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Dru Stevenson
Houston, Texas
Hutchins Research Professor, South Texas College of Law
Interests: Administrative Law, Law & Economics, Criminal Procedure, Environmental Law, Legislation, Nonprofit Law, Privatization
Recent Activity
This post is part of a series exploring the ideas in an important new article by Professor Aaron-Andrew Bruhl (Univ. Houston), entitled Measuring Circuit Splits: A Cautionary Note. One important concept Bruhl explains is that of parallel review. Journalists and academic writers often describe particular federal circuit courts as being the "most-reversed" or "most-affirmed" by the Supreme Court, but the numbers used to arrive at such rankings are often dubious, in part for the reason... Continue reading
Posted Jun 6, 2014 at Circuit Splits
Aaron-Andrew Bruhl (pictured), a professor at University of Houston Law Center, has an important new article on SSRN entitled Measuring Circuit Splits: A Cautionary Note. This article is, simply put, brilliant. It changed the way that I think about circuit splits, and it is likely to be a disruptive contribution (in the good sense) to the academic literature in this area. In fact, Bruhl's new article is so significant, and the arguments so compelling, that... Continue reading
Posted Jun 6, 2014 at Circuit Splits
Sometimes appellate advocates argue that the circuit court panel in their case should align with the decisions of one or two other circuits in order to avoid creating a circuit split. In one recent case, the lawyer stretched the argument too far, arguing that the Seventh Circuit actually needed to reverse its own prior precedent in order to align with the Third Circuit - "in order to avoid creating a circuit split," even though the... Continue reading
Posted May 13, 2014 at Circuit Splits
On April 14, the D.C. District Court issued a decision in U.S. v. Richardson that included a nice discussion of the current circuit split over whether handcuffing a suspect automatically creates a "custodial" situation for purposes of triggering the duty to provide Miranda warnings before police ask any questions. Here is the relevant paragraph: The D.C. Circuit has thus far declined to reach the question of whether a defendant is in “custody” for the purposes... Continue reading
Posted Apr 24, 2014 at Circuit Splits
There has been plenty of blog coverage already about the Supreme Court's new decision in Schuette v. BAMN, with commentary mostly focused on the well-rehearsed arguments over the merits or mistakes of affirmative action, and some about the partisanship or analytical approaches of the Justices. I think the most interesting issue is the open door for diversity among states about how to approach this issue going forward - which invites discussion of the laboratories of... Continue reading
Posted Apr 22, 2014 at Circuit Splits
Professor Joan E. Steinman has an interesting new article posted on SSRN that discusses an important circuit split: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Here is the abstract: An important aspect of summary judgment law is now in great disorder. The intermediate federal courts of appeals are split both internally and among themselves on the circumstances, if any, under which denials of summary judgment should be appealable after trial... Continue reading
Posted Apr 17, 2014 at Circuit Splits
Recently, in Glazer v. State, an Arizona Court of Appeals discussed an interesting split among the federal circuit courts over the admissibility of evidence, and then skirted the issue itself. Here is the relevant excerpt: The State argues the superior court erred in failing to make express admissibility or reliability findings under Arizona Rule of Evidence 702. The federal circuits are split on whether such findings are required. Compare United States v. Mitchell, 365 F.3d... Continue reading
Posted Apr 16, 2014 at Circuit Splits
On April 10, the Third Circuit upheld the Sex Offender Registration and Notification Act (SORNA) against an interesting nondelegation challenge - in U.S. v. Cooper. SORNA applies retroactively to sex offenders convicted before the enactment of the statute (the possible ex post facto issue was not part of this new case), and delegates to the Attorney General full discretion to create registration procedures for pre-enactment offenders). The court explains: The statute defines “sex offender” to... Continue reading
Posted Apr 15, 2014 at Circuit Splits
Codes of legal ethics vary state by state, but most draw heavily from the ABA's Model Rules of Professional Conduct. The ABA has revised Rule 1.6 (duty of confidentiality) in recent years, adding or clarifying exceptions, and states have been adopting these revisions very gradually, leading to many splits between states about when a lawyer can, or must, divulge confidential client information. I have a new article on SSRN criticizing the confidentiality rules from a... Continue reading
Posted Apr 14, 2014 at Circuit Splits
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
Posted Jan 23, 2013 at Circuit Splits
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
Posted Jan 22, 2013 at Circuit Splits
My new article, Codification and Legislative Transaction Costs (free download from, 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
Posted Jan 21, 2013 at Circuit Splits
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
Posted Aug 29, 2012 at Circuit Splits
Alycia Marie Kennedy has posted a new law review article on 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
Posted Aug 22, 2012 at Circuit Splits
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
Posted Jun 20, 2012 at Circuit Splits
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
Posted Jun 11, 2012 at Circuit Splits
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
Posted May 21, 2012 at Circuit Splits
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
Posted May 16, 2012 at Circuit Splits
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
Posted May 10, 2012 at Circuit Splits
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
Posted May 2, 2012 at Circuit Splits
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
Posted Apr 24, 2012 at Circuit Splits
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
Posted Apr 18, 2012 at Circuit Splits
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
Posted Apr 11, 2012 at Circuit Splits
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
Posted Apr 11, 2012 at Circuit Splits
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
Posted Apr 8, 2012 at Circuit Splits