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Nicholas J. Wagoner
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Download You can download the latest draft of Professor Dru Stevenson and I's law review article, "Lawyering in the Shadow of Data," for free here. Abstract Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior --- including their willingness to negotiate a... Continue reading
Posted Sep 26, 2013 at Nicholas J. Wagoner
This year I took some time off from blogging about circuit splits to explore another area of interest that I believe will truly change the nature of practicing law over the coming years: big data. While software applications that allow users to glean insights from big data have crept into certain discrete facets of the legal profession (e.g., predictive-coding software in the context of e-discovery), they have dramatically improved the decision-making process in other sectors... Continue reading
Posted Sep 24, 2013 at Circuit Splits
Today I’m delighted to introduce Ben Ashmore, the founder and president of the National Family Civil Rights Center, as this week’s guest blogger. In In re Burrus, the Supreme Court stated in dicta that “[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the United States.” 136 U.S. 586, 593 (1890). This dicta is now firmly entrenched in federal jurisprudence thanks... Continue reading
Posted Apr 16, 2013 at Circuit Splits
As this blawg's first full year comes to a close, I thought I would put together the following list of the ten most popular posts of 2012: 1. Should Law Schools Focus on Lawyering Skills? (May 16, 2012) 2. D.C. Circuit Joins Split Over the Preservation of Purely Legal Issues for Appeal (Aug. 1, 2012) 3. 100 Appellate Law Twitter Feeds to Follow (Apr. 17, 2012) 4. 6th Circuit Joins Split Over Ineffective Counsel Claims... Continue reading
Posted Dec 20, 2012 at Circuit Splits
Federal Rule of Civil Procedure 606(b) generally prohibits jurors from testifying about their “mental processes concerning the verdict or indictment” when the validity of their verdict or indictment has been called into question. Yesterday the Third Circuit addressed “a split of authority as to whether and when Rule 606(b) is constitutional when applied to bar testimony about jury racial bias.” United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential). Writing... Continue reading
Posted Dec 19, 2012 at Circuit Splits
Today's post looks at the latest opinion in a series of recent opinions that discuss splits in authority over appropriate standards of review (see here and here). Last Friday in United States v. Powers, the First Circuit addressed an intercircuit conflict involving the appropriate standard for reviewing a district court's refusal to give an "advice-of-counsel" jury instruction in a criminal case. When a defendant's argument at trial boils down to, "My attorney advised me that... Continue reading
Posted Dec 17, 2012 at Circuit Splits
For the latest coverage of noteworthy issues dividing the federal courts, check out the following links: Robert A. Horowitz, Supreme Court again set to resolve a circuit split over the enforceability of mandatory class arbitration waivers, (Dec. 6, 2012). Michelle Olsen, Circuit Split Watch: Press Access Not a Slam Dunk, Appellate Daily (Dec. 5, 2012). Meghan Milloy, 5th Circuit Splits with Other Federal Courts on CAFA and Attorney General Suits, The Legal Pulse (Dec.... Continue reading
Posted Dec 12, 2012 at Circuit Splits
Last month I wrote about an intercircuit conflict over the appropriate standard of review for reviewing hearsay rulings (here). A similar circuit split exists over the appropriate standard of review for reviewing a district court’s decision to award enhanced damages and attorneys’ fees. Unlike its sister circuits, the Federal Circuit reviews such decisions de novo. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1005 (Fed. Cir. 2012). Last week... Continue reading
Posted Dec 10, 2012 at Circuit Splits
For the latest coverage of noteworthy issues dividing the federal courts, check out the following links: Jack Townsend, Circuit Splits on Defense Witness Immunity, Federal Tax Crimes (Dec. 3, 2012). Kerry A. Brennan & Alexander Parachini, Circuit Split in Enforceability of Arbitration Clauses in Bankruptcy Left Unresolved, (Nov. 29, 2012). Rudolph J. Di Massa, Jr., United States: Supreme Court To Address Circuit Split Over 'Defalcation' Meaning, (Nov. 29, 2012). Minnesota Divorce Lawyer, Supreme... Continue reading
Posted Dec 5, 2012 at Circuit Splits
Last week in United States v. Day, the Fourth Circuit called attention to a circuit split over the extradition rule of specialty found in the United States–Mexico Extradition Treaty. The Treaty provides that “a person extradited under [the Treaty] shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted.” The defendant in Day argued that the aiding and abetting... Continue reading
Posted Dec 3, 2012 at Circuit Splits
Yesterday I came across an interesting student note in the Texas Law Review entitled "Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It." The author, Nathaniel Lipanovich, argues that the majority of circuits have adopted a standard for granting immunity to defense witnesses that fails to adequately protect the accused. The article offers the following data as evidence "that... Continue reading
Posted Nov 30, 2012 at Circuit Splits
For the latest coverage of noteworthy issues dividing the federal courts, check out the following links: A. Benjamin Spencer, First Circuit Weighs In on Circuit Split re Jurisdiction over Defense Base Act Claims, Split Circuits (Nov. 27, 2012). Alison Frankel, Circuit split! 5th Circuit says AG suits are mass actions under CAFA, Thomson Reuters News & Insight (Nov. 26, 2012). Rudolph J. Di Massa Jr. & Aaron J. Margolis, Supreme Court to Address Circuit Split... Continue reading
Posted Nov 29, 2012 at Circuit Splits
Thanks for helping put this little-known split on my radar. Please keep me posted on any new developments.
We are honored to be included on this year's "Blawg 100" list and would like to thank all of our readers who nominated our blawg. The ABA Journal has divided the list into fourteen distinct categories, and is now requesting that readers vote for their favorite blawg in each category. If you have enjoyed reading our blawg, please let us know by voting for Circuit Splits as the top blawg in the "Courts" category. You... Continue reading
Posted Nov 28, 2012 at Circuit Splits
Last week in Truczinskas v. Director, Office of Workers’ Compensation Programs, the First Circuit pointed out that “the circuit courts are now almost evenly split on whether initial judicial review of [Defense Base Act] awards should be in the district or the circuit court.” The court summarized the split as follows: Four circuits endorse review by the district court, ITT BaseServs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998); Lee v. Boeing Co., 123... Continue reading
Posted Nov 28, 2012 at Circuit Splits
Last Friday the Ninth Circuit issued the latest in a long line of opinions calling attention to a circuit split over the appropriate standard of review for hearsay rulings. See Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012). Several appellate panels have considered whether a statement was hearsay de novo, while panels within other circuits have reviewed such decisions for an abuse of discretion. It is also worth noting that both... Continue reading
Posted Nov 20, 2012 at Circuit Splits
For the latest coverage of noteworthy issues dividing the federal courts, check out the following links: Krista Cox, Pay-for-Delay Circuit Split Continues; 31 States File Amicus Brief Arguing Pay-For-Delay is Presumptively Unlawful, Knowledge Ecology International (Nov. 14, 2010). Bruce Khula, En Banc Court Declares Michigan’s Proposal 2 Unconstitutional, Sixth Circuit Appellate Blog (Nov. 16, 2012). Shaun Terrill, Circuits/IRS Split When It Comes to FICA Taxation of Severance Pay, BNA Bloomberg Federal Tax Blog (Nov. 13,... Continue reading
Posted Nov 19, 2012 at Circuit Splits
Yesterday the Sixth Circuit sitting en banc declared the State of Michigan’s ban on affirmative action in university admissions unconstitutional. See Coalition to Defend Affirmative Action v. Regents of the University of Michigan, Nos. 08-1387/1389/1534 & 09-1111 (6th Cir. Nov. 15, 2012). In 2006, the people of Michigan voted to adopt “Proposal 2,” an amendment to their state constitution stating that the University of Michigan and other public universities across the state “shall not discriminate... Continue reading
Posted Nov 16, 2012 at Circuit Splits
The doctrine of equitable tolling is a “drastic remedy” whereby a court may, under extraordinary circumstances, overlook a plaintiff’s failure to file their complaint within the statutorily allotted period of time. To sue the United States under the Federal Tort Claims Act, a plaintiff must, among other things, file their claim “within six months after the date of mailing . . . of final denial of the claim by the agency to which it was... Continue reading
Posted Nov 13, 2012 at Circuit Splits
This summer the Fourth Circuit joined a majority of its sister circuits in holding that a convicted co-defendant’s exculpatory testimony given after their invocation of the Fifth Amendment does not constitute “newly discovered evidence” under Federal Rule of Criminal Procedure 33. Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished). Other circuits have reached the same conclusion. See, e.g., United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007);... Continue reading
Posted Nov 12, 2012 at Circuit Splits
In Brady v. Maryland, the Supreme Court held that a criminal defendant is entitled to favorable information possessed by the government following a request for that information so long as it would be material to determining guilt or determining the appropriate sentence. 373 U.S. 83, 87 (1963). The government’s failure to disclose such information violates the defendant’s right to due process under the Fourteenth Amendment. Id. at 86. Thus, a “Brady violation,” as it has... Continue reading
Posted Nov 9, 2012 at Circuit Splits
For the latest coverage of noteworthy issues dividing the federal courts, check out the following links: Alison Frankel, Is a claim the same as a case? 6th Circuit says yes in FCA suit, Thomson Reuters News & Insights (Nov. 5, 2012). Robert B. Milligan, Employer Petitions U.S. Supreme Court to Resolve Computer Fraud and Abuse Act Circuit Split, Trading Secrets (Nov. 2, 2012). Robyn Hagan Cain, Are Graphic Warning Labels Heading for En Banc Review?,... Continue reading
Posted Nov 8, 2012 at Circuit Splits
Last Friday the Sixth Circuit reversed a federal court in Michigan in holding that a plaintiff’s civil RICO claim accrues at the time an employer fraudulently denies worker’s compensation benefits. Jackson v. Segwick Claims Mgmt. Servs., No. 10-1453 (6th Cir. 2012). Writing for the panel, Judge Karen Moore quickly pointed out, however, that a split in authority exists over this issue: We acknowledge that one of our sister circuits currently disagrees with this approach. The... Continue reading
Posted Nov 6, 2012 at Circuit Splits
Yesterday, over at one of my favorite employment law blogs, Lawffice Space, Philip Miles wrote about a developing intercircuit conflict of particular interest to practicing attorneys. The post, entitled “Circuit Split: Attorney’s Fees Adjusted for Settlement Offers?”, introduces the following issue on which the First and Third Circuits have recently split: Many employment law statutes allow successful plaintiffs to recover attorney's fees. The amount is set by the court. What happens when a party rejects... Continue reading
Posted Nov 1, 2012 at Circuit Splits