Circuit Splits

Originally published by Jason P. Steed.

All circuits agree that civil detention of criminal aliens is constitutional for a reasonable period of time, to complete removal proceedings. But at some point these detained aliens are entitled to a bond hearing under Due Process, and the circuits are split over when. The 11th Circuit addresses this issue for the first time here, at p.3.

There’s a split over whether a court may award fees to an attorney from outside the district who is not admitted pro hac vice. See here at p.6.

The circuits don’t agree on whether an individual must report violations to the SEC before she can bring a retaliation claim under Dodd-Frank. See here at p.33 n.14.

The 6th Circuit says there is an “unacknowledged” (until now) split over whether a criminal defendant’s willingness to reject a plea bargain and risk going to trial can be considered “rational” in satisfaction of the objective test for determining whether the defendant was prejudiced by ineffective assistance of counsel. See here at 2-3 et seq.

Courts are split over whether there’s a distinction between “claims for work” and “claims for payment for work” in determining whether a § 10(k) order can bar a contractual claim. (Just read the case to see what this is about.) See here at 14-15.

The 9th Circuit has created a new circuit split over exceptions for copyrights to sound recordings (in a case involving Madonna). See here at 29.

And lastly, Judge Gorsuch tells us there’s a “long lingering circuit split” over how much access parties to PTO proceedings have to the Federal Rules of Civil Procedure, for discovery purposes. Judge Gorsuch says the split “lingers there still”—but it might be “just another debate that doesn’t matter.” See here at 6-9, 10 n.1, 12, 14.

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