Author: cumblrev

Alabama Legislative History and Intent

John R. Hightower Esq.

Photo Credit: https://perma.cc/P6TC-FE56

As a professional law librarian, I have frequently been asked to assist in finding the legislative history and intent for a statute. This article explains how Alabama legislative intent can be divined from legislative history by using the slim resources that are available. As legal professionals, we are well acquainted with federal courts interpreting statutes by using legislative intent through citing to a Congressional report or to the Congressional Record. Despite the examples I’ve cited, federal court use of these sources may be falling out of favor.

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UNITED STATES V. ASERACARE, INC. DYING FOR REIMBURSEMENT: WHEN DOES A HOSPICE CLAIM FOR MEDICARE REIMBURSEMENT VIOLATE THE FALSE CLAIMS ACT?

Ashley Sineath

Photo Credit: https://perma.cc/K3R2-VZAM

In an issue of first impression among the federal circuits, the 11th Circuit articulated new standards for determining when claims for Medicare reimbursement for hospice violate the False Claims Act (FCA).  Per this opinion, any challenge to such hospice claims for Medicare reimbursement must now meet a new objective falsehood standard.  This new objective falsehood standard necessitates that potential plaintiffs point to specific facts and circumstances surrounding the time the physician certified the patient as terminally ill.  Absent a showing of falsity regarding these circumstances, physicians’ clinical judgments will be upheld as long as they exercised their best judgment and provided the appropriate documentation under the statutory and regulatory requirements.  The objective falsehood standard bars plaintiffs from relying on a mere difference of opinion between physician reviews of the claims to show a violation of the FCA.

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Land in the fall.

Supreme Court Overrules State-Litigation Requirement for Plaintiffs Bringing Federal Takings Claims

Mollie Beth Amick*

Photo Credit: httpswww.californialandusedevelopmentlaw.com20170713supreme-court-announces-new-test-for-regulatory-takings-claims

In Knick v. Township of Scott, the Supreme Court overruled Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which had created a de-facto state-litigation requirement for plaintiffs bringing federal takings claims. Specifically, the Court in Knick held that a property owner may proceed directly to federal court as soon as his property is taken without compensation, even if there are state remedies to provide compensation after the taking occurs.

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Cruise ship sailing the waters.

Cruise Ships Responsible for Warning and Protecting Their Passengers: K.T. v. Royal Caribbean Cruises, LTD.

Avery Burns*

Photo Credit: httpscruisefever.netroyal-caribbean-cruise-ship-receiving-new-features

In K.T. v. Royal Caribbean Cruises, LTD., the Eleventh Circuit Court of Appeals reversed the decision of the district court and held that the plaintiff, K.T., stated plausible negligence claims against the cruise ship. First, the crew members’ alleged failure to prevent K.T.’s rape and sexual assault constituted a plausible negligence claim. This negligence included allowing adult male passengers to purchase alcoholic beverages for K.T. Second, Royal Caribbean’s failure to warn K.T. and other passengers about the possibility of sexual assault on the cruise ship constituted a plausible negligence claim.

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Stop light with police cameras

Alabama Supreme Court Oral Argument Previews: Red-Light Camera Cases

Blake Harper*

Photo Credit: httpsnews.wjct.orgpostflorida-may-join-jacksonville-ending-red-light-cameras

On October 22, 2019, the Alabama Supreme Court will hear oral arguments on four consolidated cases that may determine the fate of cameras used to enforce traffic laws in the State of Alabama. Oral arguments will take place at the Leslie S. Wright Center on the campus of Samford University beginning at 9:30 a.m. and lasting until 11:45 a.m. The event, hosted by Cumberland School of Law, the Birmingham Bar Foundation, and Appellate Courts of Alabama, is free and open to the public.

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LEWIS V. CITY OF UNION CITY: “SIMILARLY SITUATED” DEFINITION CLARIFIED word cloud

LEWIS V. CITY OF UNION CITY: “SIMILARLY SITUATED” DEFINITION CLARIFIED

Sarah Rawls

In an employment intentional discrimination case, “[j]ust how ‘similarly situated’ must a plaintiff and her comparator(s) be?” The United States Court of Appeals for the Eleventh Circuit clarified the proper standard for comparator evidence in Lewis v. City of Union City. Specifically, the court endorsed a test asking whether comparators are “similarly situated in all material respects,” thereby abandoning the previously accepted “nearly identical” and “same or similar” tests.

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Praying hands resting on a book.

Williamson v. Brevard County

William Burkett*

In Williamson v. Brevard County, the Eleventh Circuit held that the commissioners of Brevard County unconstitutionally exercised their unfettered discretion to select opening invocation speakers based on religion. In addition, the court clarified requirements for cities that wish to open city council meetings or legislative sessions with sectarian prayer.

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The Cumberland Law Review Sets New Venue for Surveys of Recent Cases

For many years, the Cumberland Law Review has published 11th Circuit Surveys and Alabama Supreme Court Surveys in its Spring publication. The surveys highlight recent and significant cases decided by the 11th Circuit Court of Appeals and the Alabama Supreme Court. The Law Review intends for readers to find the publication useful in practice.

In an effort to provide readers with content that is even more relevant and timely, the Volume 50 Editorial Board has refashioned the publication process for surveys. Surveys will still be written by 2L Junior Editors on Law Review. However, beginning this year, the Law Review will generate bimonthly publications that highlight recent cases. These surveys will be available on the Cumberland Law Review Online site, http://www.cumberlandlawreview.com. We hope our readers find this new venue for surveys more timely, accessible, and relevant to daily practice.

-Volume 50 Editorial Board

HOW I STOPPED WORRYING AND LEARNED TO LOVE THE DORMANT COMMERCE CLAUSE

Robert J. Sewell

Photo Credit: https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud

During its recent term, the Supreme Court decided Tennessee Wine & Spirit Retailers Ass’n v. Thomas, a case pitting the Commerce Clause, or rather the Dormant Commerce Clause Doctrine (“DCCD”), against Section 2 of the Twenty-first Amendment.  In a 7-2 decision, the Court held that the DCCD’s prohibition of state-level protectionist legislation trumped the Twenty-first Amendment’s grant of seemingly plenary authority over alcohol sales.  The Court’s opinion indicates, much to the chagrin of law students and bar examinees, that the DCCD remains an enduring part of the United States Constitution’s structure.

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Skyline photo of Philadelphia.

ARE SIFS A THING OF THE FUTURE IN PHILADELPHIA?

Maggie Coan*

Phone Credit: https://philly.curbed.com/maps/philadelphia-tallest-buildings

Supervised injection facilities (SIFs) allow addicts to use illicit drugs in a “safe place” while being monitored closely for overdose symptoms by medical professionals. While SIFs operate in multiple countries throughout the world, currently no supervised injection facility is legally open in the United States.  However, injection facilities have found traction in cities such as San Francisco, Seattle, Philadelphia, and New York.  Advocates of SIFs believe that operating this type of facility will prevent overdose related deaths by getting drug users “immediate help in the event of an overdose or adverse reaction.”  Advocates also claim that supervised facilities will help reduce the spread of blood borne infections, such as HIV.  On the other hand,  those that oppose the United States allowing the operation of these facilities argue that opening this type of facility would violate the Controlled Substances Act (CSA), and would change the existing stigma regarding drug use to become more accepting and thus would eventually lead to an increased use of drugs in the country.

 

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