September 9, 2019
Mike Fox

University of Virginia School of Law faculty listed here are available to speak to the media about the 2019-20 Supreme Court term. The list will be updated as more cases are announced.

 

Altitude Express Inc. v. Zarda / Bostock v. Clayton County, Georgia

Whether Title VII of the Civil Rights Act of 1964 encompasses discrimination based on an individual’s sexual orientation

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

Rutherglen has written widely on employment discrimination and civil rights. He is co-author of the most recent editions of “Employment Discrimination: Law and Theory” and his paper “Disaggregated Discrimination and the Rise of Identity Politics” discusses the expansion of Title VII.

Coughlin: “The ruling is a very big deal. The expressive value is massive, as the court has made clear that LGBTQ rights are civil rights for purposes of Title VII. The decision represents a significant cultural shift in public attitudes about the value, dignity and worth of LGBTQ people. Its significance is underscored by the fact that the opinion was authored by Justice [Neil] Gorsuch and joined by [Chief] Justice [John] Roberts, whom conservatives were counting on to vote the other way. The opinion will have important practical force as well. Before Bostock, it was legal in about half the states for employers to fire or otherwise penalize workers for being gay, transgender or bisexual. After Bostock, Title VII protects workers from that form of discrimination.”

Rutherglen: “In a landmark ruling, the Supreme Court held in Bostock v. Clayton County that the prohibition in Title VII against discrimination on the basis of sex includes discharge of an employee for being homosexual or transgender. According to the Court, ‘Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.’ The opinion, by Justice [Neil] Gorsuch, takes a strongly textualist approach to the question. The ordinary public meaning of ‘because of sex’ in 1964 when Title VII was enacted is the same as it is now: ‘An employer violates Title VII when it intentionally fires an individual employee based in part on sex.’ This necessarily occurs when an employer fires an employee for being homosexual or transgender. Regardless of how an employer generally treats members of one sex or another, the employer necessarily discriminates against the individual employee in firing for these reasons. Finding a violation of Title VII in these circumstances might well have been unexpected in 1964, but the history of the prohibition on sex discrimination has had many unexpected consequences, such as its application to same-sex sexual harassment. The Court reserves for future cases the question of what ‘because of sex’ means under other statutes, how it applies to bathrooms or locker rooms, or how it affects decisions by religious institutions or based on religious belief.”

In the News:

  • Q&A: UVA Law Expert Dissects Landmark Supreme Court Ruling on LGBT Rights (UVA Today) More
  • High Court Rules Civil Rights Law Protects LGBT Workers (Courthouse News Service) More

Atlantic Coast Pipeline v. Cowpasture River Preservation Association / U.S. Forest Service v. Cowpasture River Preservation Association

Whether the U.S. Forest Service has the authority to grant rights-of-way through national-forest lands that the Appalachian Trail traverses

Cannon is director of the Law School’s Environmental and Land Use Law Program, joined the Law School faculty in 1998 from the Environmental Protection Agency, where he served as general counsel and assistant administrator for administration and resources management.

Jaffe is director of the Environmental and Regulatory Law Clinic. Prior to joining the faculty at UVA, Jaffe was an attorney with the Southern Environmental Law Center, a leading environmental law and policy organization working at national, state and local levels. Jaffe is co-author of an amicus brief in Atlantic Coast Pipeline.

Jaffe: “The U.S. Supreme Court in a 7-2 ruling (with [Sonia] Sotomayor and [Elena] Kagan dissenting) ruled in favor of Atlantic Coast Pipeline LLC and found that the U.S. Forest Service can issue a permit for a pipeline to cross the Appalachian Trail. The result was expected (following oral argument), but the fight against the ACP is far from over. The lower court had also found violations of the National Environmental Policy Act and National Forest Management Act. Those violations remain and the matter likely goes back to the Forest Service to address them.”

In the News:

  • The Supreme Court Approved More Drilling Under the AT (Outside) More
  • ‘Desperate’ To Get Natural Gas Out Of Appalachia, Pipeline Builders Face Long Battle Even After Supreme Court Victory (Forbes) More
  • Pipeline Wins Appalachian Trail Battle But May Lose War (E&E News) More
  • ACP Opponents Headed to Supreme Court (WVTF Radio) More
  • The AT and the ACP: a Case for the Supreme Court (WVTF Radio) More

Atlantic Richfield Co. v. Ch​ristian

Whether federal law preempts state common law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies

Jaffe is director of the Environmental and Regulatory Law Clinic. Prior to joining the faculty at UVA, Jaffe was an attorney with the Southern Environmental Law Center, a leading environmental law and policy organization working at national, state and local levels. Jaffe is co-author of an amicus brief in Atlantic Richfield Co.

Jaffe: “If environmental groups or landowners can use state law to force EPA to go above and beyond, the question was, ‘Can industry do the reverse and use state law to prevent EPA from going above and beyond?’ And I think the clear answer from the Supreme Court on that is no, it’s a one-way ratchet. An EPA CERCLA remedy sets the floor, and state law can’t weaken that.”
 
In the News:
  • High Court Opens Can Of Worms With Superfund Ruling (Law360) More

County of Maui, Hawaii v. Hawaii Wildlife Fund

Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source

Jaffe is director of the Environmental and Regulatory Law Clinic. Prior to joining the faculty at UVA, Jaffe was an attorney with the Southern Environmental Law Center, a leading environmental law and policy organization working at national, state and local levels. Jaffe is co-author of an amicus brief in County of Maui.

Szeptycki is an expert in water law and policy and has worked extensively on large-scale watershed restoration projects. Szeptycki also serves as associate director of the University’s Environmental Resilience Institute.

In the News:

  • Op-Ed: The Clean Water Act Might Just Survive This Latest Attack (The Regulatory Review) More
  • From Supreme Court Briefs to Pioneering Projects, Cale Jaffe Leads Environmental Clinic To Success More
  • Clean Water Case at Supreme Court Could Have Ripple Effects Across Country (Earthjustice) More
  • 5 Things To Know About Tomorrow’s Supreme Court Face-Off (GreenWire) More

Department of Homeland Security v. Regents of the University of California / McAleenan v. Vidal / Trump v. NAACP

Whether Homeland Security’s decision to wind down DACA is judicially reviewable or lawful

Cope’s research focuses on the measurement of legal and political phenomena. Substantively, he is most interested in the law and politics of international institutions, migration, and relationships between domestic institutional structure and international behavior.

Cope: “The court’s decision is a narrow procedural victory for the approximately 700,000 beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program. The majority held that, while the Trump administration has the power to terminate the program, the administration’s stated reasons for doing so were inadequate. Specifically, the court determined that the Secretary of Homeland Security failed to consider the potential legality of the parts of the program that protect beneficiaries from removal. The Trump administration will now have another chance to rescind program with a new procedure, but ultimately, the November 2020 election will likely determine DACA’s long-term future.”

Espinoza v. Montana Department of Revenue

Whether it violates the Constitution to invalidate a religiously neutral student-aid program because the program affords students the choice of attending religious schools

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 has co-authored an amicus brief in Espinoza.

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.

In the News:

  • Op-Ed: Symposium: Espinoza, Funding of Religious Service Providers, and Religious Freedom (SCOTUSBlog) More
  • High Court Sparks New Battle Over Church-State Separation (The Associated Press) More
Schragger: “In less than a generation, the Court has moved from a position of disallowing aid to religious schools to permitting it to now mandating it. That is a sea change in the Court’s interpretation of the religion clauses and it raises many new questions about what the government can require of religious institutions that receive government monies. Those questions will occupy the Court for some time to come.”

Hernandez v.​ Mesa

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim

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 court once again refused to provide any remedy for constitutional violations that could not be anticipated, and get to court only after they already happened. A federal agent shoots a child in cold blood, for no reason, according to allegations that must be taken as true at this stage of the litigation. The family has no remedy, the federal courts cannot do anything about it, and an out-of-control agency is extremely unlikely to do anything about it. The executive branch refused to do anything about this incident even in the Obama administration. It is hard to imagine the Trump administration doing anything no matter how egregious the facts.”

June Medical Services L​LC v. Gee

Whether an appellate decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent

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

Schauer is among the most prominent and recognizable names in the legal academy. His expertise in the philosophy of law, legal reasoning, constitutional law, jurisprudence and evidence has been demonstrated in hundreds of books, book chapters, articles, essays, classes and personal appearances.

Lois Shepherd is an expert in the fields of health law and bioethics. She teaches courses in health care law and ethics at both the Law School and the Medical School.

Schauer: “Chief Justice [John] Robert’s opinion is important because it is one of the very few opinions in the Supreme Court’s history in which the doctrine of stare decisis led a justice to follow a decision he or she thought was wrongly decided. That is exactly what stare decisis requires, but most references by the Supreme Court to stare decisis involve justices following an earlier decision they believe is correct on the merits, thus making references to stare decisis almost superfluous. Here we have a justice recognizing that stare decisis, if taken seriously, means following decisions one believes to be incorrect. Rarely does this happen, and even more rarely is the effect as clear as it was for the Chief Justice in this case.”

Shepherd: “This decision doesn’t seem terribly surprising. If stare decisis means anything, the Court was going to have to strike down the Louisiana admitting privileges statute after Whole Woman’s Health in 2016. The Louisiana and Texas statutes were nearly identical, and the evidence is actually stronger in June Medical that access would be severely burdened by the regulations. Of course, it was a 5-4 decision, revealing that deep divisions continue (and will continue) on the fundamental question of a right to abortion. But Chief Justice [John] Roberts is now an unlikely vote to overturn the abortion right — he’s arguing for a return to the Casey ‘substantial obstacle’ standard as an alternative to Whole Woman's Health benefits/burdens calculation. Under the Casey standard, abortion can be heavily regulated — but not out of existence.”

In the News:

  • Logjam of Abortions Cases Pressures Supreme Court To Consider When Life Begins (The Washington Times) More

Kahler v. Kan​sas

Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense

Bonnie is director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. He has co-authored leading textbooks on criminal law and public health law and has devoted special attention during his career to public policies relating to mental health and substance abuse. Bonnie is co-author of an amicus brief in Kahler.

Bonnie: “All I can say now is that I am surprised and disappointed. That said, I do not expect state legislatures to regard the court’s ruling as an invitation to abolish the insanity defense. The insanity defense is essential to the moral integrity of the penal law. Legislatures recognized the need to preserve the insanity defense in the wake of the Hinckley verdict in 1982, and they will act responsibly now.”

In the News:

  • Op-Ed: Don’t Abolish the Insanity Defense (The Hill) More
  • Op-Ed: Insanity and the Supreme Court (The Wall Street Journal) More
  • It’s Unconstitutional Not To Allow Insanity Defense, Professor Tells Supreme Court More

Kansas v. Garcia

Whether the Immigration Reform and Control Act expressly preempts the states from using any information entered on or appended to a federal Form I-9 in a prosecution of any person

Martin, a leading scholar in immigration and international law, served as principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010, and in earlier government service at the Department of State and the Department of Justice.

In the News:

  • Supreme Court Could Open Immigration Enforcement ‘Pandora’s Box’ (Bloomberg Law) More

Kelly v. ​U.S.

Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

Hellman’s scholarship focuses on the relationship between money and legal rights. This includes articles on campaign finance law, bribery and corruption, each of which explore and challenge the normative foundations of current doctrine.

Hellman: “In Kelly v. U.S. (the Bridgegate case), Justice [Elena] Kagan, writing for a unanimous Supreme Court overturned the conviction of two New Jersey officials for wire fraud and fraud on a federally funded program in connection with lane closures on the George Washington Bridge. The Court held that the decision to close the lanes from Fort Lee to punish the Fort Lee mayor for refusing to support the reelection campaign of Gov. Chris Christie did not meet the requirements of the federal statutes because they received no property as a result of the fraud. At the same time, Justice Kagan emphasized that the conduct was both ‘corrupt’ and ‘an abuse of power.’ The case highlights the limits of federal criminal statutes in constraining the corruption of state officials. In addition, and perhaps most importantly, the result underscores that political corruption involves more than a violation of criminal law. This last point is perhaps in tension with the campaign finance holdings of the current court in which the ‘corruption’ that is sufficient to justify restrictions giving and spending in connection with elections is defined very narrowly.”

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.

Schwartzman focuses on law and religion, jurisprudence, political philosophy and constitutional law.

Schwartzman: “In Little Sisters of the Poor Saints Peter and Paul Homes v. Pennsylvania, the Supreme Court upheld religious and moral exemptions that the Trump administration has granted to both for-profit and nonprofit organizations that object to contraceptive coverage requirements under the Affordable Care Act. In a narrow opinion by Justice [Clarence] Thomas, the majority determined that the administrative agencies responsible for the exemption had statutory authority and followed appropriate procedures in granting them. The court also held that agencies could consider the Religious Freedom Restoration Act (RFRA) in formulating religious exemptions, but the court did not reach the merits of applying RFRA in this case. In a sharp and powerful dissent, Justice [Ruth Bader] Ginsburg, joined by Justice [Sonia] Sotomayor, emphasized that our national tradition of religious accommodation has always been balanced by the rights and interests of those burdened by exemptions. In this case, the government granted an expansive and categorical exemption that gave no consideration to the interests of tens of thousands of women, who have now lost their statutory right to contraceptive coverage and to equal treatment in the provision of preventive care. As the dissenters argued, this result is neither mandated by RFRA nor permitted under the Establishment Clause. Although the court has not yet directly addressed these arguments, a conservative majority is likely to reject them. The door is open for further litigation, but this court has shown itself to be highly solicitous of religious exemptions, even when they impose serious costs on others.” 

In the News:

  • Nuns Fight for Religious Exemption to Obamacare Contraceptive Mandate (Court TV) More

New York State Rifle & Pistol Association Inc. v. City of New​ York, New York

Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is constitutional

Turner co-founded the Center for National Security Law in April 1981 and has served as its associate director since then except for two periods of government service in the 1980s and during 1994-95, when he occupied the Charles H. Stockton Chair of International Law at the U.S. Naval War College.

Our Lady of Guadalupe School v. Morrissey-Berru / St. James School v. Biel

Whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions

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 is co-author of an amicus brief in St. James School.

Laycock: “Today’s decisions are an application of the Hosanna-Tabor decision from 2012. They are not an expansion of the ministerial exception. The two teachers here had pretty much the same duties as the teacher in Hosanna-Tabor. They taught religion every day; they were the primary source of religious instruction for their students. They led their students in prayer. Their students got far more religious instruction, and far more age-appropriate religious instruction, from them than from the parish priest. The other three factors in Hosanna-Tabor made that case a very easy one, and may explain why it was unanimous. But the position of commissioned minister is pretty much unique to Missouri Synod Lutheranism. If all the factors cited in Hosanna-Tabor were required, the ministerial exception as applied to religion teachers would be a special deal for one denomination. That would make no sense. I think this decision draws the line pretty much where the lower courts had drawn it before Hosanna-Tabor. The lower court cases were not unanimous, but whether the teacher taught religion was a key variable. I don’t think the Court will expand this to say that those who teach only secular subjects are ministers, even if they are expected to be role models. Time will tell, of course. But if I’m right about that, then most teachers in religious elementary schools may be ministers, because they teach the whole curriculum, including religion. But most teachers in middle schools and high schools will not be, because they each teach a particular subject, and most of those subjects are secular. This decision also explicitly grounds the ministerial exception in ‘the general principle of church autonomy’ with respect to ‘matters of faith and doctrine and in closely linked matters of internal government.’ I think that was implicit in Hosanna-Tabor, but they never quite said it. This elaboration puts the ministerial exception on a firmer basis.”

Ramos v. ​Louisiana

Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict

Darryl 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.”

In the News:

  • Supreme Court Puts ‘Insanity Defense’ and Split Juries in Focus as It Hears Arguments Over Two Grisly Murder Cases (CNBC) More

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Whether Title VII prohibits discrimination against transgender people based on their status as transgender or sex stereotyping

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

Rutherglen has written widely on employment discrimination and civil rights. He is co-author of the most recent editions of “Employment Discrimination: Law and Theory” and his paper “Disaggregated Discrimination and the Rise of Identity Politics” discusses the expansion of Title VII.

Romag Fasteners Inc. v. Fossil Inc.

Whether, under the Lanham Act, willful infringement is a prerequisite for an award of an infringer’s profits for a violation

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 recovery of profits is a remedy in restitution, developed by judges both at common law and in equity. And all across the law of restitution, the general principle has long been that a plaintiff recovers defendant's profits from wrongdoing only when the defendant is at least consciously aware that he is likely violating plaintiffs’ legal rights. This has long been a broad principle of equity, not a narrow rule about trademark, but the Court viewed it only as the latter – probably because the lawyers briefed it only as the latter. Lawyers and judges tend to ignore basic principles of remedies that apply across different causes of action, or to never know about them in the first place. This case is just one more example. The courts long ago did away with the conscious-wrongdoing requirement in copyright, because Congress failed to mention it, and now they have done away with it in trademark for the same reason. My sense is that in both copyright and trademark, and in both Congress and the court, this happened mostly by accident. Of course Congress can change judge-made rules, but there is no reason to think Congress ever had any sort of overview when it wrote the profits remedy from restitution into the statutes. And the court can change judge-made rules, but it didn't know about the longstanding broader principle either. Whether this is good or bad for trademark law is a question for the IP scholars, but that was not the court's focus. What I can say is that it creates a more stringent restitution remedy than has available across most of the law, without ever focusing on the choice.”

Seila Law LLC v. Consumer Financial Pr​otection Bureau

Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers

Harrison’s teaching subjects include constitutional history, federal courts, remedies, corporations, civil procedure, legislation and property. He is the author of an amicus brief in Seila Law.

Prakash’s scholarship focuses on separation of powers, particularly executive powers. His forthcoming book, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” will be published in 2020. He is also the author of “Imperial from the Beginning: The Constitution of the Original Executive.”

Prakash: “The Supreme Court adopted a narrow grounds for ruling that the CFPB’s structure was unconstitutional. While saying a host of things inconsistent with Humphrey’s Executor, it left the ultimate fate of that case for another day. Small ball wins again.”

In the News:

  • Op-Ed: A Modest Win for the Constitution (National Review) More
  • Key CFPB Defenders Urge SCOTUS To Skip Constitutional Issue (Reuters) More
  • Can Courts Consider Severability Before Other Questions? (Reason) More
  • Justices Will Hear Challenge to Consumer Watchdog Agency (Courthouse News Service) More

Torres v. Ma​drid

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment

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

Trump v. Deutsche Bank AG/Trump v. Mazars USA, LLP

Whether Congress has the constitutional and statutory authority to issue a subpoena to creditors for President Donald Trump and several of his business entities demanding private financial records belonging to the president..

Yin formerly served as chief of staff of the U.S. Congress' Joint Committee on Taxation and was reporter to the American Law Institute's federal tax project concerning the income taxation of private business enterprises.

Trump v. Vance

Whether a grand-jury subpoena served on a custodian of the president’s personal records violates Article II and the Supremacy Clause.

Yin formerly served as chief of staff of the U.S. Congress' Joint Committee on Taxation and was reporter to the American Law Institute's federal tax project concerning the income taxation of private business enterprises.

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