Welcome to the 2015 Ames Final, live from Austin Hall in Cambridge, Massachusetts!
Live coverage begins at 7:30pm.
The following information is courtesy of the HLS BSAs. You can see all of tonight’s information, including copies of the briefs, here.
Tonight’s judges:
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The Honorable Robert L. Wilkins
United States Court of Appeals
District of Columbia Circuit
Tonight’s teams:
The Hon. Robert Smith Vance Memorial Team (Petitioner)
Kevin Crandall
Amanda-Claire Grayson
Gabriel Kohan
Charlotte Lawson, oralist
Brian Phelps
Allison Schultz, oralist
The Jimmie Lee Jackson Memorial Team (Respondent)
Zoe Bedell
Sam Block
Meghan Cleary, oralist
Chen-Chen Jiang
Patrick Knoth
Kavya Naini, oralist
We hope you enjoy the show!
[liveblog]
| 7:33 |
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Comment From Victor
Hey yall |
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| 7:34 |
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Dean Minow just came into the WLA party in Austin West. “Go WLA! Go women!” And then she left. |
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| 7:37 |
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Comment From Logan Place
Just a few minutes away! |
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| 7:38 |
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Comment From lazy 3l
is there room in overflow? should I come over? |
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| 7:38 |
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Comment From Krista
The excitement is palpable |
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| 7:39 |
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There is no room in the WLA room; and the food is almost gone! |
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| 7:39 |
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| 7:41 |
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Comment From Jimin
And we are running 10 minutes behind, or as they call it, we are on Harvard schedule! |
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| 7:41 |
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Comment From Emma Rekart
lazy 3l, there are some seats left in the front! |
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| 7:41 |
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Comment From Krista
Logan saw Dean Minow for the first time #unicornstatus |
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| 7:41 |
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Amanda Levine is the best. -Victor |
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| 7:43 |
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The judges take their seats! -Krista |
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| 7:44 |
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| 7:44 |
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Allison Schultz begins! First issue turns on meaning of two words: reassignment and reasonable. -Krista |
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| 7:45 |
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Schultz: “Reassignment” must mean more than the opportunity to compete for a vacant position. -Krista |
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| 7:46 |
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Kagan with the first question: if there’s an open position with numerous qualified candidates and one disabled candidate who only meets the minimum qualification, the disabled candidate still receive the job. -Jimin |
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| 7:46 |
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Schultz: It is important to remember the employer has the discretion to set minimum qualifications for the position. -Krista |
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| 7:46 |
No matter the final result tonight, Petitioner’s counsel Kevin Crandall is already a champion, with his team having recently been crowned HLS IM frisbee league champs. -Zack |
| 7:46 |
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Kagan seems unimpressed with the petitioner’s reading of reasonableness, comparing it to most favored nation status. -Jimin |
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| 7:47 |
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Judge Livingston: References Barnett case where a seniority policy is generally reasonable. -Nate |
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| 7:47 |
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Schultz: Barnett is not an apt comparison because we’re considering more here than seniority. -Krista |
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| 7:48 |
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Alison Shultz is the first oralist to be eight-months pregnant. And there are four female oralists! The most in history! -Victor |
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| 7:48 |
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Kagan hypo: high-tech co. looking for a CEO, which may not require much formal qualification. A disabled employee applies. Does that person get the job? -Jimin |
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| 7:49 |
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Petitioner’s response to Kagan hypo: not comparable to the current case, which largely concerns blue collar job. -Jimin |
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| 7:50 |
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Question: If Alison wins, does the baby count as a Ames winning oralist? -Jimin |
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| 7:50 |
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Schultz: There is a middle ground between never hiring and always hiring disabled employee. -Krista |
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| 7:50 |
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Kagan wants a more reasonable position from the petitioner, inferring that under petitioner’s standard, the disabled person would always want the job. -Jimin |
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| 7:51 |
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Two issues today: 1.) Whether the ADA requires that a physically disabled worker be reassigned to a similar position within his organization for which he is qualified, when there is someone else in the organization who is more qualified according to employer specifications. -Victor |
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| 7:51 |
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J. Wilkins: Are you not asking us, as an alternative if reassignment is not reasonable in all cases, it could reasonable under the special circumstances here? -Emma |
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| 7:51 |
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Schultz: Reassignment should be reasonable in most cases. -Krista |
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| 7:52 |
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Judge Livingston: Can you address employee expectations of announced merit-based system and whether that is a goal worth protecting? -Nate |
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| 7:53 |
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Schultz, in response to question about considering applicant’s merit-based expectation: Ames Court did not consider this type of expectation in Barnett. -Krista |
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| 7:53 |
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Schultz: Vita can change criteria at will, so applicant can’t really have fixed expectation. -Krista |
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| 7:54 |
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J. Wilkins: Is it your position that if we follow Barnett, that the only basis by which we should judge whether an accommodation is reasonable is employee expectations? |
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| 7:54 |
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Schultz has an answer for everything! She’s on fire! -Krista |
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| 7:54 |
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Kagan asks if petitioner’s test is the same as an entirely objective test-Jimin |
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| 7:55 |
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Schultz: This is a fact-specific inquiry; hardly ever truly an objective assessment. -Krista |
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| 7:56 |
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J. Wilkins: Didn’t you argue in your brief that you are seeking a ruling that reassignment over ANY most qualified applicant policy is reasonable? -Emma |
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| 7:56 |
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Schultz: Other employees don’t necessarily know what the criteria will be and where they stand in comparison to other applicants. -Krista |
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| 7:57 |
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2.) The ADA refuses to grant disabled workers an accommodation when they engage in “illegal use of drugs.” There is an exception when the drug is “taken under supervision by a licensed health care professional, or other uses authorized by [federal law].” Does the ADA require that a physically disabled worker be accommodated when he admits to using medical marijuana, which not only is under the supervision of a physician pursuant to state medical marijuana laws but also contravenes federal law? – Victor |
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| 7:57 |
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Schultz cornered into conceding that one of the team’s brief headings is not always true. -Zack |
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| 7:58 |
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J. Livingston asks a difficult question about the ADA text concerning employment entrance exams vs. reassignment. -Nate |
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| 7:58 |
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J. Kagan: Is there a distinction between reassignment and hiring? The same factors seem to be in play. -Jimin |
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| 7:59 |
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J. Kagan pushes further on the reassignment vs. hiring distinction. -Jimin |
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| 7:59 |
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Schultz: Employee seeking reassignment faces difficult reality of unemployment or getting reassignment.
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| 7:59 |
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Schultz gently educating Justice: “not quite, Justice Kagan.” -Zack |
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| 7:59 |
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Issue 1 implicates a Supreme Court case called United States Airlines v. Barnett, a Supreme Court case in 2002. The Court held there that an accommodation that contravenes an employer’s disability-neutral seniority policy generally is unreasonable and not required the ADA. However, the accommodation may sometimes be reasonable, pending a showing by the worker. After the worker shows that the accommodation is reasonable given the particular context, the burden shifts to the employer to show that the accommodation is particularly unreasonable. |
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| 7:59 |
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J. Livingston: Your client is seeking a lateral reassignment, is that true of all applicants for the job? Would it have been a promotion for some of them? -Nate |
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| 8:00 |
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Earnest teammates (my sectionmates!) in the background. -Krista |
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| 8:00 |
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The term “illegal use of drugs” means the use of drugs,
the possession or distribution of which is unlawful under
the Controlled Substances Act [21 U.S.C. 801 et seq.].
Such term does not include the use of a drug taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act or other
provisions of Federal law. |
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| 8:00 |
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The Barnett opinion, written by J. Breyer, splits the baby between the employer and employee. Barnett is different from the current context because, among other things, we are dealing with a “most qualified worker” policy, not a seniority policy. – Victor |
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| 8:01 |
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Charlotte Lawson is up next! She’s one of CR-CL’s executive managing editors. Go Charlotte! – Victor |
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| 8:01 |
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The second part of this argument largely revolves around statutory interpretation. -Jimin |
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| 8:01 |
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J. Wilkins: Is the statute unambiguous? -Emma |
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| 8:01 |
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J. Wilkins: Should we ignore the tools the other side asks us to use? -Emma |
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| 8:02 |
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J. Livingston: What about the word “other?” If your interpretation is correct, what is this word doing in the statute? |
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| 8:02 |
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Lawson: Oralist for petitioner, starts argument on why medical marijuana use under the supervision of doctor, is protected under the ADA |
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| 8:02 |
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As I stated above, the key statutory phrase is the ADA exception: “taken under supervision by a licensed health care professional, or other uses authorized by [federal law].” – Victor |
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| 8:02 |
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J. Kagan: How do you differentiate between the two potential meanings of “other?”-Jimin |
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| 8:02 |
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The problem with this language is that you hit a superfluity problem in both the employee’s and employer’s reading of the statute – Victor |
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| 8:03 |
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Lawson: Distinguishes the word “other” from “”or” |
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| 8:03 |
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Charlotte firing off canons (of construction); Kagan making puns. -Zack |
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| 8:03 |
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J. Kagan wants Lawson to use a sentence with the word “other” in it that would support the petitioner’s argument-Jimin |
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| 8:03 |
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Lawson: Has to come up with her own example of the use of “other.” |
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| 8:03 |
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Kagan asks Lawson to choose between McFlurries and Frosties -The CRCL Onion |
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| 8:03 |
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HAMBURGER HYPOTHETICAL. YES! – Victor |
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| 8:04 |
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I love alliteration – Victor |
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| 8:04 |
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Consider § 12111(6)(A) in less technical terms: if a friend
announced she was going to “pick up a hamburger, or other snack from the Dollar Menu or other McDonald’s menu,” anyone would know she was headed to McDonald’s. While she could buy a burger from
Wendy’s, the use of “other” and two references to McDonald’s clarify
that is not her intent. Similarly, the ADA’s use of “other” and two
references to federal law indicate that Congress intended to limit the
supervised-use exception to federal law. |
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| 8:04 |
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Lawson: Refers to the respondents example as the “hamburger hypo” -Logan |
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| 8:04 |
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Let every burger be heard |
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| 8:04 |
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J. Kagan asks if both sides fail the superfluity test. -Jimin |
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| 8:05 |
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Lawson: Most supervised uses of drugs are authorized by CSA, but not all of them. -Logan |
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| 8:05 |
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Going back to superfluity, the exception language is an example of terrible writing. If we believe the employee’s reading—that any drug supervised by a medical professional is exempt—then the word “other” in “other uses authorized” by federal law makes little sense. – Victor |
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| 8:05 |
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J. Livingston: Do you agree with adversary you are giving the word “other” two different meanings in the two instances it is used in the statute? |
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| 8:05 |
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Almost broke out the hashtag #crcLOL, but we’re back to business. -Krista |
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| 8:06 |
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Lawson: The use “other” is not necessarily used differently in the same sentence. The other other is ambiguous. -Logan |
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| 8:06 |
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J. Kagan channeling her professor mode with another hypo: If she wants to get coffee with Dean Minow, or other constitutional professors, or other law professors, would you interpret “other” to mean that Dean Minow is both a constitutional law professor or a law professor? -Jimin |
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| 8:07 |
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However, if we believe the employer’s reading—that only uses authorized by federal law are exempt—then the phrase “taken under supervision by a licensed health care professional” is completely superfluous. Why would you need it explicitly written into the statute, if the language includes the catch-all “uses authorized” by federal law. – Victor |
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| 8:07 |
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J. Wilkins: Didn’t the main sponsor of the bill say he was against all drug use? -Emma |
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| 8:07 |
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Justice Kagan and counselor Lawson going toe to toe on puns, HLS self-references. -Zack |
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| 8:07 |
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Lawson: Medical marijuana is not authorized by CSA, but ADA has broad accommodations |
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| 8:08 |
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Lawson: ADA was focused on CASUAL drug use, not medical drug use. -Victor |
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| 8:08 |
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Let this be a lesson in how not to draft a statute. -Jimin |
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| 8:08 |
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Justices don’t seem particularly persuaded that the ADA language is clear. I agree. -Victor |
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| 8:08 |
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J. Kagan: Does petitioner’s argument applies to drugs that are also illegal under statutes? -Jimin |
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| 8:09 |
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Lawson: Response to question on whether any illegal drug- It does not require the states to legalize it. Under the statute only needs to be supervised by physician. |
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| 8:09 |
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| 8:09 |
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J. Kagan thinks petitioner’s position on medical marijuana would unnecessarily include other drugs. -Jimin |
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| 8:10 |
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Lawson: We’re analyzing Congress’s argument from the point of view that they understand medical realities. -Krista |
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| 8:10 |
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J. Livingston: Why would Congress use language that appears to exempt drugs drugs like herione used with permission by medical professionals? -Nate |
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| 8:10 |
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J. Livingston: Why would Congress exempt doctor-supervised cocaine or heroin, which is the logical conclusion of the employee’s reading? – Victor |
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| 8:10 |
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Lawson: Congress originally had a more narrow definition. They chose more expansive language. – Logan |
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| 8:11 |
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J. Kagan: Any evidence linking change in language to intention to broaden the scope of the statute? -Jimin |
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| 8:12 |
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Lawson: Concern by senators that if it was not more broad, it would not cover experimental drugs, and there is a need for these experimental drugs and flexibility. -Logan |
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| 8:12 |
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J. Wilkins: Is a nurse a licensed healthcare professional? If a nurse had advised the petitioner that he should take marijuana to ease his pain, would you ask for the same result? -Emma |
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| 8:12 |
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Lawson: Statute seems to indicate that it is physicians that make the decisions, not other health care providers. -Logan |
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| 8:13 |
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J. Livingston: Adversary relies on Paroline case. What is wrong with their argument? -Nate |
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| 8:14 |
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Lawson: The statute is best described by a venn diagram, of two different uses. Not a list. -Logan |
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| 8:14 |
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J. Kagan: If there’s a comma before “authorized,” does the respondent win? -Jimin |
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| 8:15 |
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Lawson: Agrees with Kagan, that if there was a comma, the respondent would win. Everything turns on the comma. – Logan |
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| 8:15 |
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Charlotte Lawson bringing in middle-school grammar to decide the issue. -Victor |
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| 8:15 |
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Does Congress really know how to use commas though? -Emma |
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| 8:15 |
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J. Kagan wants a more realistic interpretation, aka the narrower interpretation. -Jimin |
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| 8:15 |
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Congress is all-knowing, Emma. Of course it knows middle-school grammar. -Victor |
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| 8:16 |
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For a body (Congress) that hasn’t mastered middle school science, it is expecting a lot for them to be such experts in grammar. -Nate |
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| 8:16 |
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“left in the cold” – What a great last phrase. -Victor |
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| 8:17 |
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Not sure if the respondent will have an easier time. -Jimin |
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| 8:17 |
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Lawson: It would shut the ADA door to a large group of people who are using medical marijuana. It was unintended that that many people are “left in the cold”- Logan |
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| 8:17 |
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Kavya Naini next, for the employer! And we’re back to Issue 1. – Victor |
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| 8:17 |
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| 8:17 |
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J. Kagan: The whole idea of accommodation is that it is a violation of a neutral rule. “Neutrality isn’t everything.” – Victor |
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| 8:18 |
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Naini: Neutrality isn’t everything. But there’s a difference between affirmative action and preferential treatment. -Krista |
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| 8:18 |
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“That’s just lingo.” J. Kagan response to Naini. |
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| 8:18 |
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Justice Kagan comes out swinging- Logan |
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| 8:18 |
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Naini: Violating a merit-based system undermines employee expectations of fairness, uniformity, and consistency in hiring. – Krista |
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| 8:19 |
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Kanya: Violating a merits-based system, as suggested by the ADA accommodation, violates fairness and expectations of other workers. – Victor |
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| 8:19 |
Packed overflow room to hear counselor Lawson move nimbly between misplaced modifiers and keeping the courthouse doors open. -Zack |
| 8:19 |
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| 8:20 |
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J. Wilkins: Isn’t it the case that any policy that calls itself merit based also has subjective elements to it? Isn’t the point here that you cant really say that someone competing for a job knows they are going to be the best person for the job? They don’t know what other peoples’ performance reviews/other qualifications are. -Emma |
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| 8:20 |
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Naini: An employee might not know qualifications of other employees competing, that doesn’t change how we should look at the process. -Krista |
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| 8:21 |
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J. Wilkins is looking for a key distinction between seniority policies, which were examined by the Supreme Court in Barnett, and merits-based “most qualified worker” systems. The latter, he says, requires a subjective element on the part of the employer that does not necessarily create the same expectations for the employees. -Victor |
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| 8:21 |
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J. Wilkins: Are employees entitled to an objective system? Where does Barnett say that? -Emma |
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| 8:21 |
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Justices talking to each other through the advocates: Justice Wilkins rejects Kagan’s earlier hypothetical about a purely objective evaluation by saying subjectivity is inherent, unavoidable. -Zack |
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| 8:21 |
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Naini: Under a merit-based system, employees know and expect their qualifications will be judged in a fair and transparent manner. -Krista |
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| 8:22 |
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J. Kagan: it seems inappropriate to use disability as a tiebreaker. Objectivity implies coin-flipping -Jimin |
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| 8:22 |
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J. Kagan focuses on another aspect of the disability accommodation plan that the employer has in place. According to the policy, disability can serve as a tiebreaker if there are two people considered “most qualified.” Doesn’t that also raise the same issues? – Victor |
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| 8:23 |
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Naini: Employees know that the most qualified applicant will get the position. Here, the employee was the most qualified, but the issue is that in the future, that won’t be the case if forced to follow petitioner’s interpretation. |
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| 8:23 |
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J. Livingston: Can you address the adversary argument about reassignment? -Nate |
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| 8:24 |
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Naini: “if not for illegal drug use, would have been placed in packer position” -Logan |
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| 8:24 |
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J. WIlkins: The standard dictionary definition of “reassign” is to “assign or appoint someone to another position.” How does your view comport with the standard definition of the word itself? -Emma |
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| 8:25 |
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J. Kagan: Aren’t there noticeable differences between seniority system vs. merit-based system? -Jimin |
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| 8:25 |
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J. Kagan: Seniority policy is visible, salient, often very long-term reliance interests. It seems “utterly different’ than the merits-based system.
Kavya: Court focused on employee expectations, not necessarily the precise employer policy. – Victor |
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| 8:25 |
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Kagan: seniority system seems “utterly different” than the type of system you are talking about. -Logan |
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| 8:25 |
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J. Kagan: Employees under a merit-based system may never be aware of the factors that go into the decision-making process. -Jimin |
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| 8:26 |
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Naini: Other employees may be denied a fair shot at the position. -Krista |
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| 8:26 |
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J. Wilkins: You allow disabled people to make several requests for assignment whereas you have a limitation for other employees. Doesn’t this upset employee expectations? -Emma |
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| 8:28 |
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Naini: Three reasons it is presumptively unreasonable under the ADA. -Logan |
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| 8:28 |
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Kavya seamleesly goes into three reasons why this particular type of accommodation is presumptively unreasonable. – Victor |
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| 8:29 |
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J. Livingston: You say even if the court disagrees about reasonableness in run of cases, there is still enough here to decide it is an undue hardship on the employer. Judge does not see enough in the record to establish this. Your argument? -Nate |
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| 8:29 |
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Naini: Vita found that this system meant that employees felt they were treated fairly. |
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| 8:30 |
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Kavya focuses on the fact that this business is small and in such cases, any denial of employee opportunities lowers worker morale. The smallness of the business suggests that the accommodation forced upon it would be unduly burdensome. – Victor |
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| 8:30 |
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J. Kagan Hypo: Law firm with most qualified employee policy (one who brings in most money). One has carpal tunnel and needs an expensive keyboard. How would the ADA address this? -Jimin |
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| 8:30 |
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Justice Kagan keeps up on the challenging hypos. -Logan |
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| 8:30 |
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J. Kagan compares the keyboard to the reassignment system in this case. -Jimin |
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| 8:31 |
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J. Kagan is playing with the “most qualified employer” policy; can’t the subjectivity allow the employer to negatively consider the disability itself, which would be an ADA violation? – Victor |
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| 8:31 |
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Naini emphasizes language of the ADA – special keyboard in the hypo responds to limitations of individual’s carpal tunnel syndrome. -Krista |
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| 8:32 |
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J. Kagan: Does every employer has a most qualified employee policy? HLS has a de facto most qualified employee policy. How extensive should the case apply if the respondent wins? -Jimin |
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| 8:32 |
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Kavya: The ruling should be narrow and apply only to a “bona fide merit-based policy” that “identifies objective qualifying criteria” – J. Kagan wonders what that means. – Victor |
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| 8:33 |
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Naini: If an employer says it has a practice of hiring most qualified applicant, that may be true, but it isn’t covered by today’s analysis. -Krista |
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| 8:33 |
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J. Wilkins: How does a lower court (if we write the opinion like you say we should) know a bona fide policy when they see it? -Emma |
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| 8:33 |
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J. Wilkins considers how the district court would know whether a policy is bona fide.
Kavya: Look at employment discrimination cases. – Victor |
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| 8:34 |
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Naini: This case boils down to balance. Congress drew clear lines in the ADA limiting an employer’s obligations. -Krista |
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| 8:34 |
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Here’s more argument about comas and the meaning of “other.” -Jimin |
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| 8:34 |
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Finally, Meghan Cleary for the employer, Issue 2 – Victor |
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| 8:35 |
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Cleary, respondent is up, arguing on “petitioner’s illegal drug use”-Logan |
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| 8:35 |
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Cleary: ADA and CSA are intertwined. -Logan |
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| 8:35 |
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J. Kagan brings up the superfluity argument immediately. – Victor |
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| 8:36 |
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J. Kagan: Respondent brief makes a bunch of words in the brief superfluous. -Jimin |
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| 8:36 |
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J. Livingston: It could just say “use is authorized by federal law.” Why not? -Nate |
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| 8:36 |
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Cleary responds to concerns about superfluity: Our interpretation does not make any words superfluous. Actually, it’s the petitioners who should be responding to superfluity concerns. -Krista |
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| 8:36 |
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Meghan: Look to Paroline.
J. Livingston pushes back.
Meghan: The example gives clarity by giving the example. – Victor |
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| 8:36 |
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Cleary: “authorized use” is to give lower courts guidance-Logan |
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| 8:37 |
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The justices are warmed up now -Emma |
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| 8:37 |
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J. Kagan: Usually courts don’t need Congressional guidance to interpret federal law. -Jimin |
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| 8:37 |
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J. Kagan: Usually that applies only if it is not clear what the catch-all means. But here the “uses authorized by [ federal law]” is super clear.
Meghan: It’s not actually clear. – Victor |
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| 8:37 |
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J. Livingston: So these uses are not enshrined in federal law? -Nate |
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| 8:38 |
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Cleary: There are other programs that are covered under federal law, and thus covered by the ADA. Uses compassionate care act, which was authorized under executive order |
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| 8:38 |
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Cleary: What they don’t cover is medical marijuana because not covered by federal law |
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| 8:39 |
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Meghan mentions a federal executive action that allowed some use of drugs for compassion-related reasons. That is the action that Congress was trying to protect. Medical marijuana was not included in that executive action.
J. Livingston: But there were medical marijuana programs in place when the statute was enacted. Why couldn’t medical marijuana be contemplated? – Victor |
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| 8:39 |
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Cleary: When this statute was passed, there was only decriminalization statutes, which is different than modern medical marijuana.-Logan |
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| 8:39 |
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Cleary: Programs that existed at time of CSA’s enactment were decriminalization statutes. We’re considering here an entirely different category than the one to which decriminalization statutes belong. -Krista |
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| 8:40 |
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Oh god there is too much statutory interpretation going on right now. I hate canons. – Victor |
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| 8:40 |
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LAW OF THE LAST ANTECEDENT – Victor |
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| 8:41 |
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J. Kagan is now back on the different meanings of “other.” -Jimin |
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| 8:41 |
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Justice Kagan threatens to burnish the statute. -Krista |
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| 8:41 |
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Back to the debate about the word “other” -Logan |
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| 8:41 |
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| 8:41 |
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J. Wilkins: Isn’t it at minimum ambiguous, meaning we should look to the legislative history to provide context? -Emma |
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| 8:42 |
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Besides a moot court, is there any other context in which the words “indicia of meaning” should be said together? – Victor |
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| 8:42 |
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“Indicia of meaning” – new indie band name. -Krista |
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| 8:42 |
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Cleary: on legislative history, which Justice Kagan says is “very clear,” |
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| 8:42 |
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J. Kagan: Legislative history is remarkably clear on the meaning of “illegal use of drugs,” which seems to side with petitioner’s argument. -Jimin |
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| 8:42 |
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Good thing Scalia didn’t judge this year or he’d be having a conniption over all this talk of legislative history -Emma |
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| 8:43 |
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| 8:44 |
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Cleary: It’s possible to read separation of sentences [string of words I did not understand] -Krista |
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| 8:44 |
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Cleary: “With all due respect your Honor, the legislative history is not as clear as you make it” -Logan |
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| 8:44 |
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J. Livingston: Shouldn’t the text have ANOTHER “other” in it to be consistent with your interpretation? -Nate |
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| 8:44 |
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Either there is 1 too many “other,” or there is 1 missing “other.” – Victor |
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| 8:44 |
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Lesson of day: Contact your local congressperson regarding the meaning and the use of the word “other.” -Jimin |
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| 8:45 |
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| 8:45 |
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Meghan brings up the absurd example of doctor-supervised heroin – Victor |
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| 8:46 |
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Cleary: Petitioners interpretation would invite an absurd result where physicians can supervise drug use that is illegal under both state and federal law- Logan |
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| 8:46 |
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I think the petitioner oralists seem far more composed, but maybe that’s just because the panel is asking tougher questions right now. -Jimin |
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| 8:46 |
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Meghan: Congress has taken a clear stance against use of marijuana. – Victor |
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| 8:47 |
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J. Kagan: State criminal law still stands regarding medicinal marijuana, CSA merely applies to a different context. -Jimin |
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| 8:47 |
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Meghan: There should be a clearer statement of an exception to the criminal law against marijuana. – Victor |
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| 8:47 |
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J. Wilkins: Don’t we have a pretty good expression of Congressional intent that indicates that Congress doesn’t want to step on police powers of the state with the Controlled Substances Act? |
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| 8:48 |
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J. Kagan: According to petitioners, many states already have medicinal marijuana laws at the time when it enacted CSA, which suggest Congress is aware of the medicinal marijuana problem-Jimin |
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| 8:49 |
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J. Livingston: What about adversary’s argument about “registered” in regard to medical professionals? -Nate |
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| 8:49 |
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Cleary: Congress did broaden provision the language, but that does not mean it covered violations of federal law. -Logan |
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| 8:50 |
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Thanks to all our loyal readers. This ad-free experience brought to you by THE CANON. |
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| 8:50 |
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Bench started to get a little cold. – Victor |
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| 8:50 |
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Nope J. Livingston is back! – Victor |
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| 8:50 |
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J. Livingston: Is there a constitutional avoidance you are arguing? -Nate |
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| 8:50 |
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Oh no, constitutional avoidance canon. So many LegReg flashbacks -Emma |
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| 8:51 |
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Cleary: Court should avoid the preemption question, because of constitutional avoidance doctrine. – Logan |
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| 8:51 |
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J. Wilkins: Speaking of avoidance, wouldn’t we have avoided this whole thing if the employer hadn’t asked “what do you do to manage your pain?” -Emma |
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| 8:51 |
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Meghan raises a concern that employee’s reading would raise plausible preemption issues. – Victor |
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| 8:52 |
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| 8:52 |
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AND NOW FOR REBUTTAL – Victor |
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| 8:52 |
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Cleary: employer asking about medical drug use was not raised by respondent and is therefore waived. -Logan |
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| 8:53 |
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Charlotte focuses on Barnett and the distinctions between it and the employer’s policy here. – Victor |
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| 8:53 |
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Lawson: Under most qualified applicant policies, qualifications for each job can change from position to position. -Krista |
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| 8:55 |
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Lawson: the CSA and the legality of marijuana is irrelevant to the ADA. |
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| 8:55 |
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Charlottes addresses the preemption issue; constitutional avoidance is inapposite because of “clear” text and because of congressional intent to focus on clashes over drugs not related to medical marijuana. – Victor |
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| 8:55 |
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Lawson: Opposing counsel discussed Congress’s intent. But Congress’s intent was to protect people with disabilities; marijuana may have been contemplated; statute is not limited to an enumerated list of drugs. -Krista |
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| 8:56 |
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J. Kagan: All laws with remedial purposes must strike a balance. How does that apply in this case? -Jimin |
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| 8:56 |
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J. Kagan: What’s the end point for the remedy underlying the ADA?
CHarlotte: “The line that Congress drew was at the illegal use of drugs. … Congress drew the line where the protections would begin and end” in way that protects the worker. – Victor |
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| 8:56 |
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The WLA party is clapping. The judges have risen. – Victor |
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| 8:57 |
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And the massive applause from the Ames courtroom. Great job, guys! – Victor |
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| 8:59 |
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If two pregnant oralists faced off, it would be like an Ames mech battle between two fetuses -Emma |
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| 9:02 |
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I think Schultz was best oralist, Cleary/Naini team had best brief, Lawson/Schultz team wins on Issue 1, Cleary/ Naini team wins on Issue 2. – Victor |
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| 9:06 |
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Everyone is now just chilling, waiting for the justices to come back. – Victor |
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| 9:08 |
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My prediction
Best oralist: Schultz
Best brief: Didn’t read that carefully
Issue 1: Respondent
Issue 2: Petitioner-Jimin |
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| 9:14 |
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The hypo writers are in the Ames courtroom at the moment, and they are congratulating both teams. The two are HLS alums/former Ames participants. – Victor |
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