Law Commons^™

The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke

Brian S. Clarke

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.

The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation …

A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine, Brian S. Clarke

Brian S. Clarke

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and at, best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing first on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across …

Grossly Restricted Pleading: Twombly/Iqbal, Gross And Cannibalistic Facts In Compound Employment Discrimination Claims, Brian S. Clarke

Brian S. Clarke

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required …

In Search Of Clemency Procedures We Can Live With: What Process Is Due In Capital Clemency Proceedings After Ohio Adult Parole Authority V. Woodard?, Brian S. Clarke

Brian S. Clarke

The United States Supreme Court has denied certiorari for the final time. All state and federal appeals have been exhausted. The execution date has been set. There is only one thing that can save the death row inmate from the ultimate punishment: the proverbial call from the governor and a grant of executive clemency.

This scene, although a veritable Hollywood cliche, is being played out in prisons across America with increasing frequency. As of July 1, 1998, there were 3,474 men and women on death row in America. In 1996, with the passage of the Anti-Terrorism and Effective Death Penalty …