Catalog: Digital Commons at Pace - New Repository Articles
This article and the underlying factual information were first presented at Pace University School of Law on April 15, 2010 as the Sixteenth Annual Lloyd K. Garrison Lecture on Environmental Law.
Mr. Butzel tells the story of the Storm King case, and gives his impression of where environmental litigation stands up today measured against the promise of the Storm King decision.
Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House
This essay is an expanded version of remarks delivered on March 12, 2013, as the Lloyd K. Garrison Lecture on Environmental Law at Pace Law School.
This essay discusses the relationship between the Environmental Protection Agency and the White House. It focuses specifically on the role that the Office of Information and Regulatory Affairs, within the Office of Management and Budget, plays in reviewing the EPA’s regulatory output.
Focusing on the EU’s alternative proposal of an emissions tax, this article analyzes the possibility for the imposition by an EU Member State of a targeted environmental tax to reduce maritime emissions. It considers how such a tax can be imposed in a manner that will not be detrimental to commercial interests and can instigate the desired impact. Importantly, it focuses upon providing a greater incentive for the maritime industry to invest in the most efficient shipping fleet to reduce emissions. It concludes by comparing whether such a perceived maritime emissions tax could be more advantageous than including maritime emissions in the EU ETS.
This article is organized as follows: following the introduction in Part I, Part II focuses on the role of liability rules in compensation for environmental harm, then Part III focuses on insurance, and Part IV discusses the specific case of marine oil pollution. For each topic, we will first describe theoretical possibilities for providing compensation, and then examine the role these mechanisms play in practice. Part V offers a few concluding remarks, and provides an economic analysis and policy recommendations.
To determine the viability of air pollution suits, this Article first considers in detail the scope of the Court’s jurisdiction over controversies between states, the scope of the Court’s remedial power in controversies between states, and the rule of decision in suits between states. From this analysis, this Article concludes in Part V.A. that suits seeking protection from air pollution against upwind states are available to downwind states under federal common law. In Part V.B. this Article further concludes that while suits challenging emissions from individual sources are displaced by the Clean Air Act, this unilateral Act of Congress does not provide the rule of decision in a suit seeking protection from the aggregate emissions of an upwind state and therefore aggregate state emission suits are not displaced and remain a viable mechanism for resolving air pollution controversies.
Part I outlines the constitutional limitations on resolution of controversies between states through state self-help and unilateral Acts of Congress. Part II outlines the plenary judicial power of the Supreme Court and the plenary legislative power of compacts to resolve environmental controversies between states. Part III recounts the Court’s resolution of environmental controversies between states in resource apportionment and protection suits. Part IV analyzes in detail the Court’s authority under the Constitution to resolve controversies between states by considering the scope of the state controversy jurisdiction, the scope of the Court’s remedial power, and the constitutional determination of the rule of decision in state controversy suits. Part V demonstrates the availability of air pollution protection suits filed in the Supreme Court by downwind states against upwind states for inequitably excessive aggregate state emissions notwithstanding the Clean Air Act’s displacement of suits seeking protection from individual sources of emissions. An Appendix catalogs the ninety-nine state controversy suits properly filed and the thirty-six improper requests for leave to file state controversy suits.
The process of obtaining effective implementation of environmental laws is a process of “environmental governance.” Law, including environmental law and other fields of law related to environmental law, is essential to frame, facilitate, and foster the major parties to correctly play their roles.
This thesis has been articulated through a Model of Interactions of Parties in the Process of Environmental Protection (IPPEP Model), which has been developed by Professor Wang Xi of Shanghai Jiao Tong University, in the context of the People’s Republic of China. The IPPEP Model is a tool for observing and accessing environmental governance at work. It is being tested by regional studies in various locations, such as the United States, the State of New York, and in this IPPEP case study of New York’s Hudson River Valley. The IPPEP model being examined, however, has universal applicability. Use of this model can predict that environmental standards will fail to be observed when necessary “Third Parties” are weak or absent. A nation with a commitment to the “rule of law” will enact and apply necessary legal procedures to ensure that each party can take part in the system and perform their role effectively.
Part I of this paper describes the IPPEP Model. Part II is a brief introduction to the history of Hudson River Valley. Part III introduces the major parties or players in the process of protecting Hudson River Valley. Part IV consists of five case studies applying the IPPEP Model in cases of Hudson River Valley conservation. Part V concludes the paper.
Most law review articles are very serious, and with good reason. They discuss important, world-changing matters like the role and magnitude of executive power, the limits of Constitutional rights, the boundaries of international law, and the vagaries of civil procedure. This Article has no such world-changing or reverent pretentions; it instead takes a light-hearted view of a fairly marginal legal topic: arm wrestling. To provide a spine for the discussion, the Article leans heavily on the 1980s movie Over the Top – a movie about arm wrestling, trucking, and child custody - to provide examples of arm wrestling content with legal implications. As the Article develops background on the topic, it discusses types of tort liabilities likely to apply to arm wrestling, the functional import of waivers in the arm wrestling context, and the possible liabilities of third parties who host or organize arm wrestling bouts.
The Saint Louis Art Museum, known as SLAM, acquired the mask of Ka-Nefer-Nefer in 1998. Eight years later, the Egyptian Supreme Council of Antiquities called for its return on the grounds that it had been stolen from the Egyptian Museum in Cairo. SLAM refused. In 2011, the case went before the United States District Court for the Eastern District of Missouri to determine the ownership of the mask. Perhaps to the surprise of many, the court decided that the mask belongs in Saint Louis.
This Article will explain how this case was properly decided, albeit on a legal technicality. It will also discuss the law surrounding different kinds of repatriation claims, and how foreign patrimony laws apply within the United States legal system. Finally, it will discuss the ramifications of the Ka-Nefer-Nefer decision. Given that the black market for art is estimated to be the third largest in the world, behind drug trafficking and arms dealing, proper understanding of the United States laws in the field of art law is important.
Shutting Down the Pharmacy on Wheels: Will Lance Armstrong’s Admission Impact the Practice of Doping in Professional Cycling?
Lance Armstrong was one of the sport’s greatest heroes and his doping admission shook the American public to its core. Although professional cyclists are sanctioned for violating anti-doping rules on an almost regular basis, the investigation and lifetime ban of Lance Armstrong highlighted the serious problems facing the sport. Increased efforts to police drug use in cycling appear to be ineffective; however, as Armstrong’s situation may reveal, private law-suits have the potential to serve as a new and additional deterrent to cheating in the future.
The aftermath of Armstrong’s admission has led to bickering of the major regulatory agencies, leading the general public to question whether the sport will ever be clean. This Article explores the impact Armstrong’s doping admission might have on the sport of professional cycling in the future, as well as the history of doping in cycling.
This Article argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this Article demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”
I’m the One Making the Money, Now Where’s My Cut? Revisiting the Student-Athlete as an “Employee” Under the National Labor Relations Act
This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.
Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it does not have to compensate these student-athletes above their grant-in-aid because their relationship with their universities is an educational one. Part II also discusses the right of publicity tort to show that the relationship between these particular student-athletes and the NCAA is predominantly an economic one and not an educational one.
Part III of this Article applies two tests, the common law “right of control” test and the NLRB’s special statutory test it developed and applied to university students in Brown to show that these particular “student-athletes” are legally “employees.” As such, they should be compensated more than the grant-in-aid they already receive from the NCAA for their revenue-producing skills. This section also discusses Texas A&M Quarterback Johnny Manziel, and why Texas A&M University is reaping major financial benefit for the misappropriation of Manziel’s “likeness.” Part III also discusses NCAA Proposal 26 and how the NCAA and its member schools are continuing to invent innovative ways to misappropriate student-athletes’ “likenesses” for financial gain without compensating them. Additionally, this section illustrates that former student-athletes in addition to current athletes recognize that the NCAA is exploiting them for commercial gain without compensation. This section concludes with three potential solutions to how the NCAA could pay the student-athletes and at the same time advances the NCAA’s amateurism dogma in college athletics. The NCAA can no longer use its affirmative defense of “amateurism,” and should develop a payment method to compensate the services rendered by student-athletes who are the true moneymakers for its lucrative commercial enterprise.
Reports of Its Death Are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation
This Article examines the preliminary injunction standard in pharmaceutical patent infringement actions pursuant to the Hatch-Waxman Act. Prior to Supreme Court’s decision in eBay v. MercExchange, L.L.C. in 2006, federal courts applied a presumption of irreparable harm when a patent holder established a likelihood of success on the merits. While the eBay Court abrogated the presumption of irreparable harm in permanent injunctions, courts have been unclear as to application of eBay on preliminary in-junctions. This Article will further examine preliminary injunctions in Hatch-Waxman actions in the District of New Jersey since eBay in 2006 and argue that courts still tacitly apply the irreparable harm presumption.
In today’s difficult economic times, state governments are more hard pressed than ever to come up with new sources of revenue to at least stay revenue neutral. Leave it to the perpetually money-hungry State of New York to come up with this gem of an idea for generating tax revenues: In 2005, the New York State Department of Taxation and Finance attempted to impose sales tax on a nightclub’s offering of exotic dancing to its customers. This resulted in one nightclub instigating a legal challenge to the state’s attempt to impose sales taxes on exotic dancing. This resulted in the matter of 677 New Loudon Corp. v. State of New York Tax Appeals Tribunal, which was ultimately decided by the New York Court of Appeals in October 2012.
Thank you for downloading the first digital edition of the Pace Intellectual Property, Sports & Entertainment Law Forum. As you scroll through the pages of this issue, you may notice the Forum has a new look. Recognizing the significant advancements in technology that have revolutionized the legal field in the past few years, the Volume 4 Editorial Board sought to update and adapt the Forum to be accessible digitally, formatting the issue for tablets and e-readers. As you read, take advantage of clickable Tables of Contents and links to online sources throughout the issue.
A Youth Revolt: Discerning the Impact of “One-and-Done” Rule On Major Collegiate Championship Teams at the Division I Level
In Plata, the Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that prisoners alleging conditions of confinement claims retain some degree of human dignity despite their lawful incarceration. Accordingly, federal courts must enforce the constitutional rights of prisoners when they are violated, even if this culminates in the release of some individuals from captivity. This is in stark contrast to previous cases where the federal courts have simply deferred to the judgment of prison administrators. Plata emphatically affirms the judiciary’s role in protecting prisoners’ rights, noting that court inaction in the face of ongoing and persistent constitutional violations cannot remain simply because of prison administrators’ protestations and despite the admittedly radical nature of the remedy being considered.
Part II of this Article briefly discusses the evolution of human dignity as a constitutional value during the course of the twentieth century. This Article will explain the philosophical development of human dignity in general terms and as it was developed by the Supreme Court, with some particular attention given the Court’s Eighth Amendment jurisprudence. Part III will discuss Plata and its underlying facts. Part IV concerns how Plata may influence the use of human dignity as a constitutional value in the years to come, specifically discussing the relationship between Plata and the troublesome 2012 decision: Florence v. Board of Chosen Freeholders. As a result of cases like Plata and Florence, the vitality of human dignity as a constitutional value today remains somewhat in flux. However, this is not to say that it is irrelevant to the Court’s decision-making process. Only as future cases are decided will commentators be able to determine which case holds greater import in the area of Eighth Amendment jurisprudence, and thus evaluate the durability of human dignity as a constitutional concern.
In this Article, I will examine the history of legislative efforts to combat money laundering in the United States, including the intent and purpose of the Money Laundering Control Act 1986.13 I will then analyze how courts have addressed the challenge of characterizing dual-purpose transactions by developing factors whose presence may show that a transaction was entered into with an intent to conceal. In addition to providing an analysis of several cases where courts grappled with the challenges of characterizing dual-purpose transactions, I will also examine the development of a “heightened” evidentiary standard that is often applied to scrutinize whether sufficient evidence exits to characterize a dual-purpose transaction as money laundering rather than money spending. Finally, I will make recommendations for minimizing the challenges of characterizing dual-purpose transactions.