Catalog: Digital Commons at Pace - New Repository Articles
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.
The Expanded Use of Wiretap Evidence in White-Collar Prosecutions: Rebalancing Privacy Through More Vigorous Enforcement of the Predicate Offense Requirement and the Suppression Provisions of Title III
With the expanded use of wiretaps, courts will be faced in the coming years with questions concerning the contours of statutory authorization and the consequences of this expanded use into areas not traditionally associated with wiretap evidence. This is especially true in light of the fact that the United States Department of Justice (“DOJ”) has already promised that its use of wiretaps will “continue to go up dramatically.” This Article attempts to highlight some of the consequences of failing to strictly adhere to the statutory requirements of Title III, most importantly the predicate offense and necessity requirements. It then suggests several ways to rebalance privacy interests in the larger context of wiretap use. Part II of this article will provide a brief history of wiretap jurisprudence leading up to the passage of Title III of the Crime Control Act in 1968. Part III will provide an overview of the current statutory scheme applicable to the use of wiretaps. Part IV will examine several recent trends in which wiretap evidence was used to obtain convictions for crimes not specifically listed in Title III and in which courts have adopted a constitutional analysis in determining whether evidence should be suppressed for a violation of the statutory-based necessity requirement. Finally, Part V will discuss several alternative approaches courts could adopt in enforcing the strictures of Title III in order to more appropriately balance privacy interests as Congress originally intended.
In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational commercial interactions, it is therefore important to focus on the site for the resolution of transnational commercial disputes: international arbitration. International arbitration is a form of private dispute resolution in which parties submit their dispute to third-party decision-maker(s). Arbitration has become an increasingly popular choice for resolution of transnational business disputes because of the confidentiality it affords the parties, the neutrality of the decision-makers, the flexibility of the process, and the enforceability of the awards. Additionally, parties often resort to arbitration when they want to preserve their business relationship. Part III explains how a remedy of a public apology, as a supplemental remedial tool, can aid the restoration of a positive relationship between the parties and increase the likelihood that they will work together in the future.
Playing in the Sandbox: Moral Development and the Duty of Care in Collaborations between For-Profit and Nonprofit Corporate Persons
Over the history of the corporate entity, U.S. law has evolved to treat the corporate entity as a legal person under the U.S. Constitution. Despite the increased rights granted to the corporation as a legal person, both for-profit and nonprofit corporations have come under considerable scrutiny for misconduct and issues related to corporate governance. When for-profit and nonprofit organizations collaborate together, however, both organizations generally seek to achieve philanthropic good. On the other hand, both organizations and their management are bound by law to fulfill specific duties to their individual constituents. In the 1930s, psychologist Jean Piaget noted, “[t]he good, in short, is not, like duty, the result of a constraint exercised by society upon the individual. The aspiration to the good is of different stuff from the obedience given to an imperative rule.” Guided by the basis for Piaget’s above assertion related to the natural person, this article begins an analysis of the relationship between legal persons: collaborating for-profit and nonprofit organizations in light of duty, arguing that there is a balance between too much constraint and none that leads to sustainability of the cooperative venture.
Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status.
The goal of this Article is to survey the legislative activity, identify the factors driving it, and analyze its potential ramifications. I contend that it is unreasonable to project that this legislation will significantly reduce unemployment because there is only anecdotal data regarding the prevalence of discrimination against unemployed candidates in hiring and, regardless of the frequency of such a practice, none of the proposed or enacted legislation directly promotes job creation. However, I argue that the anti-unemployment discrimination legislation is a positive example of interest convergence in that it benefits the economy by reducing arbitrary discrimination in hiring and long-term unemployment. Furthermore, such legislation expresses a set of positive societal values and protects members of constitutionally-protected groups who are likely disproportionately impacted by current-employment requirements. I then discuss why the concerns advanced by the business community are overstated given the generally limited scope of the legislation, the lack of a private right of action, and the legally-approved uses of employment status as a proxy for characteristics about which a business might reasonably care. In sum, when taking an objective look, the anti-unemployment discrimination legislation is neither panacea, placebo, nor poison.
Measuring the Justice Gap: Flaws in the Interstate Allocation of Civil Legal Services Funding and a Proposed Remedy
With the supply of legal services not particularly responsive to demand, we conclude that the justice gap could be narrowed simply by reforming the way in which policymakers distribute legal services funds while holding constant the total amount of funds distributed.
In reaching this conclusion, we proceed in two parts. First, drawing largely from Access Across America and LSC data, we analyze the supply of legal services funding across states. Since eligibility for Legal Services Corporation (LSC) funds is principally determined by income (only individuals in households with income at or below 125% of the federal poverty level are LSC eligible),8 variations in legal services funding among states are strongly correlated with LSC eligibility levels. However, LSC funding likely accounts for well under forty-three percent (43%) of overall legal services funding, with the remainder (“non-LSC funding”) generated by, inter alia, state and local grants, filing fees, interest on lawyer trust accounts (“IOLTA”), and private grants. Because the precise magnitude of non-LSC funding is unclear, we estimate it with three different measures. Using each of these measures, we then analyze its disparity among states. In every case, after explaining Access Across America’s finding that non-LSC funding is not proportional to population, we conclude that it also has no statistically significant relationship to key economic indicators, such as LSC eligibility, median household income, or unemployment. In fact, of the variables we tested, only the number of lawyers in a state relates significantly to any of our measures of non-LSC funding, and of these three measures, the only one for which the number of lawyers has statistical significance is non-LSC funding received by organizations that also receive LSC funding.
After examining how legal services funds are supplied across states, we then analyze how they are demanded. Measuring demand is quite challenging, particularly on the state level, because it requires assessing not the amount of legal services that low-income individuals do use, but rather the amount that they want to use, which is an unobservable variable. The LSC has attempted to measure such demand through a survey of individuals seeking assistance from LSC-funded programs, but, as the LSC concedes, this approach comes with inherent limitations that likely under-represent unmet needs. We therefore take a different approach: after assuming that the overall frequency with which civil legal services are delivered reflects the relative demand for these services across states, we estimate demand within each state through proxies for the most significant categories of services. Because, according to LSC data, nearly eighty-five percent (85%) of LSC-eligible cases arise from just four types of disputes (consumer finance, family, housing, and income), we can reasonably project state-level demand for legal services by estimating the frequency of these disputes within each state. Upon doing so, we find that there is no clear connection between state-level demand and supply, particularly with respect to LSC funding. In other words, states with the greatest need for LSC funding (because their residents encounter legal problems the most based on our estimates) do not necessarily have more funding than states with lower funding needs.
Though we recognize that fixing this imbalance will not be easy, we conclude by offering a proposal that attempts to do so. In this regard, we recommend that the LSC move away from complete reliance on an income-based test toward a needs-based test. Such a framework would allow the LSC to more effectively serve unmet demand for civil legal services and thus, help realize Justice Powell’s ideal.