The United States Supreme Court plays a unique and important role in resolving environmental controversies that arise among the several states states and in enforcing environmental compacts formed by states with the assent of Congress.
The powers of Congress and the states to unilaterally resolve environmental controversies between states are constitutionally limited. But there are two plenary constitutional mechanisms for resolving environmental controversies among the states: (1) litigation under the original jurisdiction of the Supreme Court over controversies between two or more states; and (2) negotiation of compacts between states with Congressional assent that are enforceable against states by Acts of Congress and by states through suits filed in the Supreme Court.
The Supreme Court’s resolution of environmental controversies and enforcement of environmental compacts falls into two categories. First, the Court apportions natural resources among states through federal common law suits and by enforcing resource apportionment compacts. Second, the Court protects state natural resources from inequitable disruption by other states through federal common law suits and by enforcing resource protection compacts. The Court has to date asserted its jurisdiction to apportion territory, water, and fish and to protect navigation, land use, and water. The Court has not yet asserted its jurisdiction to protect air from pollution, but this Article argues that air pollution suits are open to downwind states because the Clean Air Act only displaces actions against emissions from individual sources, not entire states.
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.