Circuit Splits

There’s a split over who has the burden to establish whether a contractual jury waiver was knowing and voluntary. See here at p.27.

There’s a split over whether the statute of limitations in section 7703(b)(2) is jurisdictional (i.e., does it deprive courts of jurisdiction to review MSPB decisions). See here at p.12.

Courts disagree about whether a criminal defendant’s identity can be suppressed under the Fourth Amendment’s exclusion remedy. See here at p.14.

There’s a split over whether federal or state law should be applied to determine the validity of a forum-selection clause. See here at p.4-5.

There’s a split over whether an ALJ must examine conflicts between the Dictionary of Occupational Titles and a vocational expert’s testimony, even if no party identifies a conflict during administrative hearings. See here at p.15 n.8.

And there’s an intra-circuit split among district courts in the Fifth Circuit, over whether pro se litigants can be subject to sanctions under section 1927. (The majority says no.) See here at p.4.

Circuit Splits

There’s a split over whether federal courts exercising bankruptcy jurisdiction should apply federal choice-of-law principles or the choice-of-law principles of the forum state. See here at 5-6.

Circuits disagree over whether the Prison Litigation Reform Act’s fee cap and hourly-rate cap apply when the claim does not involve “prison conditions.” See here at 22-23.

There’s disagreement over whether a First Amendment free-exercise claim proceeds under a different framework than claims brought under RLUIPA or RFRA. See here at 15 & n.7.

There’s a split over whether multiemployer ERISA plans are “conflicted” under Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). See here at 4-5.

Courts disagree about whether pro-hac-appearance fees are recoverable as costs. See here at 2.

Courts disagree about whether a criminal defendant’s previous term is “undischarged” if he is on parole—and also about whether courts may apply § 5G1.3(b) after accepting a conditional plea agreement. See here at 13.

And there’s a split over the interaction between Title II of the ADA and § 504 of the RA, and the types of injuries cognizable under § 504. See here at 30-34.

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.