Media Tip Sheet: UVA Law Experts Available for Comment on Supreme Court Decisions

U.S. Supreme Court
May 25, 2017

University of Virginia School of Law experts are available to speak to the media about U.S. Supreme Court decisions as the 2016 term wraps up.

Bosse v. Okalahoma (Eighth Amendment, prohibited testimony)
Brandon Garrett

County of Los Angeles v. Mendez (Fourth Amendment, excessive force)
Barbara Armacost, Brandon Garrett

Davila v. Davis (Supreme Court precedent, effective counsel)
Brandon Garrett

Kokesh v. Securities and Exchange Commission (application of statute of limitations)
Andrew Vollmer

Lee v. Tam (First Amendment, trademark protection)
Frederick Schauer

Moore v. Texas (Eighth Amendment, death penalty)
Brandon Garrett

Murr v. Wisconsin (regulatory taking)
Maureen Brady, Julia Mahoney

TC Heartland v. Kraft Food Brands (patent litigation forum-shopping, patent venue statute)
John Duffy

Trinity Lutheran Church of Columbia v. Comer (First Amendment, Fourteenth Amendment)
Barbara Armacost, Douglas Laycock, Richard Schragger, Micah Schwartzman

Weaver v. Massachusetts (prejudice, effective counsel)
Brandon Garrett

Ziglar v. Abbasi (post-Sept. 11 terrorism detention, qualified immunity)
Brandon Garrett

 

Barbara ArmacostBarbara Armacost

Professor of Law
bea4k@virginia.edu
(434) 924-3413

Barbara Armacost is an expert on civil rights litigation, criminal investigation, torts and the First Amendment (religion clauses). She is the author of the study "'Sanctuary' Laws: The New Immigration Federalism," which examines 270 local jurisdictions that have adopted policies designed to resist immigration federalism. It argues that the policies enacted as part of the local resistance movement point the way both to specific solutions, and to a better — and more theoretically sound — immigration federalism. This "new immigration federalism" is already having an effect on federal immigration policy.

 

Maureen BradyMaureen Brady

Associate Professor of Law
meb6dc@virginia.edu
(434) 924-7707

On Murr v. Wisconsin, Brady says:

"The Supreme Court's 5-3 decision today in Murr v. Wisconsin provides courts with a new legal test to use in determining what 'property' is for the purposes of assessing whether property has been taken by the government without just compensation, in violation of the Fifth Amendment. Since the early 20th century, the Supreme Court has held that a regulation may so burden property that it effects a constitutional taking. However, two of the court's 'regulatory takings' tests ask courts to compare the value of the regulated parcel before and after the challenged regulation in order to determine whether a taking has occurred. In order to perform that analysis, courts need to know what the relevant parcel or property is. This is often referred to as the denominator problem, because the loss in value (the numerator) is compared against the value of the property before the regulation occurred (the denominator). The greater the resulting percentage or fraction, the more likely a taking has occurred. Governments and property owners routinely disagree about the unit of property that should supply the denominator; rationally, the government wants a unit with larger value so that a regulation affecting the value will appear to be a minor or minimal imposition, while property owners often seek to use units of property with smaller values in order to make a drop in value more significant.

"The Murr case presented an interesting problem. The Murr siblings owned two waterfront lots, one developed and one undeveloped, received respectively from their parents and an entity controlled by their parents. Both lots are too small to develop under existing environmental and land-use regulations, but before the Murr children acquired them, their ownership by separate entities meant that they were grandfathered in and thus not subject to the regulations forbidding development. However, once the lots were both held by the children, a merger provision in the relevant regulation was triggered. Essentially, once under common ownership, the lots could no longer be separately sold or developed. This meant that pursuant to the regulation, the Murr children could no longer split off the undeveloped lot for future development, even though it remained demarcated as a separate lot with its own boundary lines. In alleging that the relevant regulations ran afoul of the Takings Clause, the Murr children sought to use the single undeveloped lot to furnish the denominator, which would have demonstrated that the regulations worked an enormous decrease in value; the relevant governments opposing the Murrs wanted to use both lots to furnish the denominator, because the economic impact of the regulation on the value of the lots together appeared far more minimal.

"Justice Anthony Kennedy, writing for the majority, announced that a flexible, multi-factor test for determining the appropriate unit of property best satisfies the competing goals of regulatory takings doctrine: sufficiently protecting the property owner's interests against the need for the government to regulate for the health, safety and welfare of its people. Kennedy set out three factors that courts should consider in defining the relevant parcel for the takings analysis: (1) the treatment of the land under state and local law (i.e., the relevant lot lines as well as the reasonable regulations and laws affecting ownership that predate the owner's acquisition); (2) the physical characteristics of the land (i.e., the surrounding human and environmental context, and whether that context should give rise to an expectation that the property will be regulated); and (3) the prospective value of the regulated land (i.e., whether burdening one portion of land will decrease or increase the value of an owner's other holdings). Altogether, these factors are meant to help courts determine the reasonable expectations an owner might have about whether his or her property would be treated as one parcel or separate tracts. Applying these factors to the Murrs’ case, the majority affirmed the lower courts in finding that the two parcels together should furnish the denominator and that, using that unit of property, no taking occurred here.

"Both dissenting opinions are notable. Chief Justice John Roberts' opinion is sure to become a classic of property and land use law. First, it points out how the majority's decision creates a federal definition of constitutional property that is arguably more divorced from state law than previous precedents have suggested. Traditionally, state law defines the contours of the property interests that the federal Constitution protects; this new definition announced by the majority may change that relationship between state and federal law. Second, Roberts notes that while 'flexibility' may be the hallmark of determining whether a taking has occurred, there is no need to conflate the issue of whether a taking has occurred with the separate issue of defining the unit of property; the majority's test may create more confusion. Finally, the Roberts opinion warns that the application of these factors is unpredictable and may be susceptible to manipulation by governments, leaving property owners without the constitutional protection to which they are entitled. Justice Clarence Thomas, on the other hand, filed a one-page dissent suggesting that the court should reevaluate all of its regulatory takings doctrine in light of increasing agreement that the original public meaning of the Constitution might not support it. While many scholars have suggested this, and some justices have hinted at the lack of textual support for regulatory takings, this is a strong statement from a sitting justice.

"If past takings decisions are any guide, one thing is sure: this new multi-factor test will lead to lots more litigation, and this is probably not the last time the court will have to weigh in. The multi-factor balancing test that courts use to assess whether property has been 'taken' has already led to — in the court's own words — 'vexing' subsidiary questions about the proper meaning, scope and application of each factor. Here, history is likely to repeat itself."

Molly Brady's primary teaching and research interests are in property law, land use law, local government law, legal history and intellectual property law. Her scholarship undertakes historical analyses of legal rules and land use policies, using these analyses to account for developments in eminent domain law, to illuminate connections between property and other doctrinal areas, and to explore how different institutions respond to problems in city planning and governance.

 

John DuffyJohn Duffy

Samuel H. McCoy II Professor of Law
Elizabeth D. and Richard A. Merrill Professor of Law
jfduffy@virginia.edu
(434) 243-8544

John Duffy was on the team of lawyers who represented Heartland, and argued the case at the U.S. Court of Appeals for the Federal Circuit before it was appealed to the Supreme Court. He is an expert in torts, administrative law, patent law and international intellectual property law. In the field of intellectual property, Duffy has been identified as one of the 25 most-influential people in the nation by The American Lawyer.

 

Brandon GarrettBrandon Garrett

Justice Thurgood Marshall Distinguished Professor of Law
bgarrett@virginia.edu
(434) 924-4153

On Davila v. Davis, Garrett says:

"The court's ruling in Davila adopts a narrow hypertechnical approach that cuts off the ability for convicts to raise important constitutional claims because of errors by their ineffective lawyers on appeal. The court has turned habeas litigation into a minefield that no lawyer, much less a prisoner, can easily navigate. This ruling finding claims defaulted on appeal is yet another example."

On Weaver v. Massachusetts, Garrett says:

"This ruling emphasizes how willing the justices have become to find serious and even structural constitutional errors at criminal trials not reversible because they are deemed 'harmless.'  The justices were unwilling to recognize that serious structural errors, like the lack of a public trial, that harm interests beyond just the correctness of the outcome, require meaningful relief. The court's reasoning highlights just how complex and difficult it has become for any convict to prevail on constitutional claims, even ones that go to the very structure of a fair criminal trial."

On Ziglar v. Abbasi, Garrett says:

"The ruling, with only six justices involved, suggests that federal officials have wide leeway to unconstitutionally detain individuals and even subject them to brutal conditions, although on the latter claim, the justices send the case back for further analysis. It is an extremely cramped reading of the availability of damages actions for such violations by federal actors. It certainly fits in with many of the justices' views that damages actions should typically not be available even for serious constitutional violations. However, that straightjacket approach towards civil rights and the decision itself sets a troubling precedent at a time when detention of immigrants is on the rise. What it also does is encourage Congress yet again to step in and better define what remedies are available when federal officials violate constitutional rights."

Brandon Garrett’s recent research includes studies of the death penalty, DNA exonerations and organizational prosecutions. He is the author of “Too Big to Jail: How Prosecutors Compromise with Corporations” and "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," which examines the cases of the first 250 people to be exonerated by DNA testing. Garrett's work has been widely cited by courts, including the U.S. Supreme Court, lower federal courts, state supreme courts and courts in other countries, such as the Supreme Courts of Canada and Israel.

 

Douglas LaycockDouglas Laycock

Robert E. Scott Distinguished Professor of Law
Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low
Professor of Religious Studies
dlaycock@virginia.edu
(434) 243-8546

Douglas Laycock is perhaps the nation's leading authority on the law of religious liberty and also on the law of remedies. He has taught and written about these topics for four decades at the University of Chicago, the University of Texas, the University of Michigan, and now Virginia. He has argued five cases at the Supreme Court, including the religious freedom case Holt v. Hobbs, which he won unanimously in 2015. Laycock has also testified frequently before Congress and has argued many cases in the courts.

 

Julia MahoneyJulia Mahoney

John S. Battle Professor of Law
F.D.G. Ribble Professor of Law
jdm8t@virginia.edu
(434) 924-3942

Julia Mahoney teaches courses in property, government finance, constitutional law and nonprofit organizations. She is also an expert on corporations and feminism. Her scholarlship has focused on land preservation, eminent domain, health care reform and property rights in human biological materials.

 

Frederick SchauerFrederick Schauer

David and Mary Harrison Distinguished Professor of Law
schauer@virginia.edu
(434) 924-6777

Frederick Schauer is a leading expert on the First Amendment, constitutional law and legal philosophy. He has written widely on freedom of expression, constitutional law and theory, evidence, legal reasoning and the philosophy of law. A fellow of the American Academy of Arts and Sciences and a recipient of a Guggenheim Fellowship, Schauer is the author of several books, including "The Law of Obscenity," "Free Speech: A Philosophical Enquiry," "Thinking Like a Lawyer: A New Introduction to Legal Reasoning," and, most recently, "The Force of Law." He is the founding editor of the journal Legal Theory. 

 

Richard SchraggerRichard Schragger

Perre Bowen Professor of Law
schragger@virginia.edu
(434) 924-3641

On Trinity Lutheran Church of Columbia v. Comer, Schragger says:

"The impact of Trinity Lutheran is somewhat ambiguous. For some, the court’s striking down of a provision of the Missouri Constitution that prevented churches from receiving state grants for playground resurfacing is not a great departure from existing precedent. The decision simply requires the state to treat religious applicants the same as non-religious ones. For others, however, this decision is more momentous, as it seems to open the door to significant state funding of churches and church-related operations. The decision understates some core anti-Establishment concerns. Those concerns include the opposition to using taxpayer money to fund religious organizations, the worry that religious organizations will become dependent on the government or complicit with the government for funding, and the fear that competition for government funds will generate religious strife. Those are all important concerns that should not be overlooked in a case otherwise about school playgrounds."

Richard 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. He has authored articles on the Establishment Clause and local regulation of religion, the role of cities in a federal system, local recognition of same-sex marriage, takings law and economic development, and the history of the anti-chain store movement.

 

Micah SchwartzmanMicah Schwartzman

Professor of Law
schwartzman@virginia.edu
(434) 924-7848

Micah Schwartzman is an expert on church and state, constitutional law, the First Amendment, and religion and law. At UVA Law he is the Edward F. Howrey Professor of Law, and he teaches both constitutional law and the First Amendment. “The Rise of Corporate Religious Liberty,” a collection of essays co-edited by Schwartzman, examines the evolution and the rise of the idea that corporations have a right to religious freedom.

 

Andrew VollmerAndrew Vollmer

Professor of Law, General Faculty
Director, John W. Glynn, Jr. Law & Business Program
anv3de@virginia.edu
(434) 982-2543

On Kokesh v. Securities and Exchange Commission, Vollmer says:

"The Supreme Court’s unanimous Kokesh decision said the SEC may not obtain disgorgement from a defendant for conduct older than five years before the date of filing an enforcement case. The court held that disgorgement is a penalty for purposes of the five-year limitations period in 28 U.S.C. § 2462. The remedy is for a violation of a public law, is imposed for a punitive purpose, often does not compensate victims of securities violations, and can exceed a defendant’s profit. The court had already applied the five-year limitation period to civil monetary penalties in SEC cases.

"The decision will have some but not dramatic effects on the SEC’s enforcement program. It will put extra pressure on the enforcement staff to devote attention to relatively more recent suspected violations. It will also provide a further incentive to move investigations along to a prompt conclusion or to develop a record sufficient to persuade defendants to extend the limitations period with a tolling agreement. Speedier investigations would be a welcome development because a common complaint about SEC enforcement inquiries is that they take far too long.

"Kokesh seems to revive some long-standing issues about disgorgement as a remedy in SEC enforcement cases. In note 3, the court reserved on whether courts have the power to award disgorgement at all. It also declined to address the appropriate method for calculating disgorgement but made a point of reciting instances in which disgorgement had exceeded the profits gained as a result of a securities violation. 

"The decision raises additional questions for SEC enforcement. Depending on the circumstances, does the reasoning in the opinion apply to other remedies in SEC enforcement cases, such as injunctions, cease and desist orders, and officer and director bars? Does the opinion create grounds for reconsidering Hudson v. United States, 522 U.S. 93 (1997), and whether the double jeopardy clause prevents the government from proceeding against the same defendant for the same conduct in both a criminal prosecution and a civil enforcement case for penalties such as fines and disgorgement?"

Andrew Vollmer is director of the John W. Glynn, Jr. Law & Business Program, and also teaches courses on federal securities laws. Vollmer most recently served as a partner in the Securities Litigation and Enforcement Practice Group of Wilmer Cutler Pickering Hale and Dorr, where his practice concentrated on securities enforcement, private securities litigation and internal investigations. In addition, he advised more generally on matters related to the SEC and the federal securities laws. Prior to that, Vollmer served as deputy general counsel at the Securities and Exchange Commission from 2006 to early 2009.

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