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Speaker 1: The Supreme Court began the week by turning away several

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Speaker 1: high profile cases, from an Internet sales tax clash, to

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Speaker 1: an appeal challenging the NFL seven sixty five million dollar

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Speaker 1: concussion settlement to an appeal by Hank Greenberg over his

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Speaker 1: fraud lawsuit. You need four justices to agree to take

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Speaker 1: a case, and none of these could get the votes.

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Speaker 1: Our co host Greg store Bloomberg, Supreme Court reporter, was

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Speaker 1: at the court this morning and also joining us is

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Speaker 1: Steven Sanders, professor at Indiana University's Morris School of Law. Greg,

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Speaker 1: let's start with the Court turning away an appeal by

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Speaker 1: a retail industry trade group over a Colorado law that

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Speaker 1: imposes reporting requirements on Internet retailers. What was the basis

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Speaker 1: of the trade group's challenge, June. This is does potentially

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Speaker 1: a really big issue that probably the Court will take up.

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Speaker 1: It goes back to this ruling where the Supreme Court

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Speaker 1: said a state can't require a mail order seller, and

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Speaker 1: it's since been applied to internet sellers to collect tax

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Speaker 1: unless that that read tailor has a physical presence in

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Speaker 1: the state. So what Colorado did was it said, okay,

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Speaker 1: if we can't do that, what will at least do

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Speaker 1: is put some um UH notification requirements and reporting requirements

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Speaker 1: on anybody who doesn't collect tax. So you have to

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Speaker 1: send us a name of your purchasers. You have to

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Speaker 1: tell UH customers that they have an obligation to buy

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Speaker 1: tax and send them a report at the end of

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Speaker 1: the year. The trade group challenge that, and the Supreme

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Speaker 1: Court said, no, we don't want to hear your challenge. Steve.

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Speaker 1: This is based this denial you know, happens in the

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Speaker 1: wake well much later, but the wake of decision um

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Speaker 1: that seems like it's out of touch with the way

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Speaker 1: that the world actually works. In the world now with

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Speaker 1: the Internet. Do you think there's any chance at some

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Speaker 1: point the Court is going to be revisiting this issue

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Speaker 1: in regards to the internet. Well, if it decides to

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Speaker 1: accept this case, I think it'll at and if it

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Speaker 1: upholds the if it upholds the Colorado law, it will

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Speaker 1: at least be chipping away at the foundations of that

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Speaker 1: earlier decision. Know, the Constitution's Commerce Clause has been held

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Speaker 1: to mean that states cannot burden the flow of commerce

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Speaker 1: across state lines, and specifically they can't do things that

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Speaker 1: advantage their own in state companies and disadvantage out of

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Speaker 1: state companies. So the court back in this case upheld

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Speaker 1: the principle that we need a bright line rule. We

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Speaker 1: don't want states imposing taxes on out of state corporations

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Speaker 1: because if they do, they might misuse that power to

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Speaker 1: advantage their own state interests and disadvantage out of state interests.

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Speaker 1: But clearly the internet commerce is a multi trillion dollar industry.

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Speaker 1: We're talking about something like twenty three billion dollars and

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Speaker 1: uncollected sales taxes. So I think the reality is that

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Speaker 1: will force the Supreme Court to at least rethink some

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Speaker 1: of that earlier decision and greg the Justice is also

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Speaker 1: turned away a challenge from former players in the National

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Speaker 1: Football League seven sixty five million dollar concussion settlement, which

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Speaker 1: has been in the works for so long. What were

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Speaker 1: the former players contending, Yes, So this is a small

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Speaker 1: group of former players who said the settlement is not adequate.

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Speaker 1: In particular, it doesn't do enough for people who may

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Speaker 1: have brain damage already but they haven't seen any signs

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Speaker 1: of it yet. They don't yet have a diagnosis of

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Speaker 1: what's known as CTE chronic traumatic and cephalopathy, which right

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Speaker 1: now can be diagnosed only after somebody dies. They said

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Speaker 1: the settlement doesn't take care of those those people well enough.

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Speaker 1: And they tried to leverage some Supreme Court rulings from

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Speaker 1: the late ninety nineties where the court said, um that

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Speaker 1: that big settlements involving people exposed to asbestos were too

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Speaker 1: sprawling and uh violated the federal rules government class actions. Well, Greg,

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Speaker 1: just to follow up on this, was there is this

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Speaker 1: is a surprise. I's gotten so much media attention this setlement.

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Speaker 1: It's such a big deal given the importance of the

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Speaker 1: NFL to people. Is it a surprise the court didn't

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Speaker 1: hear this case? Not? Not really a surprise. Again, it

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Speaker 1: was a very small group of of of players and

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Speaker 1: the league and the settling players made the argument um

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Speaker 1: that these are people who had a right to opt

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Speaker 1: out of the settlement. This is not a case where

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Speaker 1: somebody's rights are being taken away. They argued they could

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Speaker 1: have if they thought the deal didn't do enough for them,

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Speaker 1: they could have said, no, I don't want to be

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Speaker 1: a part of it. I'll file my own lawsuit. Steve.

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Speaker 1: In another case that's been around even longer, trial has

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Speaker 1: begun against former A I. G. Chairman Hank Greenberg for

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Speaker 1: allegedly using to sham transactions to hide the insurers true

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Speaker 1: financial condition that started in New York in September, more

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Speaker 1: than eleven years after former New York Attorney General Elliot

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Speaker 1: Spitzer file suit. The justices refused to derail it. What

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Speaker 1: was Greenberg's argument for stopping it? So Greenberg, so, the

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Speaker 1: trading of securities is something that's regular. They did under

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Speaker 1: both state and federal law. And because the constitutions as

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Speaker 1: federal laws supreme, federal law can preempt state law where

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Speaker 1: the two conflict, or where they attempt to regulate the

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Speaker 1: same matter in different ways. So here, federal law expressly

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Speaker 1: allows state enforcement actions that allege fraud or deceit, which

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Speaker 1: is what the New York Attorney General has alleged against

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Speaker 1: Hank Greenberg in this case. But New York state law

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Speaker 1: has a lower threshold for proving fraud than does federal law.

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Speaker 1: The state law doesn't require something called si enter, that

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Speaker 1: is that the offending party actually knew that their action

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Speaker 1: was wrongful before committing it. So Greenberg's lawyers argued that

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Speaker 1: the enforcement action by Eric Schneiderman, the New York Attorney

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Speaker 1: General didn't fit within the exception to preemption that federal

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Speaker 1: law creates. UM New York's highest appellate court rejected that argument,

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Speaker 1: and today the Supreme Court simply indicated without comment that

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Speaker 1: it was content to left that new work State appellate

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Speaker 1: court decision stand and let the trial go forward. This,

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Speaker 1: of course, expresses no view about whether Greenberg actually committed

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Speaker 1: the sham transactions that the State of New York says

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Speaker 1: he did, simply that state law may be used in

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Speaker 1: this case to attempt to prosecute him. Michael greg and

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Speaker 1: I are talking with Professor UM Professor Steven Sanders of

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Speaker 1: Indiana University's Morris School of Law about the Supreme Courts

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Speaker 1: turning down several high profile cases. Today. Greg, let's turn

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Speaker 1: to the two death penalty t cases that the Court

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Speaker 1: turned down over the objection both of Justice Stephen Brier

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Speaker 1: and one of Justice Stephen Brier and Justice Elena Kagan. Right.

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Speaker 1: These are both appealed by death row inmates. One is

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Speaker 1: a man who has sentenced to death forty years ago,

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Speaker 1: a man from Florida. Another is a man who the

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Speaker 1: state of Ohio tried to execute into ales and nine

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Speaker 1: and they botched that execution, and both of them argued

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Speaker 1: that executing them now would be a violation of the Constitution.

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Speaker 1: The Court did not agree to hear those claims, and

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Speaker 1: as he said, Justice Briar and in one case Justice

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Speaker 1: Kagan said they would have taken up the case. Justice Briar,

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Speaker 1: of course, is one of two justices who has said

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Speaker 1: he wants the Court to reconsider whether the death penalty

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Speaker 1: is constitutional at all, given given all the things that

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Speaker 1: are going on with it right now. Well, Steve, obviously

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Speaker 1: the Court does not explain why it turns down cases,

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Speaker 1: But can we read the tea leaves at all about

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Speaker 1: whether Justice Briar is going to be able to get

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Speaker 1: any traction on his beliefs about the death penalty given

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Speaker 1: the fact that the Court refused both these cases. Well,

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Speaker 1: I think this is one of those things you sometimes

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Speaker 1: see in constitutional law and Supreme Court litigation. Justice Brier

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Speaker 1: has to understand that he's playing for the long game here.

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Speaker 1: I mean, to some extent he's succeeded um simply because

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Speaker 1: we're here talking about it, and people will talk about

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Speaker 1: these cases. And the larger argument that Justice Brier has

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Speaker 1: been making for a number of years now that the

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Speaker 1: death penalty has become so unpredictable and arbitrary in its

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Speaker 1: actual implementation that those problems um suffice to make it

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Speaker 1: cool and unusual and therefore unconstitutional. I think, you know,

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Speaker 1: given the Court as it's currently constituted and likely to

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Speaker 1: continue under the next administration, with the appointments that Donald

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Speaker 1: Trump will get, we're not likely to see an outline

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Speaker 1: of the federal death penalty is unconstitutional anytime very soon. Um.

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Speaker 1: As I say, this is part of I think a

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Speaker 1: longer term dialogue that Justice Brier and sometimes we've an

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Speaker 1: assist from Justice Ginsburg is trying to create so that

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Speaker 1: legal academics, journalists, and the public will at least have

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Speaker 1: more of a conversation. This will be on the national

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Speaker 1: radar screen. Is this is the death penalty something we want?

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Speaker 1: Is it currently carried out in a way that is conscionable? Gregg,

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Speaker 1: there is an Alabama death penalty case that the Court

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Speaker 1: has yet to decide about. Tell us about that. Yeah,

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Speaker 1: this is another bid for Supreme Court review. The Court

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Speaker 1: did not act on it this morning. It's possible the

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Speaker 1: Court will act on it later today or tomorrow. Uh.

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Speaker 1: This is the case out of Alabama and it's noteworthy

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Speaker 1: because if you recalled. Just before the election, just a

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Speaker 1: few days, UH, there was this man's case. His name

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Speaker 1: is Thomas Arthur. He asked the court to stop his

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Speaker 1: execution and four justices said they would, but but you

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Speaker 1: need five to to stay in execution. And the Chief Justice,

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Speaker 1: John Roberts said he would extend be the fifth vote

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Speaker 1: as a courtesy to the four who wanted to hear

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Speaker 1: his case. So now we have the question of whether

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Speaker 1: the court will actually agree to hear arguments in the

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Speaker 1: case um and um, we may get more clues about

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Speaker 1: how the court will deal with the death penalty. UH.

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Speaker 1: It raises a couple of different issues. One has to

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Speaker 1: do with UH lethal injection and what you have to

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Speaker 1: show to to show that a method of of lethal

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Speaker 1: injection is unconstitutional. The other has to do with some

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Speaker 1: particular aspects of Alabama's death death penalty scheme that is

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Speaker 1: going to be coming up at one of these conferences.

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Speaker 1: And so today we certainly heard a lot from the

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Speaker 1: court as far as what they are not going to

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Speaker 1: hear and UH, what do you think, Greg, By the

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Speaker 1: end of the week we might hear some of the

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Speaker 1: cases they will hear. We might It is not entirely

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Speaker 1: clear right now. The court uh needs to act quickly

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Speaker 1: before they're about to have a four week recess, but

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Speaker 1: UH they might want to add some more cases so

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Speaker 1: that they can hear them when they come back, so

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Speaker 1: they can hear them in their March calendar, which right

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Speaker 1: now is pretty sparse. So there's reason I think they

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Speaker 1: will act on a few of these cases and agree

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Speaker 1: to hear them before they leave for their four week break.

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Speaker 1: And we will get that first word from Greg Store,

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Speaker 1: our Supreme Court reporter and co host here on Bloomberg Law.

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Speaker 1: And thank you Stephen Sanders, professor at Indiana University's Morris

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Speaker 1: School of Law, for joining us on Bloomberg Law. Coming

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Speaker 1: up on Bloomberg Law, the future of healthcare under the

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Speaker 1: new Trump administration, and we're also going to be talking

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Speaker 1: about Washington, the first state to sue agro giant Monsanto

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Speaker 1: over environmental pollution from PCBs. This is Bloomberg