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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* Williams Chair in Law, University of Richmond School of Law. The data in this article are current through April 12, 2012. I wish to thank Peggy Sanner and Lindsey Vann for valuable ideas, Tracy Cauthorn for excellent processing, and Russell Williams for generous, ongoing support. Remaining errors are mine.
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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* 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.
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* 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.
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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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