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Oral Argument Preview: January 7th.

When the Supreme Court returns to hear arguments on January 7th, it will hear four cases that day -- Standard Fire Ins. Co. v. Knowles, Alleyne v. United States, Boyer v Louisiana, and Descamps v. United States, the latter of which I wanted to touch on.

A modified categorical approach is a way for Judges to examine a decision and see if it violated a statute that many contain implicit or explicit items. If one theoretical law says you can’t smoke in the car or the house and another law says you can’t smoke, a modified categorical approach could be used to see if you broke a law smoking on your way from the car to the house.

A problem arose when the California state definition for burglary did not fit the federal definition. In California, you can burgle a place open to the public; under federal law, burgling a place open to the public is a specificity that does not exist.

But it might, and that’s where the modified categorical approach comes in and why it’s reached the Supreme Court.

For some courts, the MCA applies only to divisible statutes, and -- to the best of my understanding -- it seems that a statute is divisible if the crime under consideration affects immigration status if it’s applied to immigration status, but does not if it isn’t, which -- if true -- makes the modified categorical approach a curious standard of review.