“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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* 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.

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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* Professor, University of Cincinnati College of Law. J.D., 1994, University of Chicago; B.A., 1991, Hanover College.

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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*    Richard J. Hughes Professor for Constitutional and Public Law and Service, Seton Hall University School of Law. J.D., 1985, New York University School of Law; A.B., 1982, Harvard College. Thanks to John Jacobi and Frank Pasquale for helpful comments.

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