Catalog: Digital Commons at Pace - New Repository Articles
Whistleblowers have a long and honorable history. From Ralph Nader blowing the whistle on the hazards of GM’s Corvair in Unsafe at Any Speed1 in the 1960’s to Jeffrey Wigand in 1996 exposing the duplicity of the tobacco industry, whistleblowers have put conscience ahead of career and personal success to expose corporate fraud and wrongdoing. Not surprisingly, they have had to endure ridicule and ostracism as well as financial hardship. Legislation has sought to protect them from retribution, often with mixed success. The most recent legislative effort is the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that allows whistleblowers to collect a bounty for the whistleblowing and also protects the whistleblower from retaliatory acts by his or her employer. One of the challenges currently dividing the courts is determining who should come within the protection of the legislation. The Fifth Circuit Court of Appeals, in Asadi v. GE Energy, interpreted the definition of “whistleblower” quite narrowly to encompass only those individuals who make information available directly to the Securities and Exchange Commission (SEC). This interpretation by the Fifth Circuit not only rejects the broader interpretation of SEC regulations, but is also inconsistent with the decisions of various district courts that have considered this question. Part I opens with a discussion of the requirements of “whistleblower” status under both the statutory language of Dodd-Frank and the accompanying SEC regulations. Part II reviews the Asadi decision and calls into question the soundness of the court’s decision to disregard SEC regulations. Part III explores the circumstances in which administrative regulations are entitled to deference and those situations in which they may be disregarded as an overreach of power. Part IV surveys several district court decisions that have interpreted the term “whistleblower” under Dodd-Frank. Part V argues that even public policy dictates that the courts should adopt a broad interpretation of “whistleblower” so as to provide maximum safeguards against fraud and abuse. The paper concludes that the Fifth Circuit in Asadi reached an incorrect result, and, therefore, that this renegade decision which advocates a narrow scope of whistleblower protection should be rejected in future judicial interpretations of who is a whistleblower.
Begone, Euclid!: Leasing Custom and Zoning Provision Engaging Retail Consumer Tastes and Technologies in Thriving Urban Centers
Is urban center retailing in a death spiral? Competition for consumers with Internet vendors is afoot; winners and losers shall be anointed. The threats to physical retailing in an era of the “Internet of Goods” initially are described below. Adaptations by tenants, landlords, and stakeholders in urban centers will be required quickly, and new perspectives and partnerships, including those among local and regional governments, are instrumental if physical retail operations in municipal cores are to survive. The balance of this article describes these needs from the vantage point of each stakeholder; but this article argues that integrating information and communication technological infrastructure into retail leasing practices and land use planning and zoning strategies is inescapable for the maintenance of resilient town centers. Part II of this article describes the overwhelming impact of Internet consumerism upon physical retailing while Part III explains the physical milieu’s remaining but shrinking opportunities to remain competitive with the online consumer realm. Parts IV and V demonstrate how information and communication technologies, with innovative strategizing by retailers and their landlords, can be leveraged to incite lasting consumer interest in physical shopping environments within a community’s commercial nodes. Parts VI and VII articulate the municipal imperatives, including policies to implement robust technology infrastructure and capitalizing on ICT’s inherent “intelligence,” required to maintain commercial core competitiveness.
This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury trial has been waived in the context of civil actions seeking both legal and equitable relief arising out of the same transaction. Part IV of this article addresses the evolution toward non-jury trial in England and Wales and the policy in favor of non-jury trials in civil actions today.
This article is written to encourage New York advocates to examine closely the analyses developed and the results which have emerged concerning waiver of a jury trial by the joinder of law and equity claims. Trial by jury, so fundamental to the American and New York systems of jurisprudence, should not be deemed waived, and is not waived, merely because litigants seek both legal and equitable relief arising from the same transaction. There is a careful analysis meant to be employed to protect the sacred right to a trial by jury, and an advocate confronted with the issue should make certain that the court properly utilizes it.
In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First, our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision-making, but adding women has not affected the substance of decision-making. Second, our findings suggest for the first time that adding women to a board may well have a substantive impact on decision-making, not because the newly added members are women but rather because they are more likely to be outsiders. French participants reported that newly added female members affected substantive decision-making because they were more likely to be foreign, to be expert in a wider range of areas, and to be drawn from non-elite networks than their male counterparts.
A Dangerous Situation – The Knowing Transmission of HIV in an Out-Of-Body Form and Whether New York Should Criminally Punish Those Who Commit Such an Act
In June 2013 the New York State Court of Appeals held that the saliva of a defendant afflicted with the Human Immunodeficiency Virus ("HIV”) does not constitute a dangerous instrument so as to support a conviction for aggravated assault. Despite this holding, the question remains whether the administration of HIV in an out-of-body form to another individual qualifies for dangerous instrument treatment so as to subject greater criminal liability under the New York State Penal Law (“Penal Law”). Another question remains – should New York punish those who knowingly transmit HIV to another individual? If so, should the punishment be charged through the Penal Law or through other state legislation? If this legislation does not exist, what should New York consider when drafting legislation?
Part I of this Article provides an overview of HIV and how it can be transmitted to an individual. Part II analyzes the Penal Law’s current provisions on dangerous instruments and penalties imposed by these provisions. Part III discusses New York case law on dangerous instruments. Part IV evaluates whether administering HIV in an out-of-body form qualifies for dangerous instrument treatment under the Penal Law and New York case law standards. Part V provides an overview of relevant case law on the question of whether a hypodermic needle constitutes a deadly weapon rather than a dangerous instrument. Part VI discusses statutory punishment of defendants who knowingly transmit HIV to another individual. Part VII analyzes factors that New York should consider when drafting specific criminal law provisions that target the knowing transmission of HIV. Part VIII is a brief conclusion of the article.
Criminal Mind or Inculpable Adolescence? A Glimpse at the History, Failures, and Required Changes of the American Juvenile Correction System
This Comment provides an historical analysis of the principles, understandings and laws that have formed and altered the American juvenile correction system. Part I offers an historical synopsis of the societal understanding that juvenile offenders are less culpable than their adult counterparts and explains the process by which this concept came to permeate early American common law. By discussing the early nineteenth-century juvenile correction reformation movement and the cases that followed, Part I also illustrates the development and early failures of the American juvenile correction system. Part II explains the history of juvenile waiver laws, from their early presence in the American juvenile correction system to their stringent nationwide alteration during the 1980s and 90s. In Part III, this Comment discusses the unconstitutional results of increased juvenile waiver legislation and examines the United States Supreme Court’s judicial correction of such effects. Part IV concludes that despite the roadblocks to effectuating necessary changes within the juvenile correction system, the interaction among various omnipresent and undeniable forces requires that the States and their judiciaries do so.
Motor-vehicle-related deaths consistently topped the accidental death count in the United States for decades. In 2009, for the first time, drug poisoning took over as the number one accidental killer. In 1980, approximately 6,100 people died from drug overdose. In the past ten years, the drug overdose rate for males and females, regardless of race, ethnicity and age, increased. In 2000, 4.1 per 100,000 people died from unintentional drug overdose; in 2010, that number rose to 9.7 per 100,000. The drug overdose epidemic, now the leading cause of unintentional death in the United States, warrants national attention.
To reduce the number of drug overdose fatalities, existing laws must change; it is not enough to create, enact, and enforce new laws. Once counterproductive criminal laws that frustrate public health and public policy are repealed, new laws, known as 911 Good Samaritan Overdose Laws, can be enacted and enforced in a manner similar to highway safety laws.
The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities to admit a few underrepresented minority applicants makes possible a diverse learning environment that benefits all students on campus, the beneficiaries should far outnumber and outvote the few applicants who are displaced. But because those actually burdened are not known, the number of imagined victims is easily inflated in the mind of electorate. In highlighting this and other shortcomings of the Grutter regime, this article proposes that if the benefits of diversity outweigh the burdens, the universities should be able to demonstrate this favorable cost-benefit ratio by accommodating the real burden-bearers.
Accommodation could come in the form of direct compensation for the displaced students or indirect burden-shifting – getting others to give up their seats. Shifting the burden to those who are more willing to bear it can lower the cost of settlement. In-kind benefits and gifts could be used instead of monetary compensation. Addressing the displacement burden would reduce much of the grievances against racial preferences in admissions, and reveal to the public how little affirmative action affects the vast majority of applicants. Of course, it would impose costs on the university, but the willingness of universities to take on these costs also demonstrates their commitment to the benefits of diversity. A skeptical Court in Fisher v. University of Texas, 570 U.S. —- (2013) remanded for lower courts to determine whether race-conscious admissions are still necessary when the university was already achieving on-campus diversity through race-neutral means. Accommodation could provide a convincing showing that the extra benefits from using the race-plus factor are indeed worth the costs.
Lastly, accommodation would give universities a much stronger incentive to address the academic achievement gap across racial groups, which makes affirmative action necessary in the first place. Grutter permits the use of race in admissions for 25 years to eliminate this gap. But scant evidence of progress over the past decade raises concerns that the universities are perpetuating the gap by holding students of different racial groups to different standards. If accommodation is required, universities would find it in their interest to encourage those minority students who could be accepted with the help of the race-plus factor to improve their academic credentials further so they could be admitted without triggering the need to accommodate a displaced applicant. Only then will the gap start to narrow and lead to the realization of Grutter’s goal – achieving diversity without resorting to race-conscious means.
Part I of this Article introduces the reader to the typical types of loans that banks make, includes an in-depth description of a secured loan, and finishes with a discussion of the due diligence requirements of banks. Part II identifies the unique complexities posed by art when it is used as collateral, comparing and contrasting the banks’ process when approving a loan secured by commonly-used assets versus a loan secured by art. Part III discusses the banks’ growing willingness to approve art-backed loans, and identifies the safeguards built into such deals. Part IV introduces the sub-prime lenders of the art market, discussing pawn shop regulations and loans made by “luxury pawn shops” and “art dealers.” Part V compares and contrasts bank loans and “art lender” loans with an emphasis on defaulting borrowers. Part VI discusses the effects of art-backed loans in general, predicting that such practices may lead to a significant drop in the price of art in the market, placing more works in private collections, and thereby decreasing the amount of art available for viewing to the general public. Finally, Part VII briefly concludes.
This article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side and the poor and middle-class on the other.
Part II discusses the growing disparity of wealth in America and our property system’s failure to respond to this inequity. While current debates among property scholars have attempted to address concerns of inequality, Part III discusses how scholars have inadequately analyzed the origin of the rights that accompany ownership. Part IV explores the evolution of property rights in nature. The property rights displayed by animals in the wild mirror many of our common law property rules, and Part V argues that our common law property system is based on the same unconscious evolutionary strategy that causes the deference to ownership that is displayed in animal behavior. Part VI discusses what this evolutionary foundation to our default property rules means for our modern property regime.
Part I of this Article clarifies and strictly defines the frequently nebulous idea of socially responsible investing (“SRI”), explaining its history, trends, and current status. To give perspective and perhaps temper hype, Part II discusses the efficacy of SRI as a method of change, concluding that while SRI may not have much effect on air quality or oppressive foreign governments, there are situations where SRI is useful and even necessary. Part III looks at the conflict between SRI and the fiduciary duties of trustees, investment advisers, and broker-dealers. It shows the contractual nature of fiduciary duties and why this is relevant for SRI. Part III also explores important legislation, such as ERISA, that affects fiduciary duties in certain circumstances. Further, Part III examines the superficial and non-legal analysis in some of the high-profile commentary on SRI. Part IV offers the legal analysis that has been lacking, examining SRI through the doctrines of authorization and ratification, as well as determining the effects of exculpation clauses in trust instruments and contracts. The Article concludes by explaining when SRI is lawful for fiduciaries and instructing them as to how they can engage in SRI without fear of breaching their fiduciary duties.
The present article considers four aspects in which the trade secret method is less efficient than the patents method: litigation costs, transaction costs, financing costs, and employment costs. The main part of the article is devoted to the proposal of establishing a particular type of trade secrets registry, with the intention that it will reduce the above-mentioned costs and will improve the efficiency of the trade secret method. I propose a structure for the registration of trade secrets that is likely to solve most of the problems left unresolved by the escrow companies and the Indonesian legislation. A trade secret registry may seem to be a contradiction in terms, because the purpose of a registry is to make public the information registered with it, whereas trade secrets must be kept confidential. But the proposed registry integrates these two principles, so that a part of it remains confidential and another part is open to the public. As part of the registry, trade secrets would be deposited confidentially through coded communication, including dating of the deposit. But, the identity of the holders of the rights with respect to these secrets (including those possessing secondary rights, such as licensees and holders of a mortgage) and the identity of those bound by confidentiality regarding the secrets deposited (such as employees of the owner of the trade secret) will be public information. The proposed registry would be handled by the registrar of trade secrets, a quasi-judicial figure empowered to resolve judicial disputes when necessary.
Gotham Skylines: The Intersection of Scènes à Faire and Fictional Facts In Comic Books, Graphic Novels, and their Derivative Works
In just a decade and a half since the modern superhero film exploded onto the scene, the comic books and graphic novels that have long been the very definition of a fringe or niche interest, have morphed into a multi-billion dollar film, television and video game empire. The two main players in this industry, Marvel and DC, are owned by juggernauts in the entertainment industry. More importantly, some of these characters have been around for over three-quarters of a century. Readers keyed into intellectual property law, particularly copyright, should begin to see the issue. The copyright protection on these characters will expire in the coming years, and could potentially open up a wide range of other works based on these venerable and valuable properties. While trademark law may provide some limited protections, there may in fact be another way for these characters to be protected.
There are several exceptions to copyright, but the one most applicable to our case is the prohibition against recognizing copyright protection for “Scènes à Faire.” Succinctly put, the doctrine prohibits copyrighting a scene that is indispensable to conveying basic information about the overall copyrighted work. In other words, using a skyline shot of New York City to convey that a film is set in New York City is not copyrightable on its own, even though the rest of the film is certainly eligible for protection. In a similar manner, facts may not be copyrighted. However, fictional facts may be. For example, the fact that Superman was born on the planet Krypton and sent to Earth as a baby to be raised in Smallville by the Kent family are ‘facts’ of a sort, but as fictional facts they are subject to copyright protection.
The world of comic books is full of hypothetical questions regarding competing forces. Can Thor’s hammer (the irresistible force) destroy Captain America’s shield (the immovable object)? Who is faster, Superman or The Flash?
In this mix we bring a legal conundrum to join the debates that swarm around conventions and online message boards. What happens when fictional facts interact with scènes à faire in the manner that occurs in films based on comic books? Which wins, the protectable nature of fictional facts or the generic scenes that are bereft of protection? In this note I will argue that when fictional facts interact with scènes à faire in comic book movies, the previously unprotected scenes gain copyright protectable status. While this may seem a moot point, it is not. The extensive protections offered by copyright will enable those copyright holders to continue exploiting the vast commercial value of those rights for decades to come.
Wide Right: How ISP Immunity and Current Laws Are Off the Mark in Protecting the Modern Athlete on Social Media
“[Y]our tranny looking dad is a disgrace to American football,” “I would rape the shit out of her,” and “[The] [B]ears are easier than you on prom night,” are just a sampling of some of the alarmingly harassing tweets received by Chloe Trestman between the night of November 9, 2014 and November 10, 2014. Who is Chloe Trestman, and what could she have possibly done to warrant such abuse? Chloe’s father is Marc Trestman, the head coach of the Chicago Bears. And the twitter vitriol, or “twitriol,” directed toward Chloe was in response to the Bears’ blowout loss to their longtime rivals, the Green Bay Packers, 55-14 on Sunday Night Football. So the question remains, what did Chloe do to garner such an abusive reaction from the disgruntled Chicago fan-base?
The answer, of course, is she did nothing to deserve this hate-inspired tweeter tirade, other than being the daughter of an NFL head coach and having a twitter account. In this generation of Facebook, Twitter and other social media outlets, it is commonplace for athletes, and unfortunately sometimes their family members, to become targets of harassing online misconduct and abuse. Arguably more alarming than the harassing component of social media websites, is the fact that the current laws governing Internet Service Providers lack the necessary teeth to provide any recourse to athletes victimized by online misconduct, which only perpetuates this type of behavior and leaves no recourse for the injured party. So Coach Trestman, Chloe Trestman and mostly any other internet targeted athlete are left with no legal remedy until the vast safeguards protecting ISPs are curtailed.
Starting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known as “transformative use.”
This Comment will explore the background of the fair use defense, from its common law origins, to its codification in the 1976 Copyright Act, to its application in modern law. Keeping this background in mind will explain why the current legal state of the fair use defense, as propagated by the District Court for the Southern District of New York and the United States Courts Appeals for the Ninth Circuit, is inconsistent with traditional statutory construction principles.
Proposed recommendations to solve legal inconsistencies in Section 107 can come from clarification either from Congress by way of an amendment to this Section, or by a decision from the United States Supreme Court.
The Night is Dark and Full of . . . Family Law?: California Law and Marital Presumption in Game of Thrones
The television show Game of Thrones has developed a tremendous following in recent years. The show takes place primarily in the fictional state of Westeros, a feudal society that mirrors many of the legal structures of medieval England. As such, many of the laws and customs of Westeros seem antithetical to the beliefs and values of modern viewers. In an attempt to posit a more just outcome following the death of Westeros’ king (the action which springboards the primary power struggle), this Article applies California law to the disposition of King Robert’s property. Shockingly, this Article finds that California’s marital presumption laws are as unsettling as some of the laws found in Westeros itself.
This Article argues that the current marital presumption laws are outdated and badly in need of reform. Using the disposition of King Robert’s property as an example, this Article critiques the modern California Family Code’s approach to paternity disestablishment. Part I provides a description of the marital presumption rule. Part II applies it to situations such as King Robert’s where the father incorrectly believed that a child was his own. Part III concludes by suggesting how the law should be altered to create a more just outcome to situations of mistaken paternity.
While more information can be gleaned from A Song of Fire and Ice book series, this Article relies on the information obtained through the HBO series unless otherwise indicated. Additionally, this Article only addresses the disposition of property as it would occur under California law.
The staff of PIPSELF has worked diligently this year in selecting and preparing original and appealing articles concerning emerging issues in the fields of intellectual property, sports, and entertainment law for this issue. We welcome our readers to send comments and feedback: e-mail us at email@example.com, visit our Twitter @PIPSELF, or ‘like’ us on Facebook at “Pace Intellectual Property, Sports & Entertainment Law Forum.”
Part I of this article describes ADHD and explores the extent of ADHD medication abuse, especially among young adults. Part II discusses the characteristics of emerging adults, who may be more likely than their older counterparts to make unwise decisions about medications and other life choices.34 While we protect minors by requiring parental consent for their medical treatments, emerging adults are effectively able to obtain any drug on the market if they convince the doctor that they have the requisite diagnosis. Part III explores HIPAA, the medical malpractice standard of care and the challenges associated with a society that is overly dependent on prescription drugs. It recommends that we work towards greater mental health parity, enabling those who need them, to affordably obtain mental health services. Part III also recommends that HIPAA be amended to provide for presumed consent for health care providers to share information, including at least an initial meeting, with parents of young emerging adults. It also suggests that mental health care providers' failure to use best efforts to include parental contact in cases of young emerging adults violates the medical malpractice standard of care, especially in cases involving ADHD medications. Finally, this article advocates for an awareness campaign to address the challenges associated with the public health problem of prescription drug overuse and abuse.
Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman sharply restricted general jurisdiction over corporations, limiting it to a corporation’s (1) state of incorporation, (2) state of principal place of business, or (3) another state where the corporation is “essentially at home.” The Court analogized the first two categories to an individual’s domicile. The Court made clear that the third category is very small, leading Justice Sotomayor, in her opinion concurring in the judgment, to charge that the Court had made many corporations “too big for general jurisdiction.” It is noteworthy that although the Court used the term “essentially at home” in both Goodyear and Daimler, it pointedly did not define it. It would have been easy for the Court to say, for example, that a corporation is subject to general jurisdiction only in the state of incorporation or the state in which its principal place of business is — i.e. the diversity jurisdiction reference points for corporate citizenship. But the Court did not say that, so “essentially at home” must mean something beyond the diversity referents. Justice Ginsburg, who wrote both opinions for the Court, is a former Civil Procedure; the possible link to the diversity referents could not have escaped her.
This article argues that the Court’s new approach to general jurisdiction over corporations, particularly with Daimler’s addition of the concept of “relative contacts” — comparing the defendant’s forum contacts with the defendant’s worldwide contacts to determine whether the corporation is “essentially at home” — should compel the Court to reexamine and disapprove transient jurisdiction over individuals, limiting general jurisdiction over individuals to forums where they are domiciled or are “essentially at home,” whatever that may mean. One otherwise confronts the dissonance that general jurisdiction exists over an individual who has been in the forum for five minutes — opening the individual’s entire life to forum judicial adjudication — but not over a corporation that has operated in the forum for decades, has extensive physical facilities and numerous permanent employees in the forum, and derives tens of millions of dollars of annual profit from the forum is not. International Shoe’s minimum-contacts approach, if the Court purports to remain faithful to it, cannot simultaneously embrace Goodyear, Daimler, and Burnham v. Superior Court, which unanimously upheld transient jurisdiction over individuals.