It’s Time to Pay the Student-Athletes

It seems as if every year a new NCAA scandal emerges. This year, an FBI investigation revealed corruption, bribery, and fraud between assistant coaches, universities, investment firms, and Adidas affiliates. The biggest school involved is the University of Louisville, which is a college basketball powerhouse. In the complaint of the criminal case, U.S. v. James Gatto, it is alleged that James Gatto (Adidas’ global sports marketing director for basketball), Merl Code (a former NCAA basketball player now associated with Adidas), and Munish Sood (the founder of investment services firm Princeton Capital) paid $100,000 to a high school recruit to commit to Louisville. The case also alleges that Sood would manage the player’s money and the player would sign with Adidas when he entered the NBA. The investigation suggests that Rick Pitino was involved in this corruption, and as a result, Pitino was fired on October 16, 2017. Under the current NCAA model, student-athletes are considered amateurs and cannot be paid. It is a model that emphasizes the “spirit of the game”, and pays student-athletes with a value of an education. Education is extremely important; however, its value is minuscule compared to how much money these top college football and basketball programs [read more]

Collective Bargaining for Farmworkers

Freedom of association protects workers’ rights to organize and collectively bargain. Collective bargaining is when workers negotiate with their employer over important arrangements, such as employee benefits and working conditions, with the idea that workers have more bargaining power collectively than individually. Farmworkers have been systemically denied the right to collectively bargain and organize throughout American history. The 1935 National Labor Relations Act (NLRA) excluded farmworkers from the right to collective bargaining. Although this was the progressive era for workers’ rights legislation, it was also the Jim Crow law era. Consequently, farmworkers’ legal exclusion from collective bargaining was likely approved by Congress because the profession had a majority African American workforce. New York law on the matter is in conflict. In 1937, New York passed its State Employee Relations Act (SERA), which conformed to the NLRA’s exclusion of farmworkers. The New York Constitution, passed in 1938, states that there exists a right to organize and bargain collectively. Yet, New York has continued to deny farmworkers their right to associate and bargain with employers. Despite SERA clearly violating the plain language of New York’s Constitution and international criticism of the exclusion, the conflict has now become a matter for the court. [read more]

The Evolution of Patent Law

Patent Law and Patent Trolls Modern patent law jurisprudence has grown enormously over the last 20 years. Mirroring the boom in Internet technology dating back to the early 2000s, the number of patents filed with the United States Patent and Trademark Office has skyrocketed in recent years. While Google, Facebook, and other Internet-driven companies have grown tremendously, patent caselaw has not evolved as fast, which resulting in a significant amount of litigation. In the 1990s, opportunistic entities commonly referred to as non-practicing entities (NPEs) or “patent trolls,” anticipated the continuing growth of the Internet technology industry. Capitalizing on this growth, these NPEs acquired a multitude of patents but chose not to actively use them. Instead, the NPEs charge licensing fees to other businesses and individuals that appear to have infringed upon the patents.” While this act may seem like a frivolous threat, it has resulted in a significant amount of litigation, particularly in the Eastern District of Texas, where 28.6% of all patent cases were filed in 2014 and 43.6% of all patent cases were filed in 2015. Typically, NPEs will threaten suit if a business infringes upon a patent and does not pay licensing fees. When NPEs have sued, [read more]

America’s Favorite National Pastime: 7th Circuit Upholds Baseball’s Antitrust Exemption

Although baseball’s popularity has waned in recent years, the sport remains unique from any other professional sports league in that it is exempt from the scrutiny of federal antitrust laws. While other leagues have attempted to gain a similar exemption, and have consistently been unsuccessful, baseball has managed to maintain the exemption for close to a century. Recently, the 7th Circuit upheld this exemption in Right Field Rooftops LLC et al. v. Chicago Baseball Holdings LLC. The decision begs the question: isn’t it time for baseball’s undeserved, outdated exemption to be overturned? The exemption was originally granted to the sport in a 1922 Supreme Court decision called Federal Baseball Club of Baltimore v. National League, in which the Court ruled that federal antitrust laws did not apply to baseball because only interstate commerce was subject to federal antitrust scrutiny, and such “exhibitions” were not interstate commerce. Over thirty years later, in a 1953 decision called Toolson v. New York Yankees, the Supreme Court declined to overturn Federal Baseball, reasoning that the league had “been left for thirty years to develop, on the understanding that it was not subject to antitrust legislation” and that Congress, not the courts, should decide whether [read more]

Constitutionality of DACA Rescission

On September 5, the current administration rescinded the guarantee to many young people currently in America illegally that the government would not interfere with their work or studies. This program, known as the Deferred Action for Childhood Arrivals (or DACA) was designed to allow young undocumented immigrants, brought to America illegally, work permits and safety from deportation. This group of young people, colloquially known as “Dreamers,” is a group of high-functioning, well-educated young men and women that are arguably aiding the United States economy. This rescission is extremely unpopular, with 73 percent of Americans wanting legislation that protects Dreamers from deportation. President Trump has come out in support of protecting the group, and claims that he hopes “Congress will be able to help them out and do it properly.” So if the president and the American people are in support of DACA, why get rid of it? Part of that answer stems from a 2015 case, Texas v. United States, in which 26 states challenged the lawfulness of Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and the expansion of DACA. DAPA was similar to DACA, but it applied to the parents of children with permanent legal [read more]

North Dakota’s Relaxed Pro Hac Vice Provision for Water Protectors Should Stay

The North Dakota Legislature clarified that it believes constructing pipelines matters more than protecting people’s right to peacefully protest when it passed legislation in January 2017 that increases penalties for and further criminalizes acts of non-violent resistance. The impetus for this batch of anti-protest legislation was the Standing Rock movement, in which the Standing Rock Sioux Tribe brought attention to the Dakota Access Pipeline (“DAPL”) and thousands of people joined the resistance against DAPL’s construction. Since August 2016, over 700 people have been arrested from the DAPL protests, resulting in an unprecedented caseload for North Dakota’s South Central District Court. These cases involve a mix of legal issues, including mass arrests, civil disorder, conspiracy to commit reckless endangerment, indigenous Treaty rights, and environmental rights, among others. The unprecedented buildup and types of cases have made it very difficult, if not impossible, for local counsel alone to provide adequate representation for these water protectors. Special Provision for Adequate Representation In January 2017, attorneys petitioned the North Dakota Supreme Court for changes in North Dakota’s pro hac vice procedures (pro hac vice allows an attorney to legally practice in a jurisdiction where she or he is not licensed without committing unauthorized practice [read more]

Lessons in Diversity Jurisdiction from the First Circuit

The importance of subject-matter jurisdiction is axiomatic in federal courts. Parties must either get to federal court via a federal question or on the basis of diversity of citizenship. Given the centrality of subject-matter jurisdiction, Federal Rule of Civil Procedure 12(h)(3) mandates that cases that lack subject-matter jurisdiction must be dismissed. Even when issues of subject-matter jurisdiction are thought to be settled, new concerns can be raised at any time and force the court to reverse itself. Such was the case in an April 27, 2017 case from the First Circuit. Rule 12(h)(3) enables litigants to raise challenges to the court’s subject-matter jurisdiction at any time. As the First Circuit recently found in Hearts with Haiti, Inc. v. Kendrick, “any time” can even mean after the trial and during the pendency of an appeal. The case’s subject-matter jurisdiction was predicated on the diversity of citizenship, as it raised state tort law issues, rather than a federal question. In the underlying action, the founder of an orphanage in Haiti brought suit against Paul Kendrick for defamation claiming that Kendrick had falsely accused him of sexually abusing the boys in the orphanage. Kendrick further accused Hearts with Haiti—a non-profit charity raising funds [read more]

Microsoft v. Baker

Without the class action, many consumers would have no practical remedy for damages suffered no matter how good a claim they may have. For instance, when a consumer believes he is sold a faulty Xbox 360 that damages his $30 videogame disc, it makes no sense for him to pay the $400 filing fee to go to federal court—let alone hire a lawyer. As a result, without the class action, many consumers would not bother going to court, and giant companies that mass-produce products would be left with potentially millions in undeserved profits. Once a class action lawsuit is filed, the Federal Rules of Civil Procedure require the court to grant or deny class certification of the potential class. Last month, the Supreme Court heard oral arguments for Microsoft v. Baker. In January 2016, the Court granted certiorari to review the Ninth Circuit’s decision. The issue in the case is “Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims…” Baker v. Microsoft, 797 F.3d 607 (9 th  Cir. 2015). The district court denied the plaintiffs’ motion for class [read more]

Dairy Farmers & a Missing Comma: O’Connor v. Oakhurst Dairy

A missing comma caused much consternation over the meaning of a state’s employment laws at the First Circuit recently. In a March 13, 2017 decision, the appellate court worked overtime to analyze Maine’s Wage and Hour Law and a specific statutory exemption that would apply to drivers of enumerated food products. Specifically, this exemption noted that Maine’s overtime protection would not apply to workers involved in “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” 26 M.R.S.A. § 664(3)(F) (emphasis added). The emphasized portion was the core of the dispute, and the court’s reasoning provides insights for lawyers arguing about ambiguity before the First Circuit. The delivery driver plaintiffs argued that the exemption referred to the packing, either for shipment or distribution, of perishable foods. They neither packed product for shipment nor packed it for distribution. As the drivers were involved with the delivery, not the packing of these foods, they claimed they fell outside the exemption and, therefore, were allowed to collect overtime pay. The dairy farm defendants were steamed and contended in opposition that the exemption referred to two distinct activities, either [read more]

States Push Back Against Peaceful Protests (Part One)

In the wake of President Trump’s executive order banning immigration from seven Muslim-majority countries, millions of protestors took to the streets across the country to voice their concerns and grievances involving Trump’s immigration stance. While Muslims and Muslim support groups are encouraged by and grateful for the support provided by protestors across the country, Republican lawmakers are pushing legislation that would criminalize nonviolent protest. For example, in Iowa, lawmakers have introduced a bill that would make blocking traffic a felony punishable by up to five years in prison. In Minnesota, lawmakers proposed an anti-protest bill that would dramatically stiffen fines for freeway protests and would allow prosecutors to seek up to a full year of jail time for protestors blocking a highway. In Indiana, legislators have introduced a bill that would allow police to remove protestors blocking traffic using “any means necessary.” These are not the only states considering anti-protest bills. Others include: Washington, Michigan, North Dakota, Virginia, Colorado, North Carolina, and Missouri. These various anti-protest bills have caught the attention of the nation’s most active civil liberties guardians, the American Civil Liberties Union (ACLU) and the First Amendment Coalition (FAC). Lee Rowland, a senior attorney at the ACLU, and [read more]
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