Circuit Splits

Originally published by Jason P. Steed.

There’s a split over whether “double counting” is permitted in the context of enhancing a criminal sentence. See here at p.15 n.7.

There’s a split over whether, in its de novo review of naturalization denials under 8 U.S.C. § 1421(c), a court should give Chevron deference to agency interpretations. See here at p.7.

In the context of the “public authority” defense against criminal prosecution, there is a split over whether the defendant must show that the government official had actual authority to authorize the act or merely apparent authority. See here at p.7 & n.2.

There’s a split over whether debtors can simultaneously maintain Chapter 7 and Chapter 13 bankruptcy proceedings. See here at p.5.

There’s a split over whether the Bankruptcy Code allows an injunction against refiling for more than 180 days. See here at p.8.

There’s a split over whether the bankruptcy estate may recover from a debtor or transferee under § 542 if the debtor or transferee was in possession of property of the estate at some time during the pendency of the case, but no longer is in possession of that property at the time that the turnover adversary proceeding or motion is filed. See here at p.12.

The Tenth Circuit has taken a side in the split over the definition of a “criminal case,” for purposes of applying the Fifth Amendment protection against compelled statements and self-incrimination. See here at p.8-13.

There’s a split over whether the “plausibility” standard for reviewing the sufficiency of a complaint also applies to affirmative defenses. See here at p.5-6 & n.3.

And there’s a split over whether there is a combined 25% cap on attorneys’ fees awarded under 42 U.S.C. § 406(a), or if the cap applies only to fees awarded under § 406(b). See here at p.2 n.2.

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

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