Circuit Splits

Originally published by Jason P. Steed.

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.

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