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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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

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.