The course of federal employment discrimination litigation is replete with instances of lower federal courts attempting to define and apply broad rules that, usually, though not always, have the effect of defeating plaintiffs’ claims of discrimination. The same-actor inference, first applied by the Fourth Circuit Court of Appeals 1991, aptly exemplifies this trend. The essence of the same-actor inference is that an individual who harbors discriminatory animus toward a protected class of persons would not knowingly hire a member of that class and then fire that same individual on account of his or her protected status. Since 1991, a circuit split has emerged on the question of who should evaluate the import of same-actor facts in a given case. Several circuits have followed the Fourth Circuit and employ the inference to justify summary judgment, directed verdicts, and judgments notwithstanding the verdict, all in favor of defendant-employers. Other circuits, in contrast, expressly reserve to the jury the decision regarding how to weigh same-actor facts. The Supreme Court has yet to resolve this split. This paper argues that the history of employment discrimination litigation, the Civil Rights Act of 1991, and public policy considerations require that it be juries, not courts, who determine the import of same-actor facts in a given employment discrimination case.
Note
Rethinking Ableman v. Booth and States’ Rights in Wisconsin
Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Court’s theory of federalism. This Note presents a new interpretation of the states’ rights movement in Wisconsin that necessitated the Supreme Court’s ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with states’ rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed states’ rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used states’ rights against the more moderate Democrats. As a result, states’ rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use states’ rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.
Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts
Patent law is traditionally territorial in scope. With recent additions to the Patent Act, Congress, however, has taken action to expand the effective territorial scope of U.S. patents. Moreover, courts, in interpreting this recent legislation, have exhibited a willingness to expand further the reach of U.S. patent law. Concurrent with Congress’s and the judiciary’s struggle to resolve these questions regarding the territoriality of U.S. patents, the United States Court of Appeals for the Federal Circuit recently faced the question of whether U.S. courts should adjudicate claims based on foreign patents. The reluctance of U.S. courts to adjudicate foreign patent claims is inconsistent with recent decisions that seek to stretch U.S. patent law even further and with foreign courts that have adjudicated foreign patent claims. Given that an increasing number of entities hold patents on the same inventions in multiple jurisdictions, multinational patent litigation inevitably will continue to be a crucial issue in international patent law. This Note fills a gap in the academic literature by undertaking an examination of both extraterritorial patent enforcement and multinational patent litigation. This Note brings together divergent strands of research by examining both extraterritorial patent enforcement and multinational patent litigation. Ultimately, this Note suggests that courts should consider enforcing foreign patents in certain situations instead of trying to apply U.S. patents extraterritorially.