Circuit Splits

CCsplits6There’s a split over the common-law right of access to pre-indictment warrant materials. See here at p.19.

There’s a split over whether the award of costs under FRCP 41(d) includes the award of attorneys’ fees. See here at p.4.

There’s a split over enhancing sentences for “otherwise extensive” criminal activity. See here at p.20-22.

There’s a post-Johnson split over whether the U.S. Parole Commission can reimpose special parole on a defendant. See here at p.5-6.

The courts disagree about whether claims arising under the ADA or the RA survive the death of a party. See here at p.2.

There’s a split over whether the ex parte questioning of a treating physician by an adverse party is permitted and, if so, how such interviews should be conducted. See here at p.3.

There’s a split over whether, under CFR § 778.114, the employer or the employee bears the burden of proving they did or didn’t agree to a fixed weekly wage for fluctuating hours. See here at p.7 n.22.

And the circuits “appear to be divided” over whether the Fourth Amendment protects against the subsequent theft of lawfully seized items. See here at p.11.

A (very) quick look at standing in data-breach cases

I got curious and pulled up a bunch of cases to look at when plaintiffs have Article III standing to sue based on a data breach that has exposed personal information. Note: this was not an exhaustive search, and this is not an extensive analysis. But here’s what I found.

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Waiver Problems (or Why You Should Hire an Appellate Lawyer)

I did a quick search. In 2016 (just one year, Jan. 1 through Dec. 31), in the Dallas Court of Appeals (just one of the appellate courts in Texas), in what Westlaw identifies as “commercial” cases (just one narrow area of the law), there were at least nine appeals in which waiver was a problem. To me, that seems like a lot—because “commercial” cases typically involve high-dollar claims and high-caliber lawyers on both sides. And if we broaden our scope a bit, there were another 149 “civil” cases that popped up in my search for “waiver”—and many of those likely involved actual waiver problems, too. These waiver problems demonstrate why litigants should consider hiring an appellate lawyer.

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Circuit Splits

path-18197_960_720There’s a split over whether IDEA fee shifting should have a long or short statute of limitations. See here at 5 n.2.

There’s a split over whether reckless offenses are predicate offenses under 18 U.S.C. § 924(e). See here at 14 n.10.

Apparently, circuits disagree about how to interpret “directly and independently of all other causes.” See here at 2.

There’s a split over “a narrow exception to Rooker-Feldman.” See here at p.5.

There’s a split over the immediate appealability of Parker immunity claims. See here at p.17 n.6.

Circuits disagree about whether a party that fails to challenge a special verdict in the district court can raise the issue on appeal. See here at p.17 n.3.

And there’s a split over what “new evidence” means under Schlup. See here at p.3 n.1.

ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

Steed Style Guide, pt. 1

Complaints about The Bluebook have become commonplace. I have many. This, combined with the new availability of The Supreme Court’s Style Guide and The Solicitor General’s Style Guide—and with the longtime presence of Garner’s The Redbook, and with the presence, in Texas, of The Greenbook—has led me to become eclectic in my style choices, when it comes to brief writing. (I also have traces of MLA style still in me, from my days in academia.) Thus, over the years I haven’t been very consistent. I mean, I’m always consistent within a brief, to be sure—that’s imperative. But I haven’t been very consistent from brief to brief (or, more precisely, from case to case). Instead, I’ve been trying things out, here and there, to see how I like this or that.

Now, though, I think I’ve settled into some fairly consistent stylistic preferences that I’m going to go ahead and codify (here, on this blog) in my own personal style guide—with the caveat, of course, that I might change my mind at any moment.

So, without further ado, here is the first installment of the Steed Style Guide:

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Circuit Splits

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.

#AppellateTwitter

cxaav8wviaagbjq-1Our band of merry travelers, known affectionately as #AppellateTwitter, has been in the news recently. In case you missed it, first there was some coverage of our crew at Above the Law. Then U.S. Law Week did a story on us, which was cross-posted at Bloomberg BNA. Then Today’s General Counsel did its own little blurb referring to the Law Week article. Then Law.com ran a story about us.

And to cap it all off, Judge Dillard (@JudgeDillard) actually cited #AppellateTwitter in a footnote to one of his judicial opinions.

Big League!

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Gorsuch in L/E Cases

labor-law-598x299I found 25 cases from the past 10 years, involving labor or employment claims, where Judge Gorsuch wrote the majority opinion. Here’s a quick overview of how those cases turned out.

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Proposed Changes to SCOTX Jurisdiction

A bill (HB 1761) has been proposed in the Texas Legislature to change the Texas Supreme Court’s appellate jurisdiction. Below is my explanation (and first impression) of what the bill would do.

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