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

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.

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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Circuit Splits

ccsplits4There’s a split over what exactly unauthorized access means, in violating the CFAA. See here at p.13.

There’s a split over what law applies (state or federal) in determining the validity of a contract’s forum-selection clause. See here at p.5.

There’s an intra-circuit split in the Sixth Circuit, as well as a split across circuits, over the proper standard of review for Rule 404(b) evidence. See here at p.14 & n.4.

Circuits disagree over whether an ADEA plaintiff must “reasonably pursue,” “complete,” or merely “start” the administrative process, to “exhaust” administrative remedies before filing suit. See here at p.9.

There’s a split over whether the probate exception, which applies to diversity jurisdiction, also applies to federal-question jurisdiction. See here at p.3-4.

There’s a split over whether an arbitration agreement may require the resolution of labor disputes on an individual basis (i.e., no class arbitration). See here at p.20-21.

Circuits disagree over “whether the rationale of Martinez/Trevino extends to ineffective assistance of direct appeal counsel.” See here at p.10-11.

And there’s a split over whether independently exculpatory Brady material must be disclosed before a plea. See here at p.7-8.

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.

Using Contractions: It’s Not Wrong

contractionI’ve been wanting to write this post for some time. Inherited wisdom says you can’t use contractions in legal writing because it’s too informal. Poppycock. There’s nothing wrong with using contractions. Like anything else (e.g., em dashes, semicolons, commas, capitalization, boldface for emphasis), you shouldn’t over-use them. But contractions are a perfectly acceptable tool to include in your legal writing toolbox. Don’t believe me? Let’s consult the authorities.

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Mere Dictum or Binding Alternative Ruling?

This is useful and good to know. In the Fifth Circuit, “alternative holdings are binding precedent and not obiter dictum.” Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995); see Perez v. Stephens, 784 F.3d 276, 281 (5th Cir. 2015) (citing Pruitt for this proposition). In other words, a decision that is not necessary to support the ultimate ruling, and all stated alternative rationales for a given result, have precedential value. Pruitt, 932 F.2d at 465 (citing cases). I haven’t checked to see how this plays out in other circuits, but in the Fifth (at least) you can rely on alternative rulings and rationales.

Circuit Splits

4000195795_6841659fc6_bThere’s a split over the proper standard for reviewing whether an undisputed set of facts constitute persecution in asylum cases. See here at p.11 n.11.

There’s a split over whether the application of the “least sophisticated consumer” test in section-1692e claims under the FDCPA is a question of law or fact. See here at p.5.

Courts are divided over Rule 60(b)(6) motions that are based on Martinez and Trevino, and whether such motions should be granted or denied. See here at p.3.

Courts have also disagreed over what RLUIPA requires when it comes to providing prisoners access to a religious diet. See here at p.4.

There’s a split over the proper causation standard for sentence enhancement under section 2L1.1(b)(7). See here at p.4.

Courts disagree about whether limiting a defendant’s ability to cross-examine cooperating co-conspirators violates the Confrontation Clause. See here at p.4 n.1.

And there’s a split over what constitutes a fiduciary for the purposes of section 523(a)(4) (in bankruptcy). See here at p.15-17.

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.

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.