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Articles
Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove
By Bradford Mank. 115 Penn St. L. Rev. 307.
To file suit in federal courts, Article III of the U.S. Constitution requires that a plaintiff must demonstrate “standing” by establishing that the defendant’s actions have caused him an actual or imminent injury, and not merely a speculative or hypothetical injury that might occur someday. Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms.
In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm.
Collectively Bargained Age/Education Requirements: A Source of Antitrust Risk for Sports Club-Owners or Labor Risk for Players Unions?
By Marc Edelman and Joseph A. Wacker. 115 Penn St. L. Rev. 341
With both the NFL and NBA collective bargaining agreements expiring in 2011, America’s two premier winter sports leagues will soon need to renegotiate their terms and conditions of employment. In doing so, both leagues’ club-owners and players associations will bargain over the rules governing player eligibility, including their age/education requirements.
Sports leagues’ age/education requirements have long been a source of contention. Until recently, most leagues imposed their age/education requirements outside the scope of collective bargaining. However, after three courts found unilaterally implemented age/education requirements to violate Section 1 of the Sherman Act, the NFL and NBA shifted their age/education requirements into the realm of collective bargaining.
Whether these new, collectively bargained age/education requirements likewise violate the law is unclear. In the 2004 case Clarett v. Nat’l Football League, the Second Circuit Court of Appeals held that collectively bargained age/education requirements are exempt from antitrust scrutiny under the non-statutory labor exemption, but may be subject to review under labor law’s duty of fair representation. By contrast, in other circuits, sports leagues’ collectively bargained age/education requirements may still violate Section 1 of the Sherman Act if they primarily affect parties outside the scope of the collective bargaining relationship.
This article addresses both the antitrust and labor law risks of sports leagues’ collectively bargained age/education requirements.
The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit’s Experience
By Gregory L. Acquaviva. 115 Penn St. L. Rev. 377.
The facts of Holmes v. Kimco Realty Corp. are straightforward. On January 20, 2005, Walter Holmes drove to a shopping center in Maple Shade, New Jersey to shop at Lowe’s Home Center (“Lowe’s”). Lowe’s, like the other businesses in the shopping center, was in a stand-alone building but was some distance from the other businesses in the shopping center. Holmes, accordingly, parked in the area of the parking lot closest to Lowe’s, an area that included shopping cart corrals reading, in part, “[t]hank you for shopping at Lowe’s.” While returning to his vehicle, Holmes fell on ice in the parking lot. He sued Lowe’s for negligent maintenance of the parking lot. Although the complaint was initially filed in New Jersey Superior Court, the defendants removed the case to the United States District Court for the District of New Jersey, based on diversity jurisdiction.
Lowe’s then informed Holmes that it was a tenant of the shopping center, not the owner of the shopping center or parking lot where he fell. In fact, four years prior to Holmes’s accident, Lowe’s entered into a lease agreement with Price Legacy Corporation (“Price”), pursuant to which Price, as landlord, was required to maintain common areas, including the parking lot, by, among other things, providing for snow removal, and was required to carry “commercial general liability insurance . . . upon all [c]ommon [a]reas.” Holmes attempted to amend his complaint to include Price, as well as another entity suspected of owning the parking lot, Kimco Realty Corporation. But, because the statute of limitations had expired, the District Court granted summary judgment in favor of the potentially liable landlords. The District Court also granted summary judgment in favor of Lowe’s, predicting that the Supreme Court of New Jersey would not extend liability for injuries occurring in common areas to a commercial tenant in a multi-tenant shopping center.
On appeal, the United States Court of Appeals for the Third Circuit was presented with one issue: “whether the State of New Jersey would impose a common law duty on a tenant in a multi-tenant shopping center to maintain the parking lot owned by the landlord.”
This Article explores the United States Court of Appeals for the Third Circuit’s discretionary use of state certification procedures to obtain authoritative determinations of unsettled questions of state law by state high courts. Specifically, this Article focuses on the willingness of the high courts in New Jersey, Pennsylvania, and Delaware—the three states comprising the Third Circuit—to exercise their discretion and grant the Third Circuit’s petitions for certification.
Financial Regulatory Reform Post-Financial Crisis: Unintended Consequences for Small Businesses
By Regina F. Burch. 115 Penn St. L. Rev. 409
Although a visit to a small business—from the local, fast order food shop to the dry cleaner and gas station—is an integral part of everyday living, small businesses play an underappreciated role in the United States economy. For example, most business news stories involve large, publicly traded companies. However, the number of small businesses vastly overshadows the number of large businesses. In addition, small businesses’ contribution to the United States economy is overshadowed by media reports of ethical conflicts and potentially unlawful conduct at larger businesses. According to the Small Business Administration Office of Advocacy, in 2006 there were an estimated “29.6 million businesses in the United States. Small firms with fewer than 500 employees represent[ed] 99.9 percent of those businesses” and 73.3 percent of US businesses had no employees. As of 2006, only 18,000 firms qualified under Small Business Administration criteria as large firms.
This Article proposes that legislators and regulators should learn from the experience of how Sarbanes-Oxley affected small businesses—those that are publicly traded and those that are not—and devise financial regulatory reforms with those experiences in mind. It does not assert that Sarbanes-Oxley and consequent business practice changes unfairly and adversely affected small businesses, although the reforms’ costs clearly are proportionately higher for small businesses and are easier to quantify than the benefits. Indeed, this Article proposes a cost/benefit analysis to examine: (1) the Dodd-Frank Act’s effect on small businesses expressly required to comply with the reforms; and (2) the act’s impact on small businesses affected by changes in business practices and advisors, because whether intended or unintended, legislated or trickled down, the benefits of regulation exist. Further, that cost-benefit analysis ideally should occur either before the implementation of regulations or, at the latest, in the early stages of implementation.
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I Want a Piece of That! How the Current Joint Inventorship Laws Deal with Minor Contributions to Inventions
By Christopher McDavid. 115 Penn St. L. Rev. 449
After observing a new invention, have you ever muttered to yourself, “Why didn’t I think of that?” Before criticizing your own lack of individual creativity, you should keep in mind that the invention was likely conceived through the collaborative work efforts of many inventors assigned to a research and development (R&D) team. R&D teams drive large companies, a fact which indicates, in part, the tremendous value of collaboration on the path to innovation. Depending upon a company’s business goals, an invention’s commercial value, and the potential for a competitive advantage, among other factors, a company may protect its R&D investments by seeking patents on the innovations of its inventors from the U.S. Patent and Trademark Office (PTO). Inevitably, not all individual contributions to the joint development of an invention will be equal in quality or quantity. The disparity in contributions is especially troublesome when determining who must be designated as an inventor of a particular invention, a determination with lasting implications on many parties.
An application for a patent must be filed at the PTO in the name of the inventor or joint inventors of the invention. This requirement supports the commonsense notion that only the actual inventor(s) of an invention are entitled to a patent.
Clean & Green: Tidying Up the Farm Tax Subsidy
By Joshua Wilkins. 115 Penn St. L. Rev. 473
Agriculture is one of our most important industries, and it is under constant threat. Agricultural operations have been experiencing reduced profits, increased costs associated with working capital, and the expense of complying with ever-increasing environmental regulations. Combined with the developmental pressures accompanying population increases and urban sprawl, the economic conditions for agriculture have made it far less desirable for many farmers to continue operations. As a result, the federal and state governments have enacted several different programs to “save” agriculture.
One such program addresses the property tax burden borne by agricultural operations. Due to increased property demand from urban sprawl, the value of farmlands in many places has dramatically increased. One result of the appreciation in agricultural land value is that the associated property taxes have risen. For many operators, this cost may contribute significantly to unprofitability of the business. One of the primary methods to offset this burden is through providing some form of differential assessment, which lowers the property tax obligation for eligible landowners. Pennsylvania accomplishes this with a program commonly referred to as Clean and Green. Clean and Green provides for lower assessments by valuing eligible agricultural and other lands at their use value, rather than at their fair market value.
Olé, Olé, Olé, Oh No!: Bullfighting in the United States and Reconciling Constitutional Rights with Animal Cruelty Statutes
By Angela N. Velez. 115 Penn St. L. Rev. 497
Consider scenario one. A dog lies on the cold, hard floor of a dark room. He has not eaten for days. A door suddenly opens, providing a glimmer of light. Before the dog can get too excited, a stranger pulls the dog from his chainlink cage and drags him to a wooden arena to face his opponent: another dog. Given the dogs’ selective breeding and forced exercise regimens, the dogs were undoubtedly bred and raised to fight. After months of training in isolation, the dogs are clearly aroused by each other’s presence. The fight begins. The dogs are encouraged to battle and are expected to put on a bloody show for the spectators. The battle ends only when one dog cannot continue; sadly, however, many dogs do not die during the fight. Rather, they succumb to their injuries or die at the hands of losing, disappointed, and angered owners.
Now, consider scenario two. A rooster sits in a tiny wire crate. A stranger forces the rooster from the crate and prepares him for combat. His once full-feathered body is now almost bare, each feather plucked plume by plume, so that his opponent has fewer feathers to grab during the fight. Razor-edged spurs are attached to the rooster’s small feet to maximize his ability to cause injury to his rival rooster. The rooster, like the dog, was bred for aggression and trained to fight. “The birds are teased into a fighting humor while held in the hand, and viciously pluck at each other’s heads; now they are dropped on the ground with a quick movement, and at the order of the referee[,] they are at it.” A gory battle ensues between the two birds, as each uses its metal spurs to tear skin, puncture eyes, and break bones. The goal of the fight is not the birds’ deaths, but death is frequently the result. Many roosters die from injuries that are inflicted by their opponents’ spurs.
Finally, consider scenario three. A bull grazes on an open ranch where he has lived since his birth. A stranger hurries the bull from the field and prods him into a narrow crate to be transported by truck to the plaza de toros, or bullring. The stranger then lures the bull from the crate into a dark holding pen where he waits until he is called to the bullring. The bullpen door is opened, and the bull charges into the ring. He is both agitated from his confinement and relieved by his release into the spacious arena. Suddenly, a man on horseback thrusts a sharp pic into the base of the bull’s neck and then quickly removes it. Another man on horseback attacks the bull with a second pic. The bull is now on alert that he must fight. This fight is not at the ranch where he once fought other bulls over territory, or even over a mate. This fight has higher stakes for the bull: he must fight man for his life. The bull’s neck, already weakened by the pics, is lowered as he attacks a third man and prepares to gore him. The man then shoves ornamented wooden barbs, or banderillas, between the shoulders of the bull. The exhausted bull must fight the pain and weakness of his muscles to continue the battle. However, the banderillas and the bull’s own exhaustion force his head to remain low; the bull’s final adversary, yet another man known as the matador, is thus able to reach over the bull’s horns and thrust his sword between the bull’s shoulders. The bull, bloody and weak from the series of attacks he has endured, falls to the ground and dies.
Although the players may change, the game remains the same. In each scenario, the animal’s natural aggression is amplified because the animal is forced to fight and defend itself at the hands of human interveners.
The Breaking Point: Examining the Potential Liability of Maple Baseball Bat Manufacturers for Injuries Caused by Broken Maple Baseball Bats
By Matthew A. Westover. 115 Penn St. L. Rev. 517
Both participating in and watching sporting events involves some risk of injury. The shelves of law libraries are filled with cases involving injuries sustained by players, coaches, and spectators at baseball games, hockey games, golf outings, and numerous other recreational events. Some of these injuries are attributable to new technology designed to increase player performance.
Participants in athletic competitions are constantly looking to gain a competitive advantage over their opposition. In order to gain this competitive edge, players have resorted to such things as performance enhancing drugs and stealing signs and plays from opposing teams. One of the most effective ways, however, players seek to gain a competitive edge is through improvements in player equipment. Equipment manufacturers have responded by creating new technologies designed to increase player performance. These equipment manufacturers, however, owe a duty of care to both participants and non-participants not to substantially increase the dangers which are inherent in the sport.
Many of these equipment manufacturers produce equipment specifically designed for amateur and professional baseball players. Although Major League Baseball (“MLB”) has never permitted the use of high performance aluminum alloy baseball bats, baseball bat manufacturers have nonetheless tried to improve the design of wood bats. The quest to improve the design of wood bats has led to the production of maple baseball bats. Maple bats were initially created to give players an alternative to wood bats made from ash, which was the traditional wood of choice for nearly every professional baseball player. Maple baseball bats quickly became popular, and popularity soared in 2001, when Barry Bonds broke MLB’s single-season home run record using a maple bat.
As more players make the switch to maple bats, it appears as though there is a visible increase in the number of broken bats. It is nearly impossible to determine if more bats are actually breaking because The Elias Sports Bureau, the official statistics keeper of MLB, does not keep track of such a statistic. However, it is likely that people are noticing an increase in the number of bats that break violently into two or more pieces. As a result, players, coaches, sportswriters, and other media personalities have called for the prohibition of maple bats, before a player, coach, or fan is seriously injured or even killed.
Presently, MLB and other professional and amateur leagues continue to permit the use of maple bats. Consequently, players continue to use maple bats, and the bats continue to break violently, creating an increased risk of injury to players, coaches, and spectators of the game.