Circuit Splits

away-228675_960_720There’s a split over whether “double counting” is permitted in the context of enhancing a criminal sentence. See here at p.15 n.7.

There’s a split over whether, in its de novo review of naturalization denials under 8 U.S.C. § 1421(c), a court should give Chevron deference to agency interpretations. See here at p.7.

In the context of the “public authority” defense against criminal prosecution, there is a split over whether the defendant must show that the government official had actual authority to authorize the act or merely apparent authority. See here at p.7 & n.2.

There’s a split over whether debtors can simultaneously maintain Chapter 7 and Chapter 13 bankruptcy proceedings. See here at p.5.

There’s a split over whether the Bankruptcy Code allows an injunction against refiling for more than 180 days. See here at p.8.

There’s a split over whether the bankruptcy estate may recover from a debtor or transferee under § 542 if the debtor or transferee was in possession of property of the estate at some time during the pendency of the case, but no longer is in possession of that property at the time that the turnover adversary proceeding or motion is filed. See here at p.12.

The Tenth Circuit has taken a side in the split over the definition of a “criminal case,” for purposes of applying the Fifth Amendment protection against compelled statements and self-incrimination. See here at p.8-13.

There’s a split over whether the “plausibility” standard for reviewing the sufficiency of a complaint also applies to affirmative defenses. See here at p.5-6 & n.3.

And there’s a split over whether there is a combined 25% cap on attorneys’ fees awarded under 42 U.S.C. § 406(a), or if the cap applies only to fees awarded under § 406(b). See here at p.2 n.2.

Recent & Upcoming Activities

A busy calendar.The last couple months have been busy. In addition to the holidays, I argued at the Fifth Circuit; published two articles at The Huffington Post (here and here); produced a podcast episode on appellate practice for the ABA’s Sound Advice series; gave a presentation to the Dallas Bar Association (about the post-election Supreme Court and Trump’s list of possible nominees); participated in a panel discussion about e-briefs and legal writing at the annual meeting of the Council of Chief Judges of State Courts of Appeal (in North Carolina); was cited on SCOTUSblog and the Appellate Advocacy Blog (both here and here); and was quoted by Bloomberg (herehere, here, and here), CNN, and the Winnipeg Free Press.

This month I’ve got an article forthcoming in Texas Lawbook (about the Garland fiasco and Trump’s possible SCOTUS nominees); I’ll be in Austin on January 20, leading a workshop on legal writing at Lawyer Forward; and I’ll be in Utah January 21-24.