In one sense, Sperino’s article is somewhat reassuring. But the results were also somewhat horrifying in that they laid bare the reality that too many courts seem to take a view of these matters that I would argue is completely at odds with common sense and the reasons why the law prohibits retaliation in the first place. I think the article does a remarkable job of identifying a serious problem with retaliation law as it has developed since the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway v. White. What’s more, for reasons I will explain in slightly more detail later, I think Professor Sperino’s proposed solution—that courts define actionable retaliation in terms of an action that is more than de minimis in nature—is not only workable, but one that I can actually envision a court adopting. Ultimately, the article raised two issues for me: (1) why are so many courts so apparently misguided when it comes to determining what might dissuade a reasonable employee from complaining about discrimination and (2) how might a court actually go about adopting Professor Sperino’s proposed solution? Read more.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person