Julie A. Braun, J.D., LL.M.

On April 25, 2024, the U.S. Supreme Court will hear oral arguments in the historic case of Donald J. Trump v. United States. Can a former President claim immunity from criminal prosecution? The answer will determine whether Trump's trial in Washington, D.C., before U.S. District Judge Tanya Chutkan, initially scheduled for March 4, can begin and whether the former President's trials in Florida and Georgia can proceed.

Dive into the details of this groundbreaking legal battle in this… Show more

On April 25, 2024, the U.S. Supreme Court will hear oral arguments in the historic case of Donald J. Trump v. United States. Can a former President claim immunity from criminal prosecution? The answer will determine whether Trump's trial in Washington, D.C., before U.S. District Judge Tanya Chutkan, initially scheduled for March 4, can begin and whether the former President's trials in Florida and Georgia can proceed.

Dive into the details of this groundbreaking legal battle in this article summarizing presidential immunity principles, discussing the two court decisions that rejected former President Trump’s asserted immunity from prosecution, and examining how Congress and the executive branch view the Impeachment Judgment Clause and its relation, if any, to presidential immunity. Show less

On April 24, 2024, the justices will hear oral arguments in a fiery debate over whether states can decline to abide by the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring stabilizing care for all emergency department patients, including abortion care, even if it conflicts with a state’s own stricter abortion rules.

Whatever the decision in Moyle v. United States, it will thrust the controversial subject of abortion back into the national spotlight just before… Show more

On April 24, 2024, the justices will hear oral arguments in a fiery debate over whether states can decline to abide by the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring stabilizing care for all emergency department patients, including abortion care, even if it conflicts with a state’s own stricter abortion rules.

Whatever the decision in Moyle v. United States, it will thrust the controversial subject of abortion back into the national spotlight just before the pivotal November 2024 election, stirring up an already polarized political atmosphere where cultural issues hold sway and tensions are at an all-time high.

A ruling, expected this summer, could reshape the landscape of health care and abortion rights. The decision may shed light on the interplay between the scope of a healthcare provider’s duty to provide emergency abortion services under EMTALA and state restrictions that limit a healthcare provider’s ability to provide abortion care.

While the Court’s decision will likely only address the interaction between EMTALA and the relevant Idaho statute, the implications could ripple across our Nation, affecting similar legal battles like Texas v. Becerra, involving EMTALA preemption and a Texas abortion statute.

This article dives into the complex world of emergency abortion care and its clash with Idaho law. It provides background on EMTALA and relevant Idaho law, analyzes lower court decisions, shares observations about likely oral argument content, and offers insights into the potential implications of the Supreme Court's ruling. Show less

Is a Bump Stock a Machine Gun? Is ATF’s Bump-Stock Ban Lawful? On February 28, 2024, in the rare U.S. Supreme Court gun case that has nothing to do with the Second Amendment, the justices will hear a challenge to a federal rule defining bump stocks as machine guns prohibited by federal law.

The case is not a Second Amendment constitutional challenge. Instead, it is a classic statutory interpretation challenge: Is a bump stock device a "machinegun" as defined in 26 U.S.C. §5845(b)… Show more

Is a Bump Stock a Machine Gun? Is ATF’s Bump-Stock Ban Lawful? On February 28, 2024, in the rare U.S. Supreme Court gun case that has nothing to do with the Second Amendment, the justices will hear a challenge to a federal rule defining bump stocks as machine guns prohibited by federal law.

The case is not a Second Amendment constitutional challenge. Instead, it is a classic statutory interpretation challenge: Is a bump stock device a "machinegun" as defined in 26 U.S.C. §5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires "automatically more than one shot * * * by a single function of the trigger."

Although the government sought to keep the question presented in Garland v. Cargill as narrow as possible, the respondent may successfully bait the Nation’s top court into issuing a broader ruling on the rule of lenity and its effect on agency deference.

This article explains the statutory framework for regulating machineguns, discusses ATF’s final rule, examines the APA-related litigation that resulted in a circuit split and led to a U.S. Supreme Court review, and offers considerations for the U.S. Congress. Show less

On February 26, 2024, in the most important First Amendment cases of the internet era, the U.S. Supreme Court will hear oral arguments in Moody v. NetChoice (22-277) and NetChoice v. Paxton (22-555), pitting Florida and Texas laws against the First Amendment rights of large internet companies as the U.S. Congress has largely stayed at a standstill over internet policy. A decision, expected by June 2024, could shake up a broad swath of the online landscape and define how lawmakers could regulate… Show more

On February 26, 2024, in the most important First Amendment cases of the internet era, the U.S. Supreme Court will hear oral arguments in Moody v. NetChoice (22-277) and NetChoice v. Paxton (22-555), pitting Florida and Texas laws against the First Amendment rights of large internet companies as the U.S. Congress has largely stayed at a standstill over internet policy. A decision, expected by June 2024, could shake up a broad swath of the online landscape and define how lawmakers could regulate social media companies.

The U.S. Courts of Appeals' opinions in these cases present two different views of the First Amendment rights at issue.

The Eleventh Circuit concluded that parts of the Florida law were likely unconstitutional because they unduly restricted the editorial judgment of the covered platforms. This decision was consistent with how several trial courts have characterized the First Amendment rights of websites that host user speech.

In contrast, the Fifth Circuit upheld the Texas law as constitutional, saying the covered platforms were engaged in "censorship," not protected speech.

The justices will consider two questions:

(1) Whether the state laws' content-moderation restrictions comply with the First Amendment; and

(2) Whether the laws' requirement that regulated platforms explain particular content-moderation decisions to affected users complies with the First Amendment.

This article discusses the relevant First Amendment principles at stake, then explains the background of the two cases and the parties' arguments at the U.S. Supreme Court. Show less

On February 21, 2024, the justices will hear oral arguments on emergency applications to postpone implementation of the Environmental Protection Agency’s (EPA) "Good Neighbor Plan," a rule addressing interstate transport of ozone pollution in 23 states.

This case shines a spotlight on the "shadow docket" — that is, emergency appeals. The justices typically rule on emergency applications out of the public eye, but this fight to pause government regulations on transient air pollution will… Show more

On February 21, 2024, the justices will hear oral arguments on emergency applications to postpone implementation of the Environmental Protection Agency’s (EPA) "Good Neighbor Plan," a rule addressing interstate transport of ozone pollution in 23 states.

This case shines a spotlight on the "shadow docket" — that is, emergency appeals. The justices typically rule on emergency applications out of the public eye, but this fight to pause government regulations on transient air pollution will be aired during oral arguments. States and industry groups have the RARE opportunity to prove environmental regulations deserve heightened review at such an early stage of litigation. It's a highly unusual move, used in recent years to review a Texas abortion ban and the Biden administration's COVID-19 vaccine and testing mandate.

The complicated posture of the case raises difficult questions regarding the appropriate standard for the Court to grant emergency relief and how that analysis might be affected by the partial stay of EPA’s actions in the lower courts.

The Court’s ruling could clarify the standard for obtaining emergency relief, including whether a stay applicant must establish that the Court would likely grant certiorari, a matter of dispute among the parties. The intervenor state and local governments argue that the stay applications constitute an improper use of the non-merits docket to obtain a preview of the Court’s views of the merits outside the normal course of judicial review.

The Court’s decision could influence the process of judicial review of complex rulemaking, particularly when an agency takes several related actions. This case provides an opportunity for the Court to evaluate the continued viability of a partially stayed or vacated rule, whether a partial stay can itself invalidate a rule as a whole, and when courts may allow an agency to treat a rule as severable. Show less

On February 20, 2024, the U.S. Supreme Court will hear oral arguments in Bissonnette v. LePage Bakeries Park St., LLC, a case involving the Federal Arbitration Act’s exemption for interstate transportation workers. Are truck drivers who deliver commercial baked goods to restaurants and stores engaged in the bakery business, or are they transportation workers?

The distinction may seem like mere semantics, but it’s of enormous consequence for delivery workers with wage-and-hour claims. The… Show more

On February 20, 2024, the U.S. Supreme Court will hear oral arguments in Bissonnette v. LePage Bakeries Park St., LLC, a case involving the Federal Arbitration Act’s exemption for interstate transportation workers. Are truck drivers who deliver commercial baked goods to restaurants and stores engaged in the bakery business, or are they transportation workers?

The distinction may seem like mere semantics, but it’s of enormous consequence for delivery workers with wage-and-hour claims. The Federal Arbitration Act (FAA) has a carve-out for "workers engaged in foreign or interstate commerce," so if the bakery delivery drivers are transportation workers, they can litigate their claims in a class action. But if they are deemed to be in the bakery business, they’re outside the FAA’s exemption and can be compelled to arbitrate their claims.

Many manufacturers, retailers, and other companies whose primary business is not transportation use private fleets to ship goods. By some estimates, around two million truck drivers in the U.S. work in private truck fleets instead of traditional trucking companies. The Court’s decision could determine whether arbitration agreements in these workers’ employment contracts are enforceable under the FAA. Bissonnette thus implicates ongoing policy debates over the proliferation of arbitration agreements in employment contexts.

Some commentators argue that arbitration provides a faster resolution and a more cost-effective and accessible forum for employees than traditional court litigation. Others say the agreements unfairly shield employers from liability, such as by precluding class litigation of claims that might be too small to justify the expense of an individual lawsuit.

This article provides background on the FAA and the Court’s interpretation of the transportation worker exemption, examines Bissonnette, and discusses considerations for the Congress. Show less

The higher education community awaits perhaps the most consequential affirmative action ruling by the U.S. Supreme Court in almost 45 years. This decision could abolish affirmative action nationwide, halting decades of progress toward promoting diversity on campuses across the country.

The nation’s top court has repeatedly ruled that colleges may use race as a factor in building diverse student bodies, but two of the justices who were key to those decisions are gone — Anthony Kennedy and… Show more

The higher education community awaits perhaps the most consequential affirmative action ruling by the U.S. Supreme Court in almost 45 years. This decision could abolish affirmative action nationwide, halting decades of progress toward promoting diversity on campuses across the country.

The nation’s top court has repeatedly ruled that colleges may use race as a factor in building diverse student bodies, but two of the justices who were key to those decisions are gone — Anthony Kennedy and Ruth Bader Ginsburg. Their replacements, Trump appointees Brett M. Kavanaugh and Amy Coney Barrett, are more conservative and less likely to find the practice constitutional.

In a series of cases over four decades, a center-left majority established and reaffirmed that institutions of higher education have a compelling interest in pursuing the educational benefits of diversity for all their students. To that end, they may consider race as a modest plus factor but may not engage in racial balancing or use rigid quotas.

The only change since the last time the Supreme Court reaffirmed this precedent is its personnel.

Will the Roberts Court end decades of precedent allowing race-conscious admission decisions?

This article considers the Supreme Court’s history with racial classifications, briefly relates the arguments presently before the Justices, evaluates potential outcomes, and offers considerations for Congress. Show less

Will a deeply divided U.S. Supreme Court further flex its new strength and extract Section 2 — the one tooth left in the mouth of the Voting Rights Act? On the second day of the Supreme Court’s new Term, the nine justices heard oral arguments in Merrill v. Milligan, a case that could decide the future of voting rights for underrepresented minorities around our nation. The case centers on whether Alabama violated Section 2 of the Voting Rights Act when it enacted a congressional map that created… Show more

Will a deeply divided U.S. Supreme Court further flex its new strength and extract Section 2 — the one tooth left in the mouth of the Voting Rights Act? On the second day of the Supreme Court’s new Term, the nine justices heard oral arguments in Merrill v. Milligan, a case that could decide the future of voting rights for underrepresented minorities around our nation. The case centers on whether Alabama violated Section 2 of the Voting Rights Act when it enacted a congressional map that created one rather than two majority-Black districts. This article discusses Section 2 of the VRA in the context of redistricting; the lower court rulings and the U.S. Supreme Court stay; the debate at oral argument over Alabama’s refusal of a second Black voting district; and concludes with possible implications of this case for Congress. Show less

On June 1, 2023, the U.S. Supreme Court unanimously revived whistleblower lawsuits claiming that supermarket and pharmacy chains SuperValu and Safeway overcharged government health-care programs for prescription drugs by hundreds of millions of dollars. The decision allows the actions to proceed to trial, giving the whistleblowers another chance to pursue their claims that the companies defrauded the federal Medicare and Medicaid programs.

The Schutte case involves two separate qui tam… Show more

On June 1, 2023, the U.S. Supreme Court unanimously revived whistleblower lawsuits claiming that supermarket and pharmacy chains SuperValu and Safeway overcharged government health-care programs for prescription drugs by hundreds of millions of dollars. The decision allows the actions to proceed to trial, giving the whistleblowers another chance to pursue their claims that the companies defrauded the federal Medicare and Medicaid programs.

The Schutte case involves two separate qui tam actions — United States ex rel. Schutte v. SuperValu Inc. (No. 21-1326) and United States ex rel. Proctor v. Safeway, Inc. (No. 22-111) — that the U.S. Supreme Court consolidated for purposes of its review.

The Justices considered the scienter, or mental state, requirement of the False Claims Act (FCA). The Act prohibits "knowingly" submitting false claims to the government for payment. The Court ruled that this knowledge standard encompasses a defendant’s subjective beliefs about the accuracy of its claims.

The nation’s top court rejected the U.S. Court of Appeals for the Seventh Circuit’s conclusion that a defendant who adopts an objectively reasonable interpretation of an ambiguous legal requirement cannot act "knowingly" within the meaning of the FCA.

The Schutte decision allows the two whistleblower actions to proceed to trial. More broadly, it reinforces the U.S. Supreme Court’s earlier admonitions that courts must analyze scienter requirements in the specific context of the statutory framework at issue, including any common-law concepts that Congress incorporated into the statutory text. Show less

Recent U.S. Supreme Court decisions interpreting the Religious Freedom Restoration Act and the Religion and Speech Clauses of the First Amendment have strengthened protections for religious activity. The nation’s top court has now taken up the question of what constitutes religious discrimination in employment under Title VII of the Civil Rights Act of 1964. Groff v. DeJoy presents the Justices with the opportunity to reconsider, and perhaps overturn, decades-old precedent — one that has long… Show more

Recent U.S. Supreme Court decisions interpreting the Religious Freedom Restoration Act and the Religion and Speech Clauses of the First Amendment have strengthened protections for religious activity. The nation’s top court has now taken up the question of what constitutes religious discrimination in employment under Title VII of the Civil Rights Act of 1964. Groff v. DeJoy presents the Justices with the opportunity to reconsider, and perhaps overturn, decades-old precedent — one that has long set the rules for how far employers must go to accommodate their employees’ religious practices in the workplace.

This article reviews Title VII’s religious accommodation provision and the Supreme Court’s interpretation of it, the issues currently before the high court in Groff, and considerations for Congress. Show less

On May 18, 2023, in a holding that has immense significance for the biopharmaceutical industry, the U.S. Supreme Court unanimously affirmed the Federal Circuit’s reading of the longstanding enablement requirement of U.S. patent law in the context of antibody-related genus claims, finding Amgen’s antibody claims insufficiently enabled and therefore invalid in its long-running patent dispute with rival drugmaker Sanofi.

In Amgen v. Sanofi (No. 21-757), the high court held that Amgen’s… Show more

On May 18, 2023, in a holding that has immense significance for the biopharmaceutical industry, the U.S. Supreme Court unanimously affirmed the Federal Circuit’s reading of the longstanding enablement requirement of U.S. patent law in the context of antibody-related genus claims, finding Amgen’s antibody claims insufficiently enabled and therefore invalid in its long-running patent dispute with rival drugmaker Sanofi.

In Amgen v. Sanofi (No. 21-757), the high court held that Amgen’s patent on a class of antibodies used to treat high cholesterol was invalid under patent law’s enablement requirement.

Justice Neil M. Gorsuch’s opinion found that while Amgen could (and did) patent the specific antibodies it discovered, it could not patent an entire antibody class (known as a "genus") unless the patent disclosure contained enough technical information to enable a scientist skilled in the field to make and use every antibody in the genus with reasonable experimentation.

The Court concluded Amgen’s patents were not enabled because the techniques it offered to generate each of the potentially millions of antibodies in the claimed genus would not reliably yield a desired antibody without "painstaking experimentation."

Amgen has significant implications for patents on biological products (biologics) and for innovation and competition in the pharmaceutical industry. While Amgen strove to leave the blackletter law of patent enablement unaltered by relying heavily on its enablement precedents, its application of those cases to modern medical treatments will likely make it harder in practice to patent functionally described genus claims, particularly for biologics.

This article briefly reviews the legal and factual background of the Amgen-Sanofi case, highlights the Supreme Court's ruling, suggests considerations for Congress, and shares broadly what the decision means for the pharmaceutical industry. Show less

On May 11, 2023, the U.S. Supreme Court ruled against a group of journalists seeking documents from the island territory’s financial oversight board, saying that the board is protected from such information requests by sovereign immunity. The case captioned Financial Oversight and Management Board (Board) for Puerto Rico v. Centro de Periodismo Investigativo (CPI) presented the question of whether the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA) abrogated… Show more

On May 11, 2023, the U.S. Supreme Court ruled against a group of journalists seeking documents from the island territory’s financial oversight board, saying that the board is protected from such information requests by sovereign immunity. The case captioned Financial Oversight and Management Board (Board) for Puerto Rico v. Centro de Periodismo Investigativo (CPI) presented the question of whether the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA) abrogated (i.e., eliminated) any sovereign immunity that the Board (which PROMESA established) might otherwise enjoy as part of the Puerto Rico government.

This article provides a brief introduction to PROMESA, 48 U.S.C. §2101 et seq., an overview of the legal dispute giving rise to this public records dispute, and a summary of the U.S. Supreme Court’s opinion followed by considerations for Congress. Show less

In MOAC Mall Holdings LLC v. Transform Holdco LLC (MOAC), the U.S. Supreme Court will determine whether Section 363(m) of the Bankruptcy Code limits appellate courts’ jurisdiction to reverse a sale to an entity that purchased property in good faith during a bankruptcy. MOAC also implicates Section 363(b) of the Code, which allows debtors to sell assets prior to or instead of confirming a bankruptcy plan, and Section 365 of the Code, which allows for the assumption and assignment of… Show more

In MOAC Mall Holdings LLC v. Transform Holdco LLC (MOAC), the U.S. Supreme Court will determine whether Section 363(m) of the Bankruptcy Code limits appellate courts’ jurisdiction to reverse a sale to an entity that purchased property in good faith during a bankruptcy. MOAC also implicates Section 363(b) of the Code, which allows debtors to sell assets prior to or instead of confirming a bankruptcy plan, and Section 365 of the Code, which allows for the assumption and assignment of leases.

This article proceeds in five sections. First, it introduces Section 363 and the sale process under Section 363(b). Second, it discusses Section 363(m), which limits appellate review of a Section 363(b) sale to a good-faith purchaser, and analyzes how courts interpret this Code provision. Third, it summarizes the factual and procedural history of MOAC. Fourth, it recounts the parties’ arguments before the Supreme Court. Fifth, it offers considerations for Congress. Show less

On April 19, 2023, in a landmark decision with vast implications for foreign sovereigns and their instrumentalities and international organizations, the U.S. Supreme Court held that federal district courts have criminal jurisdiction over banks owned by foreign sovereigns, and the Foreign Sovereign Immunities Act of 1976 (FSIA) provides no protection in criminal cases.

On February 28, 2023, the U.S. Supreme Court decided Bittner v. United States, No. 21-1195, finding that the Bank Secrecy Act (BSA) treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, regardless of how many bank accounts are at issue.

Federal law requires U.S. persons with a financial interest in or signature or other authority over foreign financial accounts totaling more than $10,000 to report these accounts by filing a "Report… Show more

On February 28, 2023, the U.S. Supreme Court decided Bittner v. United States, No. 21-1195, finding that the Bank Secrecy Act (BSA) treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, regardless of how many bank accounts are at issue.

Federal law requires U.S. persons with a financial interest in or signature or other authority over foreign financial accounts totaling more than $10,000 to report these accounts by filing a "Report of Foreign Bank and Financial Accounts," commonly known as an FBAR, each year. The Internal Revenue Service (IRS) may levy civil penalties of up to $10,000 for each non-willful violation of the reporting requirement.

The nation's top court concluded in Bittner that this maximum penalty applies to each untimely or inaccurate annual FBAR form, rather than to each foreign account not properly reported.

In the case before the Court, the IRS had assessed $2.72 million in per-account penalties based on five years of untimely FBAR forms. The Court’s holding limits the maximum total penalty that may be assessed for those five untimely filings to $50,000, or $10,000 for each untimely annual report.

This brief as a breath, slim as a Pop-Tart article discusses the relevant penalty provisions and analyzes the Supreme Court’s decision. Show less

The U.S. Supreme Court has been presented recently with multiple appeals from religious institutions that object to laws prohibiting discrimination on the basis of sexual orientation. A baker who objects to making a cake for a same-sex wedding filed a petition for Supreme Court review at the beginning of September 2022 in Klein v. Oregon Bureau of Labor & Industries. In mid-September, the Supreme Court denied an emergency appeal from a religious university claiming the state violated the… Show more

The U.S. Supreme Court has been presented recently with multiple appeals from religious institutions that object to laws prohibiting discrimination on the basis of sexual orientation. A baker who objects to making a cake for a same-sex wedding filed a petition for Supreme Court review at the beginning of September 2022 in Klein v. Oregon Bureau of Labor & Industries. In mid-September, the Supreme Court denied an emergency appeal from a religious university claiming the state violated the Constitution’s Free Exercise Clause by forcing it to officially recognize a "Pride Alliance" student group in Yeshiva University v. YU Pride Alliance. Briefs were also filed this summer in 303 Creative LLC v. Elenis, a case in which the Supreme Court agreed to consider whether a state would violate the Free Speech Clause by applying its non-discrimination laws to a website designer who does not want to create websites for same-sex weddings.

The intersection between First Amendment protections for speech and religion and the state’s interest in prohibiting discrimination is not a new issue for the highest court in the land. However, the Court’s rulings in earlier cases left open a number of larger doctrinal questions that are now presented by this new set of appeals.

This article offers background on and briefly reviews the issues presented in 303 Creative. Show less

On December 6, 2022, the U.S. Supreme Court is scheduled to hear oral arguments in a case concerning whether, and under what legal standard, the United States can dismiss a qui tam action brought in its name under the False Claims Act (FCA) after initially declining to take over that action. U.S. ex rel. Polansky v. Executive Health Resources, Inc. presents an issue that has divided the circuit courts for almost 20 years resulting in a range of potential standards reflecting varying textual… Show more

On December 6, 2022, the U.S. Supreme Court is scheduled to hear oral arguments in a case concerning whether, and under what legal standard, the United States can dismiss a qui tam action brought in its name under the False Claims Act (FCA) after initially declining to take over that action. U.S. ex rel. Polansky v. Executive Health Resources, Inc. presents an issue that has divided the circuit courts for almost 20 years resulting in a range of potential standards reflecting varying textual analyses of ambiguous statutory language as well as assorted views on the appropriate balance of power between the government and whistleblowers. Polansky gives the justices the chance to create a uniform standard and make clear when and how DOJ may seek to dismiss over a whistleblower’s objection.

Case outcome will undoubtedly affect government interventions and government-initiated motions to dismiss moving forward. The opinion and resolution of the circuit split may pose significant implications for relators and defendants in FCA litigation — particularly in the healthcare industry. Of the more than $5.6 billion in settlements and judgments collected in 2021, over $5 billion "related to matters involving the healthcare industry, including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians." Out of the 598 qui tam actions initiated in 2021, 398 were healthcare related.

This article begins by presenting background on FCA litigation and reviewing the circuit split at issue. On one end is the view that the government has "an unfettered right to dismiss" a qui tam action. On the other end of the spectrum, the government is required to identify a rational relation between dismissal and achievement of a valid government objective. Next, the article summarizes the Polansky case and its arguments. Last, it offers considerations for Congress which could clarify through amendments to the FCA. Show less

On December 1, 2022, the Supreme Court of the United States agreed to decide whether the Biden-Harris administration had overstepped its authority with its plan to wipe out billions of dollars in student debt. The Court’s brief order gave no reasons and did not note any dissents. The justices put the case on an unusually fast track, saying they would hear oral arguments in February 2023 and likely to produce a definitive ruling by June 2023 in a high-stakes showdown over presidential power. In… Show more

On December 1, 2022, the Supreme Court of the United States agreed to decide whether the Biden-Harris administration had overstepped its authority with its plan to wipe out billions of dollars in student debt. The Court’s brief order gave no reasons and did not note any dissents. The justices put the case on an unusually fast track, saying they would hear oral arguments in February 2023 and likely to produce a definitive ruling by June 2023 in a high-stakes showdown over presidential power. In the meantime, though, they left in place an injunction blocking the program. The Court's order is something of a blow to the administration, which had petitioned the high court to allow the program to move forward while various legal challenges were considered in the lower courts. For now, the student loan repayment pause was extended once again by Secretary of Education Miguel Cardona. This time until 60 days after litigation surrounding the relief plan has been resolved and the U.S. Department of Education is allowed to implement the forgiveness program. If that has not occurred by June 30 of next year, repayments would begin on August 29, 2023. Show less

Among other things, the Inflation Reduction Act of 2022, Pub. L. No. 117-169, is being hailed as a potential breakthrough in making health care more affordable. But what does this landmark legislation, enacted in August 2022, really mean for Americans — now and in the future? This article briefly reviews the wide-reaching changes to Medicare prescription drug coverage and more targeted changes to Medicaid, the State Children’s Health Insurance Coverage Program (CHIP), and private health… Show more

Among other things, the Inflation Reduction Act of 2022, Pub. L. No. 117-169, is being hailed as a potential breakthrough in making health care more affordable. But what does this landmark legislation, enacted in August 2022, really mean for Americans — now and in the future? This article briefly reviews the wide-reaching changes to Medicare prescription drug coverage and more targeted changes to Medicaid, the State Children’s Health Insurance Coverage Program (CHIP), and private health insurance. Show less

On December 7, 2022, the U.S. Supreme Court is scheduled to hear arguments on a legal theory that could transform federal elections — and, according to experts, flood the federal courts — and the Supreme Court in particular — with litigation over all kinds of voting disputes. The theory would give state legislatures independent power, not subject to review by state courts, to set all sorts of election rules at odds with state constitutions, not least by drawing congressional maps warped by… Show more

On December 7, 2022, the U.S. Supreme Court is scheduled to hear arguments on a legal theory that could transform federal elections — and, according to experts, flood the federal courts — and the Supreme Court in particular — with litigation over all kinds of voting disputes. The theory would give state legislatures independent power, not subject to review by state courts, to set all sorts of election rules at odds with state constitutions, not least by drawing congressional maps warped by partisan gerrymandering.

In Moore v. Harper, the Supreme Court is poised to consider the scope of a state court’s authority under the Elections Clause of the U.S. Constitution to overturn laws enacted by a state legislature that regulate congressional elections based on state constitutional provisions. Depending on how the Court rules, the decision could clarify under what circumstances state legislatures have the authority to establish laws regulating federal elections — including the drawing of congressional redistricting maps — without review by state courts.

This article previews the legal dispute in Moore, beginning with a discussion of the constitutional framework at issue in this case and related Supreme Court background. It next discusses the North Carolina Supreme Court’s decision in this case, followed by arguments made by the parties to the U.S. Supreme Court seeking and opposing the Court’s review of the state court ruling. The article concludes with a discussion of possible outcomes, implications, and considerations for Congress. Show less

This article reviews Jackson's judicial philosophy as gleaned from her decisions on the district court and court of appeals. After a biographical sketch, it offers context for understanding how a judge's background might inform predictions about her contributions to a divided Supreme Court. It strives to objectively appraise and dispassionately review her decisions, trusting that they are a snapshot of her views on constitutional analysis and statutory interpretation, for example.

Although federal law does prohibit the dissemination of certain kinds of government information — such as "classified" information related to national security — there does not appear to be a federal criminal statute expressly prohibiting unauthorized sharing of Supreme Court documents like the draft opinion in Dobbs v. Jackson Women’s Health Organization offering a full-throated, unflinching repudiation of the 1973 Roe v Wade decision which guaranteed federal constitutional protections of… Show more

Although federal law does prohibit the dissemination of certain kinds of government information — such as "classified" information related to national security — there does not appear to be a federal criminal statute expressly prohibiting unauthorized sharing of Supreme Court documents like the draft opinion in Dobbs v. Jackson Women’s Health Organization offering a full-throated, unflinching repudiation of the 1973 Roe v Wade decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right.

Several laws that have been publicly referenced in connection with disclosure of non-public Supreme Court information could apply to particular disclosures depending on the underlying facts, which remain unclear in this instance, but there would be legal hurdles associated with using any of the referenced laws to prosecute the culprit or culprits who shared the Dobbs draft opinion. Disclosure provenance is unknown. Consequently, the laws addressed in this article may or may not apply depending on the facts. Further developments in the Supreme Court marshal’s investigation could also make additional laws relevant (e.g., 18 U.S.C. § 1001, which prohibits knowingly and willfully making a materially false statement "in any matter within the jurisdiction of the . . . judicial branch of the Government of the United States," among other things).

As relevant to the disclosure itself, this article describes three federal criminal provisions — Computer Fraud and Abuse Act: 18 U.S.C. § 1030; Concealment, Removal, or Mutilation of Certain Documents: 18 U.S.C. § 2071; Theft or Conversion of Public Property: 18 U.S.C. § 641 — in the framework of ostensibly unauthorized Supreme Court information dissemination and identifies potential issues that application of each of those laws could raise. Show less

This article asks whether modifying life tenure for U.S. Supreme Court justices by ordinary legislation violates the Constitution’s good behavior clause. Under current law and practice, Justices typically remain on the bench for life unless they resign, retire, or die. As the article explains, if Congress attempted to alter life tenure by ordinary legislation, a court might hold that legislation unconstitutional.

Nevertheless, she persisted. On February 15, 1879, President Rutherford B. Hayes signed a new law admitting women as members of the U.S. Supreme Court bar and allowing them to submit and argue cases at the high court. Belva Ann Bennett Lockwood was practicing law in the District of Columbia and qualified as the first female attorney to appear before the Supreme Court in Kaiser v. Stickney, 102 U.S. 176 (1880), a quiet but historic appearance marking the first time that a woman member of the bar… Show more

Nevertheless, she persisted. On February 15, 1879, President Rutherford B. Hayes signed a new law admitting women as members of the U.S. Supreme Court bar and allowing them to submit and argue cases at the high court. Belva Ann Bennett Lockwood was practicing law in the District of Columbia and qualified as the first female attorney to appear before the Supreme Court in Kaiser v. Stickney, 102 U.S. 176 (1880), a quiet but historic appearance marking the first time that a woman member of the bar participated in argument. Lockwood did not prevail in that case but she persisted and won her second and final case, United States v. Cherokee Nation, 202 U.S. 101 (1906), at the Supreme Court. This article chronicles Lockwood's dramatic career, her persistence in keeping women’s rights in the public and political spotlight, her admittance to the U.S. Supreme Court bar, and, finally her two oral arguments before the Supreme Court bench. Show less

Entrapments happen in all care settings –- assisted living, nursing homes, hospitals, and home healthcare. Entrapment occurs when a resident/patient is caught, trapped, or entangled in the space in or about the bedrail, mattress, or hospital bed frame. Sadly, entrapments can result in serious injury or death. Clearly, risk management strategies aimed at reducing or eliminating entrapment occurrence best serve resident/patient interests and an institution’s legal interests.

Every effort… Show more

Entrapments happen in all care settings –- assisted living, nursing homes, hospitals, and home healthcare. Entrapment occurs when a resident/patient is caught, trapped, or entangled in the space in or about the bedrail, mattress, or hospital bed frame. Sadly, entrapments can result in serious injury or death. Clearly, risk management strategies aimed at reducing or eliminating entrapment occurrence best serve resident/patient interests and an institution’s legal interests.

Every effort should be made to reduce the risk of entrapment in hospital bed systems. Specific risk reduction steps are listed in the article. In general, risk reduction can be accomplished through the development of new hospital bed or rail design configurations and the assessment and modification of existing (legacy) hospital bed systems. An effective risk management strategy to prevent entrapment deaths and injuries will be multifaceted. Show less

Published paper presented at 53rd Annual Scientific Meeting of the Gerontological Society of America (Washington, D.C.)

Translated into other languages (e.g., German); published and distributed internationally.

Paper presented at the Third Annual Elder Law Institute discusses common nursing home liability issues including malnutrition, dehydration, choking, feeding tube management, wandering and elopement, falls and fall-related injuries, physical and chemical restraint-related injury and death, scalds, burns, pressure ulcers, medication errors, and sexual abuse by residents or facility staff.

Published paper presented at the Pennsylvania Bar Association's Second Annual Elder Law Institute.

Translated into other languages (e.g., German); published and distributed internationally.

Co-editor, Karen Litscher Johnson)

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-editor, Karen Litscher Johnson

Co-authors, Lawrence A. Frolik & Benjamin B. Cepelewicz,

Discussing federal regulations and companion interpretive guidance relating to physician supervision of resident medical care, physician visits to the resident, and the role of the medical director in implementing resident care policies and coordinating medical care in the facility.

Published paper presented at the American Bar Association Annual Meeting

Published paper presented at the Pennsylvania Bar Institute's Second Annual Elder Law Institute.

Translated into other languages (e.g., German); published and distributed internationally.