Note: Green Technology: An Alternative Path to Accelerated Patent Examination

In the last quarter century, a particular problem facing humanity has become increasingly clear to innovators around the world: the consumption of immense quantities of natural resources of limited and shrinking availability.  Whether it is water, crude oil, natural gas, or trees, at some point, without finding sustainable solutions to overconsumption, we will exhaust the natural resources available on this planet.  As a leader in modern technology, our country should take a greater interest in the development of solutions to this crisis in the form of green technology that can be used to slow resource consumption.

The United States Patent and Trademark Office (PTO) can have an impact on the environmental crisis by adopting patent reform to specifically encourage innovators to develop and bring to market novel inventions in the green technology field.  The PTO has made an effort to encourage the development of environmental technology through the Green Technology Pilot Program (“Pilot Program”), designed to expedite the patent process for environmentally valuable technologies.1  This program will be analyzed in detail throughout this note and its foundation will form the basis for the reforms and initiatives suggested herein.

In addition to the Pilot Program, there are supplementary means by which the patent process for valuable green technology can be utilized to stimulate innovation.  By partnering with the Environmental Protection Agency (EPA), the PTO will be able to offer an effective alternative system to accelerate the patent process for environmentally beneficial technology.  This alliance would essentially weed out innovations that are insufficiently important to the environment, thereby ensuring that the PTO’s increased effort to expedite the patent process is not wasted.  In addition, such a joint initiative could uncover technologies that may have unforeseen environmental value and encourage their development with incentives in the patent office.

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Jay Hickey: Syracuse College of Law, J.D. 2012; State University of New York at Albany, B.S. in Biology 2009.  Thank you to Professor Lisa Dolak for going beyond the call of duty by sacrificing her time for the benefit of her students, and to the members of the Syracuse Law Review for the hard work that went into the editing process.  A special thanks to my mother and father and to all of my family and friends who have been invaluable throughout my academic career.

  1. See Pilot Program for Green Technologies Including Greenhouse Gas Reduction, 74 Fed. Reg. 64,666 (Dec. 8, 2009). []

Article: Article V Versus Article 89: Why The U.S. Does Not Overturn Supreme Court Rulings Through Amendment

On the evening of January 27, 2010, the Capitol witnessed an epic bout.  From his bully pulpit and encircled by the thundering applause of his political majority, President Barack Obama publicly criticized the Supreme Court’s recent decision in Citizen’s United v. Federal Election Commission.[1]  The fact that a political branch of government openly expressed its disapproval of the Court’s decision is not extraordinary.[2]  However, making such direct comments during the nationally televised State of the Union address, while the Justices of the Court were seated front and center, directly facing their critic and surrounded by his supporters, was unprecedented.[3]  The world watched as the black-robed Justices sat awkwardly, the President berating their actions and Congress jeering in agreement.  While those Justices who were “more disciplined refrain[ed] from manifesting any emotion or opinion whatsoever”[4] during this dressing-down, Justice Alito appeared constrained to raise a hand in self-defense, essaying to fend off these verbal jabs by mouthing the words “not true.”[5]

Nevertheless, while this public rebuke may have been highly uncomfortable for the six justices present during the speech, the very words of the President’s address reveal who the ultimate winner of this fight would be.  Throughout all of the fist pumping and chest pounding, the President declared that the Citizen’s United decision had “reversed a century of law” that would “open the floodgates” to very negative consequences.[6]  He also clearly stated his own opposition to the decision and his desire to promote and preserve American democratic ideals.[7]  Even so, in the end, the best that the President could do was to ask Congress to pass a bill that might restore the status quo in light of the Supreme Court’s decision.[8]  Instead of aiming for a knockout punch, the President implicitly recognized his own incapacity to captain a definitive reversal of Supreme Court precedent through the Article V process.  This round went to the Court.

In contrast, and four years earlier, Jacques Chirac, then-president of the French Republic, also confronted his own constitutional court regarding a recent decision.  That October, the Conseil constitutionnel had ruled that France could not adhere to an international treaty banning the death penalty, judging that France could not relinquish its ability to make sovereign acts in the face of exceptional danger, by ratifying an irrevocable treaty.[9]  However, instead of making his challenge during a political speech, on live television, and surrounded by hundreds of his allies, President Chirac chose to drop his gauntlet within the Élysée Palace, when the Conseil paid a visit to the President to present to him their best wishes for the New Year.[10]  Moreover, instead of making broad and condemning statements about the decision, Chirac very matter-of-factly recognized the Conseil’s authority and the consequential necessity of a constitutional revision to proceed with that ratification,[11] and then informed the members of the Conseil that he had already begun the amendment process.[12]  Eighteen months later, France had constitutionally banned the death penalty within its territory.[13]

The difference here is stark because, unlike in France, amending the U.S. Constitution to overturn the Supreme Court’s decisions is politically unfeasible—when the Supreme Court of the United States has declared the law, the most that the political branches often do is hoot, holler, and stomp their feet.  The flag-burning controversy in the early 1990s is quite illustrative.[14]  During the flag-burning cases, the Supreme Court drew a line in the sand, and declared that the First Amendment protected the speech of flag-burning protesters.[15]  After Congress tried to riposte by passing the Flag Protection Act of 1989,[16] the Court promptly landed a finishing strike, putting Congress back in its place and showing that it would not budge on its decision.[17]  The only route available that would have provided a truly “durable means of curtailing the Court’s power or overturning specific decisions” was the amendment process.[18]  Nevertheless, not a single flag-burning amendment proposal has ever made it out of Congress.[19]

Such a conundrum posits the question: why are American expectations so different from those of the French when it comes to amending the Constitution to reverse Supreme Court decisions?  Pointing to the fact that the United States has only constitutionally reversed four Supreme Court decisions in its long history,[20] while the French have reversed eleven since the ratification of their 1958 Constitution,[21] scholars usually claim that the Article V process is just too rigorous, while the French Constitution probably does not require that same level of exactitude.[22]  This view falls short in both assessments.  First, it fails to give proper credit to the American Framers who intended Article V to be a tool which allows Americans to correct constitutional imperfections and not a process which is so difficult to use that it perpetuates those defects.[23]  Second, it underestimates a stable French system that maintains high standards for any revisions to its fundamental charter.  Consequently, the reason for American reticence must therefore lie elsewhere.

Employing the text, history, and treatment of France’s own constitutional amendment provision as a lens, this Article takes a new look at America’s application of Article V and concludes that the difficulty of the process cannot be the principal reason for America’s failure to challenge the Supreme Court through amendments.  In fact, using a different objective brings into focus certain institutional and cultural characteristics, including the make-up and function of the United States Supreme Court, as well as American attitudes regarding the Court and the Constitution, showing that they are the primary reasons for the United States’ reluctance to turn to Article V to reverse the Court’s decisions.[24]

Part I provides a doctrinal background for the role of Article V in the American constitutional system, explaining that the Framers intended for it to be used as a tool to correct constitutional deficiencies as they were discovered, including when those discoveries are made by the Supreme Court.  Part II justifies the basis of this Article’s comparison between the American Article V and the French Article 89 by showing that their almost equivalent procedural rigor necessitates a look beyond the procedure into cultural and institutional impediments.  Part III then works to identify those impediments by analyzing differences between the French and American systems.

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Landon Wade Magnusson: L.L.M. 2011, École de droit de la Sorbonne, Université Panthéon-Sorbonne (Paris 1); J.D.  2010, J. Reuben Clark Law School, Brigham Young University; B.A. 2007, Brigham Young University.  Email: lwm6@byulaw.net.



[1].130 S. Ct. 876 (2010).

[2].David S. Broder, Arming for an Ad War, Wash. Post, Jan. 31, 2010, at A21.

[3].David G. Savage, Obama, Alito Incident Has a History Behind It, Pitt. Post-Gazette, Jan. 31, 2010, at A8.

[4].Ass. Press, Supreme Court Justice Alito Plans to Skip next State of Union Address, FoxNews.com (Oct. 16, 2010), http://www.foxnews.com/politics/2010/10/16/supreme-court-justice-alito-plans-skip-state-union-address.

[5].Justice Openly Disagrees with Obama in Speech, Msnbc.com (Jan. 28, 2010 1:19 pm ET), http://www.msnbc.msn.com/id/35117174/ns/politics-white_house.

[6].Barack H. Obama, U.S. President, Address Before a Joint Session of the Congress on the State of the Union (Jan. 27, 2010), in Daily Compilation of Presidential Documents at 8, http://www.gpoaccess.gov/presdocs/2010/DCPD-201000055.pdf.

[7].Id.

[8].Id. (“I’d urge Democrats and Republicans to pass a bill that helps [to] correct some of these problems.”).

[9].Conseil constitutionnel [CC] [Constitutional Court] decision No. 2005-524/525DC, Oct. 13, 2005, J.O. 16,609 (Fr.) (“[C]et engagement lierait irrévocablement la France même dans le cas où un danger exceptionnel menacerait l’existence de la Nation.”).  The treaty in question was the Second Optional Protocol to the International Covenant on Civil and Political Rights.

[10].Allocution de M. Jacques Chirac, Président de la République, à l’occasion de la présentation des vœux au Conseil constitutionnel, Cahiers du Conseil Constitutionnel (June 20, 2006), http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/nouveaux-cahiers-du-conseil/cahier-n-20/allocution-de-m-jacques-chirac-president-de-la-republique-a-l-occasion-de-la-presentation-des-voeux-au-conseil-constitutionnel.51763.html.

[11].Id. (“Vous avez estimé que sa ratification exigerait une révision de la Constitution.”).

[12].Id. (“J’ai décidé d’engager ce processus.  Une telle révision, en inscrivant solennellement dans notre Constitution que la peine de mort est abolie en toutes circonstances, consacrera l’engagement de la France.  Elle témoignera avec force de notre attachement aux valeurs de la dignité humaine.”).

[13].Loi 2007-239 du 23 février 2007 relative a l’interdiction de la peine de mort [Law 2007-239 of February 23, 2007, interim report on the prohibition of capital punishment], Journal Officiel de la RÉpublique Française [J.O.] [Official Gazette of France], Feb. 24, 2007, p. 3355.

[14].See generally Daniel H. Pollitt, The Flag Burning Controversy: A Chronology, 70 N.C. L. Rev. 553 (1992); Charles Tiefer, The Flag-Burning Controversy of 1989-1990:  Congress’ Valid Role in Constitutional Dialogue, 29 Harv. J. on Legis. 357 (1992).

[15].Texas v. Johnson, 491 U.S. 397, 414 (1989).

[16].Flag Protection Act of 1989, Pub. L. No. 87-195, 103 Stat. 777 (codified in 18 U.S.C. § 700 (2006)).

[17].United States v. Eichman, 496 U.S. 310, 318 (1990).

[18].William Ross, The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks, 38 Wake Forest L. Rev. 733, 747 (2003).

[19].The latest attempt at passing a flag-burning amendment failed in the United States Senate in June 2006.  See Carl Hulse, Flag Amendment Narrowly Fails in Senate Vote, N.Y. Times, June 28, 2006, at A1.

[20].Thomas E. Baker, Towards a “More Perfect Union”: Some Thoughts on Amending the Constitution, 10 Widener J. Pub. L. 1, 8-9 (2000).  (The four relevant decisions are: Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was annulled by the Eleventh Amendment; Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which was the target of the Thirteenth, Fourteenth, and Fifteenth Amendments; Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), which was annulled by the Sixteenth Amendment; and Oregon v. Mitchell, 400 U.S. 112 (1970), which was invalided by the Twenty-Sixth Amendment.)  Id.

[21].See infra Part II.B.

[22].See, e.g., Sanford Levinson, Our Undemocratic Constitution 160-64 (2006).

[23].The Federalist No. 43, at 278 (James Madison) (Clinton Rossiter ed., 1961) (stating that the Article V amending procedures are designed to “guard [] equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”).

[24].It would be dishonest to claim that the U.S. does not use Article V to overrule judicial opinions for any reasons other than those here described.  Certainly, special interest groups may also play a significant role.  Nevertheless, while those groups have been effective in influencing legislation, they have not had the same effect on amendments.  This leads one to conclude that, while they may be influential, special interest groups cannot be counted among the primary reasons for America’s reluctance to turn to Article V in the face of unpopular Supreme Court decisions.

Note: Let my People Go Fishing: Applying the Law of “Givings” to Private Fishing Preserves, Exclusive Fishing Rights, and State-Stocked Rivers

Most fishermen are probably not thinking about the law on a normal day on the water.  But perhaps they should if they are one of the anglers paying a fee to fish the private waters of the Douglaston Salmon Run (DSR) or Harmel’s Ranch Resort (“Harmel’s”), private fishing preserves where anglers pay an access fee to enjoy exclusive fishing rights on some of the nation’s most productive waters.  While all may be well for the paying angler seeking the idyllic—high populations of fish, low populations of people—a novel legal problem may be lurking in the deep.  And it is simply this: by charging anglers for exclusive fishing rights these private landowners receive a pecuniary gain from exploiting a public resource—fish.  The private landowner receives a substantial benefit from a public resource because the fish are raised and stocked by the state at the public’s expense.  Framing this issue in terms of equity and fairness, this Note applies the property concept of “givings,” the converse of takings, to suggest that this legal problem can be solved if such a landowner reimburses the state for the impermissible use and distribution of government property.

Part I of this Note frames the issue by providing two real-world examples of compensable givings.  Part II provides relevant background information and a discussion of the concept of givings and how it may be analyzed.  Part III examines and applies the givings framework to the factual scenarios set forth in the Introduction.  Finally, this Note concludes by suggesting that, in certain situations, a private fishing preserve that charges the public to fish for a state resource must compensate the state.

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Nathaniel H. Amendola: J.D. Candidate, Syracuse University College of Law, 2012; B.A., cum laude, St. Lawrence University, 2005; passionate fly fisherman. I would like to thank the biggest catch of my life, my future wife and current Syracuse Law Review Editor-in-Chief, Amanda Orcutt. I owe a debt of gratitude to my family, Professor Terry Turnipseed, and to my fishing mentors Lynn and Jeff Heyer of Cross Rip Outfitters.

 

Article: Marauders in the Courts: Why the Federal Courts Have Got the Problem of Maritime Priacy (Partly) Wrong

In December 2004, Los Angeles couple Jean and Scott Adam embarked on a round-the-world voyage on their yacht, the s/v Quest.1  They hoped to spend their retirement on the seas, engaging in, as they put it, “friendship evangelism—that is, finding homes for thousands of Bibles, which have been donated through grants and gifts, as we travel from place to place.”2  In February 2011, their vessel was boarded by Somali pirates almost 200 nautical miles off the coast of Oman.3  The U.S. Navy responded immediately, sending an aircraft carrier, a guided-missile cruiser, and two guided-missile destroyers to the Quest’s rescue.4  The Navy made contact with the pirates by bridge-to-bridge radio, and two pirates boarded the U.S.S. Sterett to engage in direct negotiations for the hostages’ release.5  But at 8 AM on February 23rd, a rocket-propelled grenade was fired from the Quest at the Sterett and gunfire erupted aboard the yacht.6  A Special Forces Team arrived moments later to find all four members of the Quest’s crew shot by their captors.7  All four perished.8  Fourteen of the Quest’s assailants—thirteen Somalis and one Yemeni—were transferred to federal custody and brought to Norfolk, Virginia, where federal criminal proceedings were initiated against them.9

The pirating of the Quest was but one of a record 163 attacks by Somali pirates in the first six months of 2011;10 yet it captured the nation’s attention unlike any of the others.10  The human drama that unfolded during the four-day standoff was the stuff of Hollywood movies.  But a courtroom drama is about to unfold in the wake of the Quest that might well prove a tragicomedy.  Notwithstanding the ubiquity of maritime piracy as a fixture of popular culture and the antiquity of piracy as an international and municipal legal offense, a debate is presently underway over what, exactly, piracy means.

The District Court of the Eastern District of Virginia offered two conflicting definitions of piracy in as many months. In United States v. Said, Judge Raymond A. Jackson held that robbery is an essential element of piracy.11.))  Judge Mark Davis adopted a far more expansive definition of piracy in United States v. Hasan.12  Under the Said decision, the attack on the Quest would not likely qualify as a pirating, a proposition that calls to mind a 1934 ruling of the House of Lords:

When it is sought to be contended . . . that armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.13

This article yields to the temptation of common sense in demonstrating, with scholarly rigor, that the Said court got its definition of piracy terribly wrong.  Part I offers an account of the dual nature of maritime piracy as both an offense under customary international law and an offense under the municipal law of the United States. It shows how these two legal approaches to maritime piracy have been integrated over time through successive acts of Congress, and also explains the jurisdictional implications of early American piracy cases.  Part II examines the Said and Hasan cases as part of that juridical tradition.  It argues that the Said ruling was predicated on a myopic view of the treatment of maritime piracy by U.S. law and policy, and must therefore be rejected. The article concludes with an assessment of the implications of the Somali piracy cases from the standpoint of judicial policy, both domestic and international.

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Tara Helfman: Assistant Professor, Syracuse University College of Law; Yale Law School, J.D.; University of Cambridge, M.Phil., Political Thought & Intellectual History; University College London, M.A., Legal & Political Theory.  The author wishes to thank Dean Hannah Arterian of the Syracuse University College of Law for the generous research grant that made this article possible.  She also wishes to thank Rakesh Anand, David Crane, Evan Criddle, Isaac Kfir, Kevin Maillard, Edgar J. McManus, Matteo Taussig Rubbo, and Terry L. Turnipseed for their invaluable comments as the article took shape.  Any faults are attributable solely to the author.

  1. Jean Adam, Welcome to s/v Quest Adventure Log, S/V QUEST, http://www.svquest.com (last updated Dec. 21, 2010). []
  2. Id. []
  3. Department of Defense News Briefing with Vice Admiral Fox via Telephone from Bahrain on Somali Piracy Aboard the S/V Quest, U.S. DEP’T OF DEF. (Feb. 22, 2011), available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4774. []
  4. Id. []
  5. Id. []
  6. Id. []
  7. Id. []
  8. U.S. DEPARTMENT OF DEF., supra note 3. []
  9. Indictment, United States v. Salad, Case 2:11-cr-00034-MSD-DEM (E.D. Va. Mar. 8, 2011), available at http://www.haguejusticeportal.net/Docs/NLP/US/Saladndictment.pdf. Two of the defendants pled guilty to charges of piracy under the law of nations and hostage-taking resulting in death. One pled guilty to having fired the rocket-propelled grenade launcher at the U.S.S. Sterett. Three Somalis Plead Guilty to Charges Relating to Piracy of Quest, NEWSROOM MAG. (May 20, 2011, 6:00 AM), http://newsroom-magazine.com/2011/executive-branch/justice-department/fbi/three-somalis-plead-guilty-to-sv-quest-piracy/. []
  10. See, e.g., Americans slain by captors on hijacked yacht; pirates killed, arrested, CNNWORLD (Feb. 22, 2011), http://articles.cnn.com/2011-02-22/world/somalia.us.yacht_1_maersk-alabama-somali-coast-somali-pirates?_s=PM:WORLD; Four Americans Killed on Yacht Hijacked by Somali Pirates, FOXNEWS.COM (Feb. 22, 2011), http://www.foxnews.com/world/2011/02/22/americans-aboard-yacht-captured-pirates-reportedly-killed/; Four American hostages killed by Somali pirates, MSNBC.COM (Feb. 22, 2011, 3:15:02 PM), http://www.msnbc.msn.com/id/41715530/ns/world_news-africa/t/four-american-hostages-killed-somali-pirates/. []
  11. 757 F. Supp. 2d 554, 560 (E.D. Va. 2010) (citing United States v. Madera-Lopez, 190 Fed. Appx. 832, 836 (11th Cir. 2006 []
  12. See generally 747 F. Supp. 2d 642 (E.D. Va. 2010). []
  13. In re Piracy Jure Gentium, [1934] A.C. 586 (P.C.) 594 (U.K.). []

Article: Changing the Game: The Litigation that may be the Catalyst for Change in Intercollegiate Athletics

The first reported intercollegiate athletics contest in the United States took place in 1852.1  Harvard University challenged Yale University to a rowing contest similar to those staged in England by Oxford University and Cambridge University.  To tilt the competition in its favor, Harvard University sought to gain an unfair advantage over Yale University by obtaining the services of an athlete who was not a student. 2  Subsequently, colleges and universities across the country challenged one another to athletics contests in a variety of sports.

In 1905, the United States was in an uproar over the violence associated with intercollegiate football. Football student-athletes’ use of gang tackling and mass formations led to numerous injuries and deaths.3  Thus, the public urged universities to abolish football or take steps to reform the game.  As a result, President Theodore Roosevelt called the nation’s top intercollegiate athletics leaders to the White House to discuss reformation of intercollegiate football.4  One such leader, Chancellor Henry M. MacCracken of New York University, called a meeting of officials from the nation’s thirteen most prominent universities to discuss reformation of the intercollegiate football playing rules.  Subsequently, a sixty-two member body formed the Intercollegiate Athletic Association of the United States (IAAUS).5  In 1910, the IAAUS became known as the National Collegiate Athletic Association (NCAA). For the next ten years, the NCAA was merely a discussion group that developed rules applicable to intercollegiate athletics.

The complexity and scope of intercollegiate athletics has grown substantially since the 1920s.  Today, the NCAA is a voluntary unincorporated association that governs more than 1,200 colleges, universities, athletic conferences, and sports organizations; 380,000 student-athletes; and eighty-eight championship events in three divisions.6  To improve efficiency and parity, the NCAA promulgated rules and regulations to monitor a variety of issues facing member institutions, conferences, student-athletes, and coaches, including bylaws governing amateurism,7 recruiting,8 eligibility,9 financial aid,10 and practice and playing seasons.11  These rules and regulations, established by volunteer representatives from member institutions and conferences, govern intercollegiate athletics and seek to further the goals set forth by the NCAA.12  The NCAA has established goals to “[p]romote student-athletes and college sports through public awareness . . . [p]rotect student-athletes through standards of fairness and integrity . . . [p]repare student-athletes for lifetime leadership, and [p]rovide student-athletes and college sports with the funding to help meet these goals.”13

Intercollegiate athletics has become a successful commercial enterprise.  Through the advent of television and media outlets and a growing public appetite for sports spectacle, intercollegiate athletics has continued to grow rapidly.  In 1938, the University of Pennsylvania televised the first intercollegiate football game.14  Then, in 1951, the NCAA members endorsed a program of restricted live football telecasts, administered through the 1983 playing season.15   However, the NCAA television plan was met with skepticism, and it was ultimately found by the United States Supreme Court to violate antitrust laws.16  Today, the NCAA’s television involvement includes broadcasts and cable telecasts of championship events such as the Division I Men’s Basketball Tournament (“March Madness”).17  In June 2010, the NCAA negotiated another blockbuster deal to televise March Madness, whereby the NCAA will receive $10.8 billion over fourteen years from CBS and Turner Sports for March Madness’ media rights.18

As a result of commercial advancements, intercollegiate athletics has grown into a multibillion-dollar industry annually.19  During the 2010-2011 college football bowl season, the Bowl Championship Series (BCS) distributed over $169 million, which derives, in part, from a $125 million ESPN media rights agreement.20  Intercollegiate athletic conferences are also negotiating and obtaining enormous media rights agreements, which is evidenced by the Southeastern Conference’s fifteen-year, $2.5 billion agreement with ESPN.21  As a result of the economic prosperity in intercollegiate athletics, coaches and administrators are receiving generous salaries and benefits.22

In the mid 1990s, economic analysts estimated the capitalized economic value of major intercollegiate athletics programs, such as the University of Michigan, University of Notre Dame, the Ohio State University, University of Florida, and other similarly situated programs, to be $250 to $300 million, which is comparable to major professional sports franchises.23  It would seem these programs would have substantially more value today.

This article will argue NCAA student-athletes are neither professionals nor amateurs; therefore, courts should adopt a new standard of review to determine whether student-athletes have cognizable claims against the NCAA when balanced against the traditional notions of amateurism.  Part II of this article provides a historical view of amateurism and how the principles of amateurism have changed over time.  Part III discusses and sets forth claims brought by student-athletes against the NCAA in five very important lawsuits: White v. NCAA, Oliver v. Barratta, Keller v. NCAA, O’Bannon v. NCAA, and Agnew v. NCAA. Finally, Part IV discusses how these lawsuits will impact the future of the NCAA and intercollegiate athletics, and how the traditional notions of amateurism are no longer a cognizable justification to challenges brought by student-athletes.

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Christian Dennie received his B.B.A. from Sam Houston State University and his J.D. from the University of Oklahoma College of Law. He is a partner at Barlow Garsek & Simon, LLP with offices in Dallas, Texas and Fort Worth, Texas and is an adjunct professor of law at Texas Wesleyan University School of Law. This Article is dedicated to Lillie Grace Dennie who has a world of opportunities ahead.

  1. See RONALD A. SMITH, SPORTS AND FREEDOM: THE RISE OF BIG-TIME COLLEGE ATHLETICS 168 (Peter Levine & Steven Tischler eds., 1988). []
  2. Rodney K. Smith, The National Collegiate Athletic Association’s Death Penalty: How Educators Punish Themselves and Others, 62 IND. L.J. 985, 989 (1987). Clearly, the propensity to seek unfair advantages existed from the beginning of intercollegiate athletics in the United States. []
  3. Id. at 990 (stating in 1905, there were approximately eighteen deaths and one hundred major injuries in intercollegiate football). []
  4. Id. []
  5. It was the flying wedge, football’s major offense in 1905, that spurred the formation of the NCAA. See Dr. Myles Brand, Address to the National Press Club (Mar. 4, 2003), available at http://www.ncaa.org/wps/wcm/connect/06f11d004e0d4e059106f11ad6fc8b25/20030304_nat_press_club_speech.pdf?MOD=AJPERES&CACHEID=06f11d004e0d4e059106f11ad6fc8b25. []
  6. See Differences Among the Three Divisions, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/public/ncaa/about+the+ncaa/who+we+are/differences+among+the+divisions/division+i/about+division+i (last visited Apr. 12, 2011); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 529 (3rd Cir. 2007); Breakdown of 88 NCAA Championships International Rights Holder, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/6322f5804e0da8699802f81ad6fc8b25/App6.pdf?MOD=AJPERES&CACHEID=6322f5804e0da8699802f81ad6fc8b25 (last visited Oct. 6, 2011); Press Release, Nat’l Collegiate Athletic Ass’n, NCAA Launches Latest Public Service Announcements, Introduces New Student-Focused Website (Mar. 13, 2007), available at http://fs.ncaa.org/Docs/PressArchive/2007/Announcements/NCAA%2BLaunches%2BLatest%2BPublic%2BService%2BAnnouncements%2BIntroduces%2BNew%2BStudent-Focused%2BWebsite.html. []
  7. See 2010-2011 NCAA Division I Manual § 12 (2011) [hereinafter NCAA Bylaws]. []
  8. See id. § 13. []
  9. See id. § 14. []
  10. See id. § 15. []
  11. See id. § 17. []
  12. See 2010-2011 NCAA Division I Manual § 1.2-1.3 (2011) [hereinafter NCAA Constitution]. []
  13. State of the Association address, THE NCAA NEWS (Jan. 17, 2000, 3:20:09 PM), http://fs.ncaa.org/Docs/NCAANewsArchive/2000/association-wide/state%2bof%2bthe%2bassociation%2baddress%2b-%2b1-17-00.html. []
  14. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 89 (1984). []
  15. A Brief History of NCAA Television Coverage, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/broadcast/media/broadcasting/a+brief+history+of+ncaa+television (last visited Apr. 12, 2011). []
  16. Bd. of Regents, 468 U.S. at 106-113 (holding the record supported the district court’s conclusion that the NCAA unreasonably restrained trade under the Sherman Act). []
  17. A Brief History of NCAA Television Coverage, supra note 15. []
  18. Steve Weiberg, NCAA President: Time to discuss players getting sliver of revenue pie, USA TODAY (Mar. 29, 2011), available at http://www.usatoday.com/sports/college/mensbasketball/2011-03-29-ncaa-pay-for-play-final-four_N.htm. []
  19. See KNIGHT FOUNDATION COMMISSION ON INTERCOLLEGIATE ATHLETICS, A CALL TO ACTION: RECONNECTING COLLEGE SPORTS AND HIGHER EDUCATION 17 (2001), available at http://www.knightcommission.org/images/pdfs/2001_knight_report.pdf. []
  20. Revenue Distribution Data Released, ESPN.COM (Jan. 25, 2011), http://espn.go.com/espn/print?id=6057935&type=story; Weiberg, supra note 18. In turn, bowl games distributed over $260 million to colleges and universities. And, the bowl games generated $1.285 billion in economic impact for the host communities. Id. []
  21. Weiberg, supra note 18. []
  22. Id. (stating University of Louisville head basketball coach Rick Pitino is being paid $7.5 million in 2011). []
  23. See RICHARD G. SHEEHAN, KEEPING SCORE: THE ECONOMICS OF BIG TIME SPORTS 314-17 (1996). []

Article: Why Opponents are Destined to Lose the Debate on Photo ID and Proof of Citizenship Laws: Simply Put – People Want Secure and Fair Elections

Not many would argue that banks should leave their front doors and vaults unlocked, even in towns lacking any reported cases of bank robbery. To the contrary, many banks and other places of business have security onsite despite the fact that they have never experienced a robbery or security incident. Yet, the line of reasoning that voting security laws are unnecessary because voter fraud is insufficiently widespread is consistently asserted by opponents of photo identification (ID) and proof of citizenship laws.1  Besides the fact that the premise is demonstrably false, the conclusion drawn by the opponents of these laws is an untenable one. It is no wonder that during the 2011 legislative session more states than ever before enacted photo ID and proof of citizenship laws.2

It is clear from the legislative activity in 2011 that proponents of voter ID and proof of citizenship laws are winning the debate in the court of public opinion. Beginning with Kansas, a total of seven state legislatures enacted laws to require photo identification at the time of voting, or to require proof of citizenship at the time of registration: Kansas, Wisconsin, Texas, Tennessee, South Carolina, Alabama, and Rhode Island.3  Then the voters of Mississippi added to this string of successes by passing a photo ID ballot issue in November 2011.4  Additionally, proponents of election security legislation are set to win the debate in the judiciary. This article outlines why photo ID and proof of citizenship laws are likely to become commonplace across the country by examining the Kansas Secure and Fair Elections Act (SAFE Act) in the context of the national debate on voter security laws.

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Kris W. Kobach: Kansas Secretary of State. A.B. 1988, Harvard University; M. Phil. 1990, Oxford University; D. Phil. 1992, Oxford University; J.D. 1995, Yale Law School.

  1. See, eg., Voter Fraud—The Solution in Search of a Problem, COMMON CAUSE (Mar. 25, 2011), http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=6672655; Oppose Voter ID Legislation—Fact Sheet, AM. CIV. LIBERTIES UNION (July 21, 2011), http://www.aclu.org/voting-rights/oppose-voter-id-legislation-fact-sheet; see generally The Voter ID Laws is an Expensive Solution in Search of a Non-Existent Problem Before the S. Comm. On Elections & Local Gov’t, 2008 Leg., 82d Reg. Sess. (Kan. 2008) (statement of Dan Winter, Exec. Dir., Am. Civil Liberties Union of Kan. & W. Mo.). []
  2. See Voter Identification Requirements, NAT’L CONF. OF ST. LEGISLATURES, http://www.ncsl.org/default.aspx?tabid=16602 (last updated Sept. 8, 2011). In 2011, twelve state legislatures passed strict voter ID legislation; however, five governors vetoed the bills. Id. This is compared to four states in 2005, the session with the second most activity. Id. []
  3. See KAN. STAT. ANN. § 25-2908(d) (2011); WIS. STAT. § 6.79(2)(a) (2011); TEX. ELEC. CODE ANN. § 63.0101 (West 2011); TENN. CODE ANN. § 2-7-112 (2012); S.C. CODE ANN. § 7-13-710 (2011); ALA. CODE § 17-9-30 (2011); R.I. GEN. LAWS § 17-19-24.2 (2012). []
  4. On November 8, 2011, Initiative 27 requiring any government issued photo identification before being allowed to vote was passed by a vote of sixty-three percent to thirty-seven percent. Joe Scott, Voter ID Initiative Approved, THE DAILY MISSISSIPIAN, Nov. 9, 2011, available at http://www.thedmonline.com/article/voter-id-initiative-approved. []