Month: November 2016

On October 11, 2016, the Supreme Court decided Bosse v. Oklahoma. In 1987, the U.S. Supreme Court held in Booth v. Maryland that the Eighth Amendment prohibits a sentencing jury in a death penalty case from considering victim impact evidence that does not directly relate to the circumstances of the crime. Four years later in Payne v. Tennessee, the Supreme Court clarified that the ban only applied to certain kinds of victim impact testimony. -- Shaun Michael Bosse was convicted of three counts of first-degree murder. The prosecution sought the death penalty and, over Bosse’s objection, asked three of the victims’ family members to recommend a sentence to the jury. All three recommended the death penalty, and the jury sentenced Bosse to death. Bosse appealed, arguing that the testimony violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed, holding that Payne had implicitly overruled Booth’s ban as it related to characterizations of the defendant and opinions about the sentence. -- By a vote of 8-0, the U.S. Supreme Court vacated the decision of the Oklahoma Court of Criminal Appeals and remanded the case. The Supreme Court held in a per curiam opinion that the Oklahoma Court of Criminal Appeals erred in concluding that Payne had implicitly overruled Booth in its entirety. Supreme Court decisions remain binding precedent until reconsidered, the Court explained--even when subsequent cases have raised doubts about their continuing vitality. Justice Thomas filed a concurring opinion in which Justice Alito joined. -- To discuss the case, we have Erin Sheley, who is Assistant Professor, University of Calgary Faculty of Law.

In part one of this two-part episode, we tackle every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency. So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s … Continue reading OA23: Trump Presidency Legal Q and A, Part 1 →

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On November 7, 2016, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated “longevity pay” for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed, and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- The question now before the Supreme Court is whether the FVRA precondition in 5 U.S.C. 3345(b)(1), on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, which requires that a person who is nominated to fill a vacant office subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials like Solomon, who assume acting responsibilities under subsections (a)(2) and (a)(3). -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.