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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Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and the Affordable Care Act

Edward A. Hartnett *

For a time, the law governing facial, as opposed to as-applied, constitutional challenges was, it seemed, simple to state. There was a general rule and a First Amendment exception. The general rule was that facial challenges were rare, disfavored, and could succeed only if the challenger convinced the court that there were no circumstances under which the challenged statute could be constitutionally applied. As the Supreme Court put it in United States v. Salerno, it had “not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment,” and that in all other contexts, a facial challenge could succeed only by showing that “no set of circumstances exists under which the Act would be valid.” The exception, the First Amendment overbreadth doctrine, enabled a challenger to show that, although his own conduct was not constitutionally protected, the statute was sufficiently broad that it also applied to others whose conduct was constitutionally protected, and therefore could not constitutionally be applied to anyone. This overbreadth doctrine was designed to avoid the chilling of free speech.

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Beyond the Doctrine: Five Questions that Will Determine the ACA’s Constitutional Fate

Bradley W. Joondeph *

The litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (“ACA” or “Act”) raises a number of interesting and important questions of constitutional law. But in cases of this magnitude and political salience, the Supreme Court’s deliberations typically are shaped by forces that transcend the relevant doctrine. The Court’s response to the ACA is unlikely to be an exception. Specifically, the Justices’ reactions to five questions—all of which go beyond the doctrinal merits—will likely determine the Act’s fate: (1) whether this is the sort of case in which judicial review is necessary, or instead one that the elected branches are capable of solving on their own; (2) whether the states are “separately incompetent” to reform the nation’s health care financing system, such that invalidating the Act will leave a policy void (and whether the existence of such a void should matter); (3) whether Congress’s power to adopt a more radical, single-payer-type system for all Americans should inform whether Congress has the authority to adopt the more incremental ACA; (4) whether the Court can invalidate the ACA, especially with an ideologically predictable 5-4 split, without appearing overly partisan to the American public; and (5) how Chief Justice Roberts will perceive the impact of this case on his legacy—as an opportunity to reaffirm the singular importance of judicial restraint, or as an instance where the Court’s intervention is necessary to preserve foundational principles. Each of these considerations extends beyond the precise constitutional questions presented. But in a case such as this, it is the Justices’ reactions to these broader questions that tend to drive their doctrinal analysis, rather than the other way around.

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The Rhetoric Hits the Road: State Challenges to Affordable Care Act Implementation

Elizabeth Weeks Leonard *

What is it about health reform—about the particular exercise of federal power to compel the purchase of health insurance by individuals—that has sparked such concerted objection from states? Congress has reached deeply into areas of traditional state authority on other occasions in recent memory, without similarly provoking a majority of states to file federal lawsuits or engage in a multi-front attack to dismantle a validly enacted federal statute. How has a federal law, which most clearly infringes on individual rather than states’ rights, become the rallying cry for a nationwide Tenth Amendment reinvigoration movement? In keeping with the 2011 Allen Chair Symposium’s “Everything But the Merits” theme, this essay considers states’ lawsuits not merely beyond the merits but even beyond the litigation itself and places the litigation strategy in the larger context of other forms of state resistance to implementation of the Patient Protection and Affordable Care Act (“ACA” or “Act”).

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