By Sean Hartlieb, William S. Boyd School of Law, University of Nevada, Las Vegas Class of 2017
August 4, 2015
Robots that function to serve around the household will one day become available on the open market for such domestic use as the public’s dependency on computers and portable devices transforms technology into being a required necessity for everyday life. In the age of internet privacy and personal data, issues with technology are mainly discussed under intellectual property and product liability. However, robotics is still the one area for technology which has not been put under such an extensive legislative oversight. Many legal commentators are raising their concerns regarding product safety issues for robots that will become used in the home. In addition, another issue stems from liability for harm a robot might cause to an innocent citizen, such as with fully autonomous weapons in the military. Legal commentators examine the current common law and contemporary regulations, questioning whether today’s legal system can adapt in response to the potential consequences that may arise in expanding a robot’s capabilities.
By: Josh Nightingale, Villanova University School of Law Class of 2016
April 15, 2015
In February, professional caddies filed a federal lawsuit in California against the PGA Tour, seeking millions of dollars in damages on antitrust, breach of contract, and intellectual property grounds. The caddies specifically allege that the PGA Tour generates millions of dollars in advertising revenue at the expense of the caddies, who are forced to wear bibs during tournaments without receiving any share of the profit. Therefore, the caddies serve as “billboards” for the benefit of the PGA and their sponsors, and only receive revenues through their employment by their respective professional golfer, and by individual endorsement deals.
Legal Arguments by the Caddies
The caddies first assert that the bib policy is in violation of federal antitrust laws in that it prevents them from negotiating individual sponsorship contracts for bibs, thus denying them additional earnings. They argue the policy is also anti-competitive in that it restricts the marketplace for bib sponsorships because the PGA becomes the only seller of sponsorship, thus reducing the price sponsors will pay for them.
The caddies also assert intellectual property claims, in that the PGA misappropriates the images and likenesses of the caddies for commercial purposes without their consent. The misappropriation occurs when the caddies are forced to display the sponsorship logos on their bibs, thus becoming a commercial image for the Tour. In addition, the size and color of the bibs tend to hide the caddies’ individual sponsorship logos, which detracts from their own individual earnings.
Defenses by the PGA
The PGA may first try to justify the bib policy by arguing that it is pro-competitive in that it improves the presentation and profitability of tournaments and boosts the exposure of the Tour’s sponsors. The PGA may also point to the caddy contract itself and argue that even though there is a clause that mandates wearing “uniforms”, that the definition of “uniforms” does not include bibs, thus not requiring caddies to wear them. In addition to the language of the contract, the PGA may also argue that caddies are not forced to accept the terms of their contract with the Tour, but when they do accept, they must abide by all of its rules or otherwise be in breach of the contract.
As more caddies become frustrated with the policy and decide to join the lawsuit, the situation grows darker for the PGA as it generates bad press that they will not want to deal with heading into the summer months. Commissioner Tim Finchem and other tour officials have refrained from public comment on the matter, however their secrecy may be short lived if this reaches a boiling point. If the players do succeed in their antitrust and intellectual property claims, it will definitely change the landscape of professional golf, and the Tour may be forced to make significant changes to their business model.
By Raina J. Wallace, Indiana University Maurer School of Law Class of 2016
April 8, 2015
While the Supreme Court has decided to remain silent on the matter,
courts differ on whether to extend Batson v. Kentucky to peremptory
strikes on the basis of religion. Some federal courts argue that
peremptory strikes on the basis of religion cause the
same harm as race and gender. Other federal courts distinguish between
strikes based on religious affiliation and involvement; they argue that
peremptory strikes based on heightened religious involvement are not
unconstitutional. Other courts still see no
indication that irrational religious bias is pervasive enough to
undermine the integrity of the jury system.
By: Josh Nightingale, Villanova University School of Law Class of 2016
March 15, 2015
Several UFC fighters filed lawsuits against UFC’s parent company, Zuffa, alleging that UFC is an illegal monopoly in violation of Section 2 of the Sherman Act. Specifically, the plaintiffs allege that by monopolizing the market, UFC prevents fighters from negotiating and executing contracts with other mixed martial arts leagues, thus reducing their salaries while controlling their names and likenesses.
Elements of the Antitrust Claim
Section 2 of the Sherman Act forbids an actor from engaging in predatory behavior to take control of a particular market. Plaintiffs allege UFC is engaging in predatory behavior by requiring one-sided contracts that reserve fighters’ services to UFC, engaging in acquisitions of rival leagues to eliminate other employment opportunities, and ensuring that physical venues for mixed martial arts matches supply services exclusively to UFC. In order for the plaintiffs to prevail, they will need to establish that this behavior is anticompetitive enough to show attempted monopolization of the mixed martial arts market. Simply having no competition, absent the presence of predatory behavior, is not enough to sustain a Section 2 claim. UFC Defenses and the Single-entity model UFC would also be vulnerable to a Section 1 antitrust claim if they were not organized as a single entity. A Section 1 violation requires a restraint of trade, which is present here with the company’s restrictive contracts that prevent fighter movement to other leagues. However, Section 1 also requires collective action, which is not present when an actor exists as a single entity, or in UFC’s case a wholly owned company in Zuffa.
In order to defend against the Section 2 antitrust litigation, UFC may argue on pure contract theory that fighters voluntarily sign the contracts to compete, thus accepting the terms of employment offered by the UFC. UFC may also assert that the monopolization resulted not from predatory behavior, but from superior business decisions that forced competitors out of the mixed martial arts market. For full article please visit
By: Josh Nightingale, Villanova University School of Law Class of 2016
February 26, 2015
In December NFL owners approved a new personal conduct policy that will govern the behavior of not only players, but all NFL employees. The revised policy outlines a new investigation procedure for conduct violations, as well as describes the standard of conduct personnel must follow and how they will be disciplined if they do not follow this standard. Specific changes include the hiring of a “Special Counsel for Investigations and Conduct” who will oversee the investigation process and determine the initial discipline for a violation, an appeals process which will involve a committee of “independent experts”, and an automatic six-game suspension for NFL personnel that commit any form of domestic/sexual abuse or assault.
Due Process in the NFL
“Due process” is a doctrine that is vested in the Constitution, which prevents the federal government, or the States, from depriving an individual of any right related to liberty, life, or property, without some kind of fair procedure or process. Courts have generally held that “procedural due process” requires giving an individual notice of what is being taken away, and a subsequent opportunity to respond to it. Despite these constitutional guarantees, due process only operates when the government is taking something away, it does not operate within the walls of a private entity. Therefore, if a player challenges an imposition of discipline under federal or state due process grounds, he will likely be without recourse, as the policy operates within the walls of the NFL, a private entity that can prescribe its own rules. Even though the NFL may not have constitutional obligations to ensure due process, the player will have some protections, as the policy allows the employee to receive notice of the discipline, and even appeal the decision.
The NFLPA’s Response to the Policy
The NFLPA opposes the policy because it is a mandatory subject of collective bargaining, and thus must be subject to good faith bargaining. Here, the NFL unilaterally implemented the policy without negotiating with the union, which could be grounds for unfair labor practice charges. The NFLPA also has due process concerns as it concerns the investigation and appeals process. The union claims that the procedure is unfair as the players are put on leave before final discipline is issued, and final say on the discipline after the appeals process still rests with the Commissioner. This argument may not have merit, as once again the NFL is a private association, and can prescribe its own disciplinary procedures.
By Emmalee Boekweg, J. Reuben Clark Law School Class of 2014
February 23, 2015
In 1978 Twentieth Century Fox sued Universal Studios, alleging that Battlestar Galactica infringed on copyright created by Star Wars. At issue was whether or not Battlestar’s characters, plotlines, technology, etc. were copied from Star Wars. Before these material facts were determined, the parties settled out of court and Battlestar was cancelled. Thus, the appropriate fact finding remains a mystery. For those who wish to speculate, one important question is whether Star Wars’ story elements were new, or were commonly used and generally available to storytellers.
For example, Twentieth Century Fox claimed that Battlestar’s use of a “friendly robot,” who sides with democratic forces and is harmed by a totalitarian enemy, constituted copyright infringement. “Friendly robot” characters are now extremely common in science fiction, but is there evidence that this fictional trope existed before Star Wars was released? Looking at examples can help us understand the true relationship between Battlestar and Star Wars. Instances where an allegedly copyrighted story element appeared in stories published pre-1977 may suggest that Star Wars was making use of story-telling techniques and elements that were already in use, and thus did not originate them or hold copyright in them.
By Emmalee Boekweg, J. Reuben Clark Law School Class of 2014
January 9, 2015
Corpus linguistics, the use of large collections of naturally occurring usage to study word meaning, is increasingly available to the public at large. Its utility in the legal world—where countless hours are spent arguing about the meaning of words—is obvious. Corpus linguistics is available not merely as an alternative to traditional legal research tools; it can enable legal scholars to fill gaping holes in the way we discuss and define words.
A Legal “Revolution”
Commentators noticing the potential application of corpus linguistics to the law have called it “revolutionary.”“Until recently,” one scholar explains, “the [field of] legal interpretation has been a field with an abundance of interesting questions, but no tools to answer them, or at least, no tools to answer them empirically and scientifically. That is what makes Law and Corpus Linguistics revolutionary.”Linguist Mark Libermanasks, “the legal profession has mostly managed to avoid linguistics for the past century—will corpus analysis be the thin edge of a wedge of change?”
Actual Application of Corpus Linguistics in the Law
Not everyone is excited about corpus linguistics in the law, and actual applications remain few. Examples include two Utah Supreme Court family law cases (in one of which, a concurring opinion drew loud objections from both the majority and a separate concurrence for its use of corpus linguistics).Other courts have used corpus linguistics-like methodsto discover word meaning. Court opinions have also been influenced by briefs using corpus study, particularly attorney Neal Goldfarb’s briefs on several Supreme Court cases.
The Future of Corpus Linguists in the Law
Noting the scantiness of corpus-based analysis in the law, commentators nonethelessremain enthusiastic about its future. Time will tell how far the “revolution” develops. Whether or not they are used, the tools for better argument are now available.
By: Josh Nightingale, Villanova University School of Law Class of 2016
November 24, 2014
The NFL, its fans, and everyone with a stake in the saga of Ray Rice, are anxiously awaiting the decision of an arbitrator to rule on his potential reinstatement. Because the arbitrator is a former judge, the parties will likely need to address a variety of legal issues, and the final decision will likely rest on legal grounds. To provide some quick background on the issue, the problems began in February, when Rice struck his then-fiancée Janay Palmer in an elevator at an Atlantic City casino. Commissioner Roger Goodell took immediate disciplinary action, suspending him for two regular season games.In September, a second video surfaced which showed Rice actually striking Palmer. Upon reviewing this tape, Goodell changed the penalty and suspended Rice indefinitely. Therefore, the issue of multiple punishments, combined with the nature of Goodell’s disciplinary power, formed the basis of the suspension appeal hearings that occurred in early November.
Double Jeopardy in the NFL
Rice’s legal team formed the basis of their argument for reinstatement on the concept of “double jeopardy”, which essentially forbids an individual from being punished twice for the same offense. Therefore, Rice will argue that it was a violation when the NFL imposed the indefinite suspension after he was originally punished with the two-game suspension, as both penalties stemmed from the same incident in the
Atlantic City elevator.[1] Rice will further prove the subsequent suspension was a violation by showing that the NFL had access to the second video before it went public, as well as any other pertinent information needed to impose a penalty.[2] The NFL’s counter-argument would necessarily be that they did not have access to all of the relevant evidence before making the initial suspension, and that when Goodell originally met with Rice to discuss what took place, Rice’s statements were lacking truth and were ambiguous, thus making the issuance of a correct suspension difficult.
Goodell’s “Best Interests” Power
The NFL is a unique business model in that the Commissioner has broad, sweeping power to issue discipline to any individual who violates the league rules in order to further the “best interests of the sport.”[3] Goodell therefore took advantage of this power to impose an unprecedented penalty in order to make a statement against domestic violence, thus serving the best interests of the sport in that manner. Court’s are usually hesitant to interfere with the internal mechanisms of the professional sports leagues, and Goodell’s power rarely been successfully challenged, therefore this best interests power was likely a relevant defense during the hearings.
By: Josh Nightingale, Villanova University School of Law Class of 2016
November 19, 2014
In late September Native Americans filed a motion to dismiss the Redskins’ latest lawsuit against them relating to an ongoing trademark dispute. The motion if sustained would reaffirm the earlier decision of the U.S. Patent and Trademark Office that declared the Redskins logo was “disparaging”, and in turn deem the marks to be in violation of federal trademark laws. Additionally, if the motion to dismiss the Redskins’ suit succeeds, it may deprive the team of future options to protect their logos and marks, thus potentially creating economic difficulties that could force a name change. However, in order to understand future implications, it is necessary to dissect the original decision of the U.S. Patent and Trademark Office, as well as the arguments for both parties.
U.S. Patent and Trademark Office Strikes Down Trademark
In mid-June the U.S. Patent and Trademark Office officially canceled the Washington Redskins’ trademark registration in response to a suit brought by five Native Americans eight years ago. The trademark was cancelled due to the determination that it met the federal standard of “disparaging” towards a particular individual/group, in this case taking the form of a racial slur towards Native Americans. In order to reach the
decision, the board found evidence that a “substantial composite” of the Native American population found the term “Redskins” to be disparaging.[1] The ruling exposes the Redskins club to trademark infringement scenarios where other companies would be able to turn a profit through the use of their marks, but does not actually force them to abandon their name.
The stance of the parties
The motive for Native Americans and those that disfavor the Redskins name and logo is simple; to eradicate a racial slur that adversely labels a significant portion of the population. For this group the litigation efforts were not motivated by business concerns or a desire to bury the Redskins in trademark infringement claims, but rather achieve a symbolic victory for Native Americans that could ramp up support for their cause.[2] Therefore with these developments, Native Americans hope that it will apply the necessary pressure to force the Redskins to change their name, and in turn achieve justice for Native Americans throughout the country.
On the other side, Redskins owner Daniel Snyder has made it clear that under no circumstance will the Redskins ever change their name, as he believes the name and logo do not disparage, but instead “honor” Native Americans. The Redskins are also motivated by financial concerns, as a significant percentage of their club revenue is derived from sale of merchandise which displays the team’s logos.[3] So far the NFL has not placed any pressure on the Redskins to change their name, which may be attributed to their financial concerns, as well as the desire to maintain the tradition and history of the Redskins franchise.
It is without question that the backlash against the Redskins franchise to change their name and logo is greater than it has ever been. If the motion to set aside the Redskins’ lawsuit in opposition to the cancellation of their trademarks is sustained, the team may be without much legal recourse in upholding the usage of their trademarks. It is yet to be seen whether a lack of trademark protection will cause irreparable harm to the franchise and force a name change, but supporters of the Native American cause seem to have the upper hand, and it will be interesting to see how the Redskins respond.
By: Josh Nightingale, Villanova University School of Law Class of 2016
September 26, 2014
Tony Stewart has captivated NASCAR audiences for years, displaying a passionate and aggressive racing style that has yielded consistent success on the track. Stewart has also capitalized on his likable and blue-collar persona to realize success off the track, securing lucrative endorsement deals which have resulted in a total net worth exceeding $100 million. However, due to the event that transpired in early August, and the subsequent threat of legal hurdles, the legacy that Stewart has worked so hard to build may come crumbling down.
The incident occurred at a sprint-car race in Upstate New York, where Stewart’s car made contact with Kevin Ward Jr., causing Ward to spin out and wreck on the side of the track. When Ward exited his vehicle to seemingly confront Stewart, Stewart’s car struck Ward, causing blunt force trauma which ultimately killed Ward. The tragedy prompted Stewart to remove himself from three races, and has since issued a public apology for his actions.
Potential Criminal Charges
Because the incident involved Stewart killing another human being, there are a multitude of potential criminal convictions that may arise. The most severe crime would be first-degree murder, which would require evidence that Stewart possessed the requisite mental state by intending to kill Ward. The issue of intent could incite argument on both sides, as prosecutors could argue that due to Stewart’s expert racing abilities he could have easily avoided contact with Ward, and thus the only way he would make contact is if he was upset and intentionally did so. Stewart’s defense would likely appeal to the fast-paced and unpredictable nature of racecar driving, arguing that due to these factors it would be impossible for a driver to methodically plan in advance and make contact with a driver.
Even if it is determined that Stewart did not intentionally kill Ward, prosecution may pursue either negligent homicide or manslaughter charges. Negligent homicide would require the actor to fail to perceive a substantial risk that a reasonable person would perceive under the circumstances. This analysis would require an evaluation of a “reasonable person” in a racing context, therefore requiring interviews/observation of drivers to glean how they would handle a situation similar to what unfolded during the incident. First-degree manslaughter requires the actor to intend to cause serious harm which eventually causes death, and second-degree manslaughter requires the actor to act recklessly to cause death. The former charge would again require a showing that Stewart intentionally made contact with Ward, and the latter would require a determination that Stewart’s driving was reckless, a standard that may be difficult to prove due to the reckless nature of racecar driving in general.
Potential Civil Action
There is also the threat of a civil lawsuit that the aggrieved family may bring for wrongful death. Like the standard for negligent homicide, the family would need to prove that Stewart acted in a reckless or negligent manner that fellow below the standard of care of a reasonable person under the circumstances. The defense would likely argue that Ward contributed to the incident by exiting the vehicle and standing in the middle of the track, as well as assuming the risk of potential fatality due to the dangerous nature of the sport. If civil action were to arise and Stewart settled the matter out of the court, the damages would still be extremely high, and cause Stewart to lose a significant percentage of his career winnings. Due to the public nature of a lawsuit, various stakeholders in the matter may push him to settle, as sponsors may fear negative brand messages, and NASCAR would not want any negative publicity.
Even though Stewart has now publicly apologized and has resumed racing, the aftermath of this incident is far from being over. The criminal investigation is still taking place, and even if Stewart does not face criminal charges, the Ward family has two years to decide if they want to pursue a civil suit. The consequences are innumerable for Tony Stewart, thus it is safe to assume his career may never be the same.
