The Clash of Old and New Fourth Circuit Ideologies: Boyer-Liberto v. Fontainebleau Corp. and the Moderation of the Fourth Circuit

24 Pages Posted: 7 Jul 2015

See all articles by Brian S. Clarke

Brian S. Clarke

Unaffiliated; Washington & Lee University School of Law; Charlotte School of Law; Western Carolina University - College of Business

Date Written: July 1, 2015

Abstract

The Fourth Circuit has changed.

What was, a few short years ago, the most stridently conservative Court of Appeals in the country, has become — since 2010 — a moderate, if not slightly liberal, court. Both the anecdotal and the empirical evidence bear out the Fourth Circuit’s ideological shift. Further, based on the empirical evidence, the cause of this ideological shift appears to be the influx of President Obama’s successful nominees to the Fourth Circuit bench beginning in 2010. While this shift has been on display in several high profile, politically charged cases including, among others, Bostic v. Schaefer (declaring Virginia’s ban on same-sex marriage unconstitutional) and King v. Burwell (the “ObamaCare” tax subsidy case). The shift also vividly appears in more “run of the mill,” but no less significant, decisions outside of the political spotlight as well. One such decision in 2014 was Boyer-Liberto v. Fontainebleau Corp., in which the “old” Fourth Circuit and the “new” Fourth Circuit clashed over the reasonableness of an employee’s conduct in reporting a racial slur in the workplace.

Keywords: Fourth Circuit, judicial decisionmaking, empirical, quantitative, court of appeals, employment, harrassment, hostile work environment, retaliation

JEL Classification: C12, H11, J17, K31, K41

Suggested Citation

Clarke, Brian S., The Clash of Old and New Fourth Circuit Ideologies: Boyer-Liberto v. Fontainebleau Corp. and the Moderation of the Fourth Circuit (July 1, 2015). South Carolina Law Review, Vol. 66, No. 4, 2015. Available at SSRN: https://ssrn.com/abstract=2627343

Brian S. Clarke (Contact Author)

Unaffiliated ( email )

United States

Washington & Lee University School of Law

Lexington, VA 24450
United States

Charlotte School of Law

2145 Suttle Avenue
Charlotte, NC 28208
United States

Western Carolina University - College of Business

Forsyth Hall 122G
Cullowhee, NC 28723
United States
828.227.7412 (Phone)

HOME PAGE: http://www.wcu.edu/learn/departments-schools-colleges/cob/

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