In O’Bannon v. National Collegiate Athletic Ass’n, then-Chief Judge Claudia Wilken of the U.S. District Court for the Northern District of California issued a groundbreaking decision, potentially opening the floodgates for challenges to National Collegiate Athletic Association (NCAA) amateurism rules. The NCAA was finally put to a full evidentiary demonstration of its amateurism defense, and its proof was found emphatically wanting. We agree with Professor Edelman that O’Bannon could bring about significant changes, but only if the Ninth Circuit affirms. We write mainly to address the NCAA’s vigorous pending appeal and the views of certain amici, and to explain our strong support for the result at trial. Reversal of Judge Wilken’s comprehensive and thoughtful decision would thwart needed changes just as colleges are beginning to embrace them and would be mistaken as a matter of law. O’Bannon is a correct, justifiable, garden-variety rule-of-reason opinion and should be affirmed by the Ninth Circuit.
Washington and Lee Law Review - Vol. 71
by Cadman R. Kiker III
We are at the dawn of a new era of policing in the United States. In recent months, images of armed police officers patrolling the streets of Ferguson, Missouri, and of a toddler burned by a Georgia SWAT team’s grenade have been indelibly branded into America’s social consciousness. There is a unique bipartisan outcry from Washington in a time otherwise marked by bitter political divides. Politicians and journalists alike are questioning the efficacy of a militaristic police force and the path that led to this shift in the paradigm of policing.
This Essay examines the how and why of police militarization in the United States; it details some of the most egregious instances of police overreach, mission creep, and proliferation of military-style police units treating citizens as an enemy population. It seems all is quiet in Congress after a few seemingly futile hearings on militarization. The Executive Branch has released suggestions that are expected to manifest in an executive order any day. Unfortunately, all of these solutions are too little, too late. The streets of America are much more akin to a war zone than the democratic nation that our Founders envisioned, and it is up to the people, at a local level, to reclaim what was intended.
by Ronald Turner
In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman.
by David S. Levine and Sharon K. Sandeen
Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior—using litigation as a means to extract settlement payments from unsuspecting defendants—to trade secret law through creation of a federal private trade secret misappropriation cause of action. Like the existing problem of patent trolls, trade secret trolling has the potential to undermine the structure of trade secret law and create serious problems and costs for innovators across all industries. Thus, this Article addresses the heretofore unexplored link between patent and trade secret trolling established by this legislation. It assesses in detail the benefits and downsides of creation of a federal trade secret misappropriation cause of action and, for the first time, the risk of trolling.
by Sherman Clark
In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 Wash. & Lee L. Rev. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is amorphous, contingent, and greater than the sum of its parts. Third, the fairness arguments that drive much of the litigation in this area are based on tenuous assumptions about the relationship between the labor used to create the product and the value of the product.
by Matthew J. Parlow
The O’Bannon decision made a significant change to one of the philosophical pillars of intercollegiate athletics in allowing for greater compensation for student athletes. At the same time, the court took only an incremental step in the direction of pay for college athletes: The decision was limited to football and men’s basketball players—as opposed to non-revenue-generating sports—and it set a yearly cap of $5,000 for each of these athletes. However, the court left open the possibility for—indeed, it almost seemed to invite—future challenges to the National Collegiate Athletic Association’s restrictions on student-athlete compensation. In this regard, the court’s incremental step in college athlete pay may be a harbinger of more dramatic and structural changes to come in the college athletic system. While this Essay does not take a normative position on the legal or economic justifications for such a possible change in intercollegiate athletics, it does seek to describe some of the potential unintended consequences of a free(r) marketplace for student-athlete services. In particular, this Essay analyzes the possible implications and impact on Title IX, as well as college athletic opportunities and values more generally. In doing so, this Essay attempts to explain why the court’s more cautious approach may be needed going forward to balance the varied interest in the college athletic system.
by Colin Miller
The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its non-production. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This Essay argues these courts are wrong.
by William C. Banks
The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding and assessing the risks of being wrong, among others. Yet no other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm.
Professor Wayne McCormack (author of the original article) has the following to say about this Response:
“I am delighted that Professor Banks took the time and effort in this forum to delve further into the history of judicial involvement with wartime decisions. I think his and my conclusions are substantially similar. He very nicely sums up that ‘no other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm.’ I have every reason to believe, as did Justice Brennan, that the nation will return to those values as the storm passes.”
by Kevin Bennardo
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.
by Lyman P.Q. Johnson & Robert Ricca
This is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is little remedial clout to Revlon unless directors or others very significantly misbehave. We also criticize Delaware’s continuing use of the standard-of-conduct/standard-of-review construct in the fiduciary duty area. This rubric is unhelpful generally and strikingly so in the Revlon setting, as we note.