Voiding the NCAA Show-Cause Penalty: Analysis and Ramifications of a California Court Decision and Where College Athletics and Show-Cause Penalties Go From Here

In late 2018, a Los Angeles County Superior Court judge sent shockwaves through college athletics by ruling that the NCAA’s Committee on Infractions (“COI”) unlawfully restrained now-former University of Southern California (“USC”) assistant football coach Todd McNair’s career when it imposed a “show-cause” penalty on him. Judge Frederick Shaller therefore declared NCAA show-cause penalties void under California employment law. For decades, the COI has utilized show-cause penalties to punish individuals who break NCAA rules. Reserved for more egregious violations, universities and administrators long treated show-cause orders as scarlet letters, typically terminating or refusing to hire coaches subject to them. That trend has somewhat eased recently, however, as evidenced by notable examples such as head men’s basketball coaches Bruce Pearl and Kelvin Sampson securing employment at NCAA member universities after receiving the punishment. After the COI imposed a show-cause penalty on McNair for his involvement in the infamous infractions case including USC and its now-former running back and Heisman Trophy winner Reggie Bush, McNair did not find potential employers as forgiving as those who hired Pearl and Sampson. McNair sued the NCAA, claiming a faulty investigation and infractions process and imposition of the show-cause penalty combined to end his college coaching career. The case has proved to be a saga, with McNair ultimately losing his defamation claim against the NCAA. However, Judge Shaller invalidated the show-cause penalty under California employment law, leading to a very unsettled future for the NCAA, coaches, and other college athletics constituents. Those associated with, or interested in, college athletics should familiarize themselves with the enormous ramifications of Shaller’s decision, which is currently on appeal, in case courts continue to affirm it. This Article details both show-cause orders and instances where coaches have received them yet gone on to successfully secure employment in college athletics. Next, the Article profiles McNair and describes both his involvement in the USC infractions case and litigation against the NCAA. The Article analyzes the merits of the NCAA’s appeal of Shaller’s decision and explores the immense ramifications of a potential affirmance of Shaller’s decision. The Article concludes by suggesting alternate means of enforcing NCAA legislation that would not run afoul of California employment law

Rationing Healthcare During a Pandemic: Shielding Healthcare Providers from Tort Liability in Uncharted Legal Territory

As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated “triage protocols,” known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a medical decision rationing access to care. Research shows that various state protocols have been implemented to this end by either executive order issued by the governor; state legislation; or action by individual hospital ethics boards. This paper examines a legal question of first impression: Whether the right to institute suit for pandemic related healthcare injuries can be constitutionally eliminated using state triage protocol immunity provisions passed by executive order or state statute during the pandemic. The paper concludes that healthcare providers may still be subject to some legal liability depending upon each state’s unique constitutional grant of powers to the executive and legislative branches and the dictates of the Fourteenth Amendment

Surveying the Forms of Doctrine on the Bright Line Balancing Test Continuum

This article\u27s primary contribution to the rule/standard problem is to map the rule/standard continuum more precisely. This article will analyze several cases to reveal numerous forms of doctrine that are hybrids of the two archetypes, rules and standards, including the aforementioned escape hatches, exceptions, and factor tests, and will also discuss costs and benefits of using each of these different forms, irrespective of substance. Judges must choose among a large number of valid forms, attempting to create the best fit between the chosen form, a judicial means, and higher-level ends, such as efficiency, social stability, consistency, or autonomy.The article will then utilize the lessons gained from its survey of the rule/standard problem to reevaluate the more theoretical controversy over rules and standards. The choice of form of doctrine should be perceived as primarily a question of technique, not a manifestation of grand legal theory. Judges have properly created a diverse menu of forms to choose from, reflecting the complexity and uncertainty of the world they attempt to regulate. In other words, the numerous forms of doctrine demonstrate that the rule/standard dichotomy is empirically misleading and normatively wrong. The article will then query why many capable lawyers, judges, and legal theorists have characterized the formation of rules and standards, or both, as symptoms (often diseased) of particular ideologies. One of the risks of the American legal culture\u27s preference for theory is that theorists often eagerly apply a critique that may be valid or at least illuminating at one level of abstraction, such as moral-political philosophy, to another level of abstraction, in this case, the technical problem of formulating appropriate doctrine for a particular legal problem. Professor Noam Chomsky\u27s left-wing views, for instance, describe odious aspects of American political and economic culture, but his analysis cannot resolve the technical problems that courts face in creating proper doctrine in all substantive legal areas. To implement their agenda effectively, Chomskyite judges should use rules, standards, and hybrids. To make the point more globally, a judge ought to choose the form of doctrine that makes the best compromise between often conflicting ends, which the judge\u27s normative philosophy established and ranked at a higher level

Hatch-Waxman’s Renegades

No intellectual property rights impact society more forcefully than patents on pharmaceuticals. But as a practical matter, only a handful of jurists resolve disputes involving them. Two neighboring federal districts, Delaware and New Jersey, adjudicate the vast majority of patent contests between brand-name drug companies and generic manufacturers. And in contrast to Eastern Texas, which has been persistently derided as a renegade jurisdiction, the authority of the mid-Atlantic courts has seldom been questioned. The complex workings of the Hatch-Waxman Act, the compromise legislation that governs pharmaceutical patent litigation, go a long way to explaining such distinct shareholder reactions to highly similar judicial behaviors. Yet the dominance of Delaware and New Jersey in pharmaceutical patent litigation may have come to an end. A recent decision of the U.S. Court of Appeals for the Federal Circuit, Valeant v. Mylan, has narrowed the rules for venue in Hatch-Waxman cases. We are now poised to see multiple, parallel trials involving the same patented pharmaceutical proceeding in courts across the country. The new order of pharmaceutical patent litigation affords an opportunity to reconsider an intellectual property environment that aims to promote pharmaceutical innovation but also increase public access to medications. Venue determinations are puzzling in pharmaceutical patent cases due to a concept originating within the Hatch-Waxman Act, the tort of “artificial” infringement. Artificial infringement occurs when a manufacturer petitions the federal government to obtain permission to market a generic drug. But the federal government both issues patents, and awards regulatory approval to sell a drug, with effect across the entire nation. Congress gave no thought towards situating artificial infringement at a certain place, and judicial efforts to do so have amounted to a facile and strained exercise. Venue is not artificial infringement’s only problem. Artificial infringement also creates disconnects with personal jurisdiction principles, incorporates obsolete remedial provisions, and fails to comply with the international commitments of the United States. Courts should instead recognize their authority to accept declaratory judgment actions to resolve pharmaceutical patent infringement cases, with legislative abolition of artificial infringement presenting another, preferred possibility

The future of broadcast television: online streaming infringement and the U.S. Supreme Court

Aereo and FilmOn X are online streaming services that allow subscribers to watch and record broadcast content online by capturing over-the-air signals through antennas assigned to each user and streaming that content to subscribers. The broadcasters and media owners who own copyrights in the content transmitted via the over-the-air signals that Aereo and FilmOn X capture argue that this service infringes upon their exclusive right of public performance, specifically under the Transmit Clause. The broadcasters have brought suit against both Aereo and FilmOn X for copyright infringement in several courts across the United States; some courts have found the online streaming services to be infringing, while others have found no infringement—thus creating a split among the U.S. circuit courts of appeals. While courts have interpreted and applied the Transmit Clause in prior cases, one case in particular in the U.S. Court of Appeals for the Second Circuit, Cablevision, has come under critique for its interpretation of the law; this case’s precedence is what causes the current issue in the circuit courts, which can only be resolved through a ruling from the U.S. Supreme Court. Using traditional legal research methods, this thesis examines whether Aereo and FilmOn X are infringing broadcasters’ copyrights in their over-the-air signals and concludes that they are infringing under the Transmit Clause. The Second Circuit’s opinion favoring Aereo is wrong because of its incorrect reliance upon Cablevision and based upon the plain language of the statute, the legislative history, and prior case law, which all support a finding of infringement