Circuit Splits

Originally published by Jason P. Steed.

There’s a split over whether a grand jury proceeding constitutes an ongoing state judicial proceeding of the kind required to invoke Younger. See here at p.15.

There’s a split over whether the plaintiff or the government has the burden to prove that the government’s discretionary conduct was (or was not) policy-driven, so as to exempt the government from suit under the FTCA. See here at p.16.

There’s a split (not reached in Padilla) over whether the immediate-custodian rule applies in the immigration-detention context. See here at p.27-28.

There’s a split over what sort of prison “hardship” (such as prolonged solitary confinement) triggers a liberty interest protected by Due Process. See here at 26-27.

There’s a split over when the government may comment on (or use as evidence of guilt) a criminal defendant’s silence. See here at p.20-21.

There’s a split over whether counsel can waive a criminal defendant’s right to a public trial without the defendant’s consent. See here at p.9-10.

There’s a split over the appropriate level of scrutiny to be applied in abortion-related disclosure cases. See here at p.24.

Apparently there’s a split over the scope of rights conferred by the “free choice” provision of the Medicaid Act, § 1396n(c)(2)(C). See here at p.3-4 & n.2.

And there’s a developing split over whether J. Sotomayor’s concurring opinion in Freeman (about whether a defendant sentenced under a Rule 11(c)(1) agreement qualifies for relief under § 3582(c)(2)) is controlling under Marks. See here at p.4-5 & n.1.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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