Author: lawreviewadmin

Dana D. McDaniel *

On March 8, 2012, our colleague and friend, John Carroll, was taken from us suddenly at the untimely age of forty-four. John grew up in Richmond, Virginia, attending Midlothian High School. Following high school, John attended Virginia Tech from which he earned his Bachelor of Science in Mechanical Engineering in 1989. After working for a couple of years as an engineer and teacher, John entered the University of Richmond Law School in 1992 and received his J.D., with honors, in 1995. From 1995 to 1998, John practiced law full time in Virginia Beach, Virginia, first with Payne, Gates, Farthing & Radd and then with Clark & Stant, which became part of Williams Mullen. In 1998, John entered New York University Law School from which he earned his LL.M. in 1999.

Jim Gibson *

In any law school, there are those of us—most of us, really—who like to hear ourselves talk. We think that no conversation is complete until we have voiced our views.

But then there are those rare few who do not feel that need, who instead have a talent for picking their moments and crystallizing an issue with a single, insightful observation. That was John Carroll. At a faculty meeting, in a colloquy with a visiting scholar, and of course in the classroom, John could be counted on to say the wise thing at just the right time. His quiet voice could fill a room. It is impossible to contemplate never hearing it again.

Meredith J. Harbach *

John had many gifts, and he shared them generously with his colleagues and students at the law school. As I have reflected on the gift of his life and the depth of our loss, many stories and conversations have come to mind. But none is more profound—or more appropriate, I think—than the anecdote that came to me immediately after I found out about John’s death.

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.

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.

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.

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.

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.

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.