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W&M law professors take lead in submitting Supreme Court amicus briefs

  • Corporate law and religious freedom
    Corporate law and religious freedom
    Jayne Barnard is the lead organizer for an amicus brief on the Hobby Lobby and Conestoga Wood cases and blogged about the cases the week of March 24 at TheConglomerate.org.
    Photo courtesy William & Mary Law School
  • Preserving Fourth Amendment rights
    Preserving Fourth Amendment rights
    Adam Gershowitz and colleagues argue that placing suspects’ cell phones in Faraday bags or wrapping them in aluminum foil will allow police to prevent destruction of evidence while they wait for search warrants in an amicus brief filed before the Supreme Court.
    Photo by Gretchen Bedell

Two William & Mary Law professors have taken lead roles in preparing amicus curiae briefs for cases pending before the United States Supreme Court.

Jayne Barnard, Cutler Professor of Law and Kelly Professor of Teaching Excellence, was the lead organizer of a brief filed by 44 corporate and criminal law scholars in support of the petitioners in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, on which the Court heard oral arguments March 25. Professor Adam Gershowitz wrote an amicus brief on behalf of 28 criminal law scholars in support of Petitioner Riley and Respondent Wurie in Riley v. California and United States v. Wurie.

Amicus curiae, or “friend of the court,” briefs are submitted by non-parties to the case as a way of introducing information and concerns to the court, demonstrating that a case’s outcome may have wider effects beyond the immediate parties to the suit.

The Hobby Lobby case had at least 84 amicus briefs filed by a variety of groups, placing it “among the largest amicus efforts ever” according to the Becket Fund for Religious Liberty.

The reason the case has attracted so much media attention in recent days is because it presents the Court with a novel and controversial issue: Whether for-profit corporations may seek an exemption from the contraceptive mandate of the Affordable Care Act. If protected, for-profit corporations could deny employees health coverage for contraceptives and other medical products and procedures, which employees are otherwise entitled to under federal law. The denial of health coverage would be based on religious objections of the corporation's owners.

“There are scores of briefs addressing constitutional issues, the historical origins of the Free Exercise Clause, employees’ rights, contraceptive technology, and the proper statutory construction of the Religious Freedom Restoration Act,” Barnard said.

Out of the many briefs filed, however, Barnard’s brief manages to stand out from the crowd. It’s one of only two briefs addressing traditional corporate law principles.

“We are hoping that a corporate law perspective will help the Court sort out the vexatious issues raised by these cases,” Barnard, a nationally recognized expert in corporations, corporate governance, and securities regulation law, said. “In our view, shareholders cannot cloak themselves in the corporate veil to shield their personal assets and at the same time claim that the corporations they control have adopted the owners’ religious beliefs.”

While they have not been the subject of as many amicus briefs as Hobby Lobby, the Riley and Wurie cases — and the brief written by Gershowitz — have attracted the attention of criminal law scholars and students across the nation.

The cases present a cutting-edge issue in the handling of electronic evidence: Does the Fourth Amendment prohibit police from conducting warrantless searches of cell phones as part of an arrest?

Gershowitz’s brief suggests a novel solution to this evidentiary conundrum.

“We argue that the Court should forbid warrantless cell phone searches and instead encourage police to preserve evidence by placing the phone in a Faraday bag or wrapping it in aluminum foil,” Gershowitz said. “Police can effectively and cheaply prevent the destruction of evidence while applying for a search warrant.”

The brief, filed with assistance from William & Mary Law’s Appellate and Supreme Court Clinic, was cited by the defendant in the Riley case as one of the reasons for disallowing warrantless cell phone searches, and it was recently featured by U.S. Law Week in a March 18 post titled “Call It the ‘MacGyver’ Fix: Aluminum Foil May Solve Cell Phone Search Dilemma.”

Gershowitz is no stranger to the question of warrantless cell phone searches. He recently published an article on the issue in the William & Mary Bill of Rights Journal titled “Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem.” The Wall Street Journal's LawBlog also referenced his article in an August 2013 post titled “What Seized Cell Phones and Leftovers Have in Common.”

The Supreme Court will hear oral arguments on Riley and Wurie in April.