On March 28, 2017, the Supreme Court decided Moore v. Texas, a habeas corpus dispute regarding the scope of the Supreme Court’s 2002 decision in Atkins v. Virginia that the execution of a mentally disabled person would violate the Eighth Amendment’s proscription on “cruel and unusual punishments.”
Bobby James Moore was convicted of capital murder and sentenced to death for fatally shooting a sales clerk during a failed robbery attempt. Finding Moore to be intellectually disabled under current medical diagnostic standards set forth in the latest editions of the American Association of Intellectual and Developmental Disabilities (AAIDD) manual and the Diagnostic and Statistical Manual of Mental Disorders, and invoking Atkins, a state court recommended granting Moore habeas relief in the form of life imprisonment or a new trial. The Texas Court of Criminal Appeals, however, rejected that recommendation based on its 2004 decision in Ex Parte Briseno, which relied on standards set forth in a predecessor manual to the AAIDD and a series of evidentiary factors. The Court of Criminal Appeals ultimately determined that Moore had failed to establish significantly subaverage intellectual functioning, and denied relief.
By a vote of 5-3, the Supreme Court vacated the judgment of the Court of Criminal Appeals and remanded the case. In an opinion authored by Justice Ginsburg, the Supreme Court held that the Court of Criminal Appeals had failed to comply with the requirements of the Eighth Amendment and Supreme Court precedents. By rejecting the habeas court’s application of contemporary medical guidance and clinging to the outdated and nonclinical factors set forth in Briseno, the Supreme Court indicated, the Court of Criminal Appeals had failed adequately to inform itself of the medical community’s diagnostic framework as required by the Supreme Court’s 2014 decision in Hall v. Florida. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Thomas and Alito.
To discuss the case, we have Joanmarie Davoli.
SCOTUScast - Coventry Health Care of Missouri, Inc., v. Nevils – Post-Decision SCOTUScast
On April 18, 2017, the Supreme Court decided Coventry Health Care of Missouri, Inc., v. Nevils. Under the Federal Employees Health Benefits Act of 1959 (FEHBA), the Office of Personnel Management (OPM) may contract with private carriers to provide federal employees health insurance. FEHBA expressly provides, however, that the terms of any such contract relating to “the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)” will “supersede and preempt any State or local or law, or any regulation issued thereunder” relating to health insurance or plans. Here, OPM’s contracts with private insurance carriers provide, among other things, for reimbursement and subrogation. When Jodie Nevils, a former federal employee insured under a FEHBA plan offered by Coventry Health Care of Missouri (Coventry) was injured in an automobile accident, Coventry paid Nevils’ medical expenses. Nevils sued the driver who caused his injuries and obtained a settlement award. Coventry, invoking its OPM contract, then asserted a lien of approximately $6,600 against Nevils’ settlement proceeds to cover the medical bills Coventry had paid for Nevils. He paid off the lien, but then filed a class action suit against Coventry in Missouri state court, claiming the insurance company had unlawfully obtained reimbursement and noting that Missouri law does not permit subrogation or reimbursement in this context. The trial court granted judgment for Coventry on the grounds that FEHBA allowed Coventry’s contract terms to override state law prohibitions. The Missouri Supreme Court, however, reversed, relying on a “presumption against preemption” that excluded subrogation and reimbursement from FEHBA’s preemptive scope.
By a vote of 8-0, the Supreme Court reversed the judgment of the Missouri Supreme Court and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that Missouri’s prohibitions on contractual subrogation and reimbursement “relate to … payments with respect to benefits,” and are therefore preempted by FEHBA. The Court further held that FEHBA’s preemption regime comports with the Constitution’s Supremacy Clause, because the statute itself and not the OPM contract triggers federal preemption. All other justices joined Justice Ginsburg’s opinion for the Court except Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.
To discuss the case, we have George Horvath, a Post-Doctoral Fellow and Lecturer at Berkeley Law.
By a vote of 8-0, the Supreme Court reversed the judgment of the Missouri Supreme Court and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that Missouri’s prohibitions on contractual subrogation and reimbursement “relate to … payments with respect to benefits,” and are therefore preempted by FEHBA. The Court further held that FEHBA’s preemption regime comports with the Constitution’s Supremacy Clause, because the statute itself and not the OPM contract triggers federal preemption. All other justices joined Justice Ginsburg’s opinion for the Court except Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.
To discuss the case, we have George Horvath, a Post-Doctoral Fellow and Lecturer at Berkeley Law.
Opening Arguments - OA109: The GOP Tax Plan’s Big Lie (& More!)
Today's show discusses: A) The Jones Act and Puerto Rico; B) The GOP's tax plan; and C) Oral arguments in the Zarda v. Altitude Express case we discussed back in Episode 91. Support us on Patreon at patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Supreme Court Term RBG Is Calling “Momentous”
As next week marks the opening of the 2017 term at the high court, Dahlia Lithwick speaks with David Cole, legal director of the American Civil Liberties Union, about some of the cases in this upcoming term, including Trump's travel ban, a civil rights case of gay couples versus those of religious dissenters and more.
Cole also discusses how citizen activism is more alive than he's seen is his lifetime, something he illustrates in his new book, now out in paperback, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law.
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Amicus With Dahlia Lithwick | Law, justice, and the courts - The Supreme Court Term RBG Is Calling “Momentous”
As next week marks the opening of the 2017 term at the high court, Dahlia Lithwick speaks with David Cole, legal director of the American Civil Liberties Union, about some of the cases in this upcoming term, including Trump's travel ban, a civil rights case of gay couples versus those of religious dissenters and more.
Cole also discusses how citizen activism is more alive than he's seen is his lifetime, something he illustrates in his new book, now out in paperback, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law.
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Opening Arguments - OA108: State-Sponsored Patriotism In the NFL & So Much More!
Today's episode hits on some timely news stories, including Trump's latest kerfuffle with the NFL. In the pre-show, we talk a little bit about the Graham-Cassidy Bill, which is hopefully defunct by the time you hear this. But can Trump save it via Executive Order? (No.) Then, we return for a lengthy "Andrews Were Wrong!" segment in which we issue a correction from Episode 107, explain the difference between Ronnie Lott and Leon Lett, and also tackle friend of the show Andrew Seidel's recent article regarding whether churches will likely receive FEMA relief in the wake of the Trinity Lutheran decision. In the main segment, Andrew looks at the Supreme Court's recent order in Tharpe v. Warden and explains the significance in light of our prior discussion of jury deliberations. Before you listen to "Yodel Mountain," you'll want to go back and listen to Episode 57 and Episode 58, in which we go into detail on Donald Trump's rocky relationship with the NFL. Then, we answer whether Donald Trump violated federal law by threatening NFL players who refuse to stand for the national anthem & some other questions. You'll find out which senators oppose "State-Sponsored Patriotism" and the answer WILL surprise you! Finally, we end with a new Thomas Takes the Bar Exam Question #43 about whether a "Letter of Intent" is binding in a business sale. (Oooh, right in Andrew's professional wheelhouse!) Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances After being bombarded by 10,000 Twitter trolls, the guys are going to lay low for a little bit. Show Notes & Links
- We discussed the first GOP effort to repeal the AHCA back in Episode 80, and you can read about the changes to that bill (largely, to the slush fund) in this Bloomberg article.
- This CNN report suggested that Trump would "do an Executive Order" when Graham-Cassidy fails.
- If you want to read the trial court's ruling on ineffective assistance of counsel in the Syed case, you can do so.
- We first discussed whether churches will receive FEMA funds for disaster relief in Episode 102; Andrew Seidel respectfully disagreed with that conclusion in a recent article; we continue to think he's too optimistic in light of the Trinity Lutheran decision.
- We discussed Pena-Rodriguez v. Colorado as a "landmark case" way back in Episode 56.
- You can read the Supreme Court's order staying execution in Tharpe v. Warden, as well as the District Court's opinion denying reopening of Tharpe's habeas petition.
- We're really proud of the episodes we did on the USFL v. NFL lawsuit back in Episode 57 and Episode 58, in which we go into detail as to exactly why Trump hates the NFL (and so much more)!
- The relevant statute at issue with Trump threatening the NFL is 18 U.S.C. § 227.
- That "LawNewz" article we referenced is here; read at your own risk!
- Finally, we definitely recommend reading the McCain-Flake report on "paid patriotism."
Opening Arguments - OA107: Adnan Syed Obviously Did It (Also: You Can Learn About Patents!)
Today's super-sized show -- at long last! -- discusses season 1 of the Serial podcast. Even if you haven't heard Serial, we think you'll enjoy this application of the principles of reasonable doubt. We begin with a discussion of the recent settlement between Evergreen College and Bret Weinstein. Why does Andrew say this means the college valued Weinstein's alleged $3.8 million lawsuit at zero? In the main segment, Andrew goes through some of the issues behind the Serial and Undisclosed podcasts related to the Adnan Syed case. Next, Andrew does a mini-deep dive on patent law by looking at a strange recent deal between Allergan and the Saint Regis Mohawk Tribe. What in the world do these two entities have in common? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #42 regarding authentication of evidence. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links
- Andrew quoted extensively from State v. Earp, 319 Md. 156, 170-172 (1990) on witness coaching.
- This is Allergan's press release regarding their deal to sell the patents to the St. Regis Mohawk Tribe.
- The two relevant sections from the U.S. Code relating to inter partes review are 35 USC § 102 (“no prior art”) and 35 USC § 103 (“non-obvious”).
- This IP website has a brief discussion of the Oil States v. Greene's Energy Group case in which the Supreme Court will consider whether the inter partes review process is constitutional.
- The two recent patent cases discussed in the "C" segment are Covidien, LP v. University of Florida Research Foundation, Inc. (Jan. 25, 2017) and NeoChord v. University of Maryland, Baltimore (May 23, 2017).
- For a refresher on sovereign immunity, you might want to check out Opening Arguments Episode #90.
- Finally, don't forget to check out and join the Opening Arguments Facebook Community!
Opening Arguments - OA 106: Elections Have Consequences! Donald Trump, Bernie Sanders & the DNC Lawsuit
In this episode, we discuss a number of political stories making the rounds. First, "Yodel Mountain" returns with a look at the recent CNN story showing that the FBI obtained a FISA court warrant for Paul Manafort. Does this mean Trump's complaints about Obama "wiretapping" his campaign are true? Listen and find out! In the main segment, Andrew walks us through the recent ruling dismissing out the class action claims against the Democratic National Committee ostensibly by Bernie Sanders supporters. Find out what's really going on! Next, we answer a listener question from Patrick Hager about whether Congress can really overrule the Supreme Court. Learn civics with us! Finally, we end with a new Thomas Takes the Bar Exam Question #42 about whether an expert witness can authenticate crucial pieces of evidence. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links
- This is 50 U.S.C. § 1805, which governs FISA court warrants.
- You can read the Wall Street Journal article on how FISA warrants are "rubber-stamped" by clicking here.
- And this is the CNN report indicating that Manafort's investigation had been reopened by the FBI.
- DON'T CLICK ON THIS Observer link!
- Here is a link to the original lawsuit filed against the DNC.
- This is the DNC's Charter and Bylaws, which contain Article 5, Section 4.
- Here is the transcript of oral argument on April 25, 2017.
- This is the Wymbs v. Republican State Executive Committee of Florida decision discussed on the show.
- Here is the link to Jared Beck's appearance on InfoWars.
- And this is Elizabeth Lee Beck's interview with WorldNet Daily.
- Finally, this is the link to the court's ruling.
Opening Arguments - OA105: More Gay Wedding Cakes
Today's show discusses everyone's favorite non-issue: whether bigots who bake cakes for a living can discriminate against gays. We begin with a lightning round of questions taken from the Opening Arguments Facebook Community, which you should definitely join! In the main segment, we break down Masterpiece Cakeshop v. Colorado Civil Rights Commission, which is currently pending before the U.S. Supreme Court. Next, we explain the recent pronouncement by Donald Trump regarding enforcement of the Magnitsky Act. Are we scaling Yodel Mountain? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #41 regarding direct and circumstantial evidence in the context of a murder investigation and a shoeprint left at the scene. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links
- Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join!
- We answer a question about the Congressional Review Act, 5 U.S.C. § 801 et seq.; we first discussed the CRA back in Episode 61.
- Our next lightning round question is about revenge porn, which we first discussed in Episode 87, and the relevant statute is Cal. PEN § 647(j)(4).
- We end the lightning round with a question about the Apple X phone drawn from this article in Slate.
- You can click here to read the Appellees' brief in opposition to certiorari in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.
- This is the text of the Magnitsky Act; and this is the memorandum issued by the Trump White House.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Gerrymandering Goes Back to Court
When the Supreme Court term opens next month, perhaps no issue will be more urgent – and more complicated – than voting rights. One of the first cases the justices will hear is Gill v. Whitford, a challenge to the 2011 redrawing of district lines in Wisconsin. While the Court has struck down racially-motivated gerrymanders in the past, no election map has ever been rejected as a purely partisan gerrymander. And recent developments have some court watchers concerned that Justice Anthony Kennedy may still not be ready to do that. Our guest this episode is Richard Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, and curator of the must-read Election Law Blog.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com. Podcast production by Tony Field.
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