Two provisions of the U.S. Constitution that have received comparatively little public attention over the past 227 years are suddenly all over the news, having provided the basis for three pending lawsuits against the president of the United States. The Foreign and Domestic Emoluments Clauses arose out of the Founders’ concern with corruption – in particular with the corrupting effects of gifts, payments, or benefits conferred on federal office holders either by foreign governments or their agents, or by any of the states constituting the United States. The founders viewed the risk of corruption stemming from such payments as so serious that they included in the text of the Constitution itself two clauses prohibiting the receipt of such benefits. The Foreign Emoluments Clause prohibits the receipt of gifts or other benefits from any foreign power, by any officer of the United States, without Congress’s express consent. The Domestic Emoluments Clause provides that the president’s salary shall remain fixed during his term, and that the president cannot receive any emolument other than his statutory salary, from any state government or any part of the federal government, during his term of office.
Category: 95:3
The Boogeyman: Derek Boogaard and the Detrimental Effects of Section 301 Preemption
This Note focuses on the preemptive effect of section 301 of the Labor Management Relations Act (LMRA) in the suit against the National Hockey League (NHL) by the Estate of former NHL player Derek Boogaard. The Note will contrast Boogaard v. National Hockey League, in which section 301 preempted the Estate’s negligence claims, with several National Football League (NFL) cases. Boogaard will also be contrasted with In re National Hockey League Players’ Concussion Injury Litigation, a similar case brought by a class of NHL players in which the court declared that section 301 did not preempt claims for negligence at the motion to dismiss stage.3 The following analysis of section 301 preemption and Boogaard will reveal inequities and flaws inherent in section 301 preemption that should be removed by Congress. It also analyzes avenues future litigants may pursue to circumvent section 301 preemption altogether.
First, this Note will discuss Derek Boogaard’s career as an NHL enforcer. Then, it will explain the history of the LMRA and section 301 preemption. A synopsis of relevant NFL cases will follow and provide examples of when section 301 has, and has not, preempted negligence claims brought by former players. Next, the Note will analyze Boogaard and contrast its outcome with the aforementioned NFL cases. An analysis of Concussion Injury will follow that discusses why its outcome differed from Boogaard. Finally, this Note will argue that the preemptive effect of section 301 did not serve its intended purpose in Boogaard and that Congress should place restrictions in its application—such as extending the statute of limitations period—and show how future NHL players can apply lessons learned from Boogaard and Concussion Injury to circumvent section 301 preemption in state-law tort claims.
The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure
Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world.1 As the usage of genetically modified organisms (GMOs) has grown, so has the public debate surrounding their presence in food, and, more specifically, their undisclosed presence in food. Until recently, the United States maintained next to no regulation on the labeling of GMO products.2 After many state legislatures began proposing and passing GMO-labeling laws, Congress passed one of its own.3 This Note will discuss the implications of the federal labeling scheme, and posits that although the scheme may disappoint grassroots anti- GMO interests, the scheme will ultimately have the effect of providing consumers with the “right to know” what is in their food, and will reduce the presence of genetically modified (GM) foods in the marketplace. Part I provides background on GMOs and explains the regulatory role of the FDA. Part II discusses GMO-labeling legislation passed by certain states, a law recently passed by Congress, and the legal challenges faced by lawmakers when passing this type of legislation. Part III argues that the federal regulatory scheme is not a death knell for consumer autonomy, and that it will do little to weaken the fight against GMOs.
IP, R.I.P.
Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.
This Article reexamines the interests of an artist’s families, friends, and other heirs (IP estates) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates “jealously guard” their ancestor’s legacy, “sit back and collect rent,” and put a “stranglehold” on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward.
This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist’s cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict.
Amnesty for Even the Worst Offenders
In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system’s embrace of accountability excludes or renders illegal the granting of amnesty. This Article argues that that position is too narrow and uses the ongoing conflict in Syria, as well as other contemporary examples, to examine some of consequences of the clamor for prosecution.
The Article rejects the binary juxtaposition of amnesty and accountability in current international legal scholarship, and instead seeks to broaden the terms of the conversation by considering amnesty from the perspective of the Responsibility to Protect (R2P) principle.
The Article suggests that viewing amnesty as a conflict resolution mechanism that may discharge R2P highlights important values and tradeoffs that the debate over amnesty and its relation to accountability has heretofore neglected.
Deportation Deadline
Deadlines regulate nearly all facets of life. In U.S. law, deadlines control the timeliness of a claim in the forms of statutes of limitations and common law doctrines such as laches. In nearly all areas of the law, whether involving claims brought by private actors or the government, and in both criminal and civil contexts, an expiration date cuts off a plaintiff’s right to assert a claim. No such deadline exists, however, for immigration enforcement actions. The U.S. government can deport immigrants for offenses after decades have passed. As a result, millions of long-term, otherwise law-abiding and productive individuals participating and residing in communities across this nation live under an indefinite threat of deportation for conduct that may have happened decades ago. This Article exposes and examines this procedural anomaly between immigration and non-immigration law, which is yet another aspect of U.S. immigration law that makes it exceptional precisely because of the subject it regulates— noncitizens. In this Article, I frame the argument for nuanced deportation deadlines by drawing on comparative insights from other areas of the law, where statutes of limitations represent the legal norm, and import these insights into the immigration enforcement context. I locate the precedent for a deportation deadline in the early immigration statutes enacted at the turn of the century and in the historical remnants of that approach in the traces of mercy that animate the current immigration statute. Finally, I outline how a statute of limitations could be realized in the deportation context, and, in the process, propose time limitations on deportations as an important strategy for integrating long-term undocumented immigrants into U.S. society.
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