The Journal of Law and Public Policy is….

A Rushed Effort to Initiate Tax Legislation

On Wednesday, September 27, 2017, the White House and Congressional Republicans revealed a new tax plan. Obtained and reported by the Washington Post, Congress released a nine-page document titled, “Unified Framework for Fixing Our Broken Tax Code,” which summarizes the proposed tax code reformations. With this tax plan, President Trump expects to bring “revolutionary change” to the United States, especially to the middle class and American businesses. One of the single greatest revisions that Congress’ plan proposes is the transition of the U.S. from a worldwide to a territorial based tax system. That is, the United States would depart from its position to tax U.S. citizens and corporations on worldwide income. To better explain how the current worldwide tax system works, here is an example. Currently, a U.S. Corporation that receives a dividend from a foreign corporation will be taxed both in that foreign country and by the U.S. Under this worldwide system, a U.S. corporation is allowed to credit a portion of the foreign corporate income tax, or, “deemed to have paid” a portion of the foreign income tax, if the U.S. corporation owns at least 10% voting stock in the foreign corporation (S 902(A) of the Internal Revenue [read more]

Children Behind Bars: Justice for Juveniles Sentenced to Life Without Parole

“I want to know how it feels to sit with my sister and have a cup of coffee . . . to walk down the street . . . to sit in the car and hear the rain just beat down.” Six months before her death, Sharon Wiggins described her aspirations to a news reporter for a Philadelphia newspaper. In March 2014, Wiggins died at age 62 in a maximum-security prison, where she had been serving a life sentence without the possibility of parole since she was 17. While in prison, Wiggins obtained a degree from Penn State University and became employed by the university as a student services liaison; she tutored other prisoners to help them obtain GEDs and oversaw “back-on-track” programs for parole violators. Wiggins was one of about 2,500 prisoners serving life sentences without the possibility of parole for crimes they committed as juveniles (“juvenile lifers”); the United States is the only country in the world that still imposes this sentence. In consideration of the story of Wiggins, the evidence of differences between children and adults and the Supreme Court cases mandating changes in sentencing schemes, states should no longer impose mandatory life sentences without parole on [read more]

The Russia Investigation: Informing the American Public

Now that more than a year has passed since the 2016 presidential election and the reports of Russian interference, we should evaluate the progress and status of the Russia investigation to ensure that the goals of the investigation are being met. Currently, the investigative efforts are splintered across the House, Senate, and Department of Justice and, as we will see, each actor has a different purpose and goal. Perhaps the highest profile portion of the investigation, and the one many view as showing the most potential to produce quantifiable results, is the effort led by former FBI Director Robert Mueller. However, it is important to consider the limitations of Mueller’s position as special counsel. Historically, many of the high profile investigations involving the executive branch (Iran Contra, Whitewater, and Monica Lewinsky) were led by special prosecutors (also referred to as independent counsel), a role very different from that of special counsel. After the Watergate scandal, Congress passed the Ethics in Government Act in 1978, which created the special prosecutor. The special prosecutor would be appointed (at the request of the attorney general) by a three judge panel and would have the ability to pursue the investigation and prosecute any charges [read more]

A True Underdog Story: How New Jersey Can Shape the Future of American Sports Gambling

Sports gambling is an extremely lucrative industry—and it is growing at a rapid pace. In 2016, the Nevada State Gambling Control Board reported $4.5 billion in profits from legal sports wagering. Nevada, however, is the only state currently allowed to profit off of state-sanctioned sports betting under the Professional and Amatuer Sports Protection Act (“PASPA”). PASPA is a federal law passed by Congress in 1992 that effectively banned sports betting nationwide with the exception of state-sponsored sports betting in Nevada and sports lotteries in Oregon, Montana, and Delaware. With the goal of joining these states in profiting from state-sanctioned sports betting, the New Jersey State Legislature passed the Sports Wagering Act of 2012 (“2012 Law”), which legalized certain types of sports gambling in the state. In response to the passage of the 2012 Law, five major American sports leagues (the NCAA, NFL, MLB, NHL, and NBA, together, the “Leagues”) filed a lawsuit in 2012 to enjoin the 2012 Law for violating PASPA. The Third Circuit Court ruled in favor of the Leagues in National Collegiate Athletic Ass’n v. Governor of New Jersey. In 2014, New Jersey Governor Christie signed into law Senate Bill 2460 (the “2014 Law”). The major difference [read more]

Ezekiel Elliot v. The NFL

The National Football League (NFL) has been flooded with off the field controversies this year, including, the ongoing legal battle between the NFL and Dallas Cowboys’ running back, Ezekiel Elliot. On August 11, 2017, the NFL suspended Ezekiel Elliot six games for violating the NFL’s personal conduct policy. This resulted from a year-long investigation by the NFL into domestic violence accusations made against him by Tiffany Thompson, an alleged ex-girlfriend. On August 15th, the NFLPA filed an appeal of the suspension. Roger Goodell, the Commissioner of the NFL chose to appoint Harold Henderson as the arbiter of the appeal hearing. Henderson upheld the suspension, sparking an ongoing legal battle between Elliot and the NFL. On August 31, Ezekiel Elliot’s legal team filed a lawsuit against the NFL in the U.S. District Court of Eastern Texas. Elliot claims that the NFL willingly overlooked critical information in their investigation that shows Thompson’s claims of domestic violence may not be credible. On September 8, the U.S. District Court of Eastern Texas ruled that “Elliot did not receive a fundamentally fair hearing”, and granted a preliminary injunction on the Henderson appeal hearing. Consequently, Elliot has been able to play; however the NFL has filed [read more]

Taking on the National Football League

On October 15, 2017, several news and media outlets reported that former San Francisco 49ers quarterback Colin Kaepernick would be filing a grievance against the National Football League. Kaepernick, following the requisite procedure, filed his grievance under the National Football League’s Collective Bargaining Agreement alleging collusion amongst the 32 owners of NFL teams. What started out as an individual practicing his right to protest, particularly to shed light on specific social injustices, has escalated rapidly into a national debate centered on players kneeling during the national anthem. As a result of his protest, and in combination with both the immense media coverage and fellow athletes who joined in protest, Colin Kaepernick remains unsigned a year later. In what is undoubtedly a monumental task taking on the NFL, Kaepernick still stands on the verge of making more history if an arbitrator finds the allegations are true. Article XVII(a)(1) of the NFL collective bargaining agreement states that no NFL team or employee “shall enter into any agreement, express or implied, with the NFL or any other club, its employees or agents to restrict or limit individual club decision making as to . . . whether to negotiate or not to negotiate with [read more]

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]