Circuit Splits

2000px-ab-vzw-svgThere’s a split over whether a grand jury proceeding constitutes an ongoing state judicial proceeding of the kind required to invoke Younger. See here at p.15.

There’s a split over whether the plaintiff or the government has the burden to prove that the government’s discretionary conduct was (or was not) policy-driven, so as to exempt the government from suit under the FTCA. See here at p.16.

There’s a split (not reached in Padilla) over whether the immediate-custodian rule applies in the immigration-detention context. See here at p.27-28.

There’s a split over what sort of prison “hardship” (such as prolonged solitary confinement) triggers a liberty interest protected by Due Process. See here at 26-27.

There’s a split over when the government may comment on (or use as evidence of guilt) a criminal defendant’s silence. See here at p.20-21.

There’s a split over whether counsel can waive a criminal defendant’s right to a public trial without the defendant’s consent. See here at p.9-10.

There’s a split over the appropriate level of scrutiny to be applied in abortion-related disclosure cases. See here at p.24.

Apparently there’s a split over the scope of rights conferred by the “free choice” provision of the Medicaid Act, § 1396n(c)(2)(C). See here at p.3-4 & n.2.

And there’s a developing split over whether J. Sotomayor’s concurring opinion in Freeman (about whether a defendant sentenced under a Rule 11(c)(1) agreement qualifies for relief under § 3582(c)(2)) is controlling under Marks. See here at p.4-5 & n.1.

SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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Circuit Splits

ccsplits8There’s a small split over whether a grand jury proceeding constitutes an ongoing state judicial proceeding of the kind required to invoke Younger. See here at p.15.

There’s a split over whether a case involving a claim of fraudulent misrepresentation or fraudulent suppression is also a case of “fraud or concealment” under § 1113 of ERISA. See here at p.16.

The circuits are split over whether courts may review Adjustment Board employment decisions on due-process grounds, in addition to the three grounds that the Railway Labor Act expressly permits. See here at p.16.

There’s a split over the meaning of “force” or “forcibly” in 18 U.S.C. § 111. See here at p.12-13.

There’s a split (apparently unacknowledged until now) over which definition of “conviction” applies for sentencing under the Guidelines, § 2L1.2(b)(1)(A). See here at p.6.

And there’s a split over whether § 7(a)(1) of the Privacy Act confers an individual right enforceable under § 1983. See here at p. 35-36 & n.5.

Pendulum: A Brief History of the Supreme Court

pendulumnsFor those less familiar with the U.S. Supreme Court, this brief (and admittedly over-generalized) history of the Court might shed some light on why Republicans are pulling out all the stops to block President Obama’s nomination of Merrick Garland—and on why the upcoming election, not just for the presidency but also for control of the senate, is so historically pivotal. It is no exaggeration to say that 2016 could mark the dawn of a new era.

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Circuit Splits

ccsplits5There’s a split over the significance of parental intent in resolving habitual-residence questions, under the Hague Convention’s protections against international child abduction. See here at p.11 n.3.

Circuits disagree as to whether state or federal law governs a dispute over a post-office lease. See here at p.6.

In determining personal jurisdiction, there’s a split over using the “stream of commerce” or the “stream of commerce plus” approach. See here at p.5.

There’s a split over whether assault is an element of every conviction for resisting arrest. See here at p.12-13.

There’s a split over whether “back pay” is available as an equitable remedy under ERISA, in a claim for retaliation. See here at p.19 n.3.

And the circuits disagree over the compatibility of the FDCPA and the Bankruptcy Code. See here at p.31-32.


Fall Speaking Schedule – Updated

September will be busy. I’ll be talking about the Supreme Court’s 2015 & 2016 terms on the following dates, in the following places:

  • Sept 8 @ Texas A&M Law School (Fort Worth)
  • Sept 16 @ Baylor Law School (Waco) & for the Waco-McClennon Bar Association (separately)
  • Sept 22 @ BNM for the DFW Chapter of ACS (RSVP here)
  • Sept 23 @ Belo Mansion (Dallas) for the Dallas Bar Association
  • Sept 26 @ University of Texas School of Law (Austin)

I’ll also be at St. Mary’s Law School (San Antonio) in November (date TBD).

On the topics of legal writing & appellate practice, I’ll be giving a joint presentation (w/ Scott Stolley) about preparing jury charges, at the upcoming Dallas Bench/Bar Conference, Sept 29-Oct 1. And in November I’ll be participating in a panel discussion about reading and writing e-briefs, at the Annual Meeting of the Council of Chief Judges of State Courts of Appeal, in Raleigh, North Carolina.

Why Citations Belong in the Body, Made Simple

This is the law.(FN1) It has been the law since 1992 and is still the law.(FN2) And other courts of appeals agree this is the law.(FN3)

  1. According to a court decision from another jurisdiction.
  2. According to a case from 2001.
  3. In two unpublished decisions from only one other court.


This is the law.(FN1) It has been the law since 1992 and is still the law.(FN2) And other courts of appeals agree this is the law.(FN3)

  1. According to this court.
  2. According to a case decided just two months ago.
  3. In, e.g., three published decisions from three different courts.

Why make your reader hunt for what is often the most important and persuasive part of your argument?

SCOTUS Cases from the Fifth Circuit

circuit_map_in_agency_palette-full-sizeLast term the Supreme Court decided nine cases that arose in the Fifth Circuit. The Fifth Circuit was reversed five times and affirmed twice, and the two remaining cases (on Obama’s immigration plan and on tribal-court jurisdiction) ended in a 4-4 tie. So far, for OT2016, there are only four cases that arose in the Fifth Circuit. Here’s a quick overview of those cases:

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Circuit Splits

ccsplits2In bankruptcy a debtor cannot discharge her liability for obtaining money, property, etc., by fraud, but there is a circuit split over whether the debtor must have personally received the money, property, etc., obtained by fraud. See here at p.21 n.73.

Circuits are splitting over the impact of Johnson and whether sentencing statutes are unconstitutionally vague. See, e.g., here at p.11 n.7.

The courts have split over “the proper way to analyze predominance” in the class-certification inquiry. See here at p.121. (Incidentally, this is a 223-page opinion with 136 numbered paragraphs and 86 footnotes, some of which run over several pages.)

There’s a “budding circuit split” on whether third parties asserting an interest in forfeited assets are denied due process if barred from challenging the validity of the forfeiture. See here at p.16-17.

Apparently there’s a very old split over whether the party seeking to enforce a contractual waiver of a jury trial has the burden to show the waiver was knowing and voluntary. See here at p.5 n.12.

There is disagreement among the circuits about whether Nassar requires plaintiffs claiming retaliation to show but-for causation as part of their prima facie case or, instead, at the third step of the McDonnell Douglas framework to rebut the employer’s legitimate stated reason for the adverse employment action. See here at p.4 n.4.

And there’s a split over whether the ADEA’s broader protections against discrimination preclude suits under § 1983 and the Equal Protection Clause. See here at p.30 n.12.

Why the GOP Should #GoWithGarland, Take 2

New piece posted at The Huffington Post on the Garland nomination: