In the recent decision in Smith v. Detroit Entertainment, LLC, Slip Copy, 2013 WL 119673 (E.D.Mich. Jan. 9, 2013), the federal court in the Eastern District of Michigan highlighted a growing circuit split over removal statutes - and contributed to the split by leading the Sixth Circuit into the fray. At issue in this action by an employee for unpaid wages was whether the removal statute, 28 U.S.C. § 1441, would permit the employer to... Continue reading

A new article posted on SSRN, Waiting is the Hardest Part: Why the Supreme Court Should Adopt the Third Circuit's Analysis of Pay-for-Delay Settlement Agreements (by Marlee Kutcher), addresses the current circuit split over the legality of reverse payment settlements ("pay-for-delay") in pharmaceutical patent litigation. Although the paper strongly advocates one particular approach, the discussion of this complex issue is very good - highly recommended reading. Here is the Abstract: The high cost of prescription... Continue reading

My new article, Codification and Legislative Transaction Costs (free download from ssrn.com), addresses the effects of having codified statutes on legislative borrowing and statutory harmonization between jurisdictions. The discussion below draws from one section of the manuscript, focused on legislative borrowing and enactment costs. Justice Brandeis first introduced the metaphor “laboratories of democracy” into our legal discourse, in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). The phrase now... Continue reading

Brian Soucek, a federal judicial clerk in the district of Connecticut, has posted a fascinating new article on SSRN entitled Copy-Paste Precedent. Highly recommended - this appears to be the first article about this important issue. Here is the abstract: The federal appellate courts now decide eighty-five percent of their cases through unpublished, nonprecedential opinions. These are meant to resolve disputes squarely governed by existing precedent; they are not supposed to make law. Scholars have... Continue reading

Alycia Marie Kennedy has posted a new law review article on ssrn.com entitled Posthumous Conception and the Social Security Act, forthcoming in the Boston College Law Review. In it, she highlights a circuit split over the application of Social Security regulations (for child survivor benefits). Divergent decisions appeared in the Fourth and Eight Circuits in 2011 - basically, over the application of Chevron deference to the Social Security Administration's interpretation of the relevant statute. Interestingly,... Continue reading

On Monday (June 18), the Supreme Court issued its decision in Christopher v. SmithKline Beecham Corp., holding 5-4 that pharmaceutical company "detailers" are "outside salesmen" for purposes of the FLSA (29 U.S.C. §213(a)(1), 29 CFR §541.500, and related sections of the federal statutes and Department of Labor regulations). The Court affirmed the Ninth Circuit, whose decision in turn had been in conflict with the Second Circuit (see In re Novartis Wage and Hour Litigation, 611... Continue reading

Last week the Fifth Circuit parted ways with the Third Circuit over the question of whether the U.K.'s "Windfall Tax" constitutes a creditable foreign income tax under I.R.C. § 901, 26 U.S.C. § 901 (thanks to reader Todd Butler for bringing this to my attention). In Entergy Corporation v. CIR, the Fifth Circuit, in an opinion by Chief Judge Edith Jones, held that Entergy is indeed entitled to its foreign income tax credit due to... Continue reading

My colleague Scott Rempell has a new article posted on SSRN: Judging the Judges: Appellate Review of Immigration Decisions. While not focused on a clear split between circuits, it does focus on the diversity of federal appellate court decisions regarding the standard of review (and degree of deference) for immigration decisions. Here is the abstract: Immigration can be a divisive issue and the federal appellate courts must decide thousands of immigration cases every year. The... Continue reading

My thoughts on practice-based coursebooks - responding to Nick Wagoner's earlier post here. I have no disagreement with what Nick said. I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall... Continue reading

Ruth Sarah Lee (Harvard Law School) recently posted an article on SSRN entitled Unwarranted Presumptions: Common Law, Injury, and Presumed Damages for Constitutional Torts. It discusses the circuit split about presumed damages in constitutional tort cases. Here is the SSRN abstract: This article explores the question of whether presumed damages are a good way to achieve the compensation function of constitutional torts. After the Supreme Court decided Memphis Community School District v. Stachura, circuit courts... Continue reading

As Nick Wagoner has pointed out in his post earlier today, a split is emerging over the constitutionality of pre-abortion ultrasound requirements by states. Nick's post has the links to the North Carolina district court and Fifth Circuit decisions on this issue. I'm not sure if the Supreme Court will take the issue this time around, or if will wait for more circuit courts to reach decisions on it - ultrasound statutes are now springing... Continue reading

Dan E. Stigall of the U.S. Department of Justice, Office of International Affairs has posted a new article on SSRN, International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law, recently published in 35 Hastings Int'l & Compar. L.Rev. 323 (2012). His discussion of the federal circuit split in this area is particularly helpful, a great contribution to the literature in this area. Very worthwhile reading, with a helpful survey of... Continue reading

Adam Pie has a new article on SSRN about the split among federal circuit courts over the "special needs doctrine." The title is a bit hefty: The Monster Under the Bed: The Imaginary Circuit Split and the Nightmares Created in the Special Needs Doctrine’s Application to Child Abuse. Here is the SSRN abstract: Child protective services (“CPS”) agencies often face the difficult task of walking the fine line between protecting the child from abuse and... Continue reading

In a new decision released on Tuesday (April 10), U.S. v. Nosal, 2012 WL 1176119 (9th Cir. 2012), the Ninth Circuit held that the phrase “exceeds authorized access,” within the meaning of Computer Fraud and Abuse Act (CFAA) is limited to access restrictions, not use restrictions. In doing so, it has created a circuit split, breaking with the 5th, 7th and 11th Circuits, circuits that interpret the CFAA broadly to cover violations of corporate computer... Continue reading

The rules for granting a plaintiff standing to bring a citizen suit are currently so vague, and the Supreme Court's decisions in this area so inconsistent, that we see unpredictable, incoherent results both between and within circuits on this issue. In Standing as Channeling in the Administrative Age, Sonny Eckhart and I argue that the relevant administrative agencies have implied statutory authority to define the standing requirements for citizen suits. The draft manuscript is available... Continue reading

To my knowledge, no academic articles have used this moniker to describe cursory, warrantless searches of cars or premises, but the phrase appears to be emerging as part of the nomenclature of appellate courts, and seems to be a regular part of police jargon. A “quick look” appears fairly consistently as part of police requests for consent to a search, and courts must then analyze the scope of the authorized search when a suspect acquiesces... Continue reading