By Nate Drum

From the very first day of law school, students are taught that every legal action can be placed into one of two distinct categories: civil cases and criminal cases.  This distinction implicates everything from the substantive rights of the parties, to the rules of procedure, to which courts have jurisdiction to hear the case.[1]  However, despite these fundamental differences, the distinction between civil and criminal is not always as clear as it first appears.  While this is apparent in a number of different areas of the law, none is clearer than North Carolina’s complex and often contradictory case law governing contempt of court proceedings.[2]

A recent case heard by the North Carolina Court of Appeals, Grier v. Grier,[3] highlights such a case where the law surrounding contempt proceedings continued to blur the line between civil and criminal law.  The issue presented was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.[4]  In other words: does the overarching essence of the case determine what remedies and penalties are available or does the specific substance of the proceeding control?  For the time being, we are left without an answer.[5]

To understand this “nesting doll” dilemma, in which a party in a civil action initiates a criminal proceeding and seeks a civil remedy,[6] this article will provide a brief overview of the North Carolina rule governing the award of attorneys fees as a civil penalty, North Carolina laws governing criminal contempt proceedings, and a discussion about how these issues came together in Grier.[7]

Attorneys Fees Generally: A Civil Penalty

North Carolina follows the traditional “American Rule” regarding the award of attorneys fees,[8] holding that “a party can recover attorney[s] fees only if such a recovery is expressly authorized by statute.”[9]  Such statutory authorization has typically been narrowly crafted to only apply in certain types of cases.[10]  For example, N.C. Gen. Stat. § 50-13.6 authorizes the award of attorneys fees “[i]n an action or proceeding for the custody or support, or both, of a minor child . . . to an interested party acting in good faith who has insufficient means to defray the expense of the suit.”[11]  While the overwhelming majority of statutes authorizing the award of attorneys fees in North Carolina are only applicable in the civil context,[12] there are circumstances in which a criminal defendant may be ordered to pay the costs of attorneys fees.[13]  For example, N.C. Gen. Stat. § 7A-455 authorizes the court to order a criminal defendant to pay the reasonable attorneys fees incurred by appointed counsel.[14]

Yet, even when awarded in the context of defense of a criminal proceeding, the award of attorneys fees is quintessentially a civil remedy.[15]  Rather than a criminal “punishment,” attorneys fees have typically been viewed by North Carolina courts as a civil penalty as most court-appointed attorneys fees are entered against criminal defendants in the form of a civil judgment.[16]

Criminal Contempt Proceedings Generally: A Criminal Proceeding

Black’s Law Dictionary defines contempt of court as follows: “The act of demeaning the court, preventig [sic] justice adminstration [sic], or disobeying a sentence of the court.   It is [generally] criminal [in nature] and can lead to fines or imprisonment.”[17]  However, North Carolina law surrounding contempt of court is somewhat more complicated than such a simple definition would lead one to believe.[18]  For example, in North Carolina, contempt of court can be either civil in nature or criminal in nature.[19]  What more, the overarching nature of the original action does not dictate the nature of the contempt proceeding.[20]  For example, a criminal defendant can be held in civil contempt of court,[21] just as a civil defendant can be held in criminal contempt of court.[22]  Further, a contemptnor defendant can be held in both criminal and civil contempt in the same proceeding, so long as each finding of contempt is based on separate and discrete conduct.[23]

However, determining whether a contempt proceeding is civil or criminal is of utmost importance for litigants because the nature of the proceeding will define the parties’ procedural and substantive rights (including what penalties can be imposed), the burden of proof required, and the right of appellate review.[24]  Though, as North Carolina courts have repeatedly recognized, “the demarcation between [civil and criminal contempt] may be hazy at best.”[25]  Therefore, North Carolina courts look to the purpose for which the proceeding was initiated, while considering the nature of the conduct being punished.[26]  Generally, “[c]riminal contempt is imposed in order to preserve the court’s authority and to punish disobedience of its orders.”[27]  Further, criminal contempt “is generally applied where the judgment is in punishment of an act already accomplished.”[28]

Upon a finding of criminal contempt, like all criminal statutes, the available penalties a trial court may impose are codified.[29]  Generally, a criminal contemptnor can be punished via a judicial censure, a fine, and/or imprisonment for up to thirty days.[30]  As noted in the statutory framework of the North Carolina general statutes, the provisions pertaining to criminal contempt were meant to preempt existing common law by providing a uniform and exclusive statutory scheme governing such proceedings.[31]     

Criminal Contempt in the Family Law Context: A Civil Action

The interaction of North Carolina law governing attorneys fees and contempt of court collided in Grier v. Grier.[32]  In this case, the contemptnor defendant, Mrs. Grier, was held in criminal contempt of court for violating the court’s child custody order.[33]  As a result of the finding, the prosecuting party, Mr. Grier, sought an award of attorneys fees from Mrs. Grier under N.C. Gen. Stat. § 50-13.6.[34]  Mrs. Grier challenged the award of attorneys fees as an improper remedy under the exclusive criminal contempt remedies enumerated at  N.C. Gen. Stat. § 5A-12.[35]  Ultimately, the question asked to the court was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.

If the answer would be yes, how would that implicate the rule of lenity, holding that statutory ambiguity should be resolved in favor of the defendant?  Would that mean that the remedies provided in N.C. Gen. Stat. § 5A-12 are not exclusive, despite language to the contrary?

If the answer is no, would that create a bright line rule that the substance of a proceeding overwrites the overarching essence of the case?  Would that mean that the award of attorneys fees under N.C. Gen. Stat. § 50-13.6 would be limited only to those proceedings substantively connected to the custody proceeding and while excluding related disputes arising through the course of the litigation?  Would it create perverse incentives for litigants to force their opposing party to permit a violation of court orders or to engage in the costly prosecution of criminal contempt proceedings without a monetary remedy?

Unfortunately, the court declined to answer.[36]  While recognizing the challenging internal conflict within the laws, the court concluded that Mr. Grier did not meet the statutory requirements of N.C. Gen. Stat. § 50-13.6 which required that he have “insufficient means to defray the expense of the suit.”[37]  Notably, the North Carolina Supreme Court has previously disposed of a similar case in which this exact question was raised on procedural grounds.[38]  So, until a case arises which cannot be disposed of on unrelated grounds, the question of whether a party in a civil case, prosecuting a criminal contempt charge, can recover a civil remedy of attorneys fees remains open ended.

[1] Lawsuits, North Carolina Judicial Branch, (explaining the difference between civil and criminal cases).

[2] See Spencer L. Blaylock Jr., Contempt of Court — Civil or Criminal, 36 N.C. L. Rev. 221, 223 (1956) (observing that “much confusion” has arisen regarding North Carolina’s contempt of court statutory framework and that it has been consistently “applied by the lower courts and attorneys” in improper ways).

[3] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

[4] Id. at *P12.

[5] Id. at *P13 (concluding that the court “need not decide” whether the attorneys fee award was statutorily permissible).

[6] Id. at *P10 (noting that an order “directing a party to pay attorney[s] fees in the context of a criminal proceeding is itself civil in nature”).

[7] Id.

[8] Ehrenhaus v. Baker, 776 S.E.2d 699, 704 (N.C. Ct. App. 2015).

[9] Wadsworth v. Wadsworth, 868 S.E.2d 636, 644 (N.C. Ct. App. 2021).

[10] Sullivan v. Woody, 882 S.E.2d 707, 211 (N.C. Ct. App. 2022) (noting that fee shifting statutes should be narrowly construed).

[11] N.C. Gen. Stat. § 50-13.6 (2023).

[12] See Jim Gale, Awarding Attorneys’ Fees in North Carolina, UNC School of Government (2018 Superior Court Judges’ Summer Conference) (last visited Mar. 18, 2024), (listing all North Carolina statutes authorizing the award of attorneys fees).

[13] John Rubin, Are Attorney Fees’ Permissible?, UNC School of Government,

[14] N.C. Gen. Stat. § 7A-455(a) (2023).

[15] See Rubin, supra note 13.

[16] State v. Webb, 591 S.E.2d 505, 513 (N.C. 2004); see also State v. Jacobs, 648 S.E.2d 841, 842 (N.C. 2007) (noting that an order for attorneys fees, even in a criminal case, is a civil penalty).

[17] Contempt of Court, Black’s Law Dictionary(2d ed. 1910) (last visited Mar. 18, 2024),

[18] See, e.g., State v. Wendorf, 852 S.E.2d 898, 902 (N.C. Ct. App. 2020) (noting that in addition to the differences between civil contempt and criminal contempt, North Carolina recognizes a difference between “direct” and “indirect” contempt).

[19] Bishop v. Bishop, 369 S.E.2d 106, 108 (N.C. Ct. App. 1988).

[20] See Id. (noting that the same conduct may be criminal contempt, civil contempt, or both, and that the nature and purpose of the court’s “punishment” will be determinative, rather than nature of the overarching case).

[21] NC Prosecutors’ Resource Online, UNC School of Government (last visited Mar. 18, 2024),,to%20comply%20with%20that%20order.

[22] Michael Crowell, North Carolina Superior Court Judges’ Benchbook, UNC School of Government (last visited Mar. 18, 2024), (noting that a party to a civil case, an attorney in a civil case, or even a witness in a civil case can be held in criminal contempt of court).

[23] See, e.g., Adams Creek Assocs. V. Davis, 652 S.E.2d 677, 687 (N.C. Ct. App. 2007) (holding a defendant in civil contempt for violating a court order and then separately held in criminal contempt for threatening a witness); see also N.C. Gen. Stat. §§ 5A-21(c), 5A-23(g) (2023) (prohibiting a defendant from being held in both criminal and civil contempt for the same conduct).

[24] See Hartsell v. Hartsell, 393 S.E.2d 570, 575 (N.C. Ct. App. 1990) (noting that civil contempt proceedings do not afford defendants the same procedural and substantive protections as criminal contempt proceedings); see also O’Briant v. O’Briant, 329 S.E.2d 370, 372 (N.C. 1985) (noting that criminal contempt proceedings trigger Constitutional safeguards applicable to all criminal proceedings).

[25] State v. Revels, 793 S.E.2d 744, 747 (N.C. Ct. App. 2016).

[26] O’Briant, 329 S.E.2d at 372.

[27] Id.

[28] Revels, 793 S.E.2d at 747.

[29] N.C. Gen. Stat. § 5A-12 (2023).

[30] Id.

[31] See, e.g., N.C. Gen. Stat. § 5A-11(a) (2023) (providing that the statutorily enumerated grounds for criminal contempt “are exclusive, regardless of any other grounds for criminal contempt which existed at common law”).

[32] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

[33] Id. at *P4–P5.

[34] Id. at *P6.

[35] Id. at *P12.

[36] Id. at *P13.

[37] Id.

[38] Reynolds v. Reynolds, 569 S.E.2d 645, 646 (N.C. 2002).

Burdens of Production As Unproductive

R. George Wright[1]*


The placement of a legal burden of proof can be decisive as to the outcome of a case.[2] Considerations of cost, fairness, and pragmatism normally play a role in allocating burdens of proof.[3] Often, burdens of proof—particularly burdens of producing evidence on specific issues—are shifted between the parties as a case develops.[4] All of this is uncontroversial.

While the burden of producing evidence on any given issue can be shifted, it can never be shared, at any given time, between the parties.[5] As it turns out, however, there is actually no reason in logic or policy why a burden of production at a given point cannot be shared, as distinct from being borne exclusively by one party or the other.[6] Of course, a shared burden of production on a specific issue at a specific time cannot possibly mean that if neither party produces legally sufficient evidence on that issue, then both parties somehow lose on that issue. In such a case, the burden sharing process has simply failed, and the legal consequences should be borne by the party that would ordinarily have borne the entire burden of production on that particular issue.

Certainly, a shared burden of production is in many contexts unfair or otherwise inappropriate.[7] But in other contexts, as highlighted herein, a simultaneously shared production burden may not only be fair and technically efficient but may also promote better outcomes than would otherwise be available.[8] This can be true especially whenever the government party’s interests are already mixed and are not entirely opposed to the interests of the nongovernmental party. Among other considerations, a shared burden of production at a given point may incentivize a meaningfully collaborative exploration of the issue. The parties, from their complementary positions of partial knowledge and ignorance, may then arrive at low-cost policy options and judicial resolutions that might not flow from adversarial discovery as it is normally conducted.[9]

While evidentiary production burdens should not always be shared between the parties, there are important contexts in which the overall gains from production burden sharing can be quite substantial. Among such contexts are what we might call the religious freedom cases, focusing on statutory religious freedoms and their possible collisions with compelling governmental interests.[10] Additionally, evidentiary production burdens can be usefully shared, and not merely shifted, between the parties in many Establishment Clause cases.[11] But the possibility of evidentiary production burden sharing should be considered whenever, as in many equal protection, due process, and free speech constitutional right contexts, the relation between the governmental party and the private party is not entirely adversarial.[12]

In such cases, a shared burden of evidentiary production may, for reasons explored below, result in better evidentiary outcomes and better ongoing relations between the parties, than would otherwise have been attainable.[13] In all shared burden cases, the efforts of both parties should be taken into account by the presiding judge. Those efforts should, in turn, be appropriately incentivized in advance and rewarded after the fact in the coin of enhanced credibility. Cooperating parties should be rewarded with appropriate enhancements of their credibility not merely on the particular issue at stake, but, importantly, more generally as well. Immediately below, this Article considers the logic of fixed, shifting, and shared burdens of evidentiary production in general.

I. Burdens of Production: Placed, Shifted, and . . . Shared

Typically, legal cases involve disputes over whether some act or event took place and whether some legal standard of performance was thereby met. One might say that formulating this issue itself precedes any placement of any burden of proof.[14] Perhaps statements of the legal issues and placements of burdens may actually be interdependent as well.[15] In any event, however, the general idea of a burden of proof has long been plagued by “distressing ambiguity.”[16] At a minimum, the law has, rightly or wrongly,[17] distinguished between a burden of production, or a bringing forth of some amount of evidence, and some ultimate burden of persuasion.[18]

A bit more elaborately, one might ask four questions about adjudicative burdens in general. Specifically, one might ask “who bears the burden”;[19] “what or how heavy the burden is”;[20] “what is the effect of failing to carry the burden”;[21] and “what is the effect of succeeding in carrying it?”[22] The question of which party bears, or should bear, some sort of burden of producing evidence in any given context is, unhappily, notoriously vexed.[23]

Thus, it might seem obvious that the burden of producing evidence should rest on the party with easier, or lower-cost, access to the evidence in question.[24] It is generally easier for a plaintiff to prove the existence of a medical bill than for the defendant to prove that the plaintiff never received a medical bill.[25]

Imagine, though, the legal equivalent of a hypothetical raised by Professor James Cargile.[26] Suppose I call Smith on the phone, and that Smith answers by declaring to me that he is indeed Smith. My intention in calling is merely to invite Smith to go bowling. Arbitrarily, though, I now demand that Smith produce at least some evidence that he is in fact whom he affirmatively claims to be. Smith, after all, need not have asserted that he is in fact Smith. And quite likely, Smith has, in the moment, easier and lower-cost ways of supporting his affirmative claim to be Smith than I have supporting any claim that he is not.

Yet in such a case, we do not normally think it incumbent upon Smith to produce any evidence that he is whom he claims to be. Doubtless there are exceptions, or at least some variant cases. Perhaps I am the commanding officer of Smith and everyone else who might have answered the phone. Perhaps I am returning Smith’s phone call, in which he had asked for his credit balance or for a personal loan.[27] Such circumstances might seem to call for shifting the burden of production as to identity.

Thus, “[t]here are no hard-and-fast standards governing the allocation of the burden of proof in every situation.”[28] Instead, the courts are to look, quite vaguely, to “policy and fairness based on experience in the different situations.”[29] The law is, in this respect, open to considerations of ethics and pragmatism in allocating the burden of evidentiary production.[30]

The courts also allow for, if they do not actually mandate, shifts in the placement of production burdens as the adjudicative process unfolds.[31] The possibility of such shifts “means that the balance of considerations relevant to allocations [of the burden of production] . . . may be struck several times during the course of a trial.”[32] Thus, “the burden of going forward with evidence shifts from side to side . . . .”[33] Various forms of the shifting imposition of burdens of production are familiar in First Amendment cases,[34] Title VII civil rights cases,[35] and religious discrimination cases.[36]

The idea of shifts, as between the parties, of the burden of production of evidence is thus well-established in the law.[37] But such shifts leave untouched the unquestioned legal assumption that at any given time, as to any particular element or defense, one party, to the exclusion of the opposing party, has the sole and exclusive burden of evidentiary production.[38]

Therefore, it is accurately reported that

each issue to be litigated, whether it is an element or an affirmative defense, has a burden or production associated with it that requires one party or the other to produce evidence relevant to the particular (hence the name ‘burden of production’).[39]

Under the current law, burdens of evidentiary production can thus be shifted, but generally cannot be simultaneously shared, bilateral, joint, or mutual, in any meaningful respect.[40]

This legal practice is, however, not required by logic, fairness, adversarialism, or pragmatism. The unshared evidentiary burden, at any point, is instead often both unnecessary and generally ill-advised. Courts should, crucially, be permitted by rule to impose, at appropriate points in the adjudicative process, a shared or joint burden of production on the opposing parties.[41] Burdens thus need not be exclusive or binary.

To be clear, the value of imposing a simultaneously shared, and not merely a shifting, burden of production would vary substantially, depending on the nature of the case. The case law referred to below is skewed to illustrate the various contexts in which a jointly shared burden of production tends to have the greatest value.[42] Typically, such cases will involve individual constitutional rights and a less-than-complete opposition of the parties’ interests at stake.[43]

A shared burden of evidentiary production, at an appropriate point in a lawsuit, may generate several sorts of benefits. Most generally, a shared burden of production incentivizes efforts by both parties to creatively, and mutually responsively, enhance the overall credibility of their respective positions. A shared burden in this respect means that a judge can give a variable degree of credit to either side for meaningful effort in developing and clarifying the evidence, above and beyond that which can be attained by formal adversarial discovery processes. The judge’s finding on the issue can properly reflect the judge’s sense of the degree to which each party has constructively and collaboratively contributed to the overall state of the evidence. And enhanced credibility on one element of a case may naturally and perhaps inevitably translate to greater credibility of that party on other elements of the case, including on damages and other remedies.

Thus, the judge will take into account the degree to which both parties have, from their different positions, constructively collaborated and engaged with the opposing party in seeking an optimal resolution of the issue. That is, the judge can reward, and thereby incentivize in advance, the parties’ active cooperation in devising some previously unthought-of set of rules, practices, and behaviors that can accommodate and more fully promote the legitimate interests of the public and of both parties.

More concretely, there are important kinds of constitutional and other cases in which neither party has easier access to all aspects of the crucial facts, or to the crucial evidence.[44] In those cases, one party has better access to some aspects of the crucial evidence, but the opposing party has better access to other aspects of that issue.[45] The optimal resolution may require not just formal discovery and formal negotiations, but a process of creative mutual engagement, initiative, and collaborative exploration by the parties.

In such cases, both parties thus have certain advantages and disadvantages with respect to key issues.[46] The best practical resolution may be one that neither party can envision even after discovery and might not arrive at but for the cooperation incentivized by a shared burden of proof on the issue. As well, neither party’s initial claims are typically so out of the range of what is normally expected, or so outlandish, as to virtually call for an unshared burden of proof.[47] The law is already open to the possibility of shared burdens in such cases, in the sense that that allocations of burdens of proof are typically thought of as involving questions of law, or of mixed questions of law and fact subject to de novo review.[48] Thus, no powers need be snatched by the court from the trier of fact.

In addition, a shared burden of proof can more broadly incentivize treating an opposing party as a respect-worthy potential source of creative insight. The parties may have very different relevant knowledge bases to begin with. But a shared burden of proof incentivizes thinking of an opposing party as, in some respects, an epistemic peer.[49] And this process can lead to better relations as well as better decisional outcomes.[50]

Part of the logic here is that otherwise inefficiently adversarial interactions can be modified. In particular,

the quality of the discussion can be enhanced if the participants behave in a more cooperative way by offering advice to the other party in the form of providing questions or counterarguments that enable the proponent to see the weakness in his argument and improve it as the discussion proceeds.[51]

But much of the value of such a collaborative investigation is not in enlightening one’s opponent, but in discovering workable options not initially envisioned by either party.[52] Below, this Article illustrates these contentions in particularly important religious freedom and Establishment Clause Contexts.

II. The Value of Burden Sharing In Practice

A. The Religious Freedom Context

Across a broad range of religious freedom cases, evidentiary production burdens are placed on the government that is alleged to have impaired the religious practice in question.[53] Typically, the burden is placed on the government not merely to explain its reasoning in substantially burdening the claimant’s religious practice, but to prove that its policy “is the least restrictive means of furthering[54] a compelling[55] governmental interest.”[56]

There is thus a current consensus that the government, rather than the religious claimant, bears exclusively the burden of producing evidence with respect to the narrow tailoring of the religious burden in question.[57] Remarkably, though, the courts vary dramatically with respect to what discharging this burden requires in practice.[58] What the courts do not envision, however, is any sense of a simultaneously shared or jointly held burden with respect to showing the presence or absence of narrow tailoring.[59]

A number of courts allow the government to discharge the burden of showing narrow tailoring on the basis of only rather modest efforts. For example, the Eleventh Circuit has concluded that in this context, the government defendant need consider only the religious claimant’s own proposed alternatives, if any, and their compatibility with the government’s demonstrable compelling interests.[60] Requiring the government to refute every conceivable way in which the religious claimant might be accommodated consistent with the government’s compelling interests would ask the impossible.[61]

Rather than requiring the government to perform the impossible, some courts limit the universe of possible alternative regulations to merely those that the religious claimant is in a position to propose.[62] Thus, it is said that while the relevant statutory burden remains on the government, once the government presents its evidence, the religious claimant “must demonstrate what, if any, less restrictive means remain unexplored.”[63]

What these analyses miss, though, is the range of alternatives between requiring the government to refute innumerable options and requiring the government to refute merely those alternatives, if any, that the religious claimant is currently positioned to recognize and articulate. There may be some limited room for the courts themselves, at trial or on appeal, to try to devise less religiously burdensome alternative policies that still satisfactorily promote the compelling government interests at stake.[64] But there is certainly no guarantee that court-initiated suggestions will be workable in practice, will adequately promote the compelling interests of the government, and will also leave the claimant substantially less religiously burdened.[65]

As well, it seems sensible for a court to ask on its own initiative whether one or more at least apparently comparable governmental institutions manage to promote their compelling interests without substantially burdening religious exercise.[66] But this kind of inquiry merely steers the narrow tailoring inquiry, without reallocating any burden of evidentiary production. The government alone still bears the burden of showing the noncomparability of other, less religiously restrictive institutions.[67] And in this, the government may sometimes be assisted by a rule that the major religious protection statutes do “not pit institutions against one another in a race to the top of the risk tolerance or cost-absorption ladder.”[68]

The problem is that unshared burdens of production, wherever they are placed, do not exploit the possibility that cooperative investigation, incentivized by a shared burden of production, may inspire the recognition of otherwise unavailable improved alternative policies. Typically, the managers of the government institution in question will hold a treasury of tacit understandings,[69] perhaps not commonly articulated, or even brought to conscious awareness, concerning that institution. And they may certainly have blind spots. Religious claimants, on the other hand, may be motivated to see new possibilities, but they may lack knowledge of the workings of the government institution. And religious claimants also may not fully grasp the practical implications of their own religious beliefs and of how they might be accommodated.

In short, both parties may benefit from, and usefully contribute to, a genuinely collaborative investigation into the narrow tailoring of the institutional policy in question. Judicial practice, however, currently falls short of rewarding such collaborative behavior in any systematic way.[70]

Some courts, certainly, have spun the government’s narrow tailoring burden in interesting ways. For example, the government may be demandingly required to “demonstrate[71] narrow tailoring. Or the government may be bound to consider alternative policies of which it becomes aware during the litigation, whether proposed by the religious claimant or not.[72] The government may be demandingly required to show “that it has actually considered and rejected . . . less restrictive measure before adopting the challenged practice.”[73] Or the government may be required to take the initiative of actively seeking out alternative policies in advance.[74]

None of this tinkering, however, capitalizes on the possibilities of incentivized collaborative investigation. Consider a case in which an incarcerated religious claimant seeks a religious accommodation. Presumably, the claimant knows something of the prison as an institution, but far less, even after formal discovery, than do prison officials. So, the claimant’s own proposed accommodation may well be infeasible, or less than optimal, even from that claimant’s own standpoint. But, importantly, the religious claimant may also be on to something, however vaguely. Perhaps some substantially modified version of the claimant’s proposal could meaningfully reduce the experienced religious burdening while having no significant impact on the prison’s compelling interests. After all, government institutions in general have, among their various important interests, the interest in not unnecessarily restricting religious practices.[75]

More generally, collaborative inquiry may teach each party more about the other. And in the best cases, each party may learn more about its own priorities and possibilities. Religious claimants, for example, may not have exhaustively catalogued all of their own theological options and commitments. Their thinking may evolve. And at the very least, the dialogues that are incentivized by a shared burden of production may result in a greater degree of trust, or respect, between the parties.

Consider the circumstances in, for example, the case of Washington v. Klem.[76] At issue was a Pennsylvania Department of Corrections rule permitting only ten books—largely regardless of size—in a prison cell at any given time.[77] More specifically, inmates were allowed a maximum of ten books, ten magazines, and three newspapers.[78] Interestingly, inmates were not permitted to substitute, say, more books, of whatever size, for fewer magazines or newspapers.[79]

The religious claimant Henry Washington had been a long-term adherent of a Pan-Afrikan religion that required practitioners “to read four different Afro-centric books per day.”[80] Apparently, these four books per day had to be unread books.[81] Books stored in or borrowed from a prison library, or from outside sources, could presumably count toward this daily reading requirement.[82]

Now, it is certainly possible to explore narrow tailoring issues through ordinary discovery mechanisms, with the relevant production burden entirely on the government. But it seems questionable that typical defensive posturing in discovery will be no less productive than a collaborative mutual exploration of alternatives available to either or both parties. And on this logic, mere judicial speculation cannot fully substitute for such a collaborative process.

The Washington case seems to suggest that the prison was concerned with issues of safety, sanitation, health, and security.[83] Perhaps the real constraint was not a matter of, say, books versus magazines, but the personal property limit, per cell, of “four storage boxes or their equivalent.”[84] An informal, equality-based, constructive exploration of the possibilities might have led to a quick, less judicially expensive recognition that the ten book maximum could be modified or abolished as a free-standing rule.

And we should not overlook the possibility that the religious claimant’s own requirements may not be set in stone, in all of their particular implications. Not every religious claimant is an exhaustive theologian. Could three large books per day be judged equivalent to four short books, precisely from the claimant’s own perspective? Perhaps not, for doctrinal reasons. But perhaps the claimant may simply not have considered such possibilities, or their religious implications. Could it ever be more desirable to reread an especially valuable book than to devote the same time to a new, unread, but perhaps less valuable book? Again, perhaps not. But perhaps worthy of reflection. Could an Afro-centric single topic magazine or other media count as a book? Are there degrees of justifications for, or legitimate excuses for, falling short on one’s daily reading, or not?

Thus, the religious claimant, or some similarly situated person, could be open to further reflection on these and other questions. The point, though, is that further reflection by the religious claimant is less likely in the course of standard discovery, with the key burdens on the opposing party, than in a less formal, mutually responsive, mutually respectful, and mutually responsible exploratory dialogue. A standard formal discovery process by comparison tends to suppress such positive outcomes, as well as overall morale.[85]

Consider, finally, the intriguing recent case of United States v. Grady.[86] Grady involved an act of civil disobedience by members of a Christian pacifist and antinuclear weapons group.[87] This religiously motivated act was thought of as one of “symbolic disarmament.”[88] The defendants broke into the large Kings Bay Naval Base in darkness, and then engaged in a number of prohibited activities.[89] These included spray painting monuments, pouring donated human blood on base property, and cutting through fencing to enter a relatively secure area.[90]

The motivation underlying this civil disobedience was found to be a religious imperative to “practice peaceful activism and prevent nuclear war.”[91] Criminal prosecution for the acts in question presumably amounted to a substantial after-the-fact burden on the defendants’ religious practices.[92] This left the question of whether the criminal prosecution was the least restrictive means of promoting the presumably compelling government interest at stake.[93]

To begin with, the parties’ apparent agreement on the existence of a relevant compelling government interest in this case is a bit curious. The defendants’ acts amounted to, at worst, vandalism in the context of a naval base “covering approximately 17,000 acres with 26 miles of perimeter fencing and employing approximately 10,500 people as part of the staff or crew.”[94] Presumably, the base would on any given day have any number of higher and broader priorities than attending to the specific physical consequences of the defendants’ acts. This is especially so in religious exercise cases where the government interest at stake cannot be broadly construed.[95] It is only the government interest in, and confined specifically to, the particular circumstances of the defendant’s own case that must be compelling.[96] If the government’s interest in this particular case is deemed genuinely compelling, and of truly overriding importance, then the distinction between compelling government interests and merely ordinary, day-to-day interests is left unclear.

On the issue of narrow tailoring, or least restrictive means, the defendants in Grady took the initiative to propose several alternative, less religiously burdensome government responses to their acts. These proposals included “reducing the number and severity of the charges, . . . not prosecuting and offering instead civil injunctions, civil damages, community service, ‘ban and bar’ letters, or pretrial diversion; and . . . giving the defendants permission to practice symbolic disarmament in a designated area on the base.”[97] It may also be relevant that the defendants apparently declined the opportunity to legally demonstrate at a facility outside of the gates of the naval base.[98]

These proposed alternatives, to the extent they are post hoc, or are entirely after the fact, might or might not have deterred similar future acts, by the defendants or by others. But that is again irrelevant to the least restrictive means test.[99] And any costs or harms of the defendants’ acts were obviously incurred before any later, responsive government decision as to whether, or how vigorously to criminally prosecute those acts.

From this Article’s perspective, it is at least minimally helpful that the defendants took it upon themselves, after the fact, to suggest alternatives, whether satisfactory or not, to the government’s criminal prosecution.[100] Of course, requiring the government to have considered other demonstration possibilities before the government had any notice of the nature of the defendants’ illegal acts would be a bit awkward. And it is always possible, as Zeno’s Paradoxes[101] imply, to imagine reducing any penalty, criminal or civil, in half, in half again, or in half yet again, whether with meaningful deterrent effect or not.

But what is crucially missing in Grady is not after-the-fact suggestions from the defendants, but any sense of a meaningful, collaborative, interactive exploratory discussion between the parties, before or after the civil disobedience and the initiation of the criminal prosecution.[102] We know, from the defendants’ perspective, that their religious beliefs require “symbolic disarmament”[103] and that it is thus incumbent upon the defendants to “practice peaceful activism and prevent nuclear war.”[104] But we do not know how those rather generally formulated principles bear upon any possible religious duty to act more or less precisely than the defendants did, on that occasion or at other times and places, and not in some other licit or illicit manner. Could the gravity of the actual penalty affect the existence or the weight of a religious obligation to engage in more or less similar acts in the future?

Consider, then, a conversation in which naval base officials, or criminal case prosecutors, ask whether the defendants believe that their chosen act of civil disobedience was more likely to prevent nuclear war, or to amount to genuinely peaceful activism, than other legal demonstrations, of any sort, in any designated area. Or more generally, what is “symbolic disarmament” thought to include and exclude, or to require? Is symbolic disarmament thought to require the splashing of human blood,[105] or might other activities be permissibly substituted? By analogy, if one’s religious beliefs require church attendance once a week, on any day of the week, it need not be a substantial burden on one’s religious practice if the government penalizes church attendance on Thursdays, as distinct from any other day.

This is not at all a matter of attempting to pressure, or even persuade, anyone to change their sincerely held religious beliefs. But not all sincere religious believers have fully thought through all their beliefs, let alone the detailed practical implications and permissions entailed by their beliefs. Nor is it certain that the eventual defendants would have fully appreciated all the relevant possibilities associated with a naval base of 17,000 acres, or other arguably relevant sites and facilities.[106]

As the Grady case unfolded, the government wound up successfully claiming that they showed a genuinely compelling interest and that they used the least restrictive means to protect that interest.[107] And the defendants were left with something of an explanatory gap between their articulated general religious beliefs and the specific acts they chose to perform.[108] Ordinary discovery processes plainly failed to catalyze any constructive movement by either party in this context. But a shared burden of producing relevant evidence might have incentivized a meaningful dialogue in which one or both parties came to adjust their prior, perhaps partly undeveloped, assumptions.[109]

B. The Establishment Clause Context

In the Establishment Clause cases, crucial burdens of production may be laid entirely upon the government entity engaging in the challenged practice.[110] As Judge Richard Posner has noted in the Establishment Clause context, the government may well face lower costs than the challenging party in accessing some crucial sorts of evidence.[111] But the comparison in such cases, on the criterion of efficiency, is apparently between placing the burden of production entirely on one party, as distinct from the other.[112] That comparison tells us nothing about the possible efficiencies in shared burdens of production, or more concretely, about the possibility that a shared burden may result, at low cost, in evidence of a quality not otherwise available.[113]

There are of course many kinds of contested Establishment Clause contexts. For purposes of this Article, though, among the most useful are the cases involving prayers, by officials or by outsiders, at the opening of some sort of official public meeting. Some such prayers may be thought of as proselytizing in their nature; as sectarian; as theistic; as merely generally religious; or even as somehow secular.[114] Such prayers are thought to serve a number of purposes. Perhaps an official prayer “lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.”[115] It is also said that “a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”[116] More controversially, it has been claimed that legislative prayer, and the invocation of divine guidance, may legitimately serve not only secular, but also religious purposes.[117]

If we take official public body prayers to amount to any sort of statement at all, we can then say that “[]the meaning of a statement to its audience depends both on the intention of the speaker[118] and on the ‘objective’ meaning of the statement in the community.”[119] More particularly, some such prayers may “send a message to outsiders that they are not full members of the political community . . . .”[120]

Based perhaps on stipulations or on adversarial discovery supervised by judges, the courts seek to resolve such concerns by asking “whether a reasonable observer, apprised of the circumstances and history of the disputed government practice, would conclude that it conveys a message of endorsement or disapproval of religious faith.”[121]

The problem, however, is that the appropriateness, or inappropriateness, of deferring to someone’s largely subjective feelings and emotions may not be optimally resolved through adversarial discovery, or even through the assessment of a conscientious judge. As concurring Judge David Hamilton observes, the “reasonable, objective observer . . . tends to sound a lot like the judge authoring the opinion.”[122] Judges may “deliberately try[] to see the situation from others’ point of view.”[123] But as Judge Hamilton observes, the non-hypersensitive character of an emotional reaction may depend upon one’s status as a religious adherent or nonadherent, or on one’s dominant or subordinate group status.[124]

This Article’s claim in this context is that genuinely interactive dialogue between the most directly affected parties may catalyze possible courses of government action that are not apparent even to the most conscientious judges. The best available answers may well not be the formal positions of either party in isolation, or of the most empathetic judge.

Consider, for example, the question of whether a prayer giver is engaging in proselytization, or in the perhaps unintended disparagement of the beliefs of others, above and beyond the admittedly sectarian character of the prayer.[125] Or the question of whether a clear and conspicuous disclaimer of any unconstitutional intent would be genuinely productive.[126] Or whether it might be less religiously objectionable if outsiders, rather than official board members, deliver the prayers in question.[127] Each of these crucial questions is best answered not through, say, a thorough and probing cross-examination, or isolated reflection in chambers, but through genuinely interactive low-cost dialogue in which both parties bear some legal burden and may win deserved credit in the form of enhanced issue-specific and, importantly, more general, across-the-board credibility.

Perhaps the most pervasive issue in several Establishment Clause cases is that of the presence or absence of some form of government coercion.[128] On any occasion in which the court chooses to focus on the idea of coercion in Establishment Clause cases, that court must responsibly attend to a number of subtle considerations. In particular, for cases of alleged coercion, the particularities of context and circumstance matter.[129] Whether the alleged coercion was intended by the government may also matter, as well as what degree of resistance by the allegedly coerced party should have been legally required or expected.[130] Not every verbal activity, even by officials, counts legally as coercive.[131] We expect adults, if not also children, to display at least some minimal baseline level of resistance to verbal manipulations.[132] But in any given case, in any given context, just what degree of such resistance, or fortitude, can fairly be asked?

In many cases of alleged religious coercion, the best we can do may be to require the parties to jointly explore the relevant backgrounds, assumptions, sentiments, purposes, priorities, and any modifications thereto that emerge as possible and appropriate as each learns from the other. There is certainly no guarantee that genuine progress toward better mutual understanding and a superior overall judicial case resolution will in fact ensue.[133] But the familiar formal discovery processes tend to be relatively costly and not especially constructive in the respects explored above. Holding out the incentive of increased party credibility, on the specific issue and more generally, may lead to more constructive overall results.

III. Conclusion

The practice of placing a burden of evidentiary production on one adversarial party, to the exclusion of the other party, is so familiar that we fail to notice its frequent inappropriateness. Consider, by way of contrast, a simple hypothetical domestic incident. A parent returns home to find that the laundry machine has overflowed, leaving sudsy water on the floor. The parent’s child blames the overflow on an earlier negligent repair by a plumber, who in turn claims that the overflow was due to the child’s failure to follow the washing machine manufacturer’s instructions.

Now the parent is interested in determining whether the child or the plumber, or perhaps both, are causally responsible for the mishap in question. The parent has more than one way of proceeding in this setting. But one way of proceeding the parent will assuredly not take is to begin the inquiry by placing the entirety of any burden of producing evidence on either party to the exclusion of the other. The parent will not, in all likelihood, single out either party and declare that unless that party can meet some evidentiary threshold, the other party will be fully absolved of responsibility on the issue in question. Whether the parent chooses some adversarial style of investigation and resolution or not, no such arbitrary evidentiary burden rule is likely to be adopted.

If the parent does impose what roughly amounts to an evidentiary burden in this case, or in any of innumerable other sorts of disputes, the burden is likely to be, in some fashion, simultaneously shared. In this trivial case, admittedly, the benefits of a shared evidentiary burden may well be less than in a case of constitutional rights where the parties’ interests are less than fully adversarial. But even in our laundry overflow case, there may be some limited benefits of a shared burden of production. Perhaps the plumber’s verbal communication skills in future client interaction cases can be broadly enhanced. Perhaps the child can appreciate the value of more carefully attending to instructions, above and beyond the child’s desire for maximum avoidance of personal blame. The benefits of a shared burden of evidentiary production may be much greater, though, in many disputes over the scope of constitutional rights.

  1. *. Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.
  2. . See, e.g., Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (in libel cases, “[t]here will always be instances when the fact finding process will be unable to resolve conclusively whether the speech is true or false; . . . in those cases . . . the burden of proof is dispositive”).
  3. . See infra Part II.
  4. . See id.
  5. . See id.
  6. . See id.
  7. . See id.
  8. . See infra Subparts II.A & II.B.
  9. . See infra Part II
  10. . See infra Subpart II.A.
  11. . See infra Subpart II.B.
  12. . See infra Part II.
  13. . See id.
  14. . See Otis H. Fisk, Burden of Proof, 1 U. Cin. L. Rev. 257, 257 (1927) (“First, the law fixes what is to be proved; then, it proceeds to place upon somebody the burden of proving it.”).
  15. . At a minimum, framing the issue in a case as whether or not a person has possession of a particular document tends to steer a production burden toward that person, as distinct from some opposing party.
  16. . James B. Thayer, The Burden of Proof, 4 Harv. L. Rev. 45, 48 (1890).
  17. . See John T. McNaughton, Burden of Production of Evidence: A Function of a Burden of Persuasion, 68 Harv. L. Rev. 1382, 1382 (1955) (discussing how “‘the duty of bringing forward evidence’ is not so very different from ‘burden of persuasion’”).
  18. . See id. at 1382 (citing Thayer, supra note 15, at 48).
  19. . Lawrence Crocker, Ethics and the Law’s Burdens of Proof, 18 Interdisc. Core Phil. 272, 273 (2008).
  20. . Id. Professor Louis Kaplow interestingly observes that there has been “surprisingly little attention to the rationale for how stringent burdens of proof should be.” Louis Kaplow, Burden of Proof, 121 Yale L.J. 738, 741 (2012).
  21. . Crocker, supra note 18, at 273.
  22. . Id.
  23. . See, e.g., Fleming James, Jr., Burdens of Proof, 47 Va. L. Rev. 51, 58 (1961) (“There is no satisfactory test for allocating the burden of proof in either sense on any given issue.”).
  24. . See id. at 60; Frederick Schauer, Thinking Like a Lawyer 223 (2009).
  25. . Note, by the way, that the act of ‘proving a negative’ need not be either impossible, or even especially difficult. A photograph of a person in their office at noon establishes, to whatever degree necessary, that the person was, in fact, not then at any infinite number of other places.
  26. . James Cargile, On the Burden of Proof, 72 Phil. 59, 62 (1997).
  27. . See generally id. (discussing more in-depth the hypothetical’s implications).
  28. . Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 209 (1973); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1336 (10th Cir. 1982); State v. St. Francis, 563 A.2d 249, 251 (Vt. 1989).
  29. . See, e.g., Keyes, 413 U.S. at 209 (quoting 9 John H. Wigmore, Evidence § 2486 (3d ed, 1940)).
  30. . See id.
  31. . Paul F. Rothstein, Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials, Geo. Univ. L. Ctr. 1, 4 (2017),
  32. . Cargile, supra note 25, at 62.
  33. . Thayer, supra note 15, at 60. See also Douglas Walton, Burden of Proof, Presumption and Argumentation 49 (2014).
  34. . See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
  35. . See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
  36. . See Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022); Spratt v. Rhode Island Dept. of Corr., 482 F.3d 33, 38 (1st Cir. 2007) (discussing evidentiary burden shifting between the parties under the Religious Land Use and Institutionalized Persons Act).
  37. . For what amounts to a distinct class of burden-shifting rules, in effect if not formally, see the so-called “Lone Pine” order cases, including Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1167–68 (11th Cir. 2014); Avila v. Willits Envt’l Remed. Tr., 633 F.3d 828, 833–34 (9th Cir. 2011); In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743–745 (E.D. La. 2008); Antero Res. Corp. v. Strudley, 347 P.3d 149, 151–152 (Colo. 2015).
  38. . Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, 26 J. Legal Stud. 413, 415 (1997).
  39. . Ronald J. Allen, Burdens of Proof, 13 L. Probability & Risk 195, 198 (2014) (emphasis added).
  40. . Hay & Spier, supra note 37.
  41. . The burden of initiating a civil or criminal action is usually unshared in an adversarial system. It might be possible for even an ultimate burden of persuasion, or the ultimate burden of proof, to be shared in some fashion, as long as a determinate and unequivocal outcome could still be assured. But this possibility is left unexplored herein.
  42. . See infra Subparts II.A & II.B.
  43. . Cf. State v. Temple, 273 S.E.2d 273, 275–76 (N.C. 1981) (holding no error in shifting burden of production to defendant in part because “the order of presentation [of evidence] at trial is a rule of practice” from which the court may depart whenever it, “in its discretion, considers it necessary”).
  44. . See infra Subparts II.A & II.B.
  45. . Commonly, a defendant manufacturer of a product will have cheaper access to the product risks and alternative design possibilities, but the injured plaintiff may have cheaper access to the kinds and degrees of medical and financial injuries suffered. See, e.g., Barker v. Lull Eng’g Co., 573 P.2d 443, 455 (Cal. 1973).
  46. . See State v. Taylor, 393 S.E.2d 801, 811 (N.C. 1990) (Meyer, J., dissenting in part) (“Without access to the entire file, the State cannot adequately determine whether [defense counsel’s] representation was ineffective.”).
  47. . It is often thought that especially remarkable or implausible claims should bear the burden of proof. See, e.g., Robert Brown, The Burden of Proof, 7 Am. Phil. Q. 74, 74 (1970).
  48. . See, e.g., Knight v. Thompson, 797 F.3d 934, 942 (11th Cir. 2015); Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir. 2013); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996); Dep’t of Soc. Servs. v. Bowen, 804 F.2d 1035, 1037 (8th Cir. 1986).
  49. . For a brief discussion on why broadly extending epistemic peerhood status leads to better and more justified decisional outcomes, see R. George Wright, Epistemic Peerhood in the Law, 91 St. John’s L. Rev. 663, 670 (2018).
  50. . See id. at 670 & nn.39–41.
  51. . Walton, supra note 32, at 25.
  52. . For broad background, see Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in The Communicative Ethics Controversy 60, 86 (Seyla Benhabib & Fred Dallmayr eds., 1990); Judith E. Innes & David E. Booher, Collaborative Dialogue as a Policy Making Strategy (UC Berkley, Working Paper No. 2000-05, 2000),; Fiona Robinson, Stop Talking and Listen: Discourse Ethics and Feminist Care Ethics in International Political Theory, 39 Millennium: J. Int’l Stud. 845 (2011); Frisbee Sheffield, Socrates and the Ethics of Conversation, Antigone, (last visited Aug. 6, 2022).
  53. . See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694–95 (2014).
  54. . How much, or how effectively, the government interest must be furthered is often left unspecified. Perhaps some implicit balancing of interests is assumed. For background, see R. George Wright, Free Exercise and the Public Interest After Tandom v. Newsom, 2021 U. Ill. L. Rev. Online 182.
  55. . This Article sets aside questions of how to determine whether the government interest at stake should be thought of as compelling or not. For background, see R. George Wright, The Scope of Compelling Governmental Interests, 97 Notre Dame L. Rev. Reflection (forthcoming 2022),
  56. . See Austin v. U.S. Navy Seals, 142 S. Ct. 1301, 1305 (2022) (Alito, J., dissenting); United States v. Comrie, 842 F.3d 348, 351 (5th Cir. 2016); Ali v. Stephens, 822 F.3d 776, 782–83 (5th Cir. 2016); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007) (under statutory schemes, “once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest”). See also Holt v. Hobbs, 574 U.S. 352, 364 (2015) (prisoner beard length case).
  57. . See id.
  58. . Compare, e.g., Smith v. Owens, 13 F.4th 1319, 1322 (11th Cir. 2021) (prisoner beard case), with Ramirez v. Collier, 142 S. Ct. 1264, 1281 (2022).
  59. . See generally id.
  60. . See Smith, 13 F.4th at 1322; Knight v. Thompson, 797 F.3d 934, 945–46 (11th Cir. 2015); Hamilton v. Schriro, 74 F.3d 1545, 1556–57 (8th Cir. 1996).
  61. . See Smith, 13 F.4th at 1326–27; United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011); Harris v. Wall, 217 F. Supp. 3d 541, 556 (D.R.I. 2016).
  62. . See, e.g., Walker v. Beard, 789 F.3d 1125, 1137 (9th Cir. 2015); Wilgus, 638 F.3d at 1289; Newland v. Sebelius, 881 F. Supp.2d 1287, 1298 (D. Colo. 2012) (“[t]he government need not tilt at windmills; it need only refute alternatives proposed by Plaintiffs.”). For a brief critique of Wilgus, see Legatus v. Sebelius, 901 F. Supp. 2d 980, 996–97 (E.D. Mich. 2012).
  63. . Hamilton, 74 F.3d at 1556.
  64. . See, e.g., Ramirez, 142 S. Ct. at 1281 (in which the Court itself proposes alternative means of maintaining security while allowing a prison chaplain to have physical contact with a condemned prisoner) (asserting that “Texas does nothing to rebut these obvious alternatives, instead suggesting that it is Ramirez’s burden to ‘identify any less restrictive means’”).
  65. . Consider, for example, the trial court’s proposed policy compromise that was rejected by both parties in Smith. 13 F.4th at 1236.
  66. . See, e.g., Holt v. Hobbs, 574 U.S. 352, 368–69 (2015) (noting that most state and federal prisons have less restrictive policies with regard to beard lengths).
  67. . See id.
  68. . Smith, 13 F.4th at 1332 (quoting Knight v. Thompson, 797 F.3d 934, 947 (11th Cir. 2015)).
  69. . See generally Michael Polanyi, The Tacit Dimension (1966).
  70. . In Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1020–21 (9th Cir. 2021), rev’d, 142 S. Ct. 2407 (2022), the court apparently credited the School District for repeatedly seeking to work with the religious claimant in reaching some mutually acceptable accommodation. No burden sharing was imposed.
  71. . O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (emphasis in original).
  72. . See United States v. Christie, 825 F.3d 1048, 1061 (9th Cir. 2016).
  73. . Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005) (emphasis added).
  74. . See Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of Health and Hum. Servs., 724 F.3d 377, 414–15 (3d Cir. 2013).
  75. . See, e.g., Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2000); Religious Freedom Restoration Act, 42 U.S.C. § 2000bb(a)–(b) (1993). As these statutes indicate, government defendants, in general, have duties to, at least minimally, accommodate the relevant constitutional interest of those whom they regulate, as well as to carry out some substantive missions.
  76. . 497 F.3d 272 (3d Cir. 2007).
  77. . See id. at 274.
  78. . See id. at 285.
  79. . See id.
  80. . Id. at 275.
  81. . See id. at 282.
  82. . See id. at 275–82.
  83. . See id. at 274, 285.
  84. . Id. at 285.
  85. . But see Peter J. Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception, 86 Fordham L. Rev. 1847, 1876 (2018) (“Those who defend the ministerial exception often argue for a quick resolution of the issue in order to avoid burdening religious organizations with the cost of discovery. They note that the practical implications for a religious organization of having to litigate a ministerial exception claim all the way through full discovery are significant. Not only must churches bear the ordinary costs of defending the suit, but in ordinary discovery their leaders can be examined on questions of church doctrine, their congregations’ consistency with church doctrine, and countless other matters that might chill a religious institution’s articulation of its own faith if it knows that it might face discovery.”).
  86. . 18 F.4th 1275 (11th Cir. 2021).
  87. . See id. at 1280.
  88. . Id.
  89. . See id.
  90. . See id.
  91. . Id. at 1281.
  92. . See id. at 1285.
  93. . See id.
  94. . Id. at 1281.
  95. . See id. at 1286 (citing Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 439 (2006); Holt v. Hobbs, 574 U.S 352, 361–62 (2015)). See also Wright, supra note 54.
  96. . Grady, 18 F.4th. at 1285 (applying the compelling interest standard only to the defendants’ conduct).
  97. . Id. at 1283–84. The significance of any kind of injunction against further civil disobedience would depend upon whether the defendants believe themselves religiously bound to commit identical, similar, or substantially different acts of symbolic disarmament in the future, at the naval base or elsewhere.
  98. . See id. at 1281.
  99. . See id. at 1285.
  100. . See supra note 96 and accompanying text.
  101. . See Nick Huggett, Zeno’s Paradoxes, in Stan. Encyc. Phil. (June 11, 2018),
  102. . See generally Grady, 18 F.4th 1275.
  103. . Id. at 1281.
  104. . Id.
  105. . See supra note 90 and accompanying text.
  106. . See supra note 94 and accompanying text.
  107. . Grady, 18 F.4th at 1288.
  108. . Id. at 1286–87.
  109. . See the routes to persuasion traced in John T. Cacioppo & Richard E. Petty, The Elaboration Likelihood Model of Persuasion, 11 Advances Consumer Rsch. 673, 673–75 (1984),
  110. . For useful discussion, see the opinion of Judge Richard Posner in Metzl v. Leininger, 57 F.3d 618, 622–23 (7th Cir. 1985), and the discussion of that opinion in Martha Minow, Religion and the Burden of Proof: Posner’s Economics and Pragmatism in Metzl v. Leininger, 120 Harv. L. Rev. 1175, 1181–83 (2007). The Metzl case is favorably cited in Bridenbaugh v. O’Bannon, 185 F.3d 796, 798–99 (7th Cir. 1999). The Bridenbaugh case is in turn discussed in Megan E. Kleinfelder, Comment, Good Friday, Just Another Spring Holiday?, 69 U. Cin. L. Rev. 329, 351–52 (2000).
  111. . See Metzl, 57 F.3d at 622 (citing 2 McCormick on Evidence § 337 (4th ed. 1992)).
  112. . Id.
  113. . The parties may, for example, have complementary, or usefully interactive, absolute, or comparative advantages in developing particular dimensions of the relevant evidence. For background, see, e.g., Troy Segal, Absolute v. Comparative Advantage: What’s the Difference?, Investopedia (May 28, 2022),
  114. . See, e.g., the differentiations in Fields v. Speaker of Pa. House of Reps., 936 F.3d 142, 150–52 (3d Cir. 2019); Barker v. Conroy, 921 F.3d 1118, 1125 (D.C. Cir. 2019).
  115. . Town of Greece v. Galloway, 572 U.S. 565, 575 (2014).
  116. . Galloway, 572 U.S. at 587.
  117. . See Fields, 936 F.3d at 150 (“[l]egislative prayer has historically served many purposes both secular and religious.”). See also Stone v. Graham, 449 U.S. 39 (1980).
  118. . Which may be taken to be the literal speaker, the public body itself or the majority thereof, some prior version of the body, or some other enacting body that initiated the practice.
  119. . Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).
  120. . Id. at 688 (O’Connor, J., concurring). See Lund v. Rowan Cnty., 863 F.3d 268, 272 (4th Cir. 2017) (en banc) (“[t]he prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion . . . .”).
  121. . Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 857 (7th Cir. 2012) (en banc) (Hamilton, J., concurring). As an example, consider the Galloway case, in which plaintiff Susan Galloway “admonished board members that she found the [board meeting] prayers ‘offensive,’ ‘intolerable,’ and an affront to a ‘diverse community.’” Galloway, 572 U.S. at 572. The Town of Greece, New York, is apparently only 8.5 miles, or 13 minutes, from the presumably broader range of clerics available in Rochester, New York.
  122. . Elmbrook Sch. Dist., 687 F.3d at 857–58.
  123. . Id. at 858.
  124. . See id.
  125. . See, e.g., Lund, 863 F.3d at 271–72; Bormuth v. City of Jackson, 870 F.3d 494, 512 (6th Cir. 2017) (en banc).
  126. . See, e.g., Lee v. Weisman, 505 U.S. 577, 631, 644–45 (1992) (Scalia, J., dissenting).
  127. . See Lund, 863 F.3d at 272.
  128. . See, for example, the opinions of the majority and the dissenters in Lee, 505 U.S. at 590, 630; Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist., 896 F.3d 1132, 1146–47 (9th Cir. 2018) (per curiam) (school board meetings with integrated children’s performances), as well as the opinions dissenting from the denial of rehearing of the Chino Valley case en banc, 910 F.3d 1297 (9th Cir. 2018). Coercion in the context of high school students is also discussed in Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 911 (9th Cir. 2021) (M. Smith, J., concurring in denial of rehearing en banc), rev’d, 142 S. Ct. 2407 (2022); Bormuth, 870 F.3d at 517 (“we do not agree that soliciting adult members of the public to assist in solemnizing the meetings by rising and remaining quiet in a reverent position is coercive.”).
  129. . See Alan Wertheimer, Coercion 267 (1987). See generally Scott Anderson, Coercion, in Stan. Encyclopedia of Phil., (rev. ed. Oct. 2, 2011).
  130. . See R. George Wright, Why a Coercion Test Is of No Use In Establishment Clause Cases, 41 Cumb. L. Rev. 193, 195 (2011).
  131. . See generally id.
  132. . See id. Similarly, we are not willing to consider just any audience member to inescapably be a captive audience member.
  133. . Consider the ultimate inefficacy of Shylock’s best-known speech in The Merchant of Venice. See William Shakespeare, The Merchant of Venice act 3, sc. 1.

By Nicole Tronolone

While for many February 29 is a normal day—simply a quirk of our system of leap-years—for lawyers and “Leapers” alike it presents a host of complexities and anomalies.  The variance between an astronomical year and the calendar year has plagued leaders and lawyers for millennia.[1]  Dating back to 46 B.C., the lengthy history of Leap Year and the corresponding uncertainty in date and measurements of time have created a multitude of problems including uncertainty in dates of birth, sentencing requirements, contractual obligations, and filing dates.[2]  Despite its calendrical predictability, Leap Day continues to serve as a basis for litigation, providing an intriguing, if not confusing, discussion of mankind’s ability to correctly, and continuously, measure time.[3]

In contrast to the 365-day calendar taught in primary schools, the Earth’s orbit around the sun takes 365.2422 days to complete.[4]  Because this is not an even number, the length of Earth’s orbit results in a “drift” of calendar years, with the date losing sync with holidays and seasons.  Efforts to address this problem through the use of an abbreviated calendar year date back to the ancient Sumerian calendar that divided the year into twelve equal months of thirty days.[5]  Ancient Egyptians modified this calendar, tacking on five additional days of festivals to the end of the year to ensure it matched the astronomical calendar.[6]  Prior to the reign of Julius Caesar, Romans observed a 355-day year; this approach, however, had caused the seasons to drift by about three months by the time Caesar ascended to power.[7]  In response, Caesar implemented the Julian calendar.  In 46 B.C. he decreed a single 445-day long year, appropriately called the “Year of Confusion,” and mandated all following years to be 365.25 days long with an additional day observed every four years.[8]  Although this solution greatly alleviated the problem, the discrepancy between the calendar and astronomical year persisted, with the astronomical year remaining eleven minutes longer than the calendar.[9]  This variation increased over time, resulting in a divergence of an entire day between the calendars every 128 years.[10]

By the 16th century, the accumulation of these extra days had caused the Catholic holidays to shift by ten days, with Easter losing its proximity to the Jewish Passover.[11]  In the papal bull Inter gravissimus, issued on February 24, 1582, Pope Gregory XIII implemented the Gregorian Calendar to resolve the situation.  Under the decree, October of 1582 lost ten days, as October 4, 1582 was directly followed by October 15, 1582.[12]  The Gregorian Calendar kept the 365 day-year used in the Julian calendar but modified the calculation of Leap Years.  Today, the current calculation of Leap Days and Years follows the Gregorian Calendar.  Every year divisible by four is a leap year, except for years divisible by 100.[13]  However, years divisible by 400 are leap years.[14]  The Gregorian calendar results in an average calendar year length of 365.2425 days, only twenty-six seconds longer than an astronomical year.[15]  This minimal divergence means that it will take over 3,300 years before the Gregorian calendar deviates a single day from the seasonal cycle.[16]

The Gregorian calendar was quickly adopted by Roman-Catholic countries, while Protestant states initially rejected the change.[17]  Great Britain and its colonies, including what is now the United States, did not adopt the Gregorian Calendar until 1752, instead relying on the Julian calendar.[18]  Once Great Britain adopted the Gregorian calendar, an eleven day discrepancy remained between the two calendar system.[19]  To correct this difference Parliament accelerated the calendar “overnight” so that September 2, 1752 was immediately followed by September 14, 1752.[20]  The 200 year period of divergence from 1582 to 1752, however, created long-lasting discrepancies in interstate communication.  For example, correspondence between Britain and France anytime between 1582 to 1752 written on the same day would actually carry a date discrepancy of between ten to eleven days.[21]  Perhaps one of the mostly widely known consequences of this overnight jump is the celebration of George Washington’s birthday.  Although Washington’s birthday was initially reported as February 11, because he was born prior to 1752 the eleven-day skip imposed in 1752 changed his birthday to February 22.[22]

Under the Gregorian calendar the probability of being born on February 29, Leap Day, is one in 1,461.[23]  For these “Leapers” information regarding their date of birth can become a challenging exercise in patience and ingenuity.  Hospitals report mothers scheduling caesarean sections and requesting to be induced either before or after Leap Day as a result of concerns over the complexities of celebrating Leap Day birthdays with small children.[24]  Doctors have even offered to change the birth certificates of babies born on Leap Year either back dating to February 28 or forward dating to March 1, a practice that is not entirely legal.[25]

The issues surrounding date of birth information are easily overlooked by those with birthdays that occur every year.  Leapers, however, often face business and organizations registrations that do not list their birthday as an option.  Even more extreme, previous healthcare IT systems have rejected February 29 as a valid date of birth.[26]  The nuisances faced by those with Leap Day birthdays include challenges regarding the effectiveness of a driver’s license that expires on February 29 or a life insurance policy that is calculated based on a birthday rather than the actual number of years lived.[27]  To address this ambiguity, most states have enacted statutes that explicitly define which date is to be used for age purposes, including the right to vote, purchase alcohol, and receive a driver’s license.  In states that exclude the day of birth from such calculations, Leapers are deemed to be a year older on March 1, whereas in states that include the day of birth, a Leaper’s legal date of birth is February 28.[28]

The confusion created by Leap Day extends far beyond birthdays, with the date a continuous source of litigation.  For example, Leap Years have the potential to create additional paydays if a company’s payroll is weekly or biweekly.  As a result, salaried employees who are paid on these schedules may experience one more payday in Leap Years than in others.[29]  Leap Day can also complicate the determination of timely filings and statute of limitations.  Federal Rule of Civil Procedure 6(a) adopts the “anniversary method,” under which the leap day is ignored, and the final day to file is the anniversary of the event that starts the clock.[30]  Interest calculations have also been challenged, with arguments premised on the notion that interest rates based on a 360-day year, a standard bank year, leave borrowers with higher effective interest rates in Leap years.[31]

More recently, Leap Day litigation has focused on the implications of a 366-day year on sentencing provisions.  In Habibi v. Holder,[32] the 9th Circuit addressed whether a prison term served over a Leap Year “qualifies as a ‘term of imprisonment [of] at least one year.’”[33]  Habibi, a lawful permanent resident, was convicted of a Battery of a Current or Former Significant Other in November 1999 and received a 365-day sentence that was to be served over the year 2000, a leap year.[34]  8 U.S.C. § 1101(a)(43)(F) provides that a lawful permanent resident who commits an “aggravated felony” is ineligible to apply for cancellation of removal.[35]  As a result, the Department of Homeland security served him with a Notice to Appear, under the argument that his conviction and sentence, “made him removeable under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of violence.”[36] An immigration judge denied his request for cancellation of removal holding his conviction qualified as an “aggravated felony” under § 1101(a)(43)(F).  The Immigration Judge rejected Habibi’s argument that his 365-day sentence, served during a 366-day leap year, did not qualify as an aggravated felony”[37] because “aggravated felony” is defined as a “crime of violence . . . for which the term of imprisonment [is] at least one year.”[38]  After analyzing the complexities of calculating Leap Years, the 9th Circuit held, “In the context of § 1101(a)(43), the BIA [Board of Immigration Appeals] correctly concluded that the phrase “‘term of imprisonment [of] at least one year’ means a sentence of at least 365 days, regardless of whether any part of the sentence was served during a leap year.”[39]  The court reasoned that adopting Habibi’s argument that a “one year” sentence during a Leap Year should require 366 days would “lead to unjust and absurd results.”[40]

Although many will regard February 29, 2020 as just another day, for some, the Leap Day presents unique complexities.  438 years after Pope Gregory XIII’s implementation of the Gregorian calendar, the variance between the astronomical and calendar year continues to generate uncertainty and legal challenges.  2020, a Leap Year, is unlikely to be an exception, witnessing a host of new and creative arguments regarding the unexpected implications of Leap Day. 

[1] Leap Year: 10 Things About 29 February, BBC (Mar. 1, 2012),

[2] See, e.g., State v. Mason, 66 N.C. 636, 637 (1872); Habibi v. Holder, 673 F.3d 1082, 1084 (9th Cir. 2011); Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001); United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

[3] See, e.g., Habibi, 673 F.3d at 1084 (“How many days are in a year?  The answer is more complicated than it may first appear. . . . Despite its precision, the astronomical definition of a year does not help us answer the question of how long ‘one year’ is for purposes of 8 U.S.C. § 1101(a)(43)(F).”).

[4] Leap Year: 10 Things About 29 February, supra note 1.

[5] See Brian Handwerk, The Surprising History Behind Leap Year, Nat’l Geographic (Feb. 26, 2016),

[6] See id.

[7] Leap Year: 10 Things About 29 February, supra note 1; see also Handwerk, supra note 5.

[8] Handwerk, supra note 5.

[9] Id.

[10] See id.

[11] See id.; see also L.E. Doggett, Calendars, NASA: Goddard Space Cent. (last visited Feb. 11, 2020),

[12] See Doggett, supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] See Handwerk, supra note 5.

[17] Doggett, supra note 11.

[18] See Julian/Gregorian Calendars, U. Nottingham: Manuscripts & Special Collections (last visited Feb. 11, 2020),

[19] See Julian/Gregorian Calendars, supra note 18.

[20] Id.

[21] See id.

[22] George Washington’s Birthday, Nat’l Archives (last updated June 19, 2019),

[23] Leap Year: 10 Things About 29 February, supra note 1.

[24] See Meg Bryant, ‘Leap Year Babies’ Still Face Medical Records Challenges, Healthcare Dive (Feb. 29, 2016),

[25] See id.; see also Katie Bindley, Leap Year Babies: Expecting on February 29?, HuffPost (Feb. 28, 2012),

[26] See Bryant, supra note 24.

[27] See id.

[28] The Leap Year and the Law, Thomson Reuters: Legal Solutions Blog (Feb. 29, 2016),

[29] See Samantha Koeninger Rittgers, 2020 is a Leap Year. Is This a Trick or Treat?, Graydon (Oct. 31, 2019),

[30] Fed. R. Civ. P. 6(a); see also United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (citing United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)) (“Under this rule, when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the relevant act.  The anniversary date is the ‘last day to file even when the intervening period includes the extra leap year day.’”).

[31] See Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001) (upholding 365/360 interest rate calculation included in promissory note).  A 366-day year would result in 0.278% more interest paid than in a 365-day year.

[32] 673 F.3d 1082 (9th Cir. 2011).

[33] See Habibi, 673 F.3d at 1086.

[34] Id. at 1088.

[35] 8 U.S.C. § 1101(a)(43)(F).

[36] Habibi, 673 F.3d at 1088.

[37] Id. at 1085.

[38] 8 U.S.C. § 1101(a)(43)(F).

[39] Habibi, 673 F.3d at 1086.

[40] Id.

By Elliott Beale and Cassidy Webb

Senior Judge Clyde H. Hamilton was born in 1934 in the town of Edgefield, South Carolina.[1] After obtaining his B.S. from Wofford College in 1956, Judge Hamilton served as a U.S. Army Reserve Captain from 1956-1958.[2]  Judge Hamilton then attended George Washington University Law School, graduating with his J.D. with honors in 1961.[3] For the next two decades, Judge Hamilton worked in private practice in Edgefield and Spartanburg.[4]

On November 13, 1981, President Ronald Reagan nominated Judge Hamilton to a vacant seat in the U.S. District Court for the District of South Carolina.[5]  The Senate confirmed Judge Hamilton on November 24, 1981; Judge Hamilton served in this role until 1991.[6]  On June 12, 1991, President George H.W. Bush nominated Judge Hamilton to fill a newly created seat on the U.S. Court of Appeals for the Fourth Circuit.[7]  He was confirmed by the Senate on July 18, 1991 and assumed senior status on November 30, 1999.[8]  Senior status allows a retirement-eligible judge to continue serving on the bench while taking a reduced caseload.[9]  He is still currently serving as a senior judge.[10]

The majority of the cases Judge Hamilton hears are civil procedure cases, followed by labor and employment law and business and corporate compliance cases.[11]  He has presided over numerous interesting cases.  For example, in 2015 Judge Hamilton sat on the Fourth Circuit panel that found “consumers accusing manufacturers of making false advertising statements must show that no reasonable expert would agree with the statements.”[12]  This ruling was the “first-of-its-kind” by a federal appellate court.[13]  Judge Hamilton was also on the panel that “upheld the constitutionality of a federal law prohibiting citizens from engaging in non-commercial, illicit sexual conduct after traveling to a foreign country.”[14]

One of the most notable cases Judge Hamilton heard was decided in 2003.[15]  In 2002, 13-year-old middle schooler Alan Newsom was told by Virginia school officials that he could not wear a “NRA T-shirt depicting images of three people with guns and the words ‘Sports Shooting Camp.’”[16]  Newsom sued the school district and the Fourth Circuit eventually ruled that the school’s ban on clothing portraying weapons is unconstitutionally vague and overbroad.[17]  Judge Hamilton wrote the opinion of the court.[18]  He stated that the school’s dress code “exclude[d] a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory.”[19]       

As Judge Hamilton remains serving as a senior judge, he continues to hear cases.[20]  Recently, he was on the panel that although “testimony may have conflicted with disputed evidence, the conflict can affect only the weight and credibility of the opinion, not its admissibility.”[21]  Last year, he sat on the panel that affirmed a lower court’s decision to cap at $100,000 an insurer’s duty to defend a gym in a suit claiming two of its staff sexually assaulted a teenager.[22]  Judge Hamilton will likely be involved in many future fascinating cases as he continues his impressive career.

[1]Senior Judge Clyde H. Hamilton, U.S. Court of Appeals for the Fourth Circuit, (last visited Mar. 18, 2019). 


[3]Clyde H. Hamilton, Lexis Context, (last visited Mar. 18, 2019).

[4]Senior Judge Clyde H. Hamilton, supra note 1. 





[9]Kevin Elliker, How Senior Status Vacancies Will Shape the 4th Circ., Law 360 (Feb. 7, 2018),

[10]Senior Judge Clyde H. Hamilton,supra note 1. 

[11]Clyde H. Hamiltonsupra note 3. 

[12]Sindhu Sundar, 4th Circ. Raises Bar for False Ad Plaintiffs in GNC Ruling, Law 360 (July 9, 2015),


[14]Marcia Coyle, Gov’t Can Prosecute Citizens for Illicit Sex in Foreign Countries, The Legal Intelligencer (Aug. 25, 2015),

[15]Michelle Galley, Court Blocks School Ban on Weapons Images, Education Week (Jan. 7, 2004), 



[18]Eugene Volokh, High School Student Suspended for Refusing to Remove NRA T-shirt, Wash. Post (Mar. 13, 2014),


[20]See 4th Circuit: Testimony that Conflicted with Disputed Evidence was Allowed, Mealey’s Daubert Report (July 20, 2018),


[22]Adam Rhodes, Gym’s Sex Abuse Coverage Capped at $100K by 4th Circ., Law 360 (Mar. 27, 2018), 

By Elliott Beale and Cassidy Webb

Samuel James Ervin III was born on March 2, 1926 in Morganton, North Carolina.[1] Judge Ervin joined the U.S. Army and served as a lieutenant from 1944 to 1946.[2] After Judge Ervin earned his Bachelor of Science from Davidson College in 1948, he received his LL.B. from Harvard Law School in 1951.[3] Following another two year stint in the U.S. Army, Judge Ervin returned to Morganton to work in private practice.[4] Judge Ervin worked at Patton, Ervin, and Starnes, where he became associated in 1957.[5] While working in private practice, Judge Ervin served as a solicitor for the Burke County Board of Commissioners from 1954 to 1956 and North Carolina State Representative from 1965 to 1967.[6] Governor Dan K. Moore named Judge Ervin to fill a vacancy on the North Carolina Superior Court for the 25th Judicial District in July 1967.[7] Judge Ervin served on the North Carolina Superior Court until 1980.[8]

On April 2, 1980, President Jimmy Carter nominated Judge Ervin to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[9] He was confirmed by the Senate on May 21, 1980 and received his commission on May 23, 1980.[10] He served as Chief Judge of the Fourth Circuit from 1989 to 1996.  While serving as Chief Judge, Judge Ervin was also a member of the Judicial Conference of the United States from 1989 to 1995.[11] His service terminated on September 18, 1999 upon his death.[12]

One of the most interesting cases Judge Ervin said he presided over as a North Carolina judge was when the court effectively rewrote James B. Duke’s, founder of Duke Power, will.[13] Judge Ervin had to determine what Duke would have done with the dispositional investment his foundation had in Duke Power Company had Duke known about the Tax Reform Act at the time he made his will.[14] Judge Ervin also presided over one of the first inverse condemnation cases in Charlotte.[15] He had to determine whether airplanes could inversely condemn the property by flying at low altitudes regularly over people’s houses and if this enabled the individuals to recover damages for their property’s loss of value.[16]

Following his death, Judge James Dickson Phillips, Jr. fondly remembered Judge Ervin as the “very model of prudence and temperance, of fortitude and fairness.”[17] Judge Phillips described Judge Ervin as a man who wore no masks and acted with integrity, courtesy, and civility in all circumstances.[18]

Judge Ervin was survived by his wife, two daughters, and two sons.[19] His sons, Samuel “Jimmy” Ervin IV and Robert C. Ervin, both followed in their father’s footsteps and became judges.[20] Judge Ervin IV currently serves as an Associate Justice of North Carolina Supreme Court, and Judge R. Ervin currently serves as a North Carolina Superior Court judge.[21] Judge Ervin IV says one of the biggest lessons his father taught him “was to remember that behind any case that comes before the court there are real people with real problems whose lives will be substantially affected by what the members of the court do.”[22]



[1]Ervin, Samuel James III, Fed. Jud. Ctr., (last visited Oct. 23, 2018).




[5]Jimmy Rhyne, 50 Years Ago, News Herald (Jul. 10, 2017),

[6]Fed. Jud. Ctr., supra note 1.

[7]Rhyne, supra note 5.

[8]Fed. Jud. Ctr., supra note 1.





[13]Interview by Hilary L. Arnold with Judge Sam J. Ervin III, Chief Judge of the Fourth Circuit, in Morganton, NC, (Feb. 24, 1993 & Apr. 8, 1993),




[17]James D. Phillips, Jr., Sam J. Ervin III: A Tribute, 78 N.C. L. Rev. 1705, 1706 (2000).


[19]Samuel James Ervin 3d, 73 Federal Judge, N.Y. Times (Sept. 21, 1999),

[20]Sharon McBrayer, Taking the Bench: Sam Ervin Sworn in as NC Supreme Court Judge, News Herald (Jan. 8, 2015),



By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM),

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017),

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017),

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

By Kelsey Hyde

On March 17, 2017, the Fourth Circuit published an opinion in the civil matter of Sharma v. USA International, vacating the district court’s grant of summary judgment and remanding for further proceedings. In departing from the lower court’s ruling, the Court found the U.S. District Court for the Eastern District of Virginia improperly granted the defendant’s motion for summary judgment based solely on the contested issue of plaintiff’s purported damages.

Factual & Procedural Background

The plaintiffs in this case, Jatinder Sharma & his corporation Haymarket Fast Foods, Inc., were involved in a business transaction with defendants Khalil Ahmad and Mahrah Butt, partners at USA International, LLC. Sharma became interested in purchasing two restaurants– a Checkers and an Auntie Anne’s– from defendants upon learning how these restaurants were generating high sales. Throughout negotiations for the purchase of these restaurants, Sharma reviewed USA International’s tax returns and financial statements, which indicated the combined sales of the restaurants for the most recent months were about $75,000 per month.

The parties’ first purchase agreement specified a price of $720,000, and made the sale contingent on the stores collectively acquiring $90,000 in monthly sales in the two months prior to a settlement. Subsequent financial statements revealed lower monthly sales, thus the price was later reduced to $600,000 and the conditional-sale provision was eliminated from the final agreement. Sharma formed the entity Haymarket Fast Foods, Inc. in relation to the transaction, and also applied for a loan at his bank to secure part of the purchase price. His application represented that the restaurants’ average monthly sales based on the figures presented in the financial statements provided by defendants.

Shortly after the closing, Sharma noticed sales well below the figures that had been conveyed by defendants. Sharma looked further at other elements of the business– namely the supply orders, employee’s personal observations, and bank records– in an attempt to uncover the discrepancy. This investigation made Sharma realize that, based on the supplies available, the amount of sales defendants had purported to make were simply not possible; he then suspected that defendants had inflated their sales on the income statements provided to him before closing. Further, employees who had been working for defendants revealed to Sharma that defendant Butt had, on numerous occasions, rung up high sales for food not ordered by customers, and then directed employees not to prepare the food that coincided with these orders. Moreover, Bank of America accounts revealed that deposits attributable to the restaurant were substantially lower than those represented in the statements given to Sharma.

In response to these findings, Sharma filed on action for fraud against the defendants, alleging they had inflated sales figures and lied during negotiations, resulting in fraudulent inducement to pay a higher price for the business than it was truly worth. He proposed that damages be calculated by either (1) multiplying weekly sales by 36, or (2) multiplying monthly earnings by 48, either of which meant to provide the proper valuation of the business.

Defendants filed a motion for summary judgment, claiming plaintiffs had failed to sufficiently establish the materiality of the alleged misrepresentations, their reliance on the misrepresentations, and their damages (i.e. three of the particular elements necessary to succeed on a fraud claim). The district court found that plaintiffs had adequately shown the materiality of and reliance on defendants’ misrepresentation, but had indeed failed to provide enough evidence for a factfinder to estimate with reasonable certainty the amount of damages they sustained. Namely, the court rejected the two methods proposed by plaintiff for finding the actual value of the two restaurants, concluding that neither method conformed to any generally accepted methods for valuing a business, nor sufficiently proved they were independently reliable. Thus, because damages are a necessary element of a fraud claim under controlling state law, the court granted summary judgment. On appeal, the sole issue presented regarded the district court’s finding of insufficient evidence of damages.

Elements of the Claim & Standards to be Met on Motion for Summary Judgment

On a motion for summary judgment, the court takes the record in the light most favorable to the non-movant party. The moving party is entitled to a grant of summary judgement as a matter of law if they show there is no genuine dispute as to any material fact. F.R.C.P. 56(a).

To establish a claim for fraud under Virginia law, a plaintiff must show: (1) false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting in damages to the party so misled. Evaluation Research Corp. v. Alequin, 439 S.E.2d 387, 390 (Va. 1994). Because all such elements are necessary, failure to satisfy any one element is enough to bar relief for a fraud claim, as the district court found in their ruling based on failure to establish damages.

Under Virginia law, when a dispute involves the transfer of goods or property, damages are measured by the difference between the asset’s actual value at the time of contract and the asset’s purported value if the representations made had instead been true. Courts have previously treated sales prices as sufficient evidence of value, especially in arms’ length transactions. Virginia law maintains that plaintiffs need not prove damages with absolute certainty, but a plaintiff still must provide sufficient evidence to allow a factfinder to make an intelligent, probable estimate of the damages or losses allegedly sustained.

Fourth Circuit Finds Plaintiffs’ Evidence Regarding Estimated Damages Sufficient to Survive Motion for Summary Judgement

The Court concluded that plaintiffs had indeed met their burden and had put forth sufficient evidence to allow an estimate of damages by a factfinder. Namely, the Court emphasized that the parties’ arms-length transaction would allow a reasonable factfinder to conclude that the restaurants’ final sales price represented their value, as needed for the calculation of damages. Viewing the record most favorably for the plaintiffs, the Court found that negotiations surrounding the final price of the restaurants evidenced that both parties’ relied on a valuation of the businesses derived from a multiple of weekly and/or monthly sales. Moreover, the entire content of negotiations between the parties clearly revolved around the restaurants’ weekly or monthly sales, from Sharma’s initial interest in purchasing the restaurant to the later financial statements used by defendants to further persuade Sharma to go forward with the purchase. The Court even performed its own calculations to affirm this result, despite the defendants’ refusal to confirm the calculation methods used to arrive at the sales price.

However, the Court also emphasized that the actual multiplier-numbers used or derived are not dispositive in this case, and that defendants could indeed challenge those numbers as a matter of fact later in the case. Instead, the true question was whether plaintiffs provided sufficient evidence, as a matter of law, for a factfinder to estimate a probable calculation of damages. In the Fourth Circuit’s opinion, the plaintiffs did just that by presenting their own estimate with reasonable precision and support for their own calculations, using an accepted approach based on income and computing their results with specific numbers provided by defendants to estimate the purchase price.

Vacated & Remanded

Based on their finding that Plaintiff’s purported estimates of damages were acceptable and sufficient to create a material dispute of fact, the Fourth Circuit vacated the District Court’s grant of summary judgement and remanded for further proceedings to continue plaintiff’s fraud claims.

By Ali Fenno

On February 21, 2017, the Fourth Circuit issued a published opinion in the civil case of vonRosenberg v. Lawrence. In vonRosenberg, the Fourth Circuit addressed whether the district court abused its discretion by staying a federal proceeding until the conclusion of a similar state action involving different parties and claims. After examining the abstention standard from Colorado River Water Conservation District v. United States, the Fourth Circuit vacated the abstention order and remanded the case back to the district court, holding that the district court abused its discretion by abstaining in favor of state court proceedings that were not parallel to the federal court proceedings.


Both this federal proceeding and the related state proceeding concerned whether the Diocese of South Carolina (the “Diocese”) dissociated itself from the Protestant Episcopal Church in the United States (the “Episcopal Church”). Bishop vonRosenberg, the federal plaintiff-appellant, claims that the Episcopal Church appointed him as Bishop of the Diocese after removing Bishop Lawrence, the federal defendant-appellee, from the position. But Bishop Lawrence contends that the Episcopal Church could not have removed him because the Diocese of South Carolina had dissociated from the Episcopal Church and acted independently of the organization. Thus, each party claimed to be the Bishop of the Episcopal Church in South Carolina.

State Claim

Litigation over the dissociation matter first began when the Diocese filed suit against the Episcopal Church in a South Carolina state court, claiming that the Diocese had dissociated from the Episcopal Church and sought “resolution of their real and personal property rights.” The Episcopal Church then counterclaimed for trademark infringement and dilution under the Lanham Act. It also requested that Bishop Lawrence and others be added as counterclaim defendants, but the state trial court denied the request in September 2013.

The state court issued its final order on February 3, 2015. It held that the Diocese had validly dissociated from the Episcopal Church and owned the property at issue, and permanently enjoined the Episcopal Church from using the Diocese’s marks. The Episcopal Church appealed, and the South Carolina Supreme Court heard oral arguments on September 23, 2013. No opinion from the state supreme court has yet been issued.

Federal Claim

Bishop vonRosenberg filed this federal action on March, 13, 2013, seeking declaratory-injunctive relief against Bishop Lawrence. He claimed that Bishop Lawrence violated the Lanham Act by falsely advertising himself as the Bishop of the Diocese. But the district court abstained the proceeding in favor of the state court proceedings in August 2013. The court reasoned that it had broad authority to decline jurisdiction on cases seeking declaratory relief. On appeal, the Fourth Circuit vacated the abstention order on the grounds that the district court had applied the wrong abstention standard; the district court should have applied the standard for actions involving both declaratory and non-declaratory relief from Colorado River Water Conservation District v. United States. The Fourth Circuit remanded the case so this correct standard could be applied.

On remand, the district court again abstained in favor of the state proceedings, and Bishop vonRosenberg appealed.

Failure to Meet the “Exceptional Circumstances” Abstention Standard

The Fourth Circuit began its analysis by establishing that Colorado River is a narrow standard; it requires that abstention of jurisdiction be justified by “exceptional circumstances.” The Fourth Circuit identified the first step in this “exceptional circumstances” test to be a determination of whether the state and federal cases are parallel. It listed three guiding principles for this determination: (1) the federal and state parties should have more in common than merely the litigation of substantially similar issues; (2) the parties themselves should be nearly identical; and (3) despite overlapping of facts, there must not be serious doubt that the state action would not resolve all the claims. The Fourth Circuit then noted that even if the if the factual circumstances are sufficiently parallel, Colorado River requires that a handful of procedural factors be balanced before abstaining.

In applying these principles to this case, the Court first observed that the parties in the two cases are not the same. Neither Bishop Lawrence nor Bishop vonRosenberg were parties to the state action. Furthermore, the two courts were not litigating the same claims. The state court looked only at the Episcopal Church’s false advertising claim, not that of Bishop vonRosenberg. Thus, because the state and federal cases involved different parties and different claims, the cases were not parallel as required by Colorado River‘s “exceptional circumstances” standard.


The Fourth Circuit concluded that the state and federal proceedings failed to meet Colorado River’s “exceptional circumstances” standard because, as they involved different parties and different claims, they could not be considered parallel cases. Accordingly, it vacated the abstention order and remanded the case back to the district court.

By Katie Baiocchi

On January 25, 2017, the Fourth Circuit published Marlon Hall v. DIRECTV, LLC, a civil case. Plaintiffs Marlon Hall, John Wood, Alix Pierre, Kashi Walker and John Albrecht (“Plaintiffs”) appealed the order granting defendants’ DIRECTV, LLC, DIRECTSAT USA, LLC and DIRECTV, INC. (“Defendants”) motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). Plaintiffs alleged that defendants were joint employers and therefore are jointly and severally liable for any violations under the Fair Labor Standards Act (“FLSA”). The Fourth Circuit found the district court relied on out-of-circuit authority that has been rejected in the Fourth Circuit in analyzing the relationship between the parties. The district court also failed to construe plaintiffs’ allegations liberally as required by a motion to dismiss. Accordingly the Fourth Circuit reversed and remanded the case.

Facts and Procedural History

Defendant DIRECTV employs technicians through the DIRECTV “Provider Network.” Each plaintiff alleged that between 2007 to 2014 they worked as a technician for defendant, an intermediary provider, a subcontractor, or a combination of all three. Defendant DIRECTSAT enforced the hiring criteria of DIRECTV for technicians. DIRECTV also provided a centralized work-assignment system, and regulated and audited personnel files. Plaintiffs were required to wear DIRECTV uniforms, carry DIRECTV identification cards, and display the DIRECTV logo on their vehicles. Technicians who did not meet DIRECTV hiring criteria could not install or repair DIRECTV equipment. Plaintiffs claim that they each regularly worked in excess of forty hours per week without receiving overtime pay while working as technicians. Plaintiffs specifically allege that the defendants qualify as joint employers and their failure to provide overtime pay violated FLSA overtime and minimum wage requirements. Defendants each moved to dismiss plaintiffs’ complaint pursuant to F.R.C.P. 12(b)(6). The district court granted this motion in its entirety because they concluded that the Complaint did not allege facts sufficient to establish that defendant DIRECTV jointly employed plaintiffs.

The Fourth Circuit reviewed the district court’s dismissal de novo and accepted as true all the factual allegations contained in the complaint and drew all reasonable inference in favor of plaintiffs.

The District Court Applied an Improper Legal Test for Determining Joint Employment Under the FLSA

Under the FLSA, 29 C.F.R. § 791.2(a), “joint employment” exists when “employment by one employer is not completely disassociated from employment by the other employer(s).” Courts are split on the appropriate test for distinguishing separate employment from joint employment in relation to the FLSA. The district court’s analysis was flawed because it concluded that a worker must be an employee as to each putative joint employer when considered separately for the entities to constitute joint employment under the FLSA. Additionally, the district court relied on the test no longer employed by the Fourth Circuit in determining joint employment of the plaintiffs.

Under the Fourth Circuit two-step framework for determining whether a defendant may be liable for an alleged FLSA violation under the joint employment theory the court must first determine whether the defendant and one or more entities shared, agreed to allocate responsibility for, or otherwise co-determined the key terms and conditions of plaintiffs’ work. The second step relies heavily upon the answer to the first part of the analysis and asks whether a worker was an employee or independent contractor under FLSA. The district court erred in considering the second step before the first.

The Fourth Circuit determined that under the first part of the two-part framework that the allegations sufficiently demonstrate defendants were not completely disassociated. The district court erred by failing to follow the new standard employed by the Fourth Circuit to determine joint employment. The Fourth Circuit has held that the fundamental question is whether the entities are “not completely disassociated” with respect to the worker. The Fourth Circuit identified a non-exhaustive list of six factors to assist lower courts in determining if joint employment exists. The court emphasized that no single factor is determinative.

The Fourth Circuit also found that under the second part of the two-part framework the plaintiffs were employees rather than independent contractors. In focusing on the economic realities of the relationship between the defendants and plaintiffs the Fourth Circuit found that the plaintiffs were economically dependent on the defendants.

The District Court Misapplied the Plausibility Standard by Subjecting Plaintiffs to Evidentiary Burdens Inapplicable at the Pleading Stage

Plaintiffs’ factual allegations establish that defendants jointly determined the key terms of plaintiffs’ conditions of employment. Per the complaint defendant DIRECTV was the principal client of the other defendants. Defendant DIRECTV had the authority to direct, control and supervise the plaintiff’s day-to-day job duties. Defendant DIRECTV had specific installation procedures implemented and controlled the uniforms and identification of technicians. The complaint is also replete with allegations that DIRECTV had control over hiring, firing and compensation. The Fourth Circuit found that at this stage of litigation the allegations are sufficient to make a plausible claim that defendants were not completely disassociated.


The Fourth Circuit reversed and remanded the consolidated cases for further proceedings consistent with the opinion because the district court relied on out-of-circuit authority that had been rejected in the Fourth Circuit. Furthermore, the Fourth Circuit found the district court failed to construe plaintiffs’ allegations liberally as a motion to dismiss requires.