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Running From Blanket Licensing: How Fitness Platforms Do Not Sync With Current Music Licensing Procedure
Full text linkOnline Fitness Platforms, like Peloton, have become ubiquitous in a modern post-Covid world. Fitness classes are catered to the musical interests of their users, increasing user satisfaction. Although technology has advanced to accommodate the remote fitness industry, the legal structures in place for synchronization licenses have not. Such platforms have a unique need to clear music on a quick and consistent basis that does not break the bank. Downtown Music Publishing LLC v. Peloton Interactive, Inc., highlights the necessity for a federal statutory scheme similar to those used for other music licenses. A solution that protects competition but does not act as an impediment to creative innovation is required. Therefore, this Note analyzes differentiated music license practices and the precedent created through past litigation and proposes legislative action to create a federal regulatory scheme to monitor synchronization licenses and promote fairness for artists and like business models
Clemency for the Common Good: An Argument to Release Incarcerated Persons in the General Public Interest
Full text linkDuring the height of the COVID-19 pandemic, we were reminded of several terrible truths about the modern mass incarceration state: namely, that it collects vulnerable people, places them in conditions where they are unable to protect themselves against many forms of ordinary and extraordinary risks, incubates suffering amongst them, and then spreads that suffering to surrounding communities. The ghastly consequences of these realities during the COVID pandemic led to piecemeal efforts to release moderate numbers of incarcerated people for public policy reasons largely unrelated to the kinds of individualized factors that have traditionally motivated most acts of clemency. This Article draws upon both the successful and unsuccessful aspects of these efforts to theorize about and propose a new conception of the clemency power that is rooted more expressly in our collective public policy goals. This theory, clemency for the common good, resonates with the deeper explanations of more traditional grants of clemency. Transparently adopting a theory of clemency for the common good is likely to protect both prisoners and the general public when the inevitable future pandemic and natural disaster occur, both by speeding releases and ensuring that appropriate procedures are in place. Of equal importance, however, is that the acceptance of such an approach will open dialogues about the wisdom and sustainability of some of the most troubling aspects of the modern mass incarceration state and offer a safety valve to protect us against our most punitive and counter-productive policies
A New Private Law of Policing
Full text linkAmerican law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in the campaign for just middle spaces, taking as its exemplar the problem of racially oppressive policing. Inequitable policing arises from both system-level policies and personal officer biases. Public law can remake systems, but struggles to remake people. Consequently, this piece argues that the legal quest for humane policing has overemphasized public law litigation under 42 U.S.C. Section 1983 and underemphasized the private law of tort. Personal injury law, specifically the intentional infliction of emotional distress (IIED) tort, has untapped potential to influence the private bias of officers and the communities they serve. IIED invites individuation of Black litigants, self-reflection on the meaning of racial dignity in middle spaces, and construction of shared norms about civilian humanity—a panoply of exercises social psychologists have identified as the essential tools of anti-bias work. Returning to broader themes, the article builds on the example of inequitable policing to petition for full private law partnership in the bid for twenty-first century social justice
Clarett, Moultrie, and Applying the Nonstatutory Labor Exemption to Professional Sports’ Draft Eligibility Rules
Full text linkCollective bargaining is the mechanism by which major sports leagues and their players unions have negotiated the terms and conditions of employment for many decades. One standard provision of these collective bargaining agreements is a draft eligibility rule governing the conditions by which prospective athletes are eligible for the league’s entry draft. These collective bargaining agreements exists at the intersection of two somewhat discordant areas of law: antitrust and labor law. Under antitrust law, Congress enacted a policy favoring competition and prohibiting unreasonable restraints on trade. On the other hand, under labor law, Congress enacted a policy favoring collective bargaining. These policies conflict because collective bargaining is a restraint on trade. To rectify this conflict, the Supreme Court created the nonstatutory exemption, which shields collective bargaining activities from antitrust scrutiny. In Brown v. Pro Football, Inc., the Supreme Court created a four-part test defining when collective bargaining activities are shielded from antitrust scrutiny: the activities must (1) take place during and immediately after collective bargaining negotiations, (2) grow out of the lawful operation of the bargaining process, (3) involve mandatory subjects of collective bargaining, and (4) concern parties to the collective bargaining relationship. This framework leaves two open questions: what are mandatory subjects of collective bargaining, and what is the lawful operation of the collective bargaining process? The Second Circuit in Clarett v. NFL, and the District of Oregon in O.M. by & through Moultrie v. National Women’s Soccer League took two different approaches to these questions. This note proposes that to remain faithful to the goal of the nonstatutory exemption, courts should consistently adopt the approach that draft eligibility rules are mandatory subjects of collective bargaining, and voluntary recognition agreements are part of the lawful operation of the collective bargaining process. This will allow nascent sports leagues and unions in their infancy to collectively bargain the terms and conditions of their employment free from antitrust scrutiny
Regulating Compliance Officers
Full text linkCompliance officers are currently an unregulated body and, unlike the legal profession, are not subject to any particular set of professional guidelines that guide their behavior. The lack of a distinct compliance officer profession creates risks relating to heightened potential personal liability and the possibility of merging with another profession that is not exactly compatible with the compliance function. To mitigate these risks, this Article proposes the creation of a professional regulatory system for compliance officers that is industry-specific and self-regulated and discusses the various benefits that would stem from such a system
Human Rights Due Diligence at the Intersection of Corporate Compliance and Corporate Purpose
Full text linkThe concept of human rights due diligence (“HRDD”) is one part of a broad and diverse range of approaches to address the responsibilities of business to society. Through laws requiring that companies identify and address their adverse impacts on workers, communities, and the environment, HRDD expands the role of corporate compliance in making companies accountable for the welfare of stakeholders. This Article addresses the implications of HRDD laws on how corporations operationalize corporate purpose and examines the barriers posed by corporate compliance practices to meaningfully—rather than cosmetically—enhance responsible business conduct
Sliding Into Safety: Why Formal United Nations or United States Sanctions or Action Would Help Major League Baseball Curb Human Smuggling and Trafficking Issues
Full text linkEvery year when the baseball season ends and the offseason begins, professional teams’ front offices go searching for the best available players. Often, incredibly talented baseball players can be found across the world and today, Major League Baseball (MLB) players come from across the globe. Yet, despite the global outreach of MLB, the process by which teams are allowed to search for, recruit, and sign foreign-born players remains largely unregulated by the league itself. For years, stories of players from foreign countries being subjected to shady and unethical practices have begun to surface. This dark side of baseball was even known by many scouts and front office executives involved in the process. This Note examines how this illicit form of foreign recruitment often has violated both domestic law and international standards governing human trafficking and smuggling. This Note explains both the domestic law and international standards that govern human trafficking and smuggling and examines the ways in which foreign player recruitment arguably violates both. This Note further contends that MLB has a moral and legal obligation to adhere to these guidelines and rules. Finally, this Note suggests why the hurdles to implementing a rigid international player’s draft are likely too high to overcome, and thus the United States (US) and United Nations (“UN”) must hold MLB accountable under either federal domestic law or UN international guidelines, thus curbing MLB’s role in human trafficking and smuggling