Link Roundup: June 2015

By Chris Mincher

A sea change in Fourth Circuit employment law! Upheaval of Maryland income taxes courtesy of the Supreme Court! The potential mandate of a newspaper font for all state appellate legal writing! Three monumental developments in May, two of which people other than me cared enough to write about. The links after the jump.

• After Blog editor Derek Stikeleather expressed sharp disagreement with the Fourth Circuit’s recent decision in Brown v. Nucor Corp., Alexander Berg at Kollman & Saucier posited that, “[g]iven the potential widespread impact of the case” — combined with “extensive attempts” of lower courts to limit the holding of Wal-Mart v. Dukes — the Supreme Court might opt to take a gander at it. A few days later, Alexander recapped the Fourth Circuit’s decision in Foster v. University of Maryland-Eastern Shore, which similarly took a narrow view of recent Supreme Court precedent to overturn a pro-employer judgment. Meanwhile, his colleague Randi Klein Hyatt highlighted another eyebrow-raising result of that court, Boyer-Liberto v. Fontainebleau Corp., in which the Fourth Circuit overturned its own precedent to hold that a hostile-work-environment claim can arise from a single incident rather than a pattern of conduct. (In other news, I’ve got a “questioned presented” primed should I be shipping an employer-defense appellate brief off to Richmond anytime soon: “Who are you, and what have you done with the Fourth Circuit?”)

• The long-awaited arrival of Comptroller v. Wynne was, in the words Blog head honcho Steve Klepper, “a rough day for Maryland localities.” Most intriguing to Kevin P. Brandon of Gallagher Evelius & Jones, however, were the “theories raised in the dissenting opinions regarding the relative taxing rights of the source state and residence state,” which, he thought, “likely will shape the way states ‘apportion’ income among themselves”:

States’ apportionment formulas (the methods by which states agree how to share tax revenue from interstate taxpayers) were historically crafted for manufacturing industries, giving preference to the states where production and sales took place. With the rise of internet commerce and service and information industries, states have increasingly looked to market-based formulas shifting tax revenue to the state in which the customer rather than the product- or service-provider sits.

• Anyone who read my post regarding preferred typographical methods in appellate briefings could predict I wouldn’t be too happy with the Maryland Rules Committee’s attempt to make the state the first jurisdiction in the country to mandate use of the Times New Roman font. (I’m not too pleased with the Committee’s recommendation that double line spacing be required, either.) Read my discussion of the proposed rule changes here.