On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced, moderate candidate, whom President Obama nominated to replace Justice Antonin Scalia. Because Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably the nation’s largest appellate docket—her confirmation process merits scrutiny.

This piece analyzes Koh’s impressive record, judicial selection under President Obama, and the Ninth Circuit’s present circumstances. The paper concludes that Judge Koh is a highly accomplished, mainstream candidate and the appellate court desperately needs all twenty-nine of its members. Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.

The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used exclusively overseas, if it has achieved a measure of renown in the United States. However, until now, it remains uncertain whether the doctrine is part of United States federal trademark law, given the split between the Ninth and the Second Circuits on the issue.

On March 23, 2016, the Fourth Circuit handed down the decision of Belmora LLC v. Bayer Consumer Care AG, which protected foreign marks neither registered nor used in the United States.

This Article takes this timely opportunity to revive the debate on the applicability of the well-known marks doctrine in trademark law. Analyzing the Fourth Circuit’s decision, this Article argues that it provides a useful insight on how the circuit split should be resolved, but cautions future courts not to mechanically apply the Fourth Circuit’s decision.

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to join Democrats who opposed the prospect and concomitantly adjourned. GOP leaders then contended that legislators remained in session, as the Virginia Constitution explicitly prescribes Senate and House of Delegates consent to adjourn. The Governor’s Counsel next penned an opinion that concluded that lawmakers had adjourned, so McAuliffe could appoint Justice Roush to the Court again, a choice that he implemented thirty days after adjournment. Because these efforts precipitated a constitutional standoff and will consequently plague future judicial selection, they warrant analysis.

The initial part of this Article chronicles the rise and evolution of Virginia court selection. Part Two scrutinizes recent machinations, determining that the procedures now merit improvement. The last section proffers suggestions. For the near term, the Assembly ought to promptly elect Roush. She brings twenty-two years of judicial service, including over five months as a justice. Moreover, Roush’s removal for reasons unrelated to her abilities, earlier performance, or future capacity to serve would make a mockery of the selection regime, undermining citizen respect for it, the whole state judiciary, as well as the Governor and the Assembly. Across the longer term, the Commonwealth must evaluate and initiate changes that will enhance selection.

The Equal Employment Opportunity Commission in Baldwin v. Foxx opined—for the first time—that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. This Article tackles the two administrative law questions that Baldwin poses: what level of deference should a court afford Baldwin, and should such deference force that court to overturn precedent holding that sexual orientation discrimination lies beyond the purview of Title VII?

First, after the Supreme Court’s opinion in Barnhart, lower courts have split on whether Chevron Step Zero should be governed by the rule-of-law test announced in Christensen and Mead, or whether Barnhart’s five-factor test provides a new standard for this inquiry. This Article explains why the Christensen/Mead rule-of-law test should govern Chevron Step Zero; why that test dictates that courts should analyze Baldwin under the deference test announced in Skidmore, not Chevron; and why Baldwin consequently deserves de minimis deference.

Second, the Supreme Court’s opinion in Brand X held that judicial interpretations of ambiguous statutes must be overturned in the face of subsequent, contrary agency interpretations that would have earned Chevron deference but for stare decisis. Yet, no exception to stare decisis exists when an agency interpretation of an ambiguous statute earns mere Skidmore deference. This Article examines such a potential exception, concluding that stare decisis should trump agency interpretations of ambiguous statutes, Skidmore deference notwithstanding.

This Article concludes that Baldwin is far from a watershed moment for LGBT workplace equality. Rather, the courts—which have almost uniformly held that employment discrimination based on sexual orientation does not violate Title VII—should uphold such decisions despite Baldwin and the meager Skidmore deference it earns. Indeed, congressional action remains the only way to ban employment discrimination based on sexual orientation on a national scale.

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, placed pseudoscience in the witness box, and palmed off virtually worthless and scientifically indefensible evidence as scientific truth.

This essay disputes these interpretations of the 90+% figure. Based on some of the scientific literature on hair comparisons, the public descriptions of the hair review project that have emerged, and some of the confessions of scientific error that the FBI has issued, it reaches three conclusions: (1) associating two hairs by their physical features can be slightly probative of whether they originated from the same source; (2) the hair review project does not bear on the validity of these associations or the quality of the examinations; rather, it is supposed to flag cases in which examiners have overstated the power of a match to identify the source of the trace evidence; (3) some questionable determination have been issued, and the 90+% figure may not be a valid and reliable measure of overclaiming.

To promote a more complete understanding of the nature and extent of overclaiming, the review process should be made more transparent, and the materials it produces should be readily available for researchers and the public to study. New state or local evidence reviews should be designed with these concerns in mind. Finally, in all areas of forensic science, clear standards for presenting identification evidence without overclaiming should be devised, and training and monitoring programs should be implemented to ensure that laboratory personnel and prosecutors adhere to them.