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.
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* Professor of Law, Emeritus, University of Richmond School of Law; LL.M., 1976, Columbia University; J.D., 1972, University of Arkansas-Fayetteville; B.S., 1967, Arkansas State University.
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.
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* Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government, University of North Carolina School of Law.
** Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School.
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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