Faculty Available for Comment on 2021 Supreme Court Term

U.S. Supreme Court

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June 30, 2022

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

Holding: For purposes of calculating the Medicare fraction — one of two fractions the Medicare program uses to adjust the rates paid to hospitals that serve a higher-than-usual percentage of low-income patients — those individuals “entitled to [Medicare Part A] benefits” are all those qualifying for the program, regardless of whether they receive Medicare payments for part or all of a hospital stay.

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.

Konnoth: “In Empire Health Foundation, by a narrow majority, the court upheld an HHS regulation that limits the additional compensation hospitals receive when they treat more low income individuals. While billions of dollars were at stake, the case is more important for what it did not do. Court watchers were worried that the conservative majority would use this case to overturn the longstanding doctrine established by Chevron v. NRDC, the most cited administrative law decision of all time. Chevron held that courts should defer to agencies when a statute is ambiguous. Conservative judges have long argued against deferring to agency experts. However, in this case, the majority and the dissent do not cite Chevron. They simply hold that the statute is not ambiguous — even though they come to opposite conclusions. I suspect the liberal judges in the majority would have preferred to rely on Chevron, but did not do so in order to attract Justices Thomas and Barrett, both of whom have criticized Chevron.”


Carson v. Makin

Holding: Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the free exercise clause of the First Amendment.

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.

Laycock: “There are no surprises here. Two earlier cases, Trinity Lutheran v. Comer and Espinoza v. Montana, held that when a state chooses to fund something in the private sector, it cannot discriminate between similarly situated religious and secular providers of the same services (such as child care or education). The challenged statutes in those cases disqualified any organization that was affiliated with a religious body, and the court noted that this disqualified even an organization that was religiously affiliated but not actually doing anything religious with its money. But that was a formality; there basically are no religious organizations that don’t do anything religious with their money. So that distinction never made any sense, and the court said so. Maine funds private high schools, and it cannot discriminate between those that teach religion and those that do not. They all teach the secular curriculum; they all satisfy the compulsory education laws. No state is required to fund private schools at all. But those that choose to do so cannot discriminate.”

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

Holding: In a suit raising non-federal claims against a foreign state or instrumentality under the Foreign Sovereign Immunities Act, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party.

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.

Holding: The distinction between on-premises signs and off-premises signs in the city of Austin’s sign code is facially content-neutral under the First Amendment.

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.”

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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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Dobbs v. Jackson Women’s Health Organization

Holding: The Constitution does not confer a right to abortion; Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; the authority to regulate abortion is returned to the people and their elected representatives.

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.

Shepherd: “Today's ruling is devastating for women in the U.S. The dissent sums up the majority’s conclusion well — from the moment of fertilization, a girl or woman ‘has no rights to speak of.’ The implications of the ruling go beyond abortion — which is bad enough — consider, for example, that there is now nothing keeping a state from forcing a raped teenager to give birth. Abortion can be completely criminalized from the moment of conception. But also, following this decision, states can surveil and regulate all manner of activity of pregnant persons even for wanted pregnancies. And there’s nothing in the majority's reasoning to prevent the future loss of other individual rights — to marry, to contraception, to make medical decisions, to not be sterilized against one’s will. Any rights not contemplated by the ratifiers of the 14th Amendment are at risk. The majority says they are not — but their reasoning does not back that up.”

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

Holding: Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 — providing a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and order specified forms of relief — does not displace the state secrets privilege.

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

Holding: Section 304 of the Bipartisan Campaign Reform Act of 2002 — which limits the amount of post-election contributions that may be used to repay a candidate who lends money to his own campaign — unconstitutionally burdens core political speech.

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.”

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Hughes v. Northwestern University

Holding: Determining whether plan participants state plausible claims against plan fiduciaries for violations of the Employee Retirement Income Security Act’s duty of prudence requires a context-specific inquiry of the fiduciaries’ continuing duty to monitor investments and to remove imprudent ones as articulated in Tibble v. Edison International, 575 U.S. 523; the U.S. Court of Appeals for the 7th Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents.

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

Holding: 8 U.S.C. § 1231(a)(6) does not require the government to provide noncitizens detained for six months with bond hearings in which the government bears the burden of proving, by clear and convincing evidence, that a noncitizen poses 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.


Kennedy v. Bremerton School District

Holding: The free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

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.

Laycock: “The opinion says that all establishment clause cases should now be controlled by a test of history and tradition: if the founding and early national generations did it, it must be constitutional. The obvious problem with that test is that it looks to practices from a time in which the white population was about 99.5% Protestant, and blacks and Native Americans didn’t count. Traditional practices have very different constitutional implications now that the country is just over 60% Christian. The early tradition in public schools was heavy-handed Protestant religious instruction, anti-Catholic textbooks and Catholic children beaten or expelled for refusing to read the King James Bible. The justices don’t want to go back to that, at least not for Catholics and Jews, and probably not for Muslims, Buddhists, Hindus or even nonbelievers. But they may have a hard time explaining why not. The opinion begins by saying that coach Kennedy ‘offered his prayers quietly while his students were otherwise occupied.’ That is simply false. The mischaracterization of the facts was made possible by a systematic gerrymander in which most of what actually happened didn’t count. The gerrymander was made possible, or at least facilitated, by inept lawyering in the school district, in which the letter suspending the coach mentioned only some of the most recent events and relied only on the endorsement test. This opinion now repudiates the endorsement test, and the school’s lawyers certainly should have seen that coming by 2015. If you want to know what happened, you have to read the Sotomayor dissent and look at the pictures she includes. The Lemon test was badly phrased and often misapplied; it had become a symbol of polarized disagreement. But its core idea was that government should be neutral toward religion, neither promoting it nor inhibiting it. This opinion repudiates the Lemon test, and much worse, it appears to repudiate the very idea of government neutrality as a constitutional norm. Government is now free to promote religion, and apparently free to promote Christianity in particular, at least in the public schools and possibly much more broadly.”

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

Schwartzman: “In Bremerton, the Supreme Court continued to smash away at the separation of church and state. Although the case focused on whether a football coach could lead students in prayer on the 50-yard line, the court used this occasion to make explicit that it has abandoned — which is to say overruled — Lemon v. Kurtzman, which set out the framework that the court used for more than a half-century to understand and apply the establishment clause. Because Lemon required that laws have a secular purpose, the court’s repudiation of it entails rejection of that principle, which may have profound consequences for the relationship between religion and politics in our country. On its facts, this is a narrow decision, but the reasoning marks a consolidation in the conservative majority’s approach to the First Amendment and signals the end of an era of church-state separationism.” 

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Morgan v. Sundance Inc.

Holding: Federal courts may not adopt an arbitration-specific rule conditioning a waiver of the right to arbitrate on a showing of prejudice.

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.”

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

Holding: New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.

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.”

Shalf: “The outcome of Bruen is unsurprising: ‘May issue’ permitting regimes can be problematic, and by contrast, the court made clear in its opinion that the more common ‘shall issue’ regimes are generally permissible. The real impact of this decision is the solely history-focused methodology it prescribes. This will make the job of advocates and lower courts even more difficult as they try to make sense of an inconsistent and unclear historical record. It also likely means that innovative new ways of addressing gun violence will be more difficult to support in the face of challenges.”


Ramirez v. Collier

Holding: Petitioner John Ramirez is likely to succeed on his claims under the Religious Land Use and Institutionalized Persons Act because Texas’ restrictions on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the state’s compelling interests.

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.

Hellman: “In Ruan v. U.S., the court holds that doctors authorized to prescribe controlled substances can only be convicted for violating the Controlled Substances Act when they intend or know that they are prescribing in an unauthorized manner. In doing so, the court rejects the view that doctors are criminally liable if their prescribing is not in accord with current medical standards. The difference is important, and especially so for doctors treating patients in pain who might otherwise be deterred from meeting the needs of their patients by the fear that disagreement with their medical judgment would subject them to serious criminal liability. As Justice Breyer writing for the court emphasizes, ‘the Government’s standard would turn a defendant’s criminal liability on the mental state of a hypothetical “reasonable” doctor, not on the mental state of the defendant himself or herself.’ Instead, and going forward, doctors may only be convicted if they knowingly or intentionally prescribe in an unauthorized manner.” 


Shurtleff v. B​oston

Holding: Because Boston’s flag-raising program did not constitute government speech, Boston’s refusal to let petitioners fly their flag violated the free speech clause of the First Amendment.

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

Holding: The judgment of the U.S. Court of Appeals for the 1st Circuit vacating Dzhokhar Tsarnaev’s capital sentences is reversed.

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

Holding: The Constitution does not require Congress to extend Supplemental Security Income benefits to residents of 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 50 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

Holding: Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.

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.

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

Jaffe: “I am most struck by the fact that Chief Justice Roberts, writing for the majority, never mentions the foundational case on the Environmental Protection Agency’s authority to regulate greenhouse gas pollution under the Clean Air Act, the Court’s 2007 ruling in Massachusetts v. EPA. Justice Gorsuch’s concurrence avoids any reference to this critically important precedent as well.

“Justice Kagan, in dissent, leads with it. She writes, “‘Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.’ Massachusetts v. EPA, 549 U. S. 497, 505 (2007).”  Justice Kagan goes on to cite the landmark decision in Massachusetts five more times throughout her dissent.”

Mahoney: “In West Virginia v. EPA, the court explained that it is generally the job of Congress, not administrative agencies, to make major decisions about pressing economic and social questions. In the absence of clear congressional delegation of power, the court declined to find that Congress had authorized the EPA to adopt a sweeping regulatory scheme under the Clean Air Act. Today’s holding will be understood by many as a victory for the principles of separation of powers and the bounded authority of the administrative state.”

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