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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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

The Future of the Supreme Court

supreme-court-building-120628Lots of chatter out there about the future of the Supreme Court in the wake of Trump winning the presidency. Here are some of my thoughts.

First, regarding the current Court: Assuming Clinton would win the presidency, I was predicting Garland would be confirmed to fill Scalia’s vacancy and Ginsburg would retire in 2017 (maybe 2018)—with Breyer possibly retiring shortly thereafter, before Clinton’s first term was over. The Court would shift to the left with the addition of Garland, but no other shift would occur unless Clinton could win a second term. If that happened, Clinton likely would have replaced Kennedy—and maybe even Thomas—and this would have produced a second significant shift leftward. But now all of this is vapor.

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SCOTUS Recap & Predictions

TexasBarToday_TopTen_Badge_VectorGraphicThe Supreme Court has completed its October sitting, having heard arguments in 8 cases. I’ve already talked about the first 5 cases in a previous post. Read on for a recap of the other 3 cases argued this month, and for predictions about how those cases will be decided…

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SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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How Garland Gets Confirmed Before the Election

I haven’t checked the transcripts or anything, but I’m pretty sure President Obama’s pending Supreme Court nominee, Merrick Garland, was never mentioned at this week’s Democratic National Convention. Garland’s nomination has now been pending 135 days—longer than any Supreme Court nomination in history. And this is due to all-out, unprecedented obstruction by the Republicans. So it’s a little odd that the Democrats never mentioned Garland during their convention, and never used the Republicans’ obstructionism as a punching bag. Why wouldn’t they use the DNC stage to hit the Republicans hard on this?

I have a theory. Some people might say the Supreme Court just isn’t that important to Democratic voters; some might say too much talk about Garland or the Court would’ve reminded Republican-leaning voters who don’t want to vote for Trump of the only defensible reason to do so. But I think there might be something else going on—something more subtle and strategic.

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#VoterID at the Fifth Circuit

Tweeting about Tuesday’s oral arguments before the en banc Fifth Circuit, in the Texas voter-ID case, and a lot of great Twitter activity followed. See this thread at Storify.

5th Circuit Decisions

Criminal defendant who pleaded guilty, then appealed his conviction based on his attorney’s failure to tell him he would be deported, could not show he had been prejudiced by this failure because, (1) just before accepting his plea, the judge told him he would likely be deported, and (2) he could not show he was likely to obtain a more favorable result by going to trial. United States v. Batamula (No. 12-20630) (en banc).

Defendant successfully defeated trademark claims in what should have been characterized as an “exceptional case” under Octane Fitness LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014); therefore, Defendant was entitled to remand for reconsideration of awarding legal fees under the Lanham Act. Baker v. DeShong (No. 14-11157).

Three officers used stun guns repeatedly on a man who was running away, then used physical restraints and stun guns again while the man was on the ground. The officers then hog-tied the man (against PD policy). When EMS paramedics arrived, the man had no pulse and wasn’t breathing. He died the next morning at the hospital. But the officers had qualified immunity because no right was violated and no unreasonable or excessive force was used. Pratt v. Harris County, Texas (No. 15-20080).