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Tinkering with Success: College Athletes, Social Media and the First Amendment
Get PDFGood law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.
In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices
Gotham Skylines: The Intersection of Scènes à Faire and Fictional Facts In Comic Books, Graphic Novels, and their Derivative Works
Get PDFIn just a decade and a half since the modern superhero film exploded onto the scene, the comic books and graphic novels that have long been the very definition of a fringe or niche interest, have morphed into a multi-billion dollar film, television and video game empire. The two main players in this industry, Marvel and DC, are owned by juggernauts in the entertainment industry. More importantly, some of these characters have been around for over three-quarters of a century. Readers keyed into intellectual property law, particularly copyright, should begin to see the issue. The copyright protection on these characters will expire in the coming years, and could potentially open up a wide range of other works based on these venerable and valuable properties. While trademark law may provide some limited protections, there may in fact be another way for these characters to be protected.
There are several exceptions to copyright, but the one most applicable to our case is the prohibition against recognizing copyright protection for “Scènes à Faire.” Succinctly put, the doctrine prohibits copyrighting a scene that is indispensable to conveying basic information about the overall copyrighted work. In other words, using a skyline shot of New York City to convey that a film is set in New York City is not copyrightable on its own, even though the rest of the film is certainly eligible for protection. In a similar manner, facts may not be copyrighted. However, fictional facts may be. For example, the fact that Superman was born on the planet Krypton and sent to Earth as a baby to be raised in Smallville by the Kent family are ‘facts’ of a sort, but as fictional facts they are subject to copyright protection.
The world of comic books is full of hypothetical questions regarding competing forces. Can Thor’s hammer (the irresistible force) destroy Captain America’s shield (the immovable object)? Who is faster, Superman or The Flash?
In this mix we bring a legal conundrum to join the debates that swarm around conventions and online message boards. What happens when fictional facts interact with scènes à faire in the manner that occurs in films based on comic books? Which wins, the protectable nature of fictional facts or the generic scenes that are bereft of protection? In this note I will argue that when fictional facts interact with scènes à faire in comic book movies, the previously unprotected scenes gain copyright protectable status. While this may seem a moot point, it is not. The extensive protections offered by copyright will enable those copyright holders to continue exploiting the vast commercial value of those rights for decades to come
Mixing Law and Equity Causes of Action Does Not Preclude a Jury Trial
Get PDFThis article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury trial has been waived in the context of civil actions seeking both legal and equitable relief arising out of the same transaction. Part IV of this article addresses the evolution toward non-jury trial in England and Wales and the policy in favor of non-jury trials in civil actions today.
This article is written to encourage New York advocates to examine closely the analyses developed and the results which have emerged concerning waiver of a jury trial by the joinder of law and equity claims. Trial by jury, so fundamental to the American and New York systems of jurisprudence, should not be deemed waived, and is not waived, merely because litigants seek both legal and equitable relief arising from the same transaction. There is a careful analysis meant to be employed to protect the sacred right to a trial by jury, and an advocate confronted with the issue should make certain that the court properly utilizes it
Thicker Than Water: America’s Addiction to Cheap Flood Insurance
Get PDFThis paper is broken down into three parts. Part I traces the history and evolution of flood insurance in the United States, including the establishment of federal flood insurance and key reforms over the 20th and 21st centuries. Part II discusses the 2012 flood insurance reform package, subsequent legal challenges to the reforms, and the government’s response to political pressure over the reform. Part III concludes discussing the continued need for flood insurance reform, especially in a world of rising sea levels and more frequent, stronger weather events
Disillusionment Versus Loyalty in the Abraham Lincoln Brigade, 1937-1938
Get PDFThe Abraham Lincoln Brigade is the unit of American volunteers fighting within the International Brigades and on the side of the Republic during the Spanish Civil War. Analysis of the Brigade and their role in Spain has led to greatly diverging views on why their service ended in defeat and who was to blame for it. While revisionist historians such as Ronald Radosh and Cecil Eby conclude that the Soviet Union was at fault for imposing political pressure on the Republic, sending incompetent officers to command the International Brigades, and using the volunteers to stall as they bled Spain’s gold reserve dry, the veterans predominantly reach a different conclusion. The Veterans of the Abraham Lincoln Brigade claim that the US and the other western democracies were at fault for failing to aid Spain at all and potentially stopping Fascism’s military advancements years before World War II even began. Both sides present convincing evidence, the revisionists presenting declassified documents, the veterans presenting first-hand accounts, but they present the fullest picture together, balancing out the biases inherent in the 1930s as well as the modern biases the revisionists hold today
Festschrift for Dean Simon
Get PDFWe write together about our dear friend Michelle Simon because of her enormous contribution to our professional and personal lives. Working with someone who becomes more than a colleague, but a friend as well, is a special gift. Michelle not only paved our path, she became a trail blazer in legal education. The professional trajectory of Michelle Simon speaks volumes to her talent, tenacity, and consensus building skills
Traumatic Dissociation: An Exploration
No full textPsychological research highlights the importance of the dissociative process to the post-traumatic reactions and associated sequelae. This study explores and describes the manifestations of the dissociative process through clinical presentations and analyses of the character development of literary heroes. Specifically, this study explores three phases of the dissociative process: peritraumatic dissociation or the alterations of consciousness occurring during traumatic experience, structural dissociation of the personality subsequent to traumatic exposure, and the maintenance of such forms of dissociation. This study provides a theoretical framework toward understanding trauma cases, informing case conceptualization and clinical practice. Although this study was limited by its qualitative and descriptive modality and by its focus on psychodynamic processes, this exploration can provide the basis for future empirical research in this area and more nuanced psychotherapeutic interventions
Arguments in Support of A Constitutional Right to Atmospheric Integrity
Get PDFAs used in this paper, “atmospheric integrity” refers to the interrelated physical, chemical, and biological processes on planet Earth that enable human and non-human life now and in the future and recognizes that modern civilization has developed within the relatively stable, current geologic period known as the Holocene. I chose to focus on atmospheric integrity, rather than more broadly on environmental integrity, because the health of terrestrial and aquatic habitats is inextricably tied to atmospheric stability. This assertion is not meant to minimize the multitude of harms impacting land and water. It is just that the magnitude of the climate crisis overwhelms all other environmental threats and will have obvious, detrimental impacts on humanity. Also, the determination of what constitutes a decent environment is a value judgment over which reasonable people will differ. Conversely, focusing on a goal that can be measured with scientific accuracy will enable courts and policy makers to confidently measure progress toward (or away from) the goal.
In this paper I explore the establishment of a federal constitutional right to atmospheric integrity. I begin, in Part II, with a review of the threat presented by global climate change. In Part III, I discuss various conceptions of rights: constitutional, basic, natural, and human. I then review modes of constitutional analysis and presently-recognized state and national constitutional environmental rights in Part IV. In Part V, I review Robinson Township v. Commonwealth of Pennsylvania in which the Pennsylvania Supreme Court, for the first time, provided substantive interpretation of the environmental rights contained in the Commonwealth\u27s constitution. Finally, in Part VI, I conclude that the Supreme Court may recognize a constitutional right to atmospheric integrity based on historical, doctrinal, prudential, ethical, and structural analysis
Engines of Environmental Innovation: Reflections on the Role of States in the U.S. Regulatory System
Get PDFThis article focuses on the role that states play in environmental regulation. Specifically, this article offers examples of the central part in the evolution of United States environmental regulation states played in the past, continue to play today, and will play in the future. First, this article explores the history of state environmental regulation, demonstrating that despite a lack of resources, states were actively engaged in environmental regulation before the advent of the modern era of federal environmental regulation in the 1970s. This article relates not only the regulatory efforts of states, but also the practical benefits of state regulation. Further, this article discusses the ways in which state environmental regulations were used to form the first federal environmental laws, demonstrating that states have been environmental innovators from the outset. Second, this article describes the current environmental regulatory scheme, often referred to as cooperative federalism, which demonstrates the states\u27 major role in carrying out the nation\u27s system of environmental statutes and regulation. Third, this article provides several examples of states\u27 continuing role as environmental innovators, highlighting several state efforts to establish programs and regulatory approaches that exceed the minimum level of environmental regulation established by the federal government. While acknowledging that some states adopt the federal minimum environmental standards as maximum regulatory approaches in their borders, this article nonetheless asserts that states\u27 actions as innovators is powerful and necessary, as evidenced by their ability to influence the market using their own environmental regulations, their ability to partner with other organizations to create new federal standards, and their ongoing efforts to work with the federal government to improve on the collaborative federalism model. This article concludes that this nation must move to an era of true environmental partnership between states and the federal government to achieve meaningful environmental progress--and to deliver the clean and healthy environment all Americans have come to expect and demand. To do this, we must continue to fuel states with political, fiscal, and public support, so that they may continue their important role as engines of environmental innovation