#VoterID at the Fifth Circuit

Tweeting about Tuesday’s oral arguments before the en banc Fifth Circuit, in the Texas voter-ID case, and a lot of great Twitter activity followed. See this thread at Storify.

Rehearings at the Fifth Circuit

After attending the en banc arguments in the Texas voter-ID case this past Tuesday, I got curious and decided to dig into rehearing practices at the Fifth Circuit. Here’s what I found:

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Font Matters, the Tweet Thread

Yesterday’s post on fonts triggered a discussion on Twitter, and my Twitter friend Jennifer Romig was kind enough to gather most of it into a thread on Storify. Good stuff.

Font Matters

You’d think by now it would be common knowledge that lawyers should avoid using Times New Roman as the default font for their legal documents. But it isn’t. A while back I had a conversation with an experienced lawyer, about font choices in appellate briefs, and this experienced lawyer tried to tell me that changing fonts was a bad idea. “Just leave it on Times New Roman,” the experienced lawyer said. “That’s what judges are used to; it’s what they expect. There’s no reason to shake it up.”

Maybe this is true. Maybe, after seeing thousands of court filings in Times New Roman, judges simply get used to and “expect” all filings to look that way. But expectations are not preferences. The fact that judges have grown to expect Times New Roman does not mean judges prefer Times New Roman. In fact, there’s evidence to the contrary.

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Circuit Splits

There’s a split over who decides—the court or the arbitrator—whether class arbitration is available. See here at pp.8-9. There’s also a split over whether the district court can dismiss an action pending arbitration, rather than staying it. See id. at p.5 n.21.

The courts don’t agree on whether conspiracy under § 1951 of the Hobbs Act requires an overt act for conviction. See here at pp.16-17.

Circuits are split over whether settlements or stipulations of dismissal for FLSA claims require court approval. See here at p.4 n.5.

There’s a split on whether reasonable suspicion of a completed nonfelony offense can justify a Terry stop under the Fourth Amendment. See here at p.9.

Circuits are divided over whether an attorney’s time travel travel time is compensable for the prevailing party in a § 1983 case. See here at pp.9-10.

And there’s a lot of disagreement over whether “reasonable belief” and “probable cause” are basically the same thing. See here at pp.13-20.

Appealing Arbitration Awards

arbitrationJust published a short article in the ABA’s latest issue of Appellate Practice, on appealing arbitration awards and the current circuit split over “manifest disregard of the law.”


supreme-court-building-120628First: this week at the Court.

Next, Orin Kerr argues with Ilya Shapiro and Randy Barnett over the role of CJ Roberts’ Obamacare decisions in giving rise to Donald Trump. (Read articles in this order: one, two, three, four.)

Adam Feldman takes a look at the numbers for OT2015 case origination.

Rick Hasen on the Court’s next big fight over money in politics.

David Savage on the Court’s new trepidation.

Lawrence Tribe on “The Scalia Myth” and Cass Sunstein on “Scalia, Living Constitutionalist.”

Mark Tushnet on what a liberal Supreme Court might look like.

And the Congressional Research Service on Merrick Garland’s “Jurisprudence and Potential Impact on the Supreme Court.”

5th Circuit Decisions

Criminal defendant who pleaded guilty, then appealed his conviction based on his attorney’s failure to tell him he would be deported, could not show he had been prejudiced by this failure because, (1) just before accepting his plea, the judge told him he would likely be deported, and (2) he could not show he was likely to obtain a more favorable result by going to trial. United States v. Batamula (No. 12-20630) (en banc).

Defendant successfully defeated trademark claims in what should have been characterized as an “exceptional case” under Octane Fitness LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014); therefore, Defendant was entitled to remand for reconsideration of awarding legal fees under the Lanham Act. Baker v. DeShong (No. 14-11157).

Three officers used stun guns repeatedly on a man who was running away, then used physical restraints and stun guns again while the man was on the ground. The officers then hog-tied the man (against PD policy). When EMS paramedics arrived, the man had no pulse and wasn’t breathing. He died the next morning at the hospital. But the officers had qualified immunity because no right was violated and no unreasonable or excessive force was used. Pratt v. Harris County, Texas (No. 15-20080).

Sullivan v. Abraham

Opinion boxSteed, J., dissenting.

The text matters. Words matter. Punctuation matters. But we have to ask ourselves: At what point does a devotion to strict textualism become an elaborate game of pretend?

Here, the Texas Legislature clearly stated the meaning it meant to convey in this particular provision of the Texas Citizens Participation Act. But the majority has decided that the most reliable indicator of the Legislature’s intended meaning is not what the Legislature said about its intended meaning. Instead, under the guise of textualism, the majority has decided that the clearest indicator of the statute’s intended meaning is the Legislature’s comma usage.

I cannot bring myself to join the majority in pretending that the Texas Legislature was so purposed and precise in its punctuation that it meant to undo its stated intentions by omitting a comma. Therefore, I must respectfully dissent.

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5th Circuit Decisions

Caltrops tossed out of a fleeing truck and disabling law-enforcement vehicles (by puncturing tires) are “dangerous weapons” for purposes of sentence enhancement. United States v. Olarte-Rojas, No. 14-41408 (Apr. 29, 2016).

The transfer of a tax lien does not constitute an extension of “credit” that is subject to TILA. Billings v. Propel Fin. Servs., LLC, No. 14-51326 (Apr. 29, 2016).