The Questions I Would Have Asked Judge Amy Coney Barrett Before Voting for Her to Ascend to the United States Supreme Court

MARCI A. HAMILTON

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—offers eight questions she would have asked Judge Amy Coney Barrett during her confirmation hearings. Hamilton points out that questioning a person’s religious affiliation is considered taboo because of the false, public mythology in the United States that religion is always good and pure, despite overwhelming evidence that religion, which is run by humans, often perpetuates domestic violence against women and children.

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Neal v. Navient Solutions, LLC

Docket: 19-2775

Opinion Date: October 19, 2020

Judge: Kobes

Areas of Law: Arbitration & Mediation, Contracts

Ohio law allows nonsignatory agents to compel arbitration under general principles of contract and agency law. The Eighth Circuit reversed the district court's denial of Navient's motion to compel arbitration against plaintiff. The court disagreed with the district court's finding that the relevant arbitration clause does not include Navient as a party and so Navient cannot compel arbitration. Rather, the court held that Ohio law permits plaintiff to compel arbitration as a nonsignatory agent of the holder of the loan. The court also held that Ohio's rule of alternate estoppel prevents plaintiff from disavowing the arbitration clause because his claim arises out of the same contract. Therefore, plaintiff is estopped from avoiding the arbitration clause because his claims are integrally intertwined with the contract containing the agreement to arbitrate. Accordingly, the court remanded for further proceedings.

Deck v. Jennings

Docket: 17-2055

Opinion Date: October 19, 2020

Judge: Stras

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Eighth Circuit reversed the district court's grant of habeas relief to petitioner based on the ineffective assistance of counsel. Petitioner was convicted for two counts of first degree murder among other things and was sentenced to death. Petitioner claims that counsel at his third penalty-phase trial was ineffective for failing to argue that the passage of time had undermined his mitigation case. The court held that petitioner's claim of ineffective assistance of trial counsel is not "substantial enough" to excuse his procedural default. The court explained that when postconviction counsel filed petitioner's petition in 2010, the law was far from settled that a 10-year delay between conviction and sentencing would give rise to a constitutional claim, much less that trial counsel was ineffective for failing to raise the argument two years earlier. The court stated that failing to make an argument that would require the resolution of unsettled legal questions is generally not outside the wide range of professionally competent assistance. In this case, postconviction counsel's performance was reasonable and the Martinez exception—the only conceivable basis for excusing petitioner's procedural default—is unavailable to him. Finally, the court held that petitioner is not entitled to an evidentiary hearing.