Here are a few recent articles analyzing issues on which the circuit courts are split for your reading pleasure:
- Michael Tudor & Richard A. Bales, You Say Stay: Staying District Court Proceedings Pending Faa § 16(A) Appeals, 64 S.C. L. Rev. ___ (forthcoming 2012) (SSRN).
Abstract: In 1988 Congress amended the Federal Arbitration Act (FAA) and adopted § 16 governing the appeal of arbitrability decisions as part of the Judicial Improvements and Access to Justice Act. The purpose of the amendment was to ensure that the process of appealing arbitrability determinations does not delay entry into arbitration. Section 16(a) allows an immediate appeal from an anti-arbitration decision while 16(b) precludes an appeal when the decision is in favor of arbitration. However, it does not specify whether district court proceedings must be stayed pending appeal. A circuit split has developed with the majority of circuits concluding that non-frivolous appeals divest the district court of jurisdiction resulting in an automatic stay of proceedings pending appeal. A minority of circuits have concluded that arbitrability appeals do not divest the district court of jurisdiction and the court has discretion of whether to stay proceedings. This article will analyze four central issues that courts address when considering whether to issue a stay pending appeal from a denial of arbitration: the text and purpose of § 16, jurisdiction, analogy to double jeopardy and immunity, and the policy concern of frivolous appeals. This article argues that courts should impose an automatic stay because that approach is most consistent with the text and purpose of the FAA, because it is most consistent with Supreme Court precedent, and because it best effectuates the policy concerns of preventing frivolous appeals and effectuating the intent of signatories to arbitration agreements.
- Danielle Acker Susanj, Should Padilla Be Retroactive?, Working Paper (May 4, 2012) (SSRN).
Abstract: When the Supreme Court decided Padilla v. Kentucky in 2010, it declared that defense lawyers had a duty to inform criminal defendants what the removal consequences of pleading guilty could be, if those consequences were clear. The Padilla majority asserted that the decision would not open the “floodgates” to new claims of ineffective assistance of counsel. Yet if there has not been a flood of cases, there has certainly been a growth of confusion as courts have struggled to determine exactly how far and to whom the gates were opened — does Padilla only apply to criminal cases on direct review and to the behavior of defense lawyers going forward, or do offenders whose convictions were final before Padilla also receive its protection? The answer has split the federal circuit courts and state courts that have considered it, leading the Supreme Court recently to grant certiorari on this difficult issue. The Court’s jurisprudence, the purposes of post-conviction review, and the practical consequences point in various directions on the question of retroactively applying the Padilla rule. The divided arguments and the rule from a divided Court suggest that a divided approach might be the best way forward.
- Laura Jean Eichten, A Felony, I Presume?: 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings, Working Paper (Apr. 25, 2012) (SSRN).
Abstract: This Comment comprises four parts. In Part I, I provide an overview of the immigration law on cancellation of removal and the challenges in defining “aggravated felony.” I include a detailed discussion of the approaches for dealing with the translation of state law convictions into federal crimes. In Part II I explain the intricacies of the Controlled Substances Act, which, as will be seen in Part III, further complicates the already-complicated process of defining an “aggravated felony.” In Part III I delve into the circuit split surrounding how specifically to analogize state law drug convictions to the misdemeanor provision in the CSA,  USC § 841(b)(4).
Finally, in Part IV I propose a framework for translating state law drug convictions to into federal drug convictions under § 841(b)(4). I argue that the circuit courts addressing this issue have failed to give adequate attention to the Supreme Court’s guidance regarding the categorical approach, as well as the original reasons for using the categorical approach in immigration proceedings. This guidance suggests that courts should analyze crimes differently during collateral proceedings at Time Two than they would if they were adjudicating criminal sentencing proceedings at Time One. The framework adopted here would allow the immigration judge to look into the record of conviction under broad statutes to the extent he can find facts that were necessarily decided by the Time One fact finder. But on an empty record — a criminal trial record that indicates neither the quantity nor remunerative nature of the drug transaction — I suggest that state law drug convictions should be presumed to correspond to the CSA’s misdemeanor provision, and thus the noncitizen should be presumed not to have committed an aggravated felony.