Article: The Speedy Trial Rrights of Military Detainees

In Washington, debate roils on about whether terrorism suspects should be tried by military commission, Article III courts, some combination of the two, or not at all.  The Obama administration’s highest profile decision to hold a civilian terrorism trial on American soil—that of Khalid Sheikh Mohammed (KSM) and his September 11 co-conspirators—was met with popular[1] and congressional[2] resistance and ultimately rescinded.[3]  Another Guantanamo detainee, Ahmed Ghailani, was transferred to the Southern District of New York, convicted of a single count of conspiracy to destroy government buildings and property, and sentenced to life in prison.[4]

United States v. Ghailani[5] tested the government’s ability under the Sixth Amendment Speedy Trial Clause and Fifth Amendment Due Process Clause to move military detainees to the civilian justice system after a delay of many years.  While the near-acquittal in Ghailani may freeze criminal trials of long-term military detainees for the foreseeable future,[6] eventually there will be further attempts to bring such prosecutions,[7] whether by President Obama or one of his successors.[8]  As the politicization of terrorism law and policy continues and perhaps even intensifies, more terrorism suspects may be moved between the military and civilian justice systems.  Just as the Bush administration focused its efforts on military commissions and the Obama administration on civilian trials, future Republican and Democratic presidents will be inclined to try terror suspects in their preferred venue.  As a result, there may be more cases like Ghailani in the future, with a defendant who has been transferred to the civilian justice system after spending years in military custody.

This Article examines the Sixth Amendment speedy trial rights[9] and related Fifth Amendment due process rights[10] of criminal defendants who were detained by the military as part of the War on Terror.  I argue that the government should prosecute detainees by either military commission or criminal trial where possible, with the venue depending on the nature of the case.  In criminal cases, the Speedy Trial Clause does not apply to periods of military detention absent unusual circumstances, and judicial scrutiny should occur primarily through the Due Process Clause of the Fifth Amendment.  While defendants carry a higher burden under the Due Process Clause, the determinative factors under both Fifth and Sixth Amendment analysis are the reason for the delay and the resulting prejudice to the defendant.

Part I of this Article examines the arguments for and against trying military detainees as a threshold question.  Part II discusses the nature of the Sixth Amendment Speedy Trial Clause and its interaction with the Fifth Amendment Due Process Clause.  Part III inspects the Barker v. Wingo[11] test for determining whether there has been a violation of Speedy Trial Clause and its application in Ghailani, United States v. Padilla,[12] and potential future detainee cases.  Finally, Part IV more broadly discusses the benefits and dangers of transferring terrorism suspects between the military and civilian justice systems and adjusting existing criminal law to meet the particular needs of terrorism.

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Walter E. Kuhn: Minority Chief Counsel, United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights.  J.D. Duke University School of Law, 2006; B.A, University of North Carolina at Chapel Hill, 2003.



[1]. See Lydia Saad, Americans at Odds With Recent Terror Trial Decisions, Gallup (Nov. 27, 2009), http://www.gallup.com/poll/124493/Americans-Odds-Recent-Terror-Trial-Decisions.aspx?CSTS=tagrss (discussing a poll showing that a majority of Americans believed that Khalid Sheikh Mohammed should be tried by military commission outside of New York City, and were “very concerned” or “somewhat concerned” that a trial would give KSM a forum to further his cause).

[2]. Eighteen senators introduced an amendment to deny the Department of Justice funding for the trials, but it failed to attract the sixty votes necessary in November 2009.  See Kasie Hunt, Senators try to block KSM trial, Politico (Feb. 2, 2010), http://www.politico.com/news/stories/0210/32382.html.  There was press speculation that if offered again, the legislation may receive enough votes for passage.  Michael Isikoff, No KSM in NYC?, The Daily Beast (Jan. 16, 2010), http://www.thedailybeast.com/newsweek/blogs/declassified/2010/01/15/no-ksm-in-nyc.html.

[3]. Anne E. Kornblut & Peter Finn, Obama advisers set to recommend military tribunals for alleged 9/11 plotters, Wash. Post, Mar. 5, 2010, at A01.

[4]. Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, N.Y. Times, Jan. 25, 2011, at A18.

[5]. See generally 751 F. Supp. 2d 515 (S.D.N.Y. 2010).

[6]. See Jack Goldsmith, The Ghailani Sentence, Lawfare (Jan. 25, 2011), http://www.lawfareblog.com/2011/01/the-ghailani-sentence/ (“I doubt the Ghailani verdict points the way for more civilian trials of GTMO detainees in the near future.  There don’t seem to be that many cases that the administration thinks it can win in civilian court.  But more importantly, this verdict won’t change congressional resistance to such trials, and the President is unlikely to expend political capital in a presidential election cycle to reverse this resistance.”).

[7]. Evidencing the administration’s intention to try detainees criminally in the future, Attorney General Eric Holder reiterated his general support for Article III terrorism trials after reversing his decision to try KSM and his co-conspirators in New York.  Attorney General Eric Holder, Address at the American Constitution Society Convention (June 16, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-1106161.html.  Further, the administration transferred Ahmed Abdulakir Warsame to New York for criminal trial after a short period of military detention following his capture in the Gulf of Aden.  Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, N.Y. Times, July 7, 2011, at A10.  Members of the Senate Judiciary Committee also sent Attorney General Holder a letter expressing concern about the potential criminal trial of Ali Mussa Daqduq, a detainee held in United States custody for years in Iraq.  Letter from Senators to AG Holder: Prosecute Senior Hezbollah Commander Before Military Tribunal (May 17, 2011) available at http://hatch.senate.gov/public/index.cfm/releases?ContentRecord_id=ae4e97ed-80ba-4f22-9d8c-c3f381440208.

[8]. In the short-term, the 2011 National Defense Authorization Act prohibited the use of fiscal year 2011 Department of Defense funds to transfer Guantanamo detainees to the United States, despite protest from President Obama and Attorney General Eric Holder.  Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351 (2010); Press Release, President Barack Obama, Office of the Press Secretary, Statement by the President on H.R. 6523 (Jan. 7, 2011), available at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523 (“Section 1032 [barring the use of funds to transfer detainees into the United States] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees.”); see also Peter Landers, Congress Bars Gitmo Transfers, Wall Street J., Dec. 23, 2010, at A2.

[9]. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”).

[10]. U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”).

[11]. 407 U.S. 514, 530-33 (1972).

[12]. No. 04-60001-CR-COOKE (S.D. Fla. Apr. 3, 2007) (denying motion to dismiss indictment for speedy trial violations in derogation of Sixth Amendment rights).

Article: Federalism, Harm, and the Politics of Legal Garcia v. Texas

Humberto Leal Garcia savagely raped and murdered sixteen-year-old Adria Sauceda in San Antonio in the spring of 1994.[1]  A Texas jury sentenced him to death.[2]  On these facts alone, his case appears indistinguishable from the dozens of Texas capital cases that regularly receive federal court review, capable of spurring the occasional, predictable complaints about Texas justice and compelling the indignation of the capital defense bar and abolitionist community, but otherwise not especially noteworthy legally or politically.  Yet, Texas law enforcement officials investigating the murder did not allow Leal, a Mexican national who had resided in the United States since the age of two, access to the Mexican consulate pursuant to the Vienna Convention on Consular Relations.[3]  So when Leal sought a stay of his Texas execution from the United States Supreme Court in the summer of 2011, he created more than just a legal question for the Court’s resolution.  His case ignited a storm of controversy at multiple levels of politics—constitutional, international, and electoral.

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J. Richard Broughton: Assistant Professor of Law, University of Detroit Mercy.  In the interests of disclosure, I note that I am a former Assistant Attorney General of Texas, and my former office handled the federal court litigation on behalf of Texas against Leal.  I left the office in 2003 and did not participate in that litigation.  I then served as a lawyer in the Capital Case Unit at the United States Department of Justice, but left the DOJ in 2008 and played no role in the Leal litigation there, either.  I will refer herein to the Medellin litigation, in which I had only a very minor role while at DOJ, and, in any event, my discussion here contains only public information about that case.  I am grateful to Stacy Johnson for her excellent research assistance on this project.



[1]. Garcia v. Texas, 131 S. Ct. 2866, 2867 (2011) (per curiam).  Confusingly, the current Supreme Court Reporter’s caption refers to the petitioner as “Garcia.”  In its opinion, however, the Court refers to him as “Leal,” which is the proper reference and the one employed by the lower courts.  For accuracy here, I will cite to the Supreme Court’s opinion as “Garcia v. Texas,” but will refer to the petitioner personally as “Leal.”

[2]. Id.

[3]. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820; Garcia, 131 S. Ct. at 2867.

Note: It’s Not Popular but it Sure is Right: The (In)admissibility of Statements Made Pursuant to Sexual Offender Treatment Programs

Sex offenders are not a sympathetic bunch.  Throughout American history, society has imposed on sexual offenders a variety of punishments, from incarceration[1] to castration.[2]  In recent years, in response to public pressure following several heinous and highly publicized sexual crimes against children, the punishments imposed upon sexual offenders have increased.[3]  Many jurisdictions have enacted laws allowing for the indefinite civil confinement of sexual offenders, while others offer surgical castration or require offenders to submit to polygraph[4] or penile plethysmograph tests.[5]  Furthermore, both the federal government and many states offer or mandate sexual offender treatment programs which may employ some of the above-mentioned methods of punishment, often with the ultimate goal of rehabilitating the offender.

In deciding the appropriate and just punishment for sexual offenders, society and its elected representatives have struggled to reconcile the tension between the very real threat sexual offenders pose to America and its children, and upholding the basic rights afforded all criminal defendants under the Constitution.  While recent conversations surrounding the rights of individuals convicted of sexual offenses have focused on civil confinement,[6] this is not the only punishment practice that implicates the constitutional rights of sexual offenders.  The rights of such offenders are also affected by what are commonly known as “sex offender treatment programs” (SOTPs).  These programs, administered by the government, are voluntary at the federal level, and may be voluntary or mandatory at the state level.  The majority of SOTPs employ a cognitive behavior therapy model and commonly require participants to admit to all past sexual offenses—charged or uncharged, convicted or not convicted—in order to successfully complete the program.

To this end, the programs are laudable.  Based on scientific research showing the efficacy of cognitive-based therapy where the patient takes responsibility for his own wrongdoing, the required admissions to past sexual offenses seem a logical, and indeed necessary, component of rehabilitation.  However, the programs are also problematic, implicating participants’ constitutional rights because statements made during the course of SOTPs can be used as propensity or character evidence in a pending prosecution for a sexual offense, or as the basis for new charges in a subsequent prosecution.

Take John Doe for example.[7]  He was arrested for a sexual molestation offense for the first time in 1982.  In the years that followed, Doe was in and out of prison for a variety of sexual offenses.  Following his last stint in federal prison on child pornography charges, Doe was ordered to participate in a SOTP as a condition of supervised release.  The SOTP required Doe to author an autobiography detailing all sexual abuse that he had suffered and all that he had perpetrated.  Doe did so, providing a detailed written account of each of his victims over the past three decades.  Shortly thereafter, Doe was released from prison.  A few months later, Doe violated the terms of his supervised release by distributing child pornography via the internet.  When police searched Doe’s house, they found a copy of the autobiography and other materials Doe wrote in the course of the SOTP.

At trial, the government seeks to introduce Doe’s autobiography and the other written statements to show his propensity to commit sexual offenses.  The government is also considering bringing charges against Doe for the crimes he admitted tobut for which he was never charged.  At trial, the jury will hear about every single incident of sexual misconduct Doe has ever engaged in because they will have full access to Doe’s private writings—the very writings that the government told him he must produce as a term of his supervised release.

This paper will explore the admissibility of such statements against individuals like Doe who make statements detailing prior sexual offenses, charged or uncharged, in the course of their participation in a government-run SOTP.  Part I will provide a brief overview of federal and state SOTPs and discuss the judicial proceedings in which such statements might be admitted.  Part II will explore the admissibility of SOTP statements under the Federal Rules of Evidence (FRE) and the constitutionality of such under the Fifth Amendment.  Finally, Part III will argue that notwithstanding the evidentiary and constitutional bases for admitting these statements, there are alternative and more compelling evidentiary, constitutional, and policy arguments for not admitting them.  First, many of these statements should be protected from compelled disclosure by the therapist-patient privilege.  Second, the probative value of such statements does not outweigh the prejudicial effect, and thus the statements should be deemed inadmissible under FRE 403.  Finally, such statements violate the Sixth Amendment right to counsel and should be excluded where a defendant is not advised by counsel of the risk of being compelled to make such statements at the time he accepts a guilty plea requiring participation in a SOTP, or where a defendant is sentenced to participate in such a program as part of sentencing, supervised release, or parole.

Ultimately, I argue that it is simply good social policy to exclude statements made during the course of SOTPs. Failure to do so may deter individuals from participating in SOTPs in the first place and prevent offenders from receiving treatment that is critical to decreasing recidivism and to protecting America’s children from sexual crimes.  The solution, I conclude, is to offer a limited “use immunity”[8] to SOTP participants, prohibiting such statements from being used in a search warrant application or as the basis for a subsequent prosecution for crimes admitted to in the statements.

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Meghan Gilligan: J.D. Candidate, Syracuse University College of Law, 2012; B.A. English and Political Science, magna cum laude, University of Rochester.



[1]. Facts About Adult Sex Offenders, Association for the Treatment of Sexual Abusers, http://www.atsa.com/facts-about-adult-sex-offenders (last visited Oct. 11, 2011).

[2]. See Anti-Androgen Therapy and Surgical Castration, Association for the Treatment of Sexual Abusers, http://www.atsa.com/anti-androgen-therapy-and-surgical-castration (last visited Oct. 22, 2011).

[3]. Jean Peters-Baker, Challenging Traditional Notions of Managing Sex Offenders: Prognosis is Lifetime Management, 66 UMKC L. Rev. 629, 631 (1998).

[4]. See id. at 662 (noting that “[t]he polygraph is one method of measuring a sex offender’s level of risk to the community in a laboratory setting” and is frequently used “to determine the offender’s normal and deviant sexual histories”); see also Mary West et al., Offender Treatment Programs, August 2000: 50 State Survey, Colo. Dep’t of Corrections 20 (Aug. 2000), http://cospl.coalliance.org/fez/eserv/co:3038/cr11002t712000internet.pdf.  Thirteen states reported using polygraph tests to assess sex offenders’ progress in treatment programs, including Colorado, Hawaii, Indiana, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, Tennessee, Texas, Vermont, Virginia, and Wisconsin.  Id.  Other states stated an intent to implement the use of polygraphs in the near future, and several more reported the discretionary use of polygraphs, or the use of polygraphs in post-release supervision.  Id.

[5]. See Peters-Baker, supra note 4, at 663 (explaining that penile plethysmographs are devices used to measure the response of an individual’s penis to audio or visual stimuli); see also Fed. Bureau of Prisons, Sex Offender Treatment Program (2002), available at http://law.wustl.edu/Library/CDROMS/ABAUSG/pdf/sexu2.pdf (“[a]ll participants will undergo plethysmograph and polygraph examination”).

[6]. See generally, e.g., United States v. Comstock, 130 S. Ct. 1949 (2010).

[7]. “John Doe” is not based on a real individual but is instead exemplary, used to illustrate a plausible scenario based on existing SOTP practices and case law concerning prosecutions for sexual offenses.

[8]. Dissenting in McKune v. Lile, Justice John Paul Stevens coined the term “use immunity” with regard to statements made pursuant to a SOTP.  536 U.S. 24, 70 (Stevens, J., dissenting).

Article: The Influence of International Human Trafficking on United States Prostitution Laws: The Case of Expungement Laws

When the issue of human trafficking first gained widespread public attention in the United States in the 1990s, the discussion centered on international human trafficking.  In 2000, the United States passed an anti-trafficking law, popularly called the Trafficking Victims Protection Act (TVPA), and the United Nations adopted an anti-trafficking treaty called the Palermo Protocol.  Both the TVPA and the Palermo Protocol focused on combating international human trafficking by encouraging countries around the world to pass laws against trafficking and prosecute traffickers.  Meanwhile, in the United States, state-level criminal justice systems treated United States citizens qualifying under the federal definition of “human trafficking victim” as criminals by prosecuting them for prostitution.  Activists for sexually exploited women and girls in the United States noted the irony that the United States was so concerned about trafficking in other countries, but was neglecting trafficking of its own citizens.  The United States was allowing laws and practices in the states that it was condemning in other nations.  For example, federal law requires other countries to ensure that victims of trafficking are not inappropriately incarcerated for unlawful acts as a direct result of being trafficked.[1]  Yet many states lack laws ensuring that sex trafficking victims are not prosecuted for prostitution.  As a result, anti-trafficking activists have put pressure on Congress and state legislatures to apply the same legal standards used in an international context to sexually exploited women and girls in the United States.  They are leveraging the international human trafficking legal framework to push for legal change to state laws on prostitution.

This essay will begin with an explanation of the legal framework for addressing international human trafficking, including the definitions of trafficking and the laws and policies developed to eradicate human trafficking.  Then the essay will describe how this framework has come to influence state laws in the United States, focusing in particular on the recent trend of laws allowing for the expungement of prostitution convictions if the defendant can show that she was a victim of sex trafficking.  The essay will conclude by evaluating the effectiveness of this legal framework at both the international and domestic level.

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Carrie N. Baker is an Assistant Professor in the Program for the Study of Women and Gender at Smith College in Northampton, Massachusetts.  Baker holds a B.A. in Philosophy from Yale University and an M.A., J.D., and Ph.D. in Women’s Studies from Emory University.  Her work has been published in numerous law and women’s studies journals.  Her book, The Women’s Movement Against Sexual Harassment (Cambridge University Press, 2008), won the National Women’s Studies Association 2008 Sara A. Whaley book prize.



[1]. 22 U.S.C. § 7106(b)(2) (2006 & Supp. III 2010).

Article: The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penality Cases

Since the Supreme Court reinstated the death penalty in 1976,[1] the United States has executed twenty-eight foreign nationals from fifteen different countries.[2]  Most of those foreign nationals were never informed of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations,[3] a treaty the United States ratified in 1969.[4]  Violations of Article 36 in capital cases have caused consternation in foreign capitals and endless litigation in domestic courts and international tribunals.  Mexico, which has the largest number of foreign nationals on death row,[5] established the Mexican Capital Legal Assistance Program in 2000 to assist its nationals facing the death penalty and to ensure that Vienna Convention claims were aggressively litigated.[6]  Several foreign governments have filed briefs in state and federal courts describing the nature of the assistance they could have provided if their nationals had been promptly notified of their consular rights.[7]  In dozens of cases, appellate lawyers have argued that consular assistance could have made the difference between life and death.  Yet, even in the wake of favorable judgments from the Inter-American Commission of Human Rights,[8] the Inter-American Court on Human Rights,[9] and the International Court of Justice (ICJ),[10] national courts have persistently refused to grant any measure of relief to condemned foreign nationals, even in cases in which the violation was undisputed.  As of September 2011, domestic courts have overturned death sentences on the basis of Article 36 violations in only two cases.[11]

In light of these statistics, it is tempting to conclude that Article 36 litigation has had negligible effects on the application of the death penalty in the United States.  And indeed, under no circumstances could even the most optimistic internationalist claim that Article 36 litigation has been a resounding success.  But it would be similarly misguided to say that Article 36 litigation has had no effect on domestic legal culture.  As an initial matter, the United States complied with the ICJ’s provisional measures order in Avena and Other Mexican Nationals,[12] leading to a five-year moratorium on the execution of Mexican nationals in the United States.[13]  In addition, the death sentences of two Mexican nationals were vacated in direct response to the ICJ’s final judgment in Avena; one of those cases is examined in greater detail below.  And finally, litigation over violations of the Vienna Convention in U.S. death penalty cases has attracted substantial public commentary calling on the courts and Congress to comply with their international obligations.  Although it is too soon to say whether the United States will ultimately comply with the ICJ’s Avena judgment in the cases of Mexican nationals who remain on death row, there can be little question that litigation in domestic and international tribunals has led to increased awareness of the United States’ obligations under the Vienna Convention, which in turn has led to greater compliance with Article 36 at the trial level.

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Sandra Babcock: Clinical Professor and Clinical Director, Center for International Human Rights, Northwestern University School of Law.  I was counsel for the government of Mexico in Avena and Other Mexican Nationals, and subsequently represented Mexican nationals Osbaldo Torres, José Medellín, Roberto Moreno Ramos, and Humberto Leal García.  I witnessed many of the events described in this essay, and could not fairly be described as an objective observer.  Nonetheless, my involvement in the litigation described herein allows for a more nuanced perspective on both the successes and failures associated with our attempts to obtain legal remedies for foreign nationals whose consular rights were violated.



[1]. Gregg v. Georgia, 428 U.S. 153, 187, 207 (1976).

[2]. Confirmed Foreign Nationals Executed Since 1976, Death Penalty Info. Center, http://www.deathpenaltyinfo.org/foreign-nationals-part-ii#executed (last updated Oct. 2, 2011).

[3]. Id.; see generally Vienna Convention on Consular Relations, United Nations, Apr. 24, 1963, 21 U.S.T. 77.

[4]. Vienna Convention on Consular Relations, supra note 3, at 77 (entered into force Dec. 24, 1969).

[5]. Reported Foreign Nationals Under Sentence of Death in the U.S., Death Penalty Info. Center, http://www.deathpenaltyinfo.org/foreign-nationals-and-death-penalty-us#Nationality (last updated Oct. 2, 2011).

[6]. Michael Fleishman, Reciprocity Unmasked: The Role of the Mexican Government in Defense of its Foreign Nationals in United States Death Penalty Cases, 20 Ariz. J. Int’l & Comp. L. 359, 393-94 (2003) (describing Mexico’s consular assistance in capital cases in Texas and elsewhere over the last several decades).

[7]. See, e.g., Paraguay v. Allen, 949 F. Supp. 1269, 1273 (E.D. Va. 1996); Complaint at ¶¶ 70, 76, United Mexican States v. Woods (D. Ariz. 1997) (No. CIV 97-1075-PHX SMM); see generally Brief of the Gov’t of the United Kingdom of Great Britain & N. Ireland as Amicus Curiae in Support of Petitioner-Appellant & Reversal, Carty v. Quarterman, 345 Fed. Appx. 897 (5th Cir. 2009) (No. 08-70049).

[8]. See, e.g., Martínez Villareal v. United States, Case 11,753, Inter-Am. Comm’n H.R., Report No. 52/02, OEA/Ser.L/V/II.117, doc. 1 rev. ¶ 64 (2003), available at http://www.cidh.oas.org/annualrep/2002eng/USA.11753.htm.

[9]. See The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, ¶¶ 121-22 (Oct. 1, 1999), available at http://www1.umn.edu/humanrts/iachr/A/OC-16ingles-sinfirmas.html.

[10]. See Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 12, 71-72 (Mar. 31).

[11]. See Torres v. Oklahoma, 120 P.3d 1184, 1189-90 (Okla. Crim. App. 2005); Valdez v. Oklahoma, 46 P.3d 703, 709-11 (Okla. Crim. App. 2002).  In Valdez, the court’s decision to vacate the death sentence of Gerardo Valdez was based on its finding that trial counsel was ineffective for failing to contact the Mexican consulate and make use of the resources consular officers would have provided.  Valdez, 46 P.3d at 710.  Although the court found the petitioner’s Vienna Convention claim to be procedurally barred, the court’s decision to grant relief was based on its conclusion that the Mexican consulate would have provided extensive assistance if it had been notified of Valdez’s detention.  Id. at 709-10.  For that reason, I include it among the cases in which Vienna Convention claims have prevailed—although I recognize that others may quibble with this assessment.

[12]. Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, 2003 I.C.J. 6 (Feb. 5).

[13]. See Confirmed Foreign Nationals Executed Since 1976, supra note 2.  After Mexico filed its application instituting proceedings in the ICJ in January 2003, no Mexican national whose case was addressed in the ICJ proceedings was executed until August 5, 2008, when Texas executed José Medellín Rojas.  Id.

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). []