Circuit Splits

Originally published by Jason P. Steed.

In bankruptcy a debtor cannot discharge her liability for obtaining money, property, etc., by fraud, but there is a circuit split over whether the debtor must have personally received the money, property, etc., obtained by fraud. See here at p.21 n.73.

Circuits are splitting over the impact of Johnson and whether sentencing statutes are unconstitutionally vague. See, e.g., here at p.11 n.7.

The courts have split over “the proper way to analyze predominance” in the class-certification inquiry. See here at p.121. (Incidentally, this is a 223-page opinion with 136 numbered paragraphs and 86 footnotes, some of which run over several pages.)

There’s a “budding circuit split” on whether third parties asserting an interest in forfeited assets are denied due process if barred from challenging the validity of the forfeiture. See here at p.16-17.

Apparently there’s a very old split over whether the party seeking to enforce a contractual waiver of a jury trial has the burden to show the waiver was knowing and voluntary. See here at p.5 n.12.

There is disagreement among the circuits about whether Nassar requires plaintiffs claiming retaliation to show but-for causation as part of their prima facie case or, instead, at the third step of the McDonnell Douglas framework to rebut the employer’s legitimate stated reason for the adverse employment action. See here at p.4 n.4.

And there’s a split over whether the ADEA’s broader protections against discrimination preclude suits under § 1983 and the Equal Protection Clause. See here at p.30 n.12.

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

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