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.
* Associate Professor of Law, Widener University School of Law, Wilmington, Delaware; J.D., 1992, Harvard Law School; B.A., 1989, Yale College. I am very grateful to many people for their insights and encouragement. I owe particular thanks to Sue Friedman, David Horton, John Massaro, and Doretta Massardo McGininis for their helpful comments.
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.
* Associate Professor, University of New Mexico School of Law. J.D., 1999, Yale Law School; Sc.B., 1996, Brown University
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.
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.
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”).
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.
* Dean and Professor of Law, University of Richmond School of Law. The author would like to thank the Allen family for their support of the Allen Chair Symposium along with Professors Carl Tobias and Kevin Walsh and Symposium Editor Aminah Qureshi for their work in putting together this excellent 2011 Allen Chair Symposium.