Tribute to Professor Carroll: “Without a Doubt”

Wade Berryhill *

Without a doubt, one of my favorite and most memorable, in fact unforgettable, teaching moments involved John while he was a 1L in my property class. The landmark constitutional takings case of Lucas v. South Carolina Coastal Council had recently been handed down by the U.S. Supreme Court. The question for the Court was whether the state’s regulation that prohibited the petitioner from constructing a house on his beachfront lot amounted to an unconstitutional taking of private property without compensation. Justice Antonin Scalia had written the majority opinion and was our distinguished guest speaker in room 101. I asked Justice Scalia if he would discuss the decision with the class. He, being a former law professor himself, quickly and easily went through the key points of the opinion, finishing with the statement that the issue of the case was quite simple. As the State of South Carolina had stipulated that the petitioner had no reasonable use of his property remaining because of the regulation, Justice Scalia explained that the issue then simply became whether the petitioner’s proposed use constituted a nuisance. Justice Scalia finished and asked for questions. All students seemed enamored with Justice Scalia’s mere presence and pleased with his explanation. A hand rose from the back row of the student-filled classroom. After Justice Scalia recognized the student, John politely offered, “Justice Scalia, if the issue is as simple as you say it is, why did it take you thirty-eight pages to write the opinion?” The room hushed. Myself, I was frozen in place and my mind was flooded with alternating thoughts, “Oh #*@%!” and “That is a really good question that I have always wanted to ask.” Equally as polite, and with professional aplomb, Justice Scalia answered John’s question.

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“Extraordinary Circumstances:” The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform

Michael Gerhardt *
Richard Painter **

On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate’s rules for making such a revision, the “Gang of 14,” as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were “extraordinary circumstances.” For the remainder of George W. Bush’s presidency the agreement held and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14: Five members of the Gang are no longer in the Senate; Democrats took control of both the House and the Senate in 2006 and managed to maintain a majority of seats in the Senate, albeit by a thinner margin, in 2010; and delays and obstruction of judicial nominations re-intensified after President Obama came into office. Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found “extraordinary circumstances” justifying their support of some judicial filibusters.

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Filling the Judicial Vacancies in a Presidential Election Year

Carl Tobias *

In “Extraordinary Circumstances”: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform, Professors Michael Gerhardt and Richard Painter contribute substantially to the understanding of the federal judicial confirmation process. The scholars’ recent essay carefully traces the origins and development of the “Gang of 14” (or the “Gang”), the senators’ articulation of the “extraordinary circumstances” limitation on invoking filibusters—by which the seven Democratic and seven Republican members of the Gang agreed to abide—and the consequent degradation of the confirmation process. Detecting that subsequent developments have apparently limited the Gang’s relevance and undermined, if not eviscerated, the meaning of the “extraordinary circumstances” idea, the writers suggest procedures that individual Senate members “should consider following in assessing and voting on judicial nominations.” The scholars conclude by offering a number of justifications which support their proposal.

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The Lost Controversy Limitation of the Federal Arbitration Act

Stephen E. Friedman *

The Supreme Court has elevated private arbitration agreements above the primary statute that governs them. This empowering of private parties at the expense of Congress has resulted in a proliferation of extremely broad arbitration provisions. An arbitration provision enforced in a recent case is illustrative. A provision in an employment contract compelled the parties to arbitrate “any legal or equitable claim, demand, or controversy, whether in tort, in contract, or under statute which relates to, arises from, concerns, or involves [the employment] in any way.” For good measure, the provision also required the arbitration of “any other matter related to the relationship between the Employee and the [employer], including, by way of example and without limitation, allegations of prohibited forms of employment discrimination such as discrimination based on race, religion, color, sex or age.” Such a provision is certainly broad enough to cover alleged violations of federal and state statutes. Accordingly, when a fired employee sued for violation of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, and the New Mexico Human Rights Act, the court enforced the arbitration provision under the Federal Arbitration Act (the “FAA”), staying the litigation and compelling the parties to arbitrate.

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The Criminal Rules Enabling Act

Max Minzner *

The Federal Rules of Criminal Procedure form the backbone of criminal litigation in U.S. District Courts. Federal courts have frequently considered the constitutional validity of various rules. In addition to the Constitution, though, the Criminal Rules face another important limit on their scope: The Rules Enabling Act (the “REA”). Like the Federal Rules of Civil Procedure (“Civil Rules”) and the Federal Rules of Evidence, Congress constrained the Federal Rules of Criminal Procedure (“Criminal Rules”). Section 2072(a) limits all three sets of rules to questions of “practice and procedure” while § 2072(b) commands that the rules not “abridge, enlarge or modify any substantive right.” In judicial opinions and academic literature, the effect of this restriction on the Criminal Rules has been largely unstudied.

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“If the Plaintiffs are Right, Grutter is Wrong:” WHy Fisher v. University of Texas Presents an Opportunity for the Supreme Court to Overturn a Flawed Decision

Brooks H. Spears

The constitutionality of affirmative action in America’s public higher education institutions (“HEIs”) gained prominence in the late 1970s with the Supreme Court’s decision in Regents of the University of California v. Bakke.The Bakke decision was less than clear, but it provided the framework in which HEIs formulated their admission policies regarding the use of race. Nevertheless, the law regarding affirmative action remained unsettled, and the circuits remained split.

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The NCAA and the Student-Athlete: Reform is on the Horizon

Mary Grace Miller

In late 1905, sixty-two colleges and universities became the charter members of the Intercollegiate Athletic Association of the United States. In 1906, the organization took the name the National Collegiate Athletic Association (the “NCAA”). The NCAA was established “to protect young people from the dangerous and exploitive athletics practices of the time.” Today, the organization regulates some 400,000 student-athletes and boasts around 1000 member institutions. The NCAA, a voluntary organization, is the “oldest, wealthiest, and most powerful of the national associations, governing the largest, richest, and most popular sports programs in higher education.” The organization established itself on the principle of protecting the amateur student-athlete and has prided itself on that notion ever since. The NCAA is a prominent organization and understandably so; each year, millions of Americans occupy sofas and bar stools to watch college football and college basketball games. Society highly values these “amateur” athletes, and millions of young adults have participated as student-athletes at NCAA member institutions over the years.

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Who’s the Author? A Bright-Line Rule for Specially Commissioned Works Made for Hire

Richard D. Paimieri

“Who’s the author” of this comment? Because my name appears at the top of this page and because I actually put fingers to keyboard to type out these words, most people would probably respond, “You are,” and wonder why I asked them who authored my own paper. If I asked a copyright practitioner the same question, however, she may have a very different response. Instead of assuming I am the author, she would recognize that, as a single piece written for inclusion in a periodical, this comment is part of a “collective work,” statutorily defined as “a work . . . in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” Because of this, the copyright practitioner would know my work may qualify as a “work made for hire” if certain other conditions are met. If they are, she would tell me that I am not the “author” (statutorily, anyway) despite the fact that I am the individual who “created” the work. Instead, “the employer or other person for whom the work was prepared is considered the author,” which, in this case, would most likely be the University of Richmond Law Review (“Law Review”).

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Litigating Federal Health Care Legislation and the Interstices of Procedure

Wendy Collins Perdue *

On November 11, 2011, the University of Richmond Law Review held its annual Allen Chair Symposium, focused on the litigation challenges to the Patient Protection and Affordable Care Act (“ACA”). Recognizing that much had already been written about the constitutionality of the ACA, but that less scholarly attention had been focused on issues such as jurisdiction, standing, ripeness, and severability, the Symposium was entitled “Everything but the Merits.” The timing of this Symposium was both prescient and awkward. Three days after the Symposium was held, the Supreme Court took certiorari on a group of the ACA cases and scheduled an extraordinary three days of argument. Of course once the Court decides these cases, prognostications will be of little significance. Fortunately, the pieces that follow offer insights that go far beyond the issues of the ACA litigation, examining a range of issues about constitutional litigation.

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Constitutional Forbearance

Christopher Bryant *

Eleven federal judges have ruled on the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”), also sometimes referred to as “Obamacare.” Five of the six judges appointed by Republican Presidents held that the mandate violated the Constitution, while four of the five judges appointed by Democratic Presidents upheld the law. In the wake of these rulings, countless commentators quickly inferred that the judges’ political preferences and affiliations were deciding factors and forecast that the seemingly inevitable Supreme Court decision of the matter would split the High Court 5-4, with Justice Kennedy casting the deciding vote. The four other Justices appointed by Republicans are expected to vote to invalidate the law, and the four Justices appointed by Democrats are expected to vote to sustain it.

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