two cases.

Laycock: “From a church-state separation perspective, this could have been much worse. The government said the cross is a universal symbol of sacrifice, which is just nonsense. And the court didn't go there. So there's some good news here.”

Schwartzman is the director of the Karsh Center for Law and Democracy and a scholar who focuses on law and religion, jurisprudence, political philosophy and constitutional law.

Schragger’s scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy, and the constitutional and economic status of cities. He also writes about law and religion.

Schragger: “The majority opinion, authored by Justice Alito, has Justice Breyer’s fingerprints all over it. Breyer was first to advance a ‘grandfathering’ theory for religious displays. On this theory, old religious displays are presumptively constitutional because the passage of time drains them of religious significance and imbues them with more civic and secular meanings. What this bodes for newer government-sponsored religious displays and practices is uncertain.”

In the News:

  • A Turning Point for Religion at the Supreme Court? More
  • Supreme Court Rules A 40-Foot WWI Memorial Shaped As A Cross Can Stand On Public Land (NPR) More

Virginia House of Delegates v. Bethune-Hill

Whether the District Court conducted a proper “holistic” analysis of majority-minority districts

Gilbert teaches courses on election law, legislation, and law and economics. His current research focuses on constitutional entrenchment, campaign finance law, corruption and the design of courts.

Gilbert: “The ruling means that the court-ordered House districting plan will apply in the 2019 election. The plan ‘unpacks’ some minority voters, spreading them across districts. Since minority voters tend to support Democrats, this should favor Democrats in the 2019 election. As for 2020 districting, the decision doesn’t make any new substantive law with respect to racial gerrymandering. The legislature will face the same constraints in 2020 as before. However, the decision makes it harder for either chamber of the legislature to contest adverse court decisions about racial gerrymandering. If someone challenges the 2020 district plan as a racial gerrymander, the attorney general can defend the plan, or maybe the two chambers of the legislature together can defend the plan, but neither chamber can defend the plan itself.”

Virginia Uranium v. Warren

Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction

Jaffe is director of the Environmental and Regulatory Law Clinic and co-author of an amicus brief in Warren.

Jaffe: “On one level, the justices sketched out the court’s evolving views on the proper balance between federal regulatory power and the rights of states in setting their own policies. Their opinions also challenged some common assumptions about how grassroots environmental advocates can pull together winning political coalitions.”

In the News:

  • Op-Ed: The Supreme Court’s Virginia Uranium Ruling Hints at the Limits of Federal Power (The Conversation) More
  • Uranium Ban Ruling Gives States Larger Role in Environmental Policy, Cale Jaffe Argues (Danville Register & Bee) More
  • Lawyers React to Supreme Court's Ruling on Uranium Mining in Virginia (WVTF Radio) More
  • Op-Ed: Virginia’s Uranium Mining Battle Flips Traditional Views of Federal and State Power (The Conversation) More
  • Uranium Mining Ban Supporters Cautiously Optimistic (Danville Register & Bee) More
  • Virginia’s 36-year-old Uranium Mining Ban is on the Supreme Court’s Docket Today (The Virginia Mercury) More
  • Supreme Decision: In Multi-Faceted Case that Defies Political Stereotypes, Highest Court in Land To Hear Arguments on Uranium Mining Moratorium (Danville Register & Bee) More
  • A Virginia Farmer Fights to Harvest His Uranium (Bloomberg Quint) More
  • Apropos Of Something: Why Women Get Self-Defensive & Upholding States’ Environmental Protections (WPVC Radio) More
  • Supreme Court To Hear VUI Lawsuit Aiming To Overturn Mining Ban (SoVaNow.com) More

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