Faculty Available for Comment on 2021 Supreme Court Term

U.S. Supreme Court

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September 28, 2021

University of Virginia School of Law faculty listed here are available to speak to the media about the 2021 Supreme Court term. The list will be updated as more cases are announced.

 

Becerra v. Empire Health Foundation

Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.

Konnoth writes in health and civil rights, as well as on health data regulation. He is also active in LGBT rights litigation, and has filed briefs in the U.S. Supreme Court and the Tenth Circuit on LGBT rights issues.


Carson v. Makin

Whether a state violates the Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide “sectarian” instruction.

Laycock is perhaps the nation’s leading authority on the law of religious liberty and has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court, where he has served as lead counsel in six cases and has also filed influential amicus briefs. He co-authored an amicus brief in Carson.

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.

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Cassirer v. Thyssen-Bornemisza C​ollection

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

Stephan is an expert on international business, international dispute resolution and comparative law. He recently served as special counsel to the general counsel of the U.S. Department of Defense. He co-authored an amicus brief in Cassirer.


City of Austin, Texas v. Reagan National Advertising of Texas Inc.

Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation.

Schauer is a world-renowned expert in the areas of constitutional law, evidence, legal reasoning, freedom of speech, and jurisprudence and the philosophy of law. His expertise has been demonstrated in hundreds of books, book chapters, articles, essays, classes and personal appearances.

Schauer: “When the Supreme Court decided Reed v. Town of Gilbert in 2015, there was a worry that a wide variety of quite reasonable restrictions on billboards and other forms of outdoor off-premises advertising would be found unconstitutional. This decision, with an opinion written by Justice Sotomayor but also joined by Chief Justice Roberts and Justice Kavanaugh as well as Justices Breyer and Kagan, indicates that the worry might have been premature or overblown. By allowing regulations that are not based in any way on the message that is communicated, today’s decision makes clear that the First Amendment does not stand in the way of most content-neutral regulations of outdoor advertising.”


Concepcion v. United States

Whether, when deciding if it should “impose a reduced sentence” on an individual under the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

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


Cummings v. Premier Rehab Keller

Holding: Emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act or the Affordable Care Act.

Bayefsky writes about constitutional law, federal courts, civil procedure and legal theory. Her work addresses both the practical workings of legal institutions and underlying philosophical ideas such as dignity and equality. She clerked for Justice Ruth Bader Ginsburg.

Bayefsky: “In Cummings v. Premier Rehab Keller, the Supreme Court ruled that a plaintiff could not recover emotional-distress damages for the violation of certain federal antidiscrimination laws. The court deployed a contract-law analogy to determine whether recipients of federal funding, like the defendant in this case, would be on notice of liability for emotional distress damages when they agreed not to discriminate in exchange for federal funds. Underlying the Court’s decision may have been concerns about which institution — courts or Congress — is best placed to spell out remedies for the violation of the antidiscrimination statutes at issue.”

Rutherglen has chaired the advisory committee on Fourth Circuit Rules and served as director of the Graduate Program for Judges at the Law School. He teaches admiralty, civil procedure, employment discrimination and professional responsibility.

Rutherglen: “Cummings v. Premier Rehab Keller represents a continued trend in the Supreme Court to limit remedies in civil actions in which Congress has not explicitly conferred on private parties the right to bring a claim. Under the statutes invoked in this case, the principal form of enforcement is administrative, by agency actions directed against the recipients of federal funds. No provision is made for actions by private individuals and so the Supreme Court has been reluctant to extend remedies to nontangible losses, such as infliction of emotional distress.”

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CVS Pharmacy Inc. v. Doe

Whether the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act provide a disparate-impact cause of action for plaintiffs alleging disability discrimination.

Konnoth writes in health and civil rights, as well as on health data regulation. He is also active in LGBT rights litigation, and has filed briefs in the U.S. Supreme Court and the Tenth Circuit on LGBT rights issues.

Rutherglen has chaired the advisory committee on Fourth Circuit Rules and served as director of the Graduate Program for Judges at the Law School. He teaches admiralty, civil procedure, employment discrimination and professional responsibility.


Dobbs v. Jackson Women’s Health Organization

Whether all pre-viability prohibitions on elective abortions are unconstitutional.

Barzun’s areas of interest include constitutional law, torts, evidence and the history of legal thought.

Cahn is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law. She is director of UVA Law’s Family Law Center.

Mahoney’s scholarly articles include works on land preservation, eminent domain, health care reform and property rights in human biological materials.

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.

Re’s primary research and teaching interests are in criminal procedure, federal courts and constitutional law. He clerked for Judge Brett Kavanaugh and Justice Anthony Kennedy.

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FBI v. Fazaga

Whether the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a District Court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Stephan is an expert on international business, international dispute resolution and comparative law. He recently served as special counsel to the general counsel of the U.S. Department of Defense.

Stephan: “In FBI v. Fazaga, a unanimous Supreme Court ruled that the special procedure under the 1978 Foreign Intelligence Surveillance Act for determining the legality of electronic surveillance had no bearing on the state-secrets privilege, which entitles the government to withhold state and military secrets from judicial proceedings. The privilege rests on threats to national security, not the legality of the collection. It reversed the Ninth Circuit, which had held that the government could not invoke the privilege with respect to electronic surveillance covered by the 1978 Act.”


Federal Election Commission v. Ted Cruz for Senate

Whether appellees have standing to challenge the statutory loan-repayment limit and whether the loan-repayment limit violates the Free Speech clause of the First Amendment.

Hellman’s scholarship includes articles on campaign finance law, bribery and corruption, each of which explore and challenge the normative foundations of current doctrine.

Hellman: “Today, the Supreme Court decided Federal Election Commission v. Ted Cruz for Senate, and by a vote of 6-3, with Chief Justice Roberts writing for the majority, struck down a part of the Bipartisan Campaign Reform Act of 2002 that limits use of contributions made after an election to repay candidates for personal loans made to their campaigns. These contributions are particular likely to lead to corruption for two reasons. First, the contribution is used to repay the campaign’s debt to the candidate and thus the money ultimately goes into the candidate’s own pocket, unlike other campaign contributions. Second, because these contributions are made after the election, the donor knows, rather than merely hopes, that the candidate is in a position to confer benefits. The opinion was also noteworthy for its blurring of the line between a contribution and an expenditure, emphasizing that the limit on repayment via contribution after the election will deter candidates from spending their own money on their campaigns.”


Hughes v. Northwestern University

Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence.

Curtis has written extensively on the regulation of mutual funds and retirement accounts, including empirical work on 401(k) plans, mutual fund governance and fee litigation. He has co-authored an amicus brief in Hughes.


Johnson v. Arteaga-Martinez

Whether a detained alien is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.

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.


Morgan v. Sundance Inc.

Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must ‘place arbitration agreements on an equal footing with other contracts

He is director of the Program for Employment and Labor Law Studies at UVA Law, and his published research focuses on employment discrimination law, employment contracts, vicarious liability, the economics of discrimination, and contract theory.

Verkerke: “According to the unanimous ruling in Morgan v. Sundance Inc., the question of whether a party has waived the right to enforce an arbitration agreement must be decided using generally applicable legal principles. Courts may not create arbitration-specific rules that favor (or disfavor) arbitration. The decision continues a recent pattern in which the Supreme Court has delivered relatively minor procedural victories to parties resisting the enforcement of arbitration agreements. But despite these limited obstacles to arbitration, three decades of rulings send the unmistakable message that the court’s conservative justices are determined to interpret the Federal Arbitration Act as expansively as possible to ensure that arbitration agreements are enforced as written.”


New York State Rifle & Pistol Association Inc. v. Bruen

Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

Howard is widely acknowledged as an expert in the fields of constitutional law, comparative constitutionalism and the Supreme Court. Howard has briefed and argued cases before state and federal courts, including the U.S. Supreme Court. He clerked for Justice Hugo Black.

Mahoney teaches courses in property, government finance, constitutional law and nonprofit organizations.

Shalf directs the Community Solutions Clinic and serves as the school’s director of clinical programs. She is co-author of “The Legal Context of School Violence: The Effectiveness of Federal, State, and Local Law Enforcement Efforts to Reduce Gun Violence in Schools.”


Ramirez v. Collier

Whether Texas’ decision to allow Ramirez’s pastor to enter the execution chamber but forbidding the pastor from laying his hands on his parishioner as he dies or praying aloud substantially burden the exercise of his religion.

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.


Ruan v. U.S.

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under federal law without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Hellman writes about the obligations of professional roles, especially in the context of clinical medical research. She co-authored an amicus brief in Ruan.


Shurtleff v. B​oston

Whether the First Circuit’s failure to apply the court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole conflicts with Supreme Court precedents.

Schauer is a world-renowned expert in the areas of constitutional law, evidence, legal reasoning, freedom of speech, and jurisprudence and the philosophy of law. His expertise has been demonstrated in hundreds of books, book chapters, articles, essays, classes and personal appearances.

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: “Shurtleff will be thought of as a relatively easy case; the principle that government cannot disallow religious speech when it permits other forms of private speech is well-established, and here the city of Boston allowed many speakers to use its flagpole to fly their flags and disallowed only a flag when it was religious in nature. It is important to note, however, that this case is one of a number that have implications for the reach of the Establishment Clause of the First Amendment. The court has now permitted sectarian Christian prayer at town council meetings, the public ownership of a 30-foot cross, and perhaps soon, prayer by a coach on the 50-yard line immediately following football games. The court is allowing much more room for explicitly Christian prayer and symbols in the public sphere, whether engaged in by the government or by private parties.”


U.S. v. Ts​arnaev

Whether the U.S. Court of Appeals erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated.

Frampton studies criminal law and constitutional criminal procedure with a focus on how legal actors, institutions and doctrines have responded, or failed to respond, to the dramatic expansion of the carceral state.


U.S. v. Vaello-Madero

Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

Mahoney’s scholarly articles include works on land preservation, eminent domain, health care reform and property rights in human biological materials.

Mahoney: “In U.S. v. Vaello Madero, the Supreme Court rejected the argument that the equal protection component of the Due Process Clause of the Fifth Amendment requires Congress to provide Supplemental Social Security Income benefits to residents of Puerto Rico to the same extent as it does residents of the fifty United States and the District of Columbia. Noting that federal tax and benefit programs for Puerto Rico’s residents differ from those in force in other parts of the nation, the court concluded that constitutional text, historic practice and judicial precedent indicate that Congress has a rational basis for its distinct treatment of residents of Puerto Rico.” 


U.S. v. Zubaydah

Holding: The U.S. Court of Appeals for the 9th Circuit’s judgment that the district court erred in dismissing Zubaydah’s discovery request on the basis of the state secrets privilege is reversed, and the case is remanded with instructions to dismiss Zubaydah’s current discovery application.

Eichensehr is director of the Law School’s National Security Law Center, and writes and teaches about cybersecurity, foreign relations, international law and national security law.


West Virginia v. Environmental Protection Agency

Whether an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.

Jaffe is director of the Environmental Law and Community Engagement Clinic and serves on the Virginia Coal and Energy Commission.

Livermore is director of the Program in Law, Communities and the Environment and teaches courses on environmental law, regulation and legal technology.

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