Just One-Day-Late: A Split On Filing Deadlines

It’s always a terrible feeling to be late. It can incite panic as you rush to finish a task. Being late by just one day has disqualified mayoral and Presidential candidates from making it onto the ballot. In the bankruptcy context, being a day late can prevent you from escaping from sizable debts. If only you had one day more!

The “One-Day-Late” Rule

The First, Fifth, and Tenth Circuits have developed the so-called “one-day-late rule,” prohibiting the discharge of a tax debt with respect to which a tax return was filed merely one day late.

The impact is significant. Imagine: you declare bankruptcy, hoping to have a fresh start, only to discover that twenty-four hours and a few clicks, (maybe some licks of an envelope), is all that prohibits you from financial relief. (Read this link for a more practical explanation of how the one-day-rule impacts financial relief. Beware: there are, like, numbers and stuff.)

The courts behind the “one-day-late rule” developed it from case law, statutes, and two particular provisions of the U.S. Bankruptcy code, §§ 523(a)(1)(B)(i) and 523(a)(1)(B)(ii).

Combining the relevant sub-levels of § 523 produces a relatively succinct summary of the background law:

A discharge under . . . this title does not discharge an individual debtor from any debt for a tax or a customs duty with respect to which a return, or equivalent report or notice, if required, was not filed or given or was filed or given after the date on which such return, report, or notice was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition.

Thus, a tax-debt is nondischargeable if it is both filed late and filed within two years of the petition. A lot of the action revolves around whether the late filing is a return. If so, and if filed two years before the filing, then the debt is dischargeable. If, however, the tax filing is construed not to be a return, the debt is non-dischargeable.

What’s In A Name?

Complicating matters is the “hanging paragraph” 523(a)(*). The hanging paragraph defines “return” as a return that satisfies the requirements of “applicable nonbankruptcy law.” Accordingly, courts refer to applicable nonbankruptcy law in order to determine whether a debtor’s debt is to be barred or discharged.

The leading test defining what is or is not a return is termed the “Beard test. The test, which arose in the tax context, has four elements, with much of the action revolving around the third element: “[T]here must be an honest and reasonable attempt to satisfy the requirement of tax law.” (This was the only element at dispute in the Tenth Circuit case linked above. Also, a brief note on ordering. The original articulation of the Beard test siloed “honest and reasonable” as the third prong of a four-part test. Some courts, notably the Eleventh and Seventh, state the above element is the “fourth” element in the Beard test. Some still cite it as the third. There is no actual difference. Kooky courts! They look so alike, but they’re so different!)

With respect to the one-day-rule, the courts hold that tax forms filed after the IRS assesses liability do not have a valid purpose, and therefore do not satisfy the Beard test. Because the post assessment filings are per se not “honest and reasonable” attempts to satisfy the requirements of tax law—which requires that returns shall be filed on a certain date—the filing is not a return for purposes of dischargeability.

Although the Tenth Circuit in In Re Mallo quibbled with the use of the Beard test, it functionally reached the same result by construing the phrase “applicable filing requirements” in the hanging paragraph to include filing deadlines (thereby obviating the need to even use the Beard test in the first instance).

The result—either via the Tenth Circuit’s reasoning or a straightforward application of the Beard test—is often the same:

We agree with these decisions and hold that, because the applicable filing requirements include filing deadlines, § 523(a)(*) plainly excludes late-filed Form 1040s from the definition of a return.

The Fifth Circuit held the same in a prior case, reasoning not under Beard, but under the applicable filing requirements strain of logic.

The IRS has rejected this approach, and the Eleventh Circuit and the Ninth Circuit Bankruptcy Appellate Panel have refused to adopt it and suggested that it is incorrect. (I should note that, while the IRS has rejected the approach, it has not rejected the result. As the Tenth Circuit said in Mallo: “Even though the IRS interpretation results in the same outcome as our reading of Section 523(a) under the present facts, it is analytically incompatible with and would render our analysis of the hanging paragraph irrelevant . . . .”)

Justice Approach

The Eleventh Circuit’s decision in Justice v. US typifies the opposite side of the split.

Here, the Plaintiff-Appellant declared Chapter 7 bankruptcy in 2011 and sought to discharge his federal income tax liability for 2000-2003, despite having filed taxes for that time period many years late.

The Eleventh Circuit assumed arguendo that the one-day-late rule was incorrect and applied four factors from Beard v. Comm’r of Internal Revenue  to determine if the Plaintiff-Appellant’s tax returns from 2000-2003 satisfy “the requirements of applicable nonbankruptcy law.”

The Eleventh Circuit joined the IRS and the Fourth, Sixth, Seventh, and Ninth Circuits to hold that determining “an honest and reasonable attempt” requires analysis of the entire time frame relevant to the taxpayer’s actions. The Eighth Circuit, as well as a dissent in the Seventh Circuit by Judge Easterbrook, argue that only the time frame in which the belated return itself is filed should be examined.

Looking Forward

These split(s) are difficult. Does a late filing render a debt non-dischargeable? Courts seem to say yes, but why? Is it because the filing no longer qualifies as a return? That’s what Beard and its progeny suggest. Is it because the one-day-late rule bars a filing from qualifying as a return? That’s what the First, Fifth, and Tenth circuits suggest (see Mallo). And what to make of the fourth (third?) Beard prong? Do we examine whether a taxpayer was honest and reasonable with respect to whether they filed on time? Or does the Eighth Circuit (and Easterbrook) have a better take on the issue?

In 2015, the Supreme Court had the opportunity to resolve the split, but denied certiorari to the 10th Circuit’s decision in Mallo v. IRS.

Someday, we’ll get the right answer—let’s just hope it’s not a day too late.

Failure To Read: When “or” means “and,” Perjury, and the Recantation Defense

When does “or” mean “and”? When does “or” simply mean “or”? And whose job is it to decide—a Federal court or Congress?

A Tale as Old as Time

Federal courts have been telling us the what the law is since time immemorial. (Or 1803, roughly. And to answer your question, yes, that is an obligatory link to Marbury.) This task has always involved more than simply reading the text and giving each word its ordinary definition—it has always been, as the late Justice Scalia oft lamented, a matter of interpretation. (For an accessible book review, click here.) And, while many judges profess to search for the “objective” intent of the law, the final result is often guided by the ethereal intent of Congress and judicial policy choices, not the objective text. While this may lead to “good” law—if such a thing could objectively exist—sometimes a federal court ends up wreaking havoc upon the system Congress created, devaluing important rights and undermining Congressional policy.

This dynamic is clearly conveyed in one of the older splits this blog will cover: whether, under 18 U.S.C. 1623, the recantation defense is written in the conjunctive or the disjunctive.

Perjury Before a Grand Jury or a Court

People lie all the time, some more than others.  Immoral a lie may be, but rarely are such lies actionable. However, a lie—or, more technically, a “false declaration”—before a grand jury or a court isn’t just a moral issue, it’s a criminal one.

Under 18 U.S.C. 1623, if an individual under oath, in any proceeding before or ancillary to any court or grand jury, knowingly makes any false material declaration, they can be fined and imprisoned for up to five years. A seasoned lawyer—or a bright 1L, frankly—can see there are several ways to defend a perjury charge. Knowingly, materiality, falsity—all grounds ripe for a defense lawyer (and all grounds this post will not discuss further).

Congress also provided a defense within the statute itself—the recantation defense. Under 1623(d):

Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

Seems simple, right? As long as the false declaration has not substantially affected the proceeding, or it has not become “manifest” that the lie has been or will be exposed, a witness can recant without fear of prosecution.

The recantation defense comports with the common-sense purpose of perjury statutes: to promote truthfulness, not truthiness. By building a safety valve within the statute, Congress encourages a potential-perjurer to recant and tell the truth, all at the low-low price of $ 9.99 (and an invaluable get out of jail free card). It’s not the easiest defense to establish—you still have to show that the false declaration has not “substantially affected the proceeding,” or that it has not become “manifest” that the lie will be or has been exposed. But that’s precisely the point. If the lie has already had a substantial affect and it’s clear you’ve been (or are about to be) caught, too bad, go to jail; if not, recant.

Something funny then, (maybe strange), must have happened on the way to the First, Second, Third, Fifth, and D.C. Circuits.

“18 U.S.C. § 1623(d) is deceptive in its apparent clarity”

The First, Second, Third, Fifth, and D.C. Circuits hold “or” in 18 U.S.C. 1623(d) to mean “and.” What? Yes, I agree.

Normally, I’d try to paraphrase some of the arguments. However, the Third Circuit in Sherman (linked above), provides the clearest example of the reasoning used by her Sisters. The following is a full quote, with citations omitted for length, and the most pertinent reasoning bolded.

Statutory interpretation usually begins, and often ends, with the language of the statute.  “Where … the statute’s language is plain, ‘the sole function of the court is to enforce it according to its terms.’ ” We look to the text of a statute to determine congressional intent, and look to legislative history only if the text is ambiguous. Plain meaning is conclusive, “except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'”

18 U.S.C. § 1623(d) is deceptive in its apparent clarity. It says “or” and Sherman argues that Congress intended the statute to mean exactly that. However, reading the statute as Sherman argues we must results in a statute that is both inconsistent with, and frustrating to, Congress’ twofold intent in enacting the legislation. If Sherman is correct, one could commit perjury with impunity. A witness could violate his or her oath in the comfort of knowing that no perjury prosecution was possible so long as he or she recanted as soon as it appeared the perjury would be disclosed. A recantation at that point, under Sherman’s interpretation, would shield the conduct even if the judicial proceedings had been substantially affected by the false testimony. Similarly, a witness could escape prosecution even after the false nature of it had been disclosed and hope to successfully argue that the proceedings had not been substantially effected [sic] because there had been a recantation.

In Lardieri we examined the legislative history of § 1623 to determine legislative intent, and we are guided by that analysis. We do not believe that Congress intended to “improve truth telling in judicial proceedings,” by incorporating a provision into the perjury statute that would be tantamount to granting immunity from prosecution in many, if not all, instances.

Similarly, we note that, despite the disjunctive phrasing in § 1623(d), the New York statute it was based upon is drafted in the conjunctive.

“Deceptive in its apparent clarity.” “[S]ays or” but means and. “Despite the disjunctive,” the statute is based off a statute written in the conjunctive. (A classic example of valuing history over text.) In another part of the opinion not excerpted above, the court went so far as to evade the rule of lenity, arguing that it doesn’t apply because it would frustrate the alleged “intent” that Congress had in passing 18 U.S.C. 1623. All this, despite the seeming “clarity” of the statute, and despite the “intent” of Congress to promote truthfulness (at 665).

(As an aside, perhaps the canon driving the court was a form of constitutional avoidance. In Sherman, the defendant brought a due process claim, alleging that the prosecutor charged him under 18 U.S.C. 1621—the general perjury statute—instead of 18 U.S.C. 1623, thereby robbing him of the recantation defense under 18 U.S.C. 1623(d). The Sherman court noted that, prosecutorial discretion aside, a due process claim lies when a prosecutor’s charging decision is motivated solely by a desire to achieve a tactical advantage by impairing the ability of a defendant to mount an effective defense. By holding that Sherman was not even entitled to a defense under 18 U.S.C. 1623(d), the court obviated the need to inquire into whether the prosecutor was motivated by an improper desire, and evaded the tangled thickets of due process. This reading of Sherman explains the addled logic employed by the court, although it fails to explain the First, Second, Fifth, and D.C. Circuits endorsement of “or” meaning “and.”)

The Eighth Circuit: Sometimes, Or Just Means Or

As this is a blog about circuit splits, and not just a page for me to rant about shoddy judicial reasoning, I should probably introduce the Eighth Circuit’s opinion in US v. Smith. In Smith, the defendant challenged the lower court’s ruling that she was not entitled to the recantation defense of 18 U.S.C. 1623(d). The lower court based its ruling on existing authority at the time, which did not include Sherman, but did include the other opinions linked above (and which Sherman typifies). The Eighth Circuit reversed, holding that the plain language of the statute must control, and that according the word “or” its “ordinary meaning does not defeat the intent of Congress in enacting . . . recantation defense.” Additionally, the court cited the legislative intent of Congress—chiefly, its focus on truthfulness—and the rule of lenity.

In addressing the New York statute that served as the model for 18 U.S.C. 1623 and which was written in the conjunctive, the Eighth Circuit stated

While this observation may raise some uncertainty about the language Congress intended to enact, it does not create an ambiguity in an otherwise plainly worded statute nor does it militate against according the enacted language its ordinary meaning. “[I]t is appropriate to assume that the ordinary meaning of [the statutory language] accurately expresses the legislative purpose.” In this case, where the statute is unambiguous on its face, the language of the statute is conclusive as to legislative intent, and we thus decline to abandon the ordinary disjunctive meaning accorded to “or” in favor of a conjunctive “and,” as such a construction would defeat the plain language of the statute and would not foster any clearly articulated legislative intent to the contrary.

Looking Forward

To my knowledge, this circuit split has not evolved much since the latest opinion in Sherman (1998). The Tenth Circuit, in an unpublished opinion issued in 2000, observed the split but did not weigh in on it. Scholarship, with the exception of a piece cited below, has largely ignored the split. The one piece that I have found approached the issue in a rather practical manner, focusing on the “illusion” of the recantation defense. There’s more “there” there, as the split speaks broadly about the role of federal courts in interpreting legislation, Congressional intent, rights-remedy gaps, the appropriate use of canons of constructions, and due process issues that Sherman (wrongly) evaded. Hopefully future scholars (I’m looking at you, dear reader) will take the issue up.

For further reading on the New York Statute and 18 U.S.C. 1623, see Linda F. Harrison’s piece “Recantation: Illusion or Reality.”

An Erie Split: Anti-Slapp Laws and Rule 11

This is the second of two posts about the Erie doctrine, anti-SLAPP laws, and the Federal Rules of Civil Procedure. To see the first post, which covered anti-SLAPP laws and the conflict with Rules 12 and 56 of the FRCP, click here.

The Rule 11 Split

Should it be easier to sue your doctor or lawyer in federal court than in state court? The Eleventh Circuit purportedly says “yes,” while the Third and Tenth Circuits disagree. This consequential Erie Doctrine circuit split has complicated malpractice actions in federal courts for decades, and even touches some anti-SLAPP laws.

Many states have passed “tort reform” laws to protect doctors and lawyers from “frivolous lawsuits.” If you want to sue a doctor for malpractice in Georgia, for example, state law provides that you must attach an expert’s affidavit to your complaint or your case will be dismissed.

These statutes differ in timing (they may require filing an affidavit along with the complaint, or a certain number of days after) or to whom they apply (the affidavit may have to be signed by an attorney, a party, and/or an expert)—see the U. Penn. Law Review for a catalogue of the differences. But in federal court, all such laws run a risk of conflict with Rule 11, which states that, “Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit.”

The Third Circuit in Liggon-Redding v. Estate of Sugarman (2011) allowed a Pennsylvania affidavit-of-merit statute to apply in a legal malpractice case despite Rule 11. The court emphasized the procedural differences between the Pennsylvania law and the federal rule to find no conflict under Hanna:

Pennsylvania Rule 1042.3 requires an additional written statement by ‘an appropriate licensed professional’ attesting to a ‘reasonable probability’ that a ‘licensed professional deviated from an acceptable professional standard.’ Additionally, the Pennsylvania certificate of merit must be filed within sixty (60) days of the filing of the complaint. Federal Rule 11, in contrast, does not require an additional consultation with experts or the filing of a separate written statement within sixty (60) days of the filing of the complaint. . . . Federal Rule of Civil Procedure 11 can co-exist with the Pennsylvania certificate of merit rule because each rule controls its own intended area of influence without any conflict.

The Tenth Circuit held there was no conflict under Hanna between Rule 11 and a similar Colorado statute in Trierweiler v. Croxton and Trench Holding Corp. (1996):

Despite the superficial similarity of the two rules, we conclude that they do not collide. . . . While § 13–20–602 penalizes the party, Rule 11 targets the attorney . . . . Furthermore, § 13–20–602 does not merely operate to discourage frivolous claims; it does so only with respect to lawsuits filed against licensed professionals, and it also seeks “to expedite the litigation process in [such] cases” by imposing a 60–day time limit. By protecting a particular class of defendants, and by expediting such cases, the statute vindicates substantive interests of Colorado not covered by Rule 11. Although the state and federal rules are similar, there is no “direct collision” between the two.

But the Eleventh Circuit created a circuit split with Trierweiler and Liggon-Redding in Royalty Network, Inc. v. Harris (2014). At issue was a bizarre former version of Georgia’s anti-SLAPP statute, which required a SLAPP plaintiff to file an affidavit if the lawsuit was filed against someone who was exercising First Amendment speech or petition rights. The court found a direct conflict under Hanna between the Georgia law and Rule 11:

The federal rule explicitly provides that a pleading need not be verified or accompanied by an affidavit and allows parties discretion in deciding whether to verify pleadings. The Georgia statute, by comparison, mandates that a complaint or pleading asserting a claim must be accompanied by a verification making specific representations.

The Eleventh Circuit added that Rule 11 does not incorporate state laws:

We acknowledge that Rule 11 states a pleading need not contain a verification ‘[u]nless a rule or statute specifically states otherwise.’ The rule’s reference to other rules or statutes, however, means other federal rules or statutes.

A reasonable reader might think the circuit cases could be distinguished based on the timing of the statutes at play: The Georgia statute, which did not apply in federal court, required an affidavit to be filed contemporaneously with the complaint. The Colorado and Pennsylvania statutes, which did apply in federal court, allowed 60 days after filing the complaint to file an affidavit.

But the district courts haven’t divided on that fault line. For example, the Western District of Michigan has applied a Michigan statute that, like Georgia’s, required a contemporaneously filed affidavit, concluding that the conflict with Rule 11 was “illusory.” But the Western District of Texas refused to apply a statute requiring an expert report within 120 days of the complaint, because it would “get in the way of the operation of Rule 11.” District courts have, in fact, been long divided about affidavit-of-merit requirements, which may also conflict with Rules 8 and 9—an issue beyond the scope of this blog entry (see the Pennsylvania and Arizona Law Reviews for more).

(For more still, read the Western District of Michigan case linked above. It’s a doozy of a case, covering issues arising from Section 1983 and medical malpractice. The court extensively discusses the Erie problem, and touches not just on the Rule 11 conflict described here, but issues with Rules 8, 9, and 26. And, of special interest to readers of this blog, the court even discusses which circuits and district courts are split applying the Rules. Consider it the cherry on top of this sundae.)

Looking Forward

A final note about Georgia. This year, the General Assembly passed an amendment to Georgia’s anti-SLAPP statute to make it look like most other states’. The new law provides a “special motion to dismiss” for SLAPP defendants, eliminating the requirement that a plaintiff file an affidavit of merit at the pleading stage. Arkansas is now the only state whose anti-SLAPP law requires SLAPP plaintiffs to file a verification with their pleading.

Now that Georgia’s anti-SLAPP law falls within the Rule 12/56 split rather than the Rule 11 split, it has a fresh chance at applying in federal court—if the Eleventh Circuit allows it.

An Erie Split: Anti-Slapp Laws, Rule 12, and Rule 56

Substantive or procedural? This age-old conceptual “split” lies at the heart of the Erie Doctrine, which we tackle here in our first post. The issue: when a state law imposes procedural requirements on litigants so as to advance a substantive policy goal, do those requirements apply in federal court? We have seen two circuit splits on this problem, so—befittingly—we have “split” our first post into two parts.

The Rule 12/Rule 56 Split

A major circuit split is developing on the Erie problem of whether state anti-SLAPP laws conflict with Federal Rules of Civil Procedure 12 and 56. SLAPP’s, or “Strategic Lawsuits Against Public Participation,” occur when someone is sued for defamation just for exercising her right to petition or speak out in public. The plaintiff—a company, for example—hopes the cost and stress of defending the lawsuit will stop the defendant—perhaps a recently fired employee— from speaking.

To deter these suits and preserve a robust First Amendment, twenty-eight states, plus D.C. and Guam, have passed anti-SLAPP laws. Though these laws have a substantive purpose (protecting free speech), they often take procedural form, providing SLAPP defendants with a “special motion to dismiss” that they can bring as soon as they are sued. Unfortunately for SLAPP defendants, Erie problems result if special motions to dismiss conflict with the Federal Rules of Civil Procedure.

The Erie Doctrine at its simplest has two steps: under Hanna v. Plumer,  if a state law conflicts with a valid federal rule, the federal rule controls. If there is no conflict, then under Erie, the court should apply state rules that are substantive enough to affect the outcome of the case. Here’s how anti-SLAPP laws can conflict with the Rules.

First, Rule 12 allows defendants to move to dismiss, but defendants must choose from among the seven grounds for dismissal listed in 12(b)—“I’ve been slapped with a SLAPP” is not listed. As the D.C. Circuit has noted (see below), anti-SLAPP laws may “conflict with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.”

Second, if a “special motion to dismiss” counts as a 12(b)(6) motion to dismiss for failure to state a claim, anti-SLAPP laws may conflict with Rule 56. Rule 12(d) provides that, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” But anti-SLAPP laws, such as Maine’s, flip the burden of proof required on summary judgment, putting it not on the SLAPP defendant, but on the SLAPP plaintiff—the nonmoving party.

The Ninth Circuit first considered whether anti-SLAPP laws conflict with Federal Rules 8, 12, and 56 in United States ex rel. Newsham v. Lockheed Missiles and Space Company (1999). The court found no conflict between the California anti-SLAPP law and the Federal Rules, under Hanna:

[T]here is no indication that Rules 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims. . . . The Anti-SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules:  the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’

The Fifth Circuit seemed to ratify this reasoning in Henry v. Lake Charles American Press (2009), applying Louisiana’s anti-SLAPP statute in federal court without Erie analysis. And the following year, the First Circuit agreed with Newsham and Henry, applying Maine’s anti-SLAPP statute in federal court and finding no conflict under Hanna with the Federal Rules:

Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. . . . Maine has not created a substitute for the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.

Judge Alex Kozinski of the Ninth Circuit, however, argued in a concurrence in Makaeff v. Trump University, LLC (2013), that Newsham was wrongly decided on two grounds. First, state procedural rules cannot apply in federal court, even absent a conflict:

Newsham‘s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive. It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.

And second, Judge Kozinski disagreed with Newsham and Godin, finding that anti-SLAPP laws do conflict with the Federal Rules:

The Federal Rules …provide an integrated program of pre-trial, trial and post-trial procedures designed to ensure “the just, speedy, and inexpensive determination of every action and proceeding.” . . . The California anti-SLAPP statute cuts an ugly gash through this orderly process. . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.

The D.C. Circuit, citing Judge Kozinski’s concerns, narrowly avoided creating a circuit split with Newsham, Henry, and Godin in Abbas v. Foreign Policy Group, LLC (2015), when it granted dismissal of a lawsuit based on 12(b)(6) but argued in dicta that the D.C. anti-SLAPP statute should not apply in federal court:

Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

It seems only a matter of time before another Court of Appeals adopts Judge Kozinski’s opinion and Abbas’s dicta into a holding and creates a circuit split with Newsham, Godin, and Henry. The Supreme Court spectacularly failed to clarify the Erie Doctrine in its 2010 case Shady Grove Orthopedic Associates v. Allstate Insurance Co., when the Justices split 4-1-4 with no majority opinion. But with Justice Scalia—author of the Shady Grove plurality—and Justice Stevens—author of the concurrence in judgment—no longer on the Court, we expect the Erie Doctrine to appear again at the high court.

For further reading, see these law review pieces from Boston College and Case Western.

Welcome, dear readers!

We call it Sunday Splits. Each week (but only on Sundays!) we will post a short discussion about a “circuit split.” For the uninitiated, a circuit split results when a federal circuit court of appeals rules differently on the same legal question as another court of appeals. These “splits” lead to a very enticing prospect—Supreme Court review.

We are a group of law students who specialize in Supreme Court litigation. Our organization, the Emory Law School Supreme Court Advocacy Program (ELSSCAP), files briefs exclusively at the high Court, so we follow legal news and developments closely. We have started this blog to highlight interesting issues that one day may end up before the Nine.

In these pages—screen?—we will organize and describe important circuit splits that we think are worthy of appearing before the high Court. (And some that are perhaps less worthy, or consequential, but nonetheless interesting). We are just beginning this journey, and we acknowledge at the outset that this is an ambitious experiment. If we are successful, however, we hope this blog will be a definitive repository of the issues that may soon be heard before the Court.

Before we begin, a brief word on our intended audience:

  • First, we hope this blog can be a resource for practicing attorneys who may bring cases to the Court. If that describes you, then we hope we can organize our splits so that you can find your match.
  • Second, to the legal academy, we hope to be a resource for professors and aspiring writers who look to these pages for article and comment ideas. If that describes you, we invite you in turn to share your ideas with us at elsscap@emory.edu.
  • Third, to the parties in litigation—perhaps you have lost an appeal at a federal circuit court of appeals, or a state supreme court, and the legal issue you face is described here. If so, we invite you to tell us about your case using our intake form (also available on our website), and we will let you know if we can help you.

This blog is not affiliated with Emory University, and we provide no legal advice, but we will do our best to provide engaging commentary.

That is all, for now – may the blogging begin!

It is so ordered.

Hamp Watson, director of ELSSCAP, Emory Law Class of 2017