Circuit Splits, in the Courts’ Own Words
396 legal questions · 509 cases · 652 verified acknowledgments
When federal courts of appeals disagree, the disagreement is usually announced in the opinion itself — “we join the Seventh Circuit”, “we respectfully decline to follow”, “this creates a split”. Below, every legal question the circuits have split on, grouped by area of law. Open an issue to read each acknowledging case with the court’s own sentence, quoted verbatim and machine-verified against the opinion text.
- criminal procedure 88
- civil procedure 41
- criminal law 27
- criminal sentencing 25
- bankruptcy law 25
- immigration law 25
- employment law 18
- constitutional law 15
- civil rights law 12
- environmental law 9
- civil rights 6
- tax law 7
- administrative law 6
- civil rico 6
- copyright law 6
- antitrust law 5
- employee benefits law 5
- arbitration law 4
- erisa / employee benefits law 4
- evidence law 4
- education law 3
- intellectual property law 3
- sentencing law 3
- civil forfeiture 2
- commercial law 2
- disability law 2
- federal jurisdiction 2
- federal sentencing 2
- habeas corpus 2
- labor law 2
- securities law 2
- trademark law 2
- admiralty and maritime law 1
- aviation law 1
- civil forfeiture law 1
- civil litigation 1
- civil remedies 1
- civil rights litigation 1
- commodities regulation 1
- commodity futures regulation 1
- communications law 1
- consumer protection law 1
- contracts law 1
- criminal forfeiture 1
- defamation law 1
- disability rights law 1
- drug law 1
- fair housing law 1
- false claims act litigation 1
- federal courts 1
- federal tort claims / sovereign immunity 1
- forfeiture law 1
- indian law 1
- insurance law 1
- international law 1
- land use law 1
- maritime law 1
- native american law 1
- prisoner litigation 1
- property law 1
- sovereign immunity 1
- telecommunications law 1
- trademark and false advertising law 1
criminal procedure · 88 issues
- Whether the new rule announced in Crawford v. Washington applies retroactively to cases on collateral review under the Teague v. Lane framework(2)28 U.S.C. § 2244(b)(2)(A)·Antiterrorism and Effective Death Penalty Act of 1996
- How to interpret the Blockburger 'same-elements' test for determining whether two offenses are the 'same offense' under the Double Jeopardy Clause18 U.S.C. § 2252A(d)·Illegal Immigration Reform and Immigrant Responsibility Act of 1996
- The scope of the Government's right to appeal an adverse district-court order in a criminal case under 18 U.S.C. § 373118 U.S.C. § 3731
- What demonstration of a defendant's consent is required to delegate jury selection (voir dire) to a magistrate judge under Peretz v. United States28 U.S.C. § 636
- What method a court should use to determine whether an alleged constructive amendment of the indictment affected the defendant's substantial rights on plain-error review
- What standard of review applies to a trial court's failure to advise a defendant of his right to appeal under Federal Rule of Criminal Procedure 32
- What standard of review governs a court's determination of the scope of a defendant's consent to a search
- Whether 18 U.S.C. § 3501 abrogated the McNabb-Mallory rule such that delay in presenting an arrested defendant before a federal magistrate judge no longer renders an otherwise-voluntary confession inadmissible
- Whether a court-issued protective order can override or preclude compliance with a grand jury subpoena28 U.S.C. § 1291
- Whether a court of appeals must reverse automatically, or instead require a showing of prejudice, when a district court decides a Criminal Justice Act request for expert-services funds without holding an ex parte hearing.18 U.S.C. § 3006A(e)(1)
- Whether a court reviewing a habeas challenge to interstate extradition may look beyond the four factors of Michigan v. Doran to consider other defenses to extradition§ 1983
- Whether a defendant is entitled to advance notice of a district court's intention to deny a sentence reduction recommended in the presentence report (PSR)
- Whether a defendant must establish a prima facie case or only a colorable claim of selective prosecution to be entitled to an evidentiary hearing42 U.S.C. § 1973i(c)
- Whether a defendant requesting investigative, expert, or other services funds under the Criminal Justice Act (18 U.S.C. § 3006A(e)) is entitled to an ex parte hearing on the request18 U.S.C. § 3006A(e)(1)
- Whether a defendant's completion of the sentence deprives the court of appeals of jurisdiction over (moots) the appeal of sentencing issues
- Whether a defendant's failure to object at sentencing subjects an appellate challenge to the reasonableness of the sentence under Booker to plain-error review§ 3553(a)
- Whether a defendant's stipulation to an element of an offense removes that element from the jury's consideration and relieves the government of its burden to prove it via jury instruction
- Whether a defendant waives appellate review of a claim that the government breached the plea agreement by failing to object to the breach in the district court
- Whether a defendant who fails to object at sentencing to the procedural reasonableness of the sentence (e.g., the adequacy of the district court's explanation) is subject to plain-error review of that challenge on appeal18 U.S.C. § 3553(a)
- Whether a district court has discretion to order a federal sentence to run consecutively to a state sentence that has not yet been imposed28 U.S.C. § 2255·Antiterrorism and Effective Death Penalty Act of 1996
- Whether a district court may consider the nature of the offense as a basis for a downward departure from the Sentencing Guidelines
- Whether a district court must expressly address specific statutory sentencing factors and make particularized findings on the record§ 3553(a)
- Whether a district court must make express findings on the record of the factors it must consider in determining whether and to what extent to impose a fine
- Whether AEDPA's one-year habeas limitations period under 28 U.S.C. § 2244(d)(2) is tolled while an application for state postconviction review remains pending, including during the time to seek Supreme Court certiorari review of its denial.28 U.S.C. § 2244(d)(2)·Antiterrorism and Effective Death Penalty Act of 1996
- Whether a federal habeas court must conduct a harmless-error analysis when reviewing a capital sentencing proceeding that rested on an invalid statutory aggravating circumstance
- Whether a Federal Rule of Criminal Procedure 41(e) motion for return of seized property must be brought in the district where the property was seized or the district where the criminal proceedings occurred
- Whether a freestanding claim of actual innocence is cognizable in federal habeas corpus
- Whether a jury instruction that mandates the jury find an element the defendant has stipulated to is impermissible
- Whether an appellate remand for resentencing is limited to the specific issue that prompted the remand or permits the district court to conduct a de novo resentencing of the entire sentence
- Whether and how the exigent-circumstances exception to the Fourth Amendment's warrant requirement applies to a prolonged armed standoff
- Whether a new rule of law must be applied to a distinct, easily identifiable subset of cases pending on direct review.
- Whether an unpreserved, non-constitutional Booker sentencing error (sentencing under the then-mandatory Guidelines) satisfies plain-error review, particularly the fourth prong (fairness, integrity, or public reputation of judicial proceedings)
- Whether Apprendi requires that facts (other than a prior conviction) supporting an extended or enhanced term of imprisonment be found by a jury beyond a reasonable doubt
- Whether Apprendi's jury-trial requirement extends to factual determinations that affect the sentencing judge's discretion to impose a lesser sentence21 U.S.C. § 841(b)(1)(A)·Controlled Substances Act
- Whether a presentence investigation report (PSR) may be consulted under the Taylor-Shepard modified categorical approach to determine facts (such as the amount of loss) about a prior conviction.
- Whether a sentence imposed upon revocation of supervised release is reviewed for 'plainly unreasonableness' or for ordinary 'unreasonableness'28 U.S.C. § 994(a)(3)
- Whether a sentencing court may consider conduct underlying counts dismissed pursuant to a plea agreement when determining the defendant's sentence18 U.S.C. § 1951·Hobbs Act
- Whether a standard of proof higher than a preponderance of the evidence is required to find facts supporting a sentencing enhancement
- Whether a suspect who is barricaded or surrounded by police can 'escape' for purposes of the exigent-circumstances exception to the Fourth Amendment warrant requirement
- Whether a time period in a criminal case begins to run at the time of the sentencing hearing or at the time the judgment is entered18 U.S.C. § 3553(b)
- Whether a traffic stop ostensibly made for a minor traffic violation but actually pretextual—undertaken to investigate for contraband—can validly serve as the basis for a subsequent search under the Fourth Amendment
- Whether a trial court's failure to advise a defendant of his right to appeal is reviewed for harmless error or requires automatic relief28 U.S.C. § 2255·Antiterrorism and Effective Death Penalty Act of 1996
- Whether a trial judge's absence during the trial is structural error requiring automatic reversal or is subject to harmless-error analysis
- Whether Congress authorized a second (cumulative) punishment for the same offense, the authorization element of the Double Jeopardy multiple-punishments analysis
- Whether counts on which the jury hung (mistried counts) should be considered when analyzing the collateral-estoppel effect of an acquittal under the Double Jeopardy Clause.28 U.S.C. § 1291
- Whether deference to the issuing magistrate's probable-cause determination still applies when material portions of the warrant affidavit are stricken for intentional misrepresentation or illegality
- Whether de minimis uses of force incidental to a lawful Terry stop require probable cause under the Fourth Amendment, or whether reasonable suspicion suffices.
- Whether de novo review or deferential review applies on appeal to a trial court's decision to remove a prospective or sitting juror without conducting oral inquiry in a capital case
- Whether Federal Rule of Evidence 404(b) permits admission of the challenged other-acts evidence to prove knowledge or intent
- Whether fingerprint evidence obtained following an unlawful arrest is suppressible under the Fourth Amendment or falls within Lopez-Mendoza's 'body or identity' exception to the exclusionary rule§ 1326
- Whether, for the government to take an interlocutory appeal of a pretrial suppression order under 18 U.S.C. § 3731, it must prove that the suppressed evidence is actually material to the upcoming trial, or whether the prosecutor's certification of materiality suffices.18 U.S.C. § 3731
- Whether harmless-error analysis is available on federal habeas review where the error involves submission to the jury of an unconstitutionally vague aggravating circumstance in a capital case
- Whether multiple counts of conviction may be grouped together under the Sentencing Guidelines' grouping rules (USSG §3D1.2)18 U.S.C. § 3146(b)(2)·Bail Reform Act of 1984
- Whether physical evidence derived from a negligent (as opposed to intentional) violation of a suspect's Miranda rights must be suppressed
- Whether probable cause is determined solely by an objective test or whether the officer's subjective state of mind is also relevant
- Whether releasing a defendant on bail relinquishes a sovereign's primary jurisdiction over that defendant
- Whether relevant conduct at sentencing must be proven by clear and convincing evidence, rather than a preponderance of the evidence, when it has an extreme or disproportionate effect on the sentence§ 1505
- Whether the advance-notice requirement of Federal Rule of Criminal Procedure 32(h) and Burns v. United States applies to non-Guidelines sentences (variances)§ 3553(a)
- Whether the Blockburger same-elements test for determining if two offenses are the 'same offense' under the Double Jeopardy Clause should be given the interpretation announced by the majority18 U.S.C. § 2252A(d)·Illegal Immigration Reform and Immigrant Responsibility Act of 1996
- Whether the definition of 'actual innocence' for federal habeas relief encompasses legal innocence based on an intervening change in statutory interpretationsection 2241
- Whether the exigent-circumstances exception to the Fourth Amendment's warrant requirement, premised on a suspect's potential escape, justifies a warrantless in-home seizure or arrest of a barricaded or surrounded suspect
- Whether the existence of a circuit split, rather than a later reversal or grant of certiorari, is the controlling factor in determining whether a defendant received fair warning under the Due Process Clause.
- Whether the failure to give a lesser-included-offense instruction in a noncapital case presents constitutional error
- Whether the failure to give a lesser-included-offense instruction in a noncapital case violates the Constitution
- Whether the Fifth Amendment privilege against self-incrimination bars the prosecution from using a nontestifying defendant's post-arrest, pre-Miranda silence as substantive evidence of guilt
- Whether the Fifth Amendment privilege against self-incrimination may be invoked based on a fear of prosecution by a foreign nation
- Whether the Fourth Amendment exclusionary rule bars the admission of fingerprint (identity) evidence obtained as a result of an unlawful arrest, or whether such identity evidence is exempt from suppression under INS v. Lopez-Mendoza
- Whether the Fourth Amendment permits compulsory DNA collection from convicted offenders on parole or supervised release absent individualized suspicion
- Whether the Fourth Amendment's exigent-circumstances doctrine justifies a warrantless entry or seizure during a prolonged armed standoff, and how such exigency is to be analyzed
- Whether the 'inherent prejudice' standard governing state-sponsored courtroom practices extends to private spectator conduct (e.g., spectators wearing buttons depicting the victim) alleged to deny a criminal defendant a fair trial
- Whether the likely Sentencing Guidelines range is the appropriate starting point for analyzing the seriousness of a defendant's crime§ 1326
- Whether the 'offense' referenced in 21 U.S.C. § 851(a)(2)'s indictment-or-waiver requirement is the current offense of conviction or the prior offense used to enhance the sentence21 U.S.C. § 851(a)(2)·Controlled Substances Act
- Whether the one-year limitation period for a federal habeas petition or § 2255 motion based on a newly recognized right runs from the date the Supreme Court initially recognized the right or the date the right was made retroactively applicable to cases on collateral review§ 2255
- Whether the one-year limitation period of 28 U.S.C. § 2255(f)(3) begins to run on the date the Supreme Court initially recognizes the asserted right or the date the right is held retroactively applicable to cases on collateral review.28 U.S.C. § 2255(f)(3)·Antiterrorism and Effective Death Penalty Act of 1996
- Whether the one-year limitations period under 28 U.S.C. § 2255(f)(3) runs from the date the Supreme Court initially recognized the asserted right or from the date that right was made retroactively applicable to cases on collateral review28 U.S.C. § 2255·Antiterrorism and Effective Death Penalty Act of 1996
- Whether the operative date triggering the one-year limitations period under 28 U.S.C. § 2255(f)(4), where a federal sentence rested on a later-vacated state conviction, is the date the state conviction was actually vacated or the date the defendant learned (or with due diligence should have learned) the facts supporting his claim to vacate that conviction28 U.S.C. § 2255(f)(4)·Antiterrorism and Effective Death Penalty Act of 1996
- Whether the phrase 'imposition of sentence' refers to the oral pronouncement of the sentence or to the docket entry of the written judgment.
- Whether the pre-Olano 'manifest injustice' standard or Olano's plain-error framework governs appellate review of a forfeited error
- Whether the Sentencing Guidelines enhancement that turns on the defendant being 'in the business' applies, and which of the competing circuit tests governs that determination
- Whether the seriousness of a crime, for assessing the government's interest in involuntarily medicating a defendant to restore competency under Sell v. United States, is measured by the maximum statutory penalty or the likely Sentencing Guidelines range§ 1326
- Whether the use of a thermal imaging device to detect heat emanating from a home constitutes a "search" within the meaning of the Fourth Amendment
- Whether the U.S. Parole Commission may impose a new (subsequent) term of special parole after revoking an offender's original special parole term.28 U.S.C. § 2241·Antiterrorism and Effective Death Penalty Act of 1996
- Whether the U.S. Sentencing Guidelines are subject to void-for-vagueness challenges under the Due Process Clause
- Whether the voluntariness of a confession is reviewed de novo or under a deferential (clear-error) standard on direct appeal
- Whether time granted to a defendant to prepare pretrial motions is automatically excludable from the Speedy Trial Act's 70-day clock under 18 U.S.C. § 3161(h)(1)18 U.S.C. § 3161(h)(1)·Speedy Trial Act of 1974
- Whether time requested for preparing pretrial motions is excludable delay under the Speedy Trial Act's speedy-trial clock.18 U.S.C. § 3161(d)(1)·Speedy Trial Act of 1974
- Whether venue for a criminal offense lies in the district of the defendant's conduct or in another district under the applicable venue statute§ 924(e)(1)
- Which Fourth Amendment test applies to the challenged government conduct
civil procedure · 41 issues
- Whether a party seeking to intervene as of right under Rule 24(a) must independently satisfy Article III standing.(2)28 U.S.C. § 2348
- The scope of Rule 60(b)(4) relief for vacating a final, unappealed order as void42 U.S.C.A. § 1988
- What standard governs whether a tort claim 'relates to' or 'arises out of' a defendant's forum-state activities for purposes of specific personal jurisdiction
- Whether 28 U.S.C. § 1367 authorizes supplemental jurisdiction over the claims of additional plaintiffs or class members who do not individually satisfy the diversity amount-in-controversy requirement (i.e., whether § 1367 overruled Zahn)28 U.S.C. § 1367
- Whether 28 U.S.C. § 1927's sanctions for unreasonably and vexatiously multiplying proceedings apply to pro se litigants28 U.S.C. § 1927
- Whether 39 U.S.C. § 409 provides an independent basis for federal subject-matter jurisdiction over suits involving the United States Postal Service39 U.S.C. § 409
- Whether a court of appeals may award attorney's fees in the first instance rather than remanding to the district court
- Whether a court taking judicial notice of public records (such as SEC filings) on a Rule 12(b)(6) motion to dismiss may consider them for the truth of the matters asserted or only for the fact that the statements were publicly made15 U.S.C. § 78u-5(e)
- Whether a district court may remand a case to state court after rejecting the Attorney General's Westfall Act scope-of-employment certification and re-substituting the originally named federal-employee defendant.
- Whether a district court must make definitive findings that Rule 23's class-certification requirements are satisfied, even when those findings require resolving issues that overlap with the merits
- Whether a district court's decision whether to exercise its jurisdiction under the Declaratory Judgment Act is reviewed de novo or for abuse of discretion
- Whether a federal agency has authority under the removal statute to remove to federal court an action in which it is a partysection 1345 of title 28
- Whether a federal court sitting in diversity may itself reduce a constitutionally excessive punitive damages award to the maximum permitted by due process instead of ordering a new trial or remittitur
- Whether a federal court sitting in diversity may itself reduce a jury's award of future damages to present value (by remittitur) rather than order a new trial.
- Whether a federal court sitting in diversity may reduce or vacate a jury's punitive-damages award as a matter of law (rather than ordering a new trial) when the evidence is insufficient to support it under governing state law
- Whether a federal court sitting in diversity that finds a jury's punitive damages award unconstitutionally excessive may itself reduce the award to the maximum amount permitted by due process (remittitur) or must instead order a new trial.
- Whether a litigant who uses a peremptory challenge to remove a prospective juror the trial court erroneously refused to excuse for cause suffers a reversible impairment of the right to exercise peremptory challenges.
- Whether an order awarding attorney fees is immediately appealable as a collateral or final order separate from the merits of the underlying case
- Whether an order imposing sanctions falls within the Cohen collateral-order exception and is therefore immediately appealable under 28 U.S.C. § 129128 U.S.C. § 1291
- Whether a partial judgment is 'final' so as to vest the courts of appeals with appellate jurisdiction28 U.S.C. § 158(a) & (b)
- Whether a party who obtained a favorable judgment in the district court is sufficiently aggrieved to have standing to appeal an adverse ruling or finding underlying that judgment
- Whether Article 10(a) of the Hague Service Convention permits service of process on a foreign defendant by mail28 U.S.C. § 1292(b)
- Whether a third-party defendant may remove a case to federal court under 28 U.S.C. § 1441(c)28 U.S.C. § 1441(c)
- Whether a trial court's erroneous denial of a for-cause challenge, which a party cures by using a peremptory challenge to remove that juror, constitutes reversible error in civil cases
- Whether contractually mandated attorney's fees are to be determined by the judge or the jury
- Whether Federal Rule of Civil Procedure 4(c)(2)(C)(ii) permits service by mail on defendants residing outside the forum state when the forum state's law would not recognize such service
- Whether placing a product into the stream of commerce alone establishes the minimum contacts required for personal jurisdiction, or whether additional conduct purposefully directed at the forum state is also required (the Asahi stream-of-commerce split)15 U.S.C. § 1125(c)(1)(F)·Trademark Act of 1946 (Lanham Act)
- Whether service of process on a foreign state under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608(a), requires strict compliance or whether substantial compliance with the statutory service requirements suffices.28 U.S.C. § 1608(a)·Foreign Sovereign Immunities Act of 1976
- Whether the All Writs Act can by itself serve as a basis for removal jurisdiction28 U.S.C. § 1651(a)
- Whether the amount in controversy for federal diversity jurisdiction may be measured from the viewpoint of either party (the 'either viewpoint rule') or only from the plaintiff's viewpoint
- Whether the Brillhart discretionary abstention standard for declaratory-judgment actions remains viable in light of the more stringent Colorado River abstention doctrine
- Whether the costs of computer-based legal research (e.g., Westlaw, LexisNexis) are recoverable as part of a 'reasonable attorney's fee' rather than as non-compensable overhead or separate costs§ 1447(c)
- Whether the "ends of justice" standard governing RICO's nationwide service-of-process provision (18 U.S.C. § 1965(b)) is satisfied so as to establish personal jurisdiction over out-of-district defendants18 U.S.C. § 1965(b)·Racketeer Influenced and Corrupt Organizations Act
- Whether the filing of an interlocutory appeal under Section 16(a) of the Federal Arbitration Act automatically divests the district court of jurisdiction to proceed with the litigation pending resolution of the appeal.9 U.S.C. § 16·Federal Arbitration Act
- Whether the judge or the jury decides the disputed factual questions underlying a qualified-immunity defense in a Section 1983 action
- Whether the separate accrual rule borrowed from federal antitrust law applies to civil RICO claims, so that a new limitations period begins for each new and independent injury caused by the racketeering activity15 U.S.C. § 5·Sherman Antitrust Act
- Whether the Seventh Amendment guarantees a right to a jury trial when no legal damages claim remains to be tried.
- Whether the statute of limitations for a civil conspiracy claim begins to run upon the last overt act in furtherance of the conspiracy or upon accrual of the underlying tort§ 1983
- Whether the statutory attorney's fees provision at issue authorizes an award of attorney's fees in these circumstances16 U.S.C. § 470f
- Whether tolling of a limitations period based on fraudulent concealment is governed by state or federal law
- Which accrual rule governs the statute of limitations for a civil RICO claim
criminal law · 27 issues
- Whether 18 U.S.C. § 1028A(a)(1) aggravated identity theft requires the government to prove the defendant knew the means of identification belonged to another actual person(2)18 U.S.C. § 1028A(a)(1)
- Whether a conviction for attempted bank robbery under 18 U.S.C. § 2113(a) requires proof that the defendant actually committed an act of intimidation, or of force and violence(2)18 U.S.C. § 2113(a)
- How the scope of federal drug/contraband importation offenses should be defined21 U.S.C. § 841(a)(1)·Controlled Substances Act
- Whether 18 U.S.C. § 844(h)(2) requires that an explosive be carried 'in relation to' the underlying felony, or whether merely carrying an explosive during the commission of any felony suffices.18 U.S.C. § 844(h)(2)
- Whether 18 U.S.C. § 844(h)(2)'s prohibition on carrying an explosive during the commission of a felony requires that the explosive be carried 'in relation to' the underlying felony18 U.S.C. § 844(h)(2)
- Whether 18 U.S.C. § 875(c) (interstate transmission of a threat) is a specific-intent or general-intent crime18 U.S.C. § 875(c)
- Whether 18 U.S.C. § 922(g)(8) requires the government to prove the underlying restraining order was valid18 U.S.C. § 922(g)(8)·Brady Handgun Violence Prevention Act
- Whether 21 U.S.C. § 952(a)'s prohibition on importing controlled substances applies to the contiguous zone of the United States.19 U.S.C. § 1401(j)·Clean Air - Clean Jobs Act
- Whether a conviction for attempted bank robbery under 18 U.S.C. § 2113(a) requires proof that the defendant actually committed an act of intimidation, or of force and violence, or whether the attempt alone suffices18 U.S.C. § 2113(a)
- Whether a conviction for attempted bank robbery under 18 U.S.C. § 2113(a) requires proof that the defendant actually committed an act of intimidation, or of force and violence, rather than merely taking a substantial step toward the taking18 U.S.C. § 2113(a)
- Whether a conviction for conspiracy to obstruct justice requires that a judicial proceeding be pending at the time the defendants formed the conspiracy18 U.S.C. § 371
- Whether a federal criminal statute's interstate-commerce element requires the defendant's actual use of a facility or instrumentality of interstate commerce to itself be interstate, or whether intrastate use of an interstate facility suffices18 U.S.C. § 1958
- Whether a state or local government-issued license constitutes 'property' within the meaning of the federal mail fraud statute (18 U.S.C. § 1341)18 U.S.C. § 1341
- Whether, in determining if a certificate restoring a felon's civil rights expressly limits his right to possess firearms under 18 U.S.C. § 921(a)(20), a court may look only to the certificate itself or to the whole of state law18 U.S.C. § 921(a)(20)
- Whether RICO's interstate-commerce element requires proof that an enterprise engaged only in noneconomic criminal activity substantially affected interstate commerce, or whether the ordinary RICO commerce requirements suffice18 U.S.C. § 1962·Racketeer Influenced and Corrupt Organizations Act
- Whether RICO's interstate-commerce nexus requirement is heightened (requiring a substantial effect on interstate commerce) when the criminal enterprise engages only in noneconomic activity, or whether the statute's ordinary de minimis effect requirement still applies18 U.S.C. § 1962·Racketeer Influenced and Corrupt Organizations Act
- Whether Section 2(b)(2) requires proof of pecuniary gain as an element
- Whether the Bureau of Prisons' 2005 regulations categorically limiting a federal inmate's placement in a community corrections center (halfway house) to the final portion of the sentence are valid under 18 U.S.C. §§ 3621(b) and 3624(c).18 U.S.C. § 3621(b)
- Whether the criminal forfeiture provision of 21 U.S.C. § 853 authorizes forfeiture based on a conviction for drug conspiracy under 21 U.S.C. § 84628 U.S.C. § 994(a)
- Whether the first paragraph of 18 U.S.C. § 2113(a) (federal bank robbery) requires that the property be taken 'from the person or presence of another.'18 U.S.C. § 2113(a)
- Whether the first paragraph of the federal bank robbery statute, 18 U.S.C. § 2113(a), requires proof of specific intent to steal or is only a general-intent crime18 U.S.C. § 2113(a)
- Whether the government may enforce a criminal-forfeiture money judgment by seizing assets like any judgment creditor, or must instead proceed under the substitute-assets provisions of 21 U.S.C. § 853(p)21 U.S.C. § 853(p)·Controlled Substances Act
- Whether the later discovery and conversion of property received by mistake (without initial awareness of its amount or nature) constitutes a trespassory taking for purposes of larcenySec. 2113(b)
- Whether the money-laundering statute's concealment element (18 U.S.C. § 1956(a)(2)(B)(i)) requires proof that the cross-border transportation of funds was designed to conceal the nature, location, source, ownership, or control of the proceeds, or whether merely hiding the funds during transportation suffices18 U.S.C. § 1956(a)(2)(B)(i)·Money Laundering Control Act of 1986
- Whether the offense of operating a motor vehicle while intoxicated (DWI/DUI) qualifies as a 'crime of violence'18 U.S.C. § 16(b)
- Whether the statutory provision § 2(b)(2) requires proof of pecuniary gain as an element of the offense
- Whether the term 'cocaine base' in 21 U.S.C. § 841's statutory mandatory minimums refers only to crack cocaine or to all chemical forms of cocaine base21 U.S.C. § 841·Controlled Substances Act
criminal sentencing · 25 issues
- Whether applying 18 U.S.C. § 3583(h) (authorizing a new term of supervised release after revocation) to defendants whose underlying conviction predated the subsection's effective date violates the Ex Post Facto Clause(2)18 U.S.C. § 3583(h)
- How the disputed language of U.S. Sentencing Guidelines § 2A3 (sexual-abuse offenses) should be construed
- How the term 'underlying offense' should be interpreted under the U.S. Sentencing Guidelines§ 3582(c)(2)
- Whether a defendant's sentence may be based on relevant conduct of codefendants that occurred before the defendant joined the criminal activity
- Whether a district court is required to make express factual findings on the record regarding a defendant's ability to pay when imposing a fine18 U.S.C. § 3572(a)
- Whether a district court may sentence below a statutory mandatory minimum based solely on the government's U.S.S.G. § 5K1.1 substantial-assistance motion, absent a motion under 18 U.S.C. § 3553(e)18 U.S.C. § 3553(e)
- Whether an offense qualifies as a 'nonviolent offense' under the safety-valve/sentencing provisions turns on the categorical elements of the offense or on the defendant's actual conduct18 U.S.C. Sec. 16
- Whether an upward departure under the Sentencing Guidelines may be based on prior convictions that are both dissimilar and too old (outdated) to count in the criminal history score
- Whether Application Note 6 to the applicable U.S. Sentencing Guideline imposes a mandatory obligation on district courts.
- Whether evidence of extraordinary post-offense rehabilitation may justify a downward departure under the Sentencing Guidelines
- Whether multiple counts of conviction must be grouped together under the Sentencing Guidelines' grouping rules (U.S.S.G. §3D1.2)§ 3146(b)(2)
- Whether pretrial detention that is later credited as time served toward a sentence is imprisonment 'in connection with a conviction' that tolls the term of supervised release under 18 U.S.C. § 3624(e)18 U.S.C. § 3624(e)
- Whether the amount of 'loss' under the Sentencing Guidelines for fraud/theft offenses is measured by actual (net) loss or may be based on intended loss18 U.S.C. § 1014
- Whether the Anti-Drug Abuse Act's supervised release provisions apply to offenses committed during the one-year gap between the statutes' effective dates18 U.S.C. § 3551 et seq.
- Whether the government or the defendant bears the burden of proof under U.S.S.G. § 2D1.1 Application Note 12 regarding the defendant's capability and intent to produce a negotiated drug quantity
- Whether the language of U.S. Sentencing Guidelines § 2A3 (sexual-abuse offenses) should be interpreted as the Eleventh Circuit held in Root
- Whether the phrase 'adult sentences of imprisonment' in Application Note 7 of the Sentencing Guidelines refers to defendants who were convicted as an adult and received a sentence of imprisonment
- Whether the safety-valve provision's full-disclosure requirement obligates a defendant to proactively volunteer all information he possesses about the offense, or only information he recognizes as useful or is specifically asked about
- Whether the statutory term 'cocaine base' is limited to crack cocaine or encompasses all forms of cocaine base21 U.S.C. § 841(a)(1)·Controlled Substances Act
- Whether the U.S. Sentencing Guidelines mandate (rather than merely authorize as discretionary) a downward departure in the circumstances at issue
- Whether the U.S.S.G. § 2K2.1(b)(6) sentencing enhancement for possessing a firearm 'in connection with another felony offense' applies when the other felony is the theft of those same firearmsU.S.S.G. § 2K2.1(b)(6)
- Whether the U.S.S.G. §3B1.4 sentencing enhancement for using a minor to commit a crime applies on a strict-liability basis or requires affirmative conduct directing or involving the minor
- Whether U.S. Sentencing Guidelines § 5E1 is valid28 U.S.C. § 994 (c)(6)
- Whether U.S.S.G. § 5K1.1 alone authorizes a district court to impose a sentence below a statutory mandatory minimum for substantial assistance, or whether a government motion under 18 U.S.C. § 3553(e) is required.18 U.S.C. § 3553(e)
- Whether, when a defendant submits a written proffer and offers to provide additional information if needed, the government has a duty to interview the defendant in order for the safety-valve's full-disclosure requirement to be satisfied.
bankruptcy law · 25 issues
- Whether 11 U.S.C. § 365(c)(1) should be applied literally (the 'hypothetical test'), barring a debtor in possession from assuming an executory contract whenever applicable law would excuse the counterparty from accepting performance from a third party, or interpreted pragmatically (the 'actual test').11 U.S.C. § 365(c)(1)
- Whether § 1322(b)(2)'s anti-modification protection bars a Chapter 13 debtor from stripping off a wholly undersecured (valueless) junior mortgage or lien on the debtor's principal residence§ 1322(b)(2)
- Whether 28 U.S.C. § 1452(b) precludes appellate review only of bankruptcy remand orders decided on equitable rather than jurisdictional grounds28 U.S.C. § 1452(b)
- Whether a bankruptcy trustee may be held liable for ordinary negligence or only for willful and deliberate breaches of fiduciary duty (the proper standard of care governing a trustee)11 U.S.C. § 704
- Whether a creditor's self-interest is relevant to the substantial-contribution analysis for an administrative-expense claim under Bankruptcy Code § 503(b)§ 503(b)
- Whether actions taken in violation of the bankruptcy automatic stay are void or merely voidable11 U.S.C. § 362(a)(6) (1988)
- Whether a debt arising from a settlement agreement or consent judgment that resolves fraud allegations remains nondischargeable in bankruptcy under 11 U.S.C. § 523(a)(2)(A) as a debt for money obtained by fraud11 U.S.C. § 523
- Whether a 'defalcation' excepting a debt from discharge under Bankruptcy Code § 523(a)(4) can arise from mere negligence, or requires a higher mental state such as intent or recklessness§ 523(a)(4)
- Whether a mortgage refinancing transaction is avoidable as a preferential transfer under 11 U.S.C. § 547, or is shielded by the earmarking doctrine because the new lender's funds merely replaced the prior mortgagee11 U.S.C. § 547
- Whether and to what extent Bankruptcy Code § 349(a) empowers bankruptcy courts to enjoin a debtor's future bankruptcy filings11 U.S.C. § 105
- Whether and under what standard student-loan debt may be discharged for undue hardship under 11 U.S.C. § 523(a)(8), including whether a bankruptcy court may grant a partial dischargesection 158(d)
- Whether an employer's unpaid workers' compensation insurance premiums qualify as 'contributions to an employee benefit plan' entitled to priority under 11 U.S.C. § 507(a)(5) in bankruptcy11 U.S.C. § 507(a)(4)
- Whether claims for unpaid workers' compensation insurance premiums qualify for priority status as contributions to an employee benefit plan under Bankruptcy Code § 507(a).28 U.S.C. § 158(d)
- Whether collateral a debtor retains is valued at fair-market value or foreclosure value under 11 U.S.C. § 506(a)11 U.S.C. § 506(a)
- Whether due process entitles a creditor to the heightened notice provided by the Bankruptcy Code and Rules, rather than merely constitutionally adequate notice.§ 523(a)(8)
- Whether due process entitles a student loan creditor to the heightened notice provided for by the Bankruptcy Code and Rules before its debt may be discharged§ 523(a)(8)
- Whether provisions of the Bankruptcy Code governing the commencement of proceedings (e.g., the involuntary-petition requirements of 11 U.S.C. § 303) are grants of subject matter jurisdiction rather than non-jurisdictional prerequisites.11 U.S.C. § 303(b)
- Whether subrogation in bankruptcy is governed exclusively by 11 U.S.C. § 509, or whether a party seeking subrogation under § 509 must also satisfy the traditional five-part equitable subrogation test11 U.S.C. § 509
- Whether the automatic stay triggered by one asbestos co-defendant's bankruptcy extends to bar or requires managing continued litigation against the non-debtor solvent co-defendantssection 105(a)
- Whether the discharge exception in 11 U.S.C. § 523(a)(2)(A) for debts obtained by fraud extends beyond the actual value the debtor obtained to encompass all liability arising from the fraud, including treble/punitive damages and attorney's fees11 U.S.C. § 523(a)(2)(A)
- Whether the 'excusable neglect' standard from the Federal Rules of Procedure may be transplanted to govern the timeliness of a bankruptcy filing deadline
- Whether the requirements of Bankruptcy Code § 303(b) for an involuntary petition are jurisdictional prerequisites that convey subject-matter jurisdiction on the bankruptcy court, or merely substantive elements that petitioning creditors must prove or that can be waived11 U.S.C. § 303(c)
- Whether the restriction in 11 U.S.C. § 524(e) precludes a bankruptcy court from discharging or releasing the liabilities of non-debtor third parties11 U.S.C. § 541(c)(2)
- Whether the 'restriction on the transfer' of a debtor's beneficial interest under 11 U.S.C. § 541(c)(2) excludes that interest (e.g., an ERISA-qualified pension) from property of the bankruptcy estate11 U.S.C. § 541(c)(2)
- Whether the three-year lookback period in Bankruptcy Code § 507(a)(8)(A)(i), which controls the nondischargeability of priority tax debts under § 523(a)(1)(A), is suspended (tolled) during the pendency of a prior bankruptcy case§ 523(a)(1)(A)
immigration law · 25 issues
- What standard governs an immigration judge's decision to grant or deny a continuance in removal proceedings
- Whether AEDPA § 440(d)'s bar on discretionary relief from deportation under INA § 212(c) applies retroactively to aliens whose convictions or deportation proceedings predate AEDPA's enactment
- Whether AEDPA and IIRIRA eliminated federal habeas corpus jurisdiction to review removal orders against aliens convicted of felonies
- Whether a motion to reopen is a new proceeding or a continuation of the original deportation proceedings8 U.S.C. §§ 1252 (b)(2) & (9)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether an alien persecuted based purely on economic actions taken by private-sector (non-governmental) actors is eligible for asylum
- Whether an alien persecuted based purely on economic actions taken in the private sector is eligible for asylum
- Whether an alien's failure to file a timely asylum application can be excused, or whether the one-year filing deadline and its exceptions are subject to judicial review.
- Whether an alien who is persecuted based purely on economic actions taken by private actors is eligible for asylum
- Whether an alien who is persecuted based purely on economic actions taken in the private sector (as opposed to governmental or political persecution) is eligible for asylum
- Whether an applicant's spouse (or partner) is automatically eligible for asylum as a refugee based on the other partner's forced abortion or sterilization under the coercive-population-control provision of the asylum statute8 U.S.C. § 1101(a)(42)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether an applicant's spouse (or partner) is automatically eligible for asylum as a refugee based on the spouse's forced abortion or sterilization under a coercive population-control program.8 U.S.C. § 1101(a)(42)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether a state conviction for a second or subsequent simple drug-possession offense qualifies as an aggravated felony (drug-trafficking crime) under the INA when the recidivist enhancement was neither charged nor adjudicated in state court§ 1252(a)(2)(D)
- Whether a tax offense other than tax evasion under 26 U.S.C. § 7201 (e.g., filing a false return under § 7206) can qualify as an 'aggravated felony' under the INA's general fraud-or-deceit provision, 8 U.S.C. § 1101(a)(43)(M)(i), given that § 1101(a)(43)(M)(ii) separately names § 7201 tax evasion.
- Whether courts may recognize an equitable (e.g., nunc pro tunc) exception to the statutory five-year bar on relief from removal for noncitizens convicted of aggravated felonies
- Whether federal courts have jurisdiction to review the denial of an application for adjustment of status, given that the INA defines eligibility to apply but vests the Attorney General with unreviewable discretion over the applications§ 1255(a)
- Whether federal courts of appeals have jurisdiction to review an agency's 'changed circumstances' determination excusing the untimely filing of an asylum application under 8 U.S.C. § 1158(a)(2)(D)8 U.S.C. § 1158(a)(2)(D)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether the administrative-exhaustion requirement for judicial review of a removal order is satisfied when the Board of Immigration Appeals addresses an issue sua sponte that the petitioner failed to raise before the agency§ 1252(d)(1)
- Whether the Attorney General may be named as the respondent to an immigrant's habeas corpus petition, rather than the immediate physical custodian of the detainee
- Whether the BIA, in determining whether an alien's prior conviction is a removable offense under the INA, may rely only on information in the record of conviction that would be permissible under the Taylor-Shepard categorical approach8 U.S.C. § 1101(a)(43)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether the BIA's sua sponte consideration of an issue not raised by the parties requires a per se finding that it failed to adequately consider the petitioner's claims and compile a record adequate for judicial review§ 1252(d)(1)
- Whether the provisions of 8 U.S.C. § 1231(b)(2)(E) for designating alternate countries of removal require the government to proceed sequentially through the statutory list or permit discretionary selection among the listed alternatives8 U.S.C. § 1231(b)(2)(E)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether the reinstatement-of-removal statute (8 U.S.C. § 1231(a)(5)) is ambiguous such that Chevron deference is owed to the agency's regulation implementing it8 U.S.C. § 1252(f)·Immigration and Nationality Act of 1952 (McCarran-Walter)
- Whether the spouse or partner of a person subjected to a forced abortion or sterilization is automatically eligible for refugee/asylum status under the coercive-population-control provision of INA § 101(a)(42)
- Whether the spouse or unmarried partner of a person subjected to a forced abortion or sterilization is automatically eligible for asylum as a refugee under the coercive-population-control provision of 8 U.S.C. § 1101(a)(42).§ 101(a)(42)
- Whether the statutory deadline for filing a motion to reopen to rescind an in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C)(i) is subject to equitable tolling8 U.S.C. § 1229a(b)(5)(C)(i)
employment law · 18 issues
- Whether the term 'employees' in Title VII's anti-retaliation provision (§ 704(a)) includes former employees, permitting a former employee to sue for post-employment retaliation(2)42 U.S.C. § 2000e-3(a)
- Whether § 206(d)(1) authorizes an award of restitution to victims of the prohibited conduct, deferring to the agency's interpretation of the statute18 U.S.C.A. § 3663(g)
- Whether a filing satisfies the minimum requirements to constitute a 'charge' of discrimination under federal employment-discrimination statutes
- Whether an employer violates the Pregnancy Discrimination Act by calculating pension or retirement benefits using pre-PDA accrued service credit that awarded less credit for pregnancy-related leave than for other medical leave§ 2000e-5(e)(2)
- Whether a retaliatory hostile work environment (co-worker retaliatory harassment) is actionable as an adverse action under Title VII's anti-retaliation provision.42 U.S.C. § 2000e-3(a)
- Whether courts should defer to the agency's reasonable interpretation of the Equal Pay Act, 29 U.S.C. § 206(d)(1), in construing that provision18 U.S.C.A. § 3663(g)
- Whether FLSA § 203(y)'s definition of an 'employee in fire protection activities' requires the employee to have an actual responsibility to engage in fire suppression29 U.S.C. § 201 et seq.
- Whether nominal damages are available as relief under Title VII
- Whether respondeat superior liability requires active and knowing participation by the principal for an agent's conduct to be imputed to it.
- Whether the Fair Labor Standards Act's anti-retaliation provision protecting an employee who has 'filed any complaint' reaches internal or oral complaints made to an employer, or requires a formal complaint filed with a court or government agency29 U.S.C. § 215(a)(3)
- Whether the FLSA exempts time spent by employees donning and doffing required protective or sanitary gear as non-compensable 'changing clothes' under § 203(o), or whether such activities are compensable principal activities
- Whether Title II of the Americans with Disabilities Act applies to employment discrimination claims, or whether such claims are governed exclusively by Title I42 U.S.C. § 12132·Americans with Disabilities Act of 1990
- Whether Title II of the Americans with Disabilities Act provides a cause of action for employment discrimination by public entities
- Whether Title VII's anti-retaliation provision is limited to 'ultimate employment decisions' or reaches a broader range of adverse employer actions42 U.S.C. § 2000e-5(k)
- Whether Title VII's mixed-motive same-decision defense under 42 U.S.C. § 2000e-5(g)(2)(B) limits the remedies available when an employer proves it would have taken the same action absent the discriminatory motive42 U.S.C. § 1983·Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)
- Whether Title VII's mixed-motive same-decision provision, 42 U.S.C. § 2000e-5(g)(2)(B), applies to discrimination claims brought under 42 U.S.C. § 198142 U.S.C. § 1981·Civil Rights Act of 1866
- Whether Title VII's prohibition on sex discrimination encompasses same-sex sexual harassment
- Whether, under the WARN Act's unforeseeable-business-circumstances exception, an employer that gave deficient or no advance notice is fully liable for the entire 60-day period (all-or-nothing) or may reduce its liability by the notice actually provided29 U.S.C. § 2102(b)(3)·Worker Adjustment and Retraining Notification Act
constitutional law · 15 issues
- Whether Title II of the ADA is a valid exercise of Congress's Fourteenth Amendment § 5 enforcement power that abrogates state Eleventh Amendment sovereign immunity(2)
- Whether a licensing scheme for sexually oriented businesses satisfies the First Amendment only by guaranteeing a prompt judicial decision on the merits, or merely by affording prompt access to judicial review
- Whether a municipality's inclusion of religious symbols in its official seal violates the Establishment Clause
- Whether an adult-business ordinance survives First Amendment scrutiny under Alameda Books Step 1 only if the municipality shows its pre-enactment evidence fairly supports the rationale for the ordinance, and how demanding that evidentiary burden is
- Whether a plaintiff has standing to bring an Eighth Amendment challenge to an ordinance criminalizing involuntary conduct or status arising from homelessness (e.g., sleeping in public when no shelter is available).
- Whether a public-university professor can have a constitutionally protected property interest (legitimate claim of entitlement) in continued employment based on an informal, unwritten tenure policy when a contrary formal policy exists.
- Whether inmates retain a constitutional right to privacy in their medical information while incarcerated
- Whether random, suspicionless drug testing of public school students who participate in competitive extracurricular activities violates the Fourth Amendment
- Whether res judicata and collateral estoppel bar a federal Takings Clause claim that the plaintiff was required to litigate first in state court to satisfy ripeness
- Whether suspicionless, random drug testing of public school students who participate in competitive extracurricular activities violates the Fourth Amendment
- Whether the evidentiary burden a municipality must satisfy at Alameda Books Step 1 to justify a secondary-effects zoning ordinance regulating adult businesses requires more than reliance on studies or foreign evidence not tailored to the locality
- Whether the First Amendment protects a public employee from employer discipline for speech made pursuant to the employee's official job duties
- Whether the First Amendment's Elrod-Branti bar on patronage dismissals protects deputy sheriffs and other sheriff's-office employees, or whether such positions are policymaking/confidential roles exempt from that protection
- Whether the government's transfer of public land bearing a religious display (a Latin cross) to a private party remedies an Establishment Clause violation
- Whether the National Endowment for the Arts' statutory 'decency and respect' criterion for awarding arts grants violates the First Amendment.
civil rights law · 12 issues
- Whether a 42 U.S.C. § 1983 false-arrest claim accrues (starting the statute of limitations) at the time of the arrest or only when the related criminal proceedings terminate42 U.S.C. § 1983·Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)
- Whether a Bivens damages action for constitutional violations may be brought against employees of a privately operated federal prison§ 1983
- Whether a police officer is entitled to qualified immunity for using deadly force against a suspect fleeing in a vehicle who may pose a danger to others
- Whether a police officer's use of deadly force to stop a fleeing suspect who poses a potential danger to others violates the Fourth Amendment reasonableness standard of Tennessee v. Garner
- Whether a police officer's use of deadly force to stop a suspect fleeing in a vehicle who may endanger others violates the Fourth Amendment
- Whether a state's acceptance of federal funds effects a valid waiver of Eleventh Amendment sovereign immunity from private suit under Section 504 of the Rehabilitation Act pursuant to Congress's Spending Clause power§ 2000d-7
- Whether courts may award attorney fees under 42 U.S.C. § 198842 U.S.C.A. § 1988
- Whether local (municipal or regional) legislators are entitled to absolute legislative immunity from § 1983 liability for their legislative acts§ 1983
- Whether persons with disabilities constitute a protected class under 42 U.S.C. § 1985(3)42 U.S.C. § 1985(3)
- Whether the 1991 amendments to 42 U.S.C. § 1981 overruled Jett v. Dallas Independent School District by creating a direct private right of action against state actors, or whether § 1983 remains the exclusive remedy42 U.S.C. § 1981·Civil Rights Act of 1866
- Whether the degree of force used by an officer was objectively reasonable under the Fourth Amendment given the threat posed by a fleeing suspect
- Whether the Due Process Clause recognizes a 'state-created danger' theory of substantive due process liability under 42 U.S.C. § 1983 (an exception to DeShaney's no-duty-to-protect rule)42 U.S.C. § 1983·Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)
environmental law · 9 issues
- Whether an award of attorney fees under the Clean Air Act's citizen-suit fee provision is appropriate when the prevailing party brought the suit for personal financial gain rather than to further the purpose of the Act42 U.S.C. § 7604(a)(1)
- Whether, and under what privity analysis, an EPA-negotiated consent decree has claim-preclusive effect on a prior-filed Clean Water Act citizen suit.33 U.S.C. § 1251(a)
- Whether and with what degree of evidentiary specificity a defendant must prove the divisibility of harm to apportion CERCLA liability among potentially responsible parties
- Whether a party that merely sells a useful product can be held liable as an 'arranger' for the disposal of hazardous substances under CERCLA § 107(a)(3)CERCLA § 107(a)(3)
- Whether apportioning CERCLA liability among potentially responsible parties requires a specific evidentiary showing or a reasonable basis, and what degree of proof establishes each PRP's apportioned share
- Whether a successor corporation may be held liable under CERCLA based on the federal common-law 'substantial continuity' (continuity of enterprise) test rather than traditional corporate successor-liability rules29 U.S.C. § 626 (f)·Age Discrimination in Employment Act of 1967
- Whether Section 7(a)(2) of the Endangered Species Act itself authorizes and requires federal agencies to protect listed species from jeopardy caused by their own actions
- Whether the Rapanos plurality opinion or Justice Kennedy's 'significant nexus' concurrence supplies the controlling definition of 'waters of the United States' (navigable waters) under the Clean Water Act
- Whether the Supreme Court's decision in SWANCC modified the holding of Riverside Bayview Homes so as to limit Clean Water Act jurisdiction over wetlands adjacent to navigable waters
civil rights · 6 issues
- Whether an officer's use of deadly force against a fleeing suspect is objectively reasonable under the Fourth Amendment(2)
- Whether an officer's use of deadly force against a fleeing suspect is objectively reasonable under the Fourth Amendment as governed by Tennessee v. Garner
- Whether a police officer is entitled to qualified immunity for using deadly force against a fleeing suspect who may pose a danger to others
- Whether a police officer's use of deadly force to prevent a fleeing suspect's escape by vehicle is objectively reasonable under the Fourth Amendment as construed in Tennessee v. Garner
- Whether Congress intended rights under the Individuals with Disabilities Education Act (IDEA) to be enforceable through 42 U.S.C. § 198342 U.S.C. § 1983·Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)
- Whether the substantive due process right of a student in state custody at a residential school to be protected from harm was clearly established for purposes of qualified immunitysection 1983
tax law · 7 issues
- Whether a court of appeals should apply less-than-clearly-erroneous (reduced) deference to the Tax Court's findings of fact on appeal
- Whether additional amounts (interest) accruing on deferred compensation are deductible when they accrue as interest under I.R.C. § 163 or are deferred until paid as compensation under I.R.C. § 404(a)(5)
- Whether amounts received in settlement of ERISA benefit claims are excludable from gross income under IRC § 104(a)(2) as damages received on account of personal injuries29 U.S.C. § 1132(g)(2)(E)·Employee Retirement Income Security Act of 1974
- Whether a railroad that obtains interim equitable relief under the 4-R Act is relieved of its obligation to pay statutory interest or penalties on the disputed tax49 U.S.C. § 11503
- Whether a tax court's determination that a taxpayer intended a payment as debt or equity is reviewed as a question of fact (for clear error) or a question of law (de novo)IRC § 165(g)(3)
- Whether the portion of a taxable litigation recovery paid to an attorney under a contingent-fee agreement is included in the plaintiff's gross income26 U.S.C. § 61(a)
- Whether the three-year limitations period for tax refund claims under 26 U.S.C. § 6511(a) applies only to timely-filed returns26 U.S.C. § 6511(a)
administrative law · 6 issues
- Whether a Medicare provider seeking judicial review of a reimbursement determination must satisfy a presentment or exhaustion requirement (or how the relevant Medicare reimbursement provision is interpreted) as adopted by the First Circuit42 U.S.C. § 1395oo(a)
- Whether an agency affidavit invoking FOIA Exemption 7(A) must make a specific showing that disclosure would interfere with enforcement proceedings, or whether a lesser/more categorical showing suffices5 U.S.C. § 552(b)(7)(A)·Freedom of Information Act
- Whether a revised Notice of Program Reimbursement (NPR) qualifies as a 'final determination' subject to judicial review under the Medicare Act42 U.S.C. § 1395oo(a)
- Whether the Federal Advisory Committee Act's 'fairly balanced' membership requirement is subject to judicial review.5 U.S.C. § 706(2)(A)
- Whether the HCDA provides a private right of action28 U.S.C. § 1447(d)
- Whether the USDA's construction of the Horse Protection Act imposing liability on a horse's owner regardless of the owner's knowledge that the horse was sored is a reasonable interpretation entitled to deference§ 1824(2)(D)
civil rico · 6 issues
- Whether disgorgement of ill-gotten gains is an available remedy under civil RICO's § 1964(a), which authorizes only forward-looking equitable relief to prevent future violations18 U.S.C. § 1961·Racketeer Influenced and Corrupt Organizations Act
- Whether district courts may order disgorgement as a remedy for civil RICO violations under 18 U.S.C. § 1964(a)18 U.S.C. § 1964(a)·Racketeer Influenced and Corrupt Organizations Act
- Whether economic harms such as lost employment or business opportunities flowing from a personal injury or wrongful deprivation of liberty constitute an injury to 'business or property' conferring standing under civil RICO, 18 U.S.C. § 1964(c).18 U.S.C. § 1964(c)·Racketeer Influenced and Corrupt Organizations Act
- Whether the loss of employment (lost wages/livelihood) constitutes an injury to 'business or property' actionable under RICO's civil cause of action, 18 U.S.C. § 1964(c)18 U.S.C. § 1964(c)·Racketeer Influenced and Corrupt Organizations Act
- Whether the loss of employment or an employment/business expectancy constitutes an injury to 'business or property' sufficient to confer standing for a civil RICO claim under 18 U.S.C. § 1964(c).18 U.S.C. § 1964(c)·Racketeer Influenced and Corrupt Organizations Act
- Whether the loss of employment or business opportunities constitutes an injury to 'business or property' sufficient to confer standing under civil RICO, 18 U.S.C. § 1964(c)18 U.S.C. § 1964(c)·Racketeer Influenced and Corrupt Organizations Act
copyright law · 6 issues
- Whether affixing a lawfully made copy of a copyrighted work onto a new medium, such as mounting artwork on ceramic tile, creates a derivative work under the Copyright Act17 U.S.C. § 106A
- Whether affixing a lawfully purchased copy of a copyrighted work onto a new medium, such as a ceramic tile, creates an infringing derivative work under the Copyright Act17 U.S.C. § 106A
- Whether statutory successors to the renewal copyright in a pre-existing work under § 24 can deprive the owner of a derivative work's copyright of the right to continue exploiting that derivative work§ 24
- Whether the scènes à faire (and merger) doctrine should be applied at the copyrightability stage or at the infringement/substantial-similarity stage of a copyright analysis
- Whether the scenes à faire doctrine bars copyright protection for elements of a computer program dictated by external constraints
- Whether the statutory successor to a pre-existing work's renewal copyright can bar continued exploitation of a derivative work that was licensed during the original copyright term§ 7
antitrust law · 5 issues
- Whether a plaintiff must prove competitive injury to establish a violation of Sections 2(d) and 2(e) of the Robinson-Patman Act governing discriminatory promotional allowances and services
- Whether a state's conduct under the tobacco Master Settlement Agreement is entitled to Parker state-action immunity from federal antitrust liability
- Whether monopoly leveraging—using monopoly power in one market to gain a competitive advantage in a second market—is an independent claim under Section 2 of the Sherman Act (15 U.S.C. § 2)15 U.S.C. § 2·Sherman Antitrust Act
- Whether proof of the relevant market is required to establish a conspiracy to monopolize claim under Section 2 of the Sherman Act15 U.S.C. § 2·Sherman Antitrust Act
- Whether the non-statutory labor exemption from federal antitrust law immunizes restraints whose only alleged anti-competitive effect is on a labor market organized around a collective bargaining relationship, and whether Connell/Jewel Tea/Pennington/Allen Bradley fix the exemption's boundaries in that setting
employee benefits law · 5 issues
- Whether a corporate officer or director acting on behalf of a corporation that is the named ERISA plan fiduciary is himself acting in a fiduciary capacity under ERISA§ 409(a)
- Whether an ERISA benefit determination made by an entity that is not the fiduciary actually vested with discretionary authority (e.g., a non-fiduciary delegatee) is entitled to deferential arbitrary-and-capricious review rather than de novo review.
- Whether an ERISA claimant must establish reliance and/or prejudice to recover based on conflicting terms in a Summary Plan Description (SPD)
- Whether an ERISA plan fiduciary seeking reimbursement from a beneficiary who holds funds recovered from a third party in an identifiable fund is seeking 'equitable relief' under § 502(a)(3) of ERISA§ 502(a)(3) of ERISA
- Whether an ERISA plan fiduciary's suit to enforce a plan reimbursement provision against a beneficiary's third-party recovery seeks 'appropriate equitable relief' within the meaning of ERISA § 502(a)(3).ERISA § 502(a)(3)
arbitration law · 4 issues
- Whether a court of appeals has appellate jurisdiction under FAA § 16(a)(1)(A) or (B) to review an order denying a motion to stay litigation or compel arbitration9 U.S.C. § 16(a)(1)(C)·Federal Arbitration Act
- Whether a court of appeals has jurisdiction under Section 16(a)(1)(A) of the Federal Arbitration Act to review the denial of a motion to stay litigation pending arbitration when the movant is a non-signatory to the arbitration agreement28 U.S.C. § 1291
- Whether a party seeking to vacate an arbitration award for fraud under the Federal Arbitration Act must prove the fraud by clear and convincing evidence
- Whether class-action waivers contained in arbitration clauses are enforceable
erisa / employee benefits law · 4 issues
- Whether a claim for reimbursement of benefits paid by an ERISA plan qualifies as 'appropriate equitable relief' under ERISA § 502(a)(3)
- Whether an ERISA plan fiduciary seeking reimbursement from a beneficiary's identifiable fund holding a third-party recovery is seeking 'equitable relief' under ERISA § 502(a)(3).§ 502(a)(3) of ERISA
- Whether an ERISA plan's subrogation provision must contain specific or unambiguous language to override the default make-whole doctrine
- Whether the Supreme Court's decision in Mertens v. Hewitt Associates limits recovery under ERISA § 502(a)(3) to traditional equitable relief, thereby precluding compensatory or extracontractual money damages.29 U.S.C. § 1132(g)(2)(E)·Employee Retirement Income Security Act of 1974
evidence law · 4 issues
- Whether a defendant's offer to stipulate to his status as a convicted felon precludes the prosecution from introducing evidence of the specific nature of the prior felony conviction.§ 922(g)
- Whether polygraph examination evidence is admissible at trial
- Whether the appropriate standard for admitting reverse Rule 404(b) evidence (a defendant's evidence of a third party's other acts offered to show the defendant's innocence) differs from the standard governing ordinary prosecution Rule 404(b) evidence.
- Whether there is a dangerous-patient exception to the federal psychotherapist-patient privilege
education law · 3 issues
- Whether a school district may be held liable under Title IX for student-on-student (peer) sexual harassment.
- Whether the rights created by the Individuals with Disabilities Education Act (IDEA) are enforceable through a private action under 42 U.S.C. § 198342 U.S.C. § 1983·Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)
- Which statute of limitations governs a civil action brought under the Individuals with Disabilities Education Act when the Act itself provides none.20 U.S.C. §§ 1400 et seq.
intellectual property law · 3 issues
- Whether the copyright merger doctrine—under which expression inseparable from an idea is unprotectable—operates as a limit on copyrightability or instead as an affirmative defense to infringement17 U.S.C. 1201(a)(1)(A)
- Whether the equitable doctrine of laches may bar a copyright infringement claim filed within the statute of limitations
- Whether the requirement that infringing conduct occur within the United States is a limitation on subject-matter jurisdiction or an element of the infringement claim on the merits
sentencing law · 3 issues
- Whether § 401(c) of the Controlled Substances Act (21 U.S.C. § 841(c)) authorizes the United States Parole Commission to impose a new special parole term after it revokes the offender's original special parole21 U.S.C. § 841(c)·Controlled Substances Act
- Whether multiple counts of conviction should be grouped together under the U.S. Sentencing Guidelines' grouping-of-counts rules18 U.S.C. § 3146(b)(2)·Bail Reform Act of 1984
- Whether the 'use of physical force' element of a crime of violence under the Sentencing Guidelines requires intentional use of force (a mens rea of intent) rather than mere recklessness or negligence§ 16(a)
civil forfeiture · 2 issues
- Whether and how the willful-blindness standard applies to the knowledge element in civil forfeiture proceedings§ 881(a)(4)(C)
- Whether CAFRA's heightened burden of proof on the government applies retroactively to civil forfeiture proceedings that were already pending when the statute took effect18 U.S.C. § 983(d)
commercial law · 2 issues
- Whether a security agreement must explicitly refer to after-acquired property (i.e., contain an after-acquired property clause) for a security interest to attach to such property11 U.S.C. § 363(m)
- Whether a security interest in inventory or receivables automatically extends to after-acquired inventory or receivables absent an after-acquired property clause
disability law · 2 issues
- Whether ADA Standard 4.33.3's requirement that wheelchair-accessible seating provide 'lines of sight comparable to those for members of the general public' mandates comparable viewing angles (not merely an unobstructed view) in stadium-style movie theaters5 U.S.C. § 553(b)(A)·Administrative Procedure Act of 1946
- Whether Title II of the Americans with Disabilities Act applies to employment discrimination claims42 U.S.C. § 12132·Americans with Disabilities Act of 1990
federal jurisdiction · 2 issues
- Whether 39 U.S.C. § 409(a) of Title 39 independently confers subject-matter jurisdiction on federal district courts over claims brought by or against the Postal Service39 U.S.C. § 401(1)
- Whether the amount in controversy for federal jurisdiction may be measured from the viewpoint of either party (the 'either viewpoint rule') or only from the plaintiff's viewpoint
federal sentencing · 2 issues
habeas corpus · 2 issues
- Whether AEDPA's one-year habeas limitations period is tolled while a petition for certiorari to the U.S. Supreme Court seeking review of a state court's denial of post-conviction relief is pending28 U.S.C. § 2254·Antiterrorism and Effective Death Penalty Act of 1996
- Whether Federal Rule of Civil Procedure 15(c)(2)'s relation-back provision applies to amendments to pleadings in collateral attacks on a conviction (e.g., 28 U.S.C. § 2255 motions).28 U.S.C. § 2255·Antiterrorism and Effective Death Penalty Act of 1996
labor law · 2 issues
- Whether § 301 of the Labor Management Relations Act preempts a state-law employment claim (e.g., discrimination or retaliatory discharge) brought by an employee covered by a collective bargaining agreement.§ 1445(c)
- Whether Section 301 of the Labor Management Relations Act preempts a state-law retaliatory discharge claim that does not require interpretation of a collective bargaining agreement28 U.S.C. § 1445(c)
securities law · 2 issues
- Whether section 14(d)(7) of the Securities Exchange Act (Williams Act) creates an implied private right of action15 U.S.C. § 78n(d)(6), (7)
- Whether the choice-of-law and forum-selection clauses in Lloyd's of London contracts are enforceable notwithstanding the anti-waiver provisions of the federal securities laws
trademark law · 2 issues
- Whether a district court's likelihood-of-confusion determination in a trademark infringement case is a question of fact reviewed for clear error or a question of law reviewed de novo
- Whether a party asserting a trademark must prove the mark is nonfunctional or whether the party seeking to invalidate the mark must prove it is functional15 U.S.C. § 1125(a)·Trademark Act of 1946 (Lanham Act)
admiralty and maritime law · 1 issue
aviation law · 1 issue
civil forfeiture law · 1 issue
civil litigation · 1 issue
civil remedies · 1 issue
civil rights litigation · 1 issue
commodities regulation · 1 issue
commodity futures regulation · 1 issue
communications law · 1 issue
consumer protection law · 1 issue
contracts law · 1 issue
criminal forfeiture · 1 issue
defamation law · 1 issue
disability rights law · 1 issue
fair housing law · 1 issue
false claims act litigation · 1 issue
- Whether and how the False Claims Act's qui tam jurisdictional bar applies — the meaning of the public-disclosure/original-source provisions' terms 'based upon,' 'public disclosure,' 'allegations or transactions,' 'original source,' 'direct and independent knowledge,' and 'information' (31 U.S.C. § 3730(e)(4)).31 U.S.C. § 3730(e)(4)(A)·False Claims Act