Catalog: Digital Commons at Pace - New Repository Articles
Roger I. Abram’s article on public financing of sports stadiums is an unedited portion of Chapter 9 from Abram’s forthcoming book, Playing Tough: The World of Sports and Politics, published by University Press of New England (2013).
The Steroids Era in baseball refers to the recent period in the MLB where many players and trainers have been found guilty or been implicated in the use of performance enhancing drugs which leads to sharp increases in player talent. The stigma associated with PED use, and also any other form of cheating, has proven to be a fast track to shame in the world of Major League Baseball. This article addresses the current state of defamation law in New York and the Federal Courts by analyzing the recent statement made by Skip Bayless concerning use of Performance Enhancing Drugs by Yankees' Shortstop Derek Jeter and the possibility that such statements could create tort liability. The article also considers the possible future paths of defamation law by comparing the level of protection the media enjoys today and the level of protection it may expect in the future.
Nidhi Garg writes an article about how design patent protection affects product lines and the average consumer. The analysis is done in light of the case between Apple and Samsung over patents relating to iPhones and iPads. The article focuses on design patent protection and how it has evolved over history. After an analysis of the laws, regulation, and case law related to design patents the article describes how consumers are affected by such changes. More particularly, how overreaching design patent protection may improve product lines and/or decrease innovation and product selection.
The legal status of gaming activities on First Nations land within Canada is complicated. The foci of this paper are two-fold. First, we trace the origin and expansion of First Nations gaming. Second, we analyze the potential of First Nations as hubs for the growing global e-gaming industry, with an emphasis on Internet poker and online sports wagering. We conclude by positing that the Canadian regulatory scheme presents an opportunity to First Nations in connection with e-gaming.
When Copyright Can Kill: How 3D Printers Are Breaking the Barriers Between “Intellectual” Property and the Physical World
This article examines copyright’s applicability to 3D printing technology, by analyzing the facts surrounding the (formerly) proposed development of a fully 3D printable firearm. Critical to this analysis however, is an understanding of how copyright has traditionally protected intellectual property, and why 3D printers do not fit into this conventional framework. As 3D printing is advancing at an extraordinarily rapid rate, any discussion of this topic would be incomplete without reference to the “moving target” that is 3D printing technology. In the short time between when this article was initially submitted for evaluation to the PIPSELF Law Forum in December 2012, and when it will be published in May 2013, many new uses for 3D printing have already been demonstrated, and indeed some of the issues discussed in this article have already become outdated, all within a six month timespan.
This article discusses at length, the efforts of the Defense Distributed project to develop a 3D printable firearm. When the article was originally submitted in 2012, Defense Distributed had already managed to prove the feasibility of using 3D printed firearms components, but the gun utilizing the printed component promptly broke apart after only successfully firing 6 shots. However, in February 2013, Defense Distributed released a new video, demonstrating a redesigned 3D printed component that was successfully used to fire over 600 rounds without a structural failure. Other recent developments in 3D printing include a company whose goal is to produce 3D printable cultured leather and edible meat products.
Finally, in January 2013, the organization Public Knowledge released a whitepaper entitled “What's the Deal with Copyright and 3D Printing?” written by Michael Weinberg. As both the whitepaper and this article discuss the same basic principles, but do so by analyzing slightly different areas of the law, I view the whitepaper as a companion piece to this article.
UPDATE (5/5/13): Defense Distributed has completed (and successfully test fired) the world’s first entirely 3D printed pistol.
UPDATE (5/10/13): In the timespan of a single week after the release of the first 3D printed pistol, the U.S. State Department has initiated procedures to force Defense Distributed to remove all its 3D printable gun components from the Internet, with the State Department claiming it needs to review the files for compliance with the International Traffic in Arms Regulations (ITAR). Further there are other measures being proposed by Congressman Steve Israel to outright ban 3D printed guns. However, considering that the 3D printable pistol was already downloaded over 100,000 times before the recent ITAR action, and the fact that the inherent design of the Internet means that many websites are foreign based, and therefore entirely outside the jurisdiction of the U.S., it appears to be an increasingly futile effort to force “removal” of these files from the Web. These files are still widely available on the Internet, and likely will continue to remain so, as websites like The Pirate Bay will continue to host & distribute 3D firearm files, regardless of any laws passed or litigation filed attempting to compel their removal.
Separation of Sport and State: The Federal Government’s Involvement in Major League Baseball’s Drug Testing Program
Major League Baseball has been one of the premier major sports leagues in taking action and putting an end to the use of performance-enhancing drugs in baseball. Entering its eighth year, Major League Baseball has implemented and improved its drug-testing policy. However, with congressional hearings on the use of steroids and other drugs in baseball along with federal investigations, there is a lingering worry that the government is intervening in Major League Baseball's drug testing program. In this article, Anthony Iliakostas breaks down Major League Baseball's drug testing program and how the U.S. government has gotten involved. The article concludes by answering the ultimate question: should the government intervene in Major League Baseball's drug testing program?
Levi Glick writes an article on the Professional and Amateur Sports Protection Act (“PASPA”), which in effect prohibits state-sanctioned sports betting within the United States. His article addresses the efforts by the State of New Jersey to establish state-sanctioned sports betting within the state, and the subsequent legal challenges brought forth by the professional sports leagues. He focuses on the legal arguments that New Jersey leveled in challenging the leagues’ alleged claims. He also focuses on the Constitutional arguments that weigh in favor of finding PASPA unconstitutional, as well as the public policy arguments for repealing it.
Danielle Meeks explores the recent trend of publishing fan fiction, brought to the forefront by the popularity of the Fifty Shades trilogy. Creating a work within another author's copyrighted fictional universe for profit is analyzed under the fair use doctrine and by comparing substantial similarities between Fifty Shades and the Twilight series to determine if the trilogy is transformative enough to survive a potential lawsuit.
The efficiency-driven economy of Turkey is growing at a very fast rate, but not yet considered to be at an innovative stage. One way of getting there is having a high presence of entrepreneurship. The aim of this research is to show that with improvements in the procedures to start a business and developments within the financial sector, Turkey will abound with entrepreneurial activity. The study first defines entrepreneurship and its relationship with society and the economy. Next, the report provides a summary of the process of entrepreneurship, its barriers to entry, its necessities, and its outcomes. From this, the research seeks to evaluate if Turkey is able to support a high volume of successful entrepreneurs. The research data is predominantly from GEM, OECD, Central Bank of Turkey, and the World Bank. Throughout the analysis, the report compares Turkish entrepreneurship with that of the US, Iran, and Hungary. The findings show that based on the attitudes of Turkey’s population and the growing rate of entrepreneurship, there is a high potential for entrepreneurial opportunities and advancement.
Remarks by Richard L. Ottinger on the occasion of the dedication of Richard Ottinger Hall at Pace Law School, April 30, 2013.
Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking—risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of fracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating fracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.
Extended written remarks of the oral panel presentation by Professor Nicholas A. Robinson at the international colloquium in tribute to Ambassador Luiz Alberto Figueiredo do Machado on Rio+20 and Biodiversity: Assessing the Future We Want. Presented as part of the Inaugural Panel, held in the Senate Chamber of Brazil in Brasilia on 26 April 2013 and televised nationally.
This article seeks to develop the role law could play in contributing to the achievement of ecosystem resilience. Therefore, adopting Aldo Leopold’s view of conservation, by which the first step should be to understand nature, this article will begin with a brief explanation of the ecological background to the concept of ecosystem resilience. Next, the article will consider Aldo Leopold’s land ethic in order to discuss the values we should look for when implementing conservation for resilience. Regarding those values and concepts, the following part of the article will be dedicated to consolidating and contextualizing the legal principle.
In order to carry out a more detailed analysis about how the principle of resilience can be pursued in the application of the law, this article will focus on certain sectors of environmental law and policy making. Those sectors are: adaptive governance, adaptive management, environmental impact assessment, land use and climate change adaptation, and market mechanisms for conserving ecosystem services. The article will be based on cases from different parts of the world. As the adoption of the concept of resilience by law seems to be incipient in the jurisdictions of most countries, such case studies will be helpful to any jurisdiction in the world where this concept is still not effective.
Law as a discipline thus must seek greater prominence in the raging debates on the efficacy of modeling as a bioenergy policy driver. To ultimately determine law’s proper role, Part II of my article first assesses the universe of key economic and lifecycle models used in current bioenergy policy initiatives, as well as the models deployed in general environmental decision-making that could affect the siting and operation of biomass cropping and bioenergy facilities. Part III then dissects these models to uncover the multiple ways in which law can improve models both structurally and procedurally to achieve greater accuracy. The conclusion speculates that scientific modelers likely have ignored law’s valuable place at the table because of the value judgments inherent in policymaking, particularly under scientific uncertainty.
International Deployment of Microbial Pest Control Agents: Falling Between the Cracks of the Convention on Biological Diversity and the Cartagena Biosafety Protocol?
This paper considers one tangled web of conflicting developments. It involves the popular desire to replace chemical pesticides with more “natural” biological control strategies, plus a slowly emerging awareness of a less benign side to microbial pest control agents, based on their potential invasiveness and sometimes striking similarities to agents of bioterrorism and biological warfare. This desire, however, is overshadowed by concerns about the environmental release of genetically engineered organisms. I argue that as some of the concerns about ecological diversity, as captured by the Convention on Biodiversity, were channeled into the subsequent Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol) with its emphasis entirely on products of biotechnology, microbial pest control agents have “fallen through the cracks” of international environmental law.
Part I of this paper reviews the current opinion surrounding carbon tax proposals as they appear in the literature. Part II will provide an overview of the current cap-and-trade proposals. Part III will introduce a carbon tax with reinvestment. Part IV of this article reviews the leading proposals arguing that a carbon tax is superior to cap-and-trade. And finally, for Part V explains why a carbon tax with reinvestment trumps cap-and-trade.
Harmony with Nature and Genetically Modified Seeds: A Contradictory Concept in the United States and Brazil?
Looking at the differing regulatory frameworks for genetically modified organisms (GMOs) in the United States and Brazil, this Article will help demonstrate how a lack of scientifically objective standards has allowed regulatory agencies to circumvent environmentally protective and sustainable policies. Additionally, this analysis will help illuminate what corrective steps can be taken.