Yesterday’s argument in Kindred Nursing Centers Limited Partnership v. Clark had the justices retracing some pretty familiar terrain, as they considered whether the Federal Arbitration Act pre-empts a decision of a state supreme court holding an arbitration agreement unenforceable based on the lower court’s thinly disguised hostility to pre-dispute arbitration agreements. This particular contract called for arbitration of disputes between Kentucky nursing homes and their residents. Representatives of the residents routinely signed those contracts, relying on broadly written general powers of attorney granted by the residents. The Kentucky court held that the powers of attorney were not broad enough to authorize execution of arbitration agreements, explaining that powers of attorney would need to mention arbitration contracts specifically because arbitration contracts involve a waiver of fundamental constitutional rights (like the right to a jury trial).

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Thursday round-up

By on Feb 23, 2017 at 7:19 am

Yesterday the court heard oral argument in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a Kentucky rule that requires a power of attorney to refer expressly to arbitration agreements before an attorney-in-fact can bind her principal to such an agreement. Tony Mauro reports on the argument in The National Law Journal (registration or subscription required), noting that for a “bench that usually protects arbitration agreements from attack, the U.S. Supreme Court on Wednesday seemed unusually hostile to such arrangements when they are embedded in nursing home contracts.”

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Posted in Round-up

Petition of the day

By on Feb 22, 2017 at 11:23 pm

The petition of the day is:


Issues: (1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause” to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.

One day before lawyers for a transgender teen who identifies as a boy and wants to use the boys’ bathroom at his Virginia high school are due to file their brief in the Supreme Court, the Trump administration today withdrew guidance, issued by the U.S. Department of Education in 2015 and 2016, on the use of school bathrooms and locker rooms by transgender students. In that guidance, the federal government had interpreted a 1975 regulation as requiring schools to “treat transgender students consistent with their gender identity” if they opt to separate students in school bathrooms and locker rooms based on their sex. Continue reading »

When Stacy and Brent Fry obtained a goldendoodle for their five-year-old daughter, E.F., in 2009, they could not possibly have imagined that they would find themselves, seven years later, at the U.S. Supreme Court. But that is exactly where they were at the end of October, listening to the justices debate their case. The case began as a dispute over whether E.F., who has cerebral palsy, could bring the dog, named Wonder, to kindergarten with her, but it eventually became a clash over a fairly technical question about the interaction among a group of laws intended to assist people with disabilities.

Today the court issued a unanimous decision in the Frys’ favor. It ruled that, when families like the Frys file lawsuits under the Americans with Disabilities Act or the Rehabilitation Act, which bar discrimination against both adults and children with disabilities, they do not need to first go through the administrative proceedings required by the Individuals with Disabilities Education Act, which ensures that children with disabilities receive the special education services that they need, unless the focus of the lawsuit is an allegation that the student did not receive the “free appropriate public education” guaranteed by the IDEA. Put another way, this means that a student who alleges that a school has discriminated against her because of her disability is not required to use the IDEA’s administrative proceedings simply because the alleged discrimination happened at school.

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At first glance, Coventry Health Care v. Nevils reads like a tedious commercial-law dispute, assessing the enforceability of “subrogation” clauses in insurance contracts. What a snore-fest, you might think. But when the case comes up for argument next week, the justices finally will confront a legal issue that has been moving back and forth between the state and federal courts since 2011, and there is every reason to think they will be fully engaged.

Assuming the eyes of most of my readers started to glaze over at the mention of “subrogation,” I should point out that the justices will not find this at all unfamiliar. The underlying factual dispute is a dead ringer for the one they faced last term in Montanile v. Board of Trustees: An insurance company pays for the medical care of an insured injured in an automobile accident. Later, the insured successfully sues the other driver. Having paid the insured’s medical costs, the insurance company predictably seeks the funds the insured received from the other driver, relying on a “subrogation” clause in the insurance policy. Confronting these facts in the ERISA context, the unassuming opinion in Montanile held that the insurance company could not recover because the claim was “equitable” rather than “legal” and thus beyond the remedies granted under ERISA. Now, that one did turn out to be a snoozer.

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When a Texas jury was deciding whether to sentence Duane Buck to death for the 1995 murders of his former girlfriend and another man, the key question in their deliberations was whether Buck was likely to be violent in the future. Buck’s attorney put Dr. Walter Quijano, a psychologist, on the stand, where Quijano testified, among other things, that Buck’s race – he is black – made him statistically more likely to commit violent acts. After two days of deliberations, the jury concluded that Buck should be executed for his crimes. Today, over 20 years later, six justices of the U.S. Supreme Court described the prospect that Buck “may have been sentenced to death in part because of his race” as “a disturbing departure from a basic premise of our criminal justice system.” But Buck’s case is not entirely over; rather, the justices sent the case back to the lower courts for additional proceedings that are likely to lead to a new sentencing hearing.

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Argument transcript

By on Feb 22, 2017 at 1:52 pm

The transcript in Kindred Nursing Centers Limited Partnership v. Clark is available here.

Posted in Merits Cases

There were some special guests in the courtroom on Wednesday. Ivanka Trump, the daughter of President Donald Trump, was in attendance in the VIP section with one of her daughters and an adult friend or care-giver.

Trump was present for the oral argument in Kindred Nursing Centers L.P. v. Clark, a somewhat dry case about arbitration agreements between nursing homes and patients. Before the argument, however, Trump and her daughter got to hear the justices announce opinions in three cases, about service dogs for students with disabilities, patents for multicomponent inventions, and race considerations and the death penalty.

Ivanka Trump and daughter seated in the Supreme Court (Art Lien)

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Tuesday’s argument in McLane v. Equal Employment Opportunity Commission gave the justices an opportunity to consider in detail the role of federal district courts in policing EEOC subpoenas. Justice Stephen Breyer did so in the most clear terms: “I mean, that’s what judges are there for in the district courts,” he stated, implying that district courts should be given leeway in order to rein in agency fishing expeditions.

But much of the argument concerned whether the EEOC subpoena under review was a fishing expedition at all. In relevant part, that subpoena sought “pedigree information” – names and contact information for employees whom McLane required to take a strength test as a condition of employment – in connection with a charge that McLane’s use of the test constituted sex discrimination. The district court had held that the pedigree information was not yet relevant to the charge under investigation, but the U.S. Court of Appeals for the 9th Circuit applied de novo review to conclude that the district court construed “relevance” too narrowly, and that McLane should have been required to produce the information.

Allyson N. Ho for petitioner (Art Lien)

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