Vol. 105 Issue 3

In its first significant pregnancy discrimination case in nearly a quarter century, the Supreme Court issued a decision in 2015 in Young v. United Parcel Service, Inc.that cuts against the grain of entrenched employment discrimination doctrine. The starting point for employment discrimination law generally proceeds from a sharp divide between the disparate impact and disparate treatment theories of discrimination. Disparate treatment claims are characterized by courts’ requirement that plaintiffs bear the burden of establishing that the employer acted with discriminatory intent, rigid reliance on proof frameworks to frame the discriminatory inquiry, and insistence on a strict proximity between comparators when discriminatory intent is inferred from differential treatment. These features of employment discrimination cut across the various protected classes enumerated in Title VII of the Civil Rights Act of 19643 and the dominant federal statutes with employment discrimination protections modeled on Title VII, such as the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).

The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in three decades. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There has not been a new death sentence in Virginia since 2011. Only seven counties have imposed death sentences in the past decade in Virginia.

Twenty years ago, in BMW of North America, Inc. v. Gore, the Supreme Court ruled for the first time that a punitive damages judgment awarded by a state court jury was unconstitutional under the Due Process Clause of the Fourteenth Amendment. Previously, the Court had expressed concern about the proliferation of punitive damages awards “run wild” and declared that the Due Process Clause of the Fourteenth Amendment imposes “substantive limits” on the magnitude of civil penalties that it had described as “quasi-criminal” punishment. In BMW, the Court held that on a claim of fraudulent misrepresentation in connection with the sale of a car, a punitive judgment of $2 million—500 times the plaintiff’s actual harm of $4,000—was grossly excessive.5 To curtail disproportionate punitive awards, the Court enunciated three guideposts to govern judicial review when damages awards are alleged to be unconstitutionally excessive.

Jurisdiction is experiencing an identity crisis. The Supreme Court has given jurisdiction three different identities: jurisdiction as power, jurisdiction as defined effects, and jurisdiction as positive law. These identities are at war with each other, and each is unsustainable on its own. The result has been a breakdown in the application of the basic question of what is jurisdictional and what is not.

A fanciful trademark—a made-up word like Swiffer for mops or Xerox for photocopiers—is presumed to neither describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (tree) and the thing signified by the word (a large woody plant). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use and receives broader protection against infringement than other categories of trademarks.