Tag Archive | Fourth Circuit

2015 Developments in Combating “Link Rot”

By Michael Wein

One of the consequences of the greater availability and ubiquity of legal opinions online is that authors can directly hyperlink to sources, including other online decisions, and thus provide immediate access to the source material. This has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid. As noted in a 2013 New York Times article, at that time, 49 percent of links in online U.S. Supreme Court decisions were inoperative.

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A Possible Shift in Establishing a Hostile Work Environment

By Karen Federman Henry

In many respects, the en banc decision of the U.S. Court of Appeals for the Fourth Circuit in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015), presents a series of unfortunate events.* The Court used a relaxed standard for an employee to assert a claim for hostile work environment that could have a significant impact on employers.

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The Mezzanine of the Criminal Justice System

By Steve Klepper (Twitter: @MDAppeal)

Readers of How Appealing (which probably includes our entire readership) may have seen Howard Bashman’s quick post, “Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety.” We plan to have a substantive post about the Fourth Circuit’s unusual order next week, but here’s a more trifling post in the meantime. Read More…

Event: Fourth Circuit Seminar, Featuring Judges Motz, Davis, and Harris

This exciting invitation just arrived in our inbox. Big thanks to the FBA Maryland chapter!

Federal Bar Association Maryland Chapter




Panel discussion by 4th Cir. Judges Motz, Davis, and Harris

Advocacy Advice by former U.S. Solicitor General Paul D. Clement

View from Behind the Bench by Clerk of Court Patricia Connor

Round Table Discussion by Distinguished Attorneys

MAY 28th, 2015 at 1:30 p.m.

at the U.S. District Court for the District of Maryland in Baltimore

101 W. Lombard Street

Baltimore, MD 21201

Please RSVP to Kelly Cooper, Esq. at Kcooper@oag.state.md.us by May 14th.

Light Reception to follow


“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture

By Steve Klepper (Twitter: @MDAppeal)

Getting argument before the Fourth Circuit is hard. Oral argument is a precondition for a published decision under its local rules. Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.

From 2007 through 2014, the Fourth Circuit issued 259 opinions in which a judge dissented in full from the majority opinion. Seventy-four (28.6 percent) of those opinions were unpublished. In turn, 21 of those majority opinions were per curiam. During that same period, the Fourth Circuit issued 46 majority opinions that drew a partial dissent. Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished. Read More…

An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds

By Derek Stikeleather[*]

The simplest rules and standards can often be the most confounding; just ask anyone who has had to divine whether an act was “willful.” The decisions of the Fourth Circuit and Supreme Court in CTS Corp. v. Waldburger offer a vivid case study of how the supposedly simple rules of statutory interpretation, which apply a statute’s “plain language” and “clear intent,” are anything but simple in practice. Both courts analyzed whether CERCLA’s express pre-emption of state-law statutes of limitations also pre-empts state-law statutes of repose. Last summer, a split panel of Fourth Circuit judges reversed a district court judge and held that CERCLA did pre-empt North Carolina’s statute of repose. But a divided Supreme Court, reversing again, held last week that it did not. Read More…

Some Thoughts on the Nomination of Pamela Harris to the Fourth Circuit

By Michael Wein

As recently posted on this blog, President Obama has nominated Georgetown Professor Pamela Harris for the Fourth Circuit seat that Judge Andre Davis recently vacated. In addition to her teaching credentials, Ms. Harris appears well suited for this task, as a regular Supreme Court practitioner who once clerked for Justice Stevens.

As I discussed in a previous post, there were five candidates, mostly with significant appellate experience, whom Senators Mikulski and Cardin recommended to President Obama. The list included former Acting Solicitor General Neal Katyal. (Before posting, this information was confirmed from multiple sources.) So as predicted, President Obama did pick a candidate who had significant appellate or Supreme Court experience, just not Mr. Katyal, and Ms. Harris like Mr. Katyal teaches at Georgetown Law. Read More…

Pamela Harris Nominated to Replace Andre Davis on Fourth Circuit

Todd Ruger is reporting at the Legal Times that President Obama is nominating Pamela Harris to fill the vacancy created when Judge Andre Davis assumed senior status this past February 28. [Update: the official White House press release is here.] Professor Harris’ biography is here. It seems likely that, if confirmed, Professor Harris would become the first Circuit Judge to maintain her chambers at the Greenbelt, Maryland federal courthouse.

Michael Wein previously reported here at the Maryland Appellate Blog that Neal Katyal (also of Georgetown Law) was among the names forwarded for the seat. Tough field.

The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)

By Steve Klepper (Twitter: @MDAppeal)

Inconspicuously placed at the conclusion of Fourth Circuit Local Rule 34(a) is a provision that “parties may include in their briefs at the conclusion of the argument a statement setting forth the reasons why, in their opinion, oral argument should be heard.” Forget the word “may.” The Local Rule 34(a) statement is, I submit, the most important part of an appellant’s brief. Read More…

Fourth Circuit issues a primer on statutory construction in siding with consumers against debt collectors

By Jonathan Biran

In Clark v. Absolute Collection Service, Inc., issued on January 31, 2014, the Fourth Circuit provided a useful review of several standard tools of statutory construction, the application of which led the Court to come down on the pro-consumer side of a federal Circuit split. Mr. and Mrs. Clark incurred debts at a health care facility in North Carolina. After they didn’t pay those debts, the creditor referred the debts to ACS, a third-party debt collector. ACS then sent collection notices to the Clarks that said, among other things: “ALL PORTIONS OF THIS CLAIM SHALL BE ASSUMED VALID UNLESS DISPUTED IN WRITING WITHIN THIRTY (30) DAYS” (emphasis added). Read More…