Sports Law Blog
All things legal relating
to the sports world...
Wednesday, June 21, 2017
Beckman v. Chicago Bears
Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).
The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.
Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?
Or are Green Bay Packers fans less popular in Chicagoland than Nazis?
Thursday, May 25, 2017
DePaul Law Review Publishes Three Articles In Symposium Edition On Fantasy Sports And The Law
(1) I wrote the lead article, entitled "From 'Too Small to Notice' to 'Too Big to Fail' - The Rapid Growth of Daily Fantasy Sports, and DFS Efforts to Change Illinois Gambling Laws"
(2) Attorney Darren Heitner wrote the provocative piece entitled "Why Fantasy Sports Should Welcome Uniformity of Law."
(3) The trio Justin Fielkow, Daniel Werly and Andrew Sensi published "Tackling PASPA: The Past, Present, and Future of Sports Gambling in America."
Fantasy sports and the law is an emerging field with a lot of people making bold assertions in blogs and to the media, but not too much formal legal research. I strongly recommend all three of these articles based on their ability to withstand the formal scrutiny that is required before law review articles are published.
Tuesday, May 16, 2017
Hope to see you at the 2017 Oregon Law Summer Sports Institute
Looking to study sports law this summer?
You might be interested to know that I’ll be teaching again this July at the University of Oregon’s annual Summer Sports Institute. This is a five-week, six-credit program that brings together faculty and experts from across the nation to teach in an immersive environment. The program is designed for students who are interested in sports law but attend law schools that don’t offer a meaningful regular-semester sports law program.
Like last summer, I’ll be joined by Matthew Mitten (Marquette), Gabe Feldman (Tulane), Jo Potuto (Nebraska), Andrew Brandt (Villanova), Maureen Weston (Pepperdine), and a host of others. Also, I’m told the program will feature around 20 outside speakers from as far away as Barcelona, including Ed Goines, the general counsel of the Seattle Seahawks, Paul Loving, US sports law counsel for Adidas, and Marcos Motta, the Brazilian lawyer who represents Neymar.
To apply, or if you have any questions, contact program director Robert Illig at email@example.com.
The final deadline is June 2nd. Former participants have raved to me about how much they’ve learned from the program and how much fun they had making connections with other like-minded students, faculty and practitioners. Hope to see you there!
Thursday, May 04, 2017
Sport and speech, part 766
Two news stories, submitted largely without comment:
1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But how is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.
[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.
Wednesday, May 03, 2017
Infield fly rule is not in effect and it produces a triple play
The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.
On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.
At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first. It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.
So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.
Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.
Thursday, April 06, 2017
The solution to late-game fouling?
No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.
But it appears Nick Elam, a middle-school principle and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).
The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.
The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).
On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.
Monday, April 03, 2017
Lexi Thompson and the application of golf's rules
Last Sunday, the golf world suffered through another difficult rules incident when the LPGA, acting on a tip from a television viewer, imposed a four-stroke penalty on Lexi Thompson for a small rules violation commited during play concluded on the previous day. This penalty probably cost Ms. Thompson the tournament (one of the LPGA’s majors), as she wound up losing in a playoff.
Commentary immediately following this fiasco predictably and appropriately included criticism about acting on tips from TV viewers and the notion that a penalty could be imposed long after play in a given round had concluded. One thing missing, however, was detailed analysis about the substantive ruling itself. Most commentators appeared to presume that the LPGA had no choice in the matter because the rules of golf clearly prescribed the outcome, painful as the outcome was.
Was this really the case? A closer look at the rules of golf suggest that an entirely different result would have been entirely defensible, and in many ways far better for the game.
The LPGA stated that Thompson had violated rule 20-7C by playing from the wrong place. This violation allegedly happened when Thompson marked her ball on the green in accordance with the rules, picked it up, and then placed the ball back on the green before putting. TV replays showed that Thompson inadvertently failed to place the ball exactly where it was when she picked it up. This put Thompson in apparent violation of rules 16-1b and 20-1, which require a marked ball to be “replaced.” When Thompson then putted the ball from this location, she (in the opinion of the LPGA) played from the wrong place.
I do not believe that was the only interpretation of the rules available to the LPGA. First, Rule1-4 states, “If any point in dispute is not covered by the Rules, the decision should be made in accordance with equity.”
Second, the meaning of the word “replace” does not necessarily mean that Thompson violated the rule. One might, as the LPGA apparently did, interpret that word to mean that the competitor must place her ball in exactly the same place as it rested when picked up. Of course, no competitor ever does precisely that. Every ball, by reason of human error, is placed back on the green some minute distance from its original location. Thus, the meaning of “replace” cannot refer to exactly where the ball previously rested. Instead, there is a margin for error that must be permitted.
How large a margin should there be? One possibility is to interpret “replace” so that a player doesn’t violate the rule if the ball is close enough to its original location to avoid any meaningful advantage. Another possibility is to interpret the word so that the player doesn’t violate the rule if the variance from the original location is within a distance capable of casual perception by others present on the green. Together, these interpretations probably conform to everyday practice. Golfers do not stand over their fellow competitors to make sure that balls get replaced exactly in the same location. They are content to police the rule within what’s casually perceptible because errors smaller than that do not lead to meaningful advantage.
This interpretation would have kept Thompson in the clear. She clearly did not gain any material advantage from her error. From watching TV replays, I seriously doubt her ball was more than an inch from where it originally lay. Her putt was extremely short and probably would have been conceded by an opponent in match play. No one, to my knowledge, has claimed that Thompson made her putt easier.
Additionally, I think it is significant that no one (including her fellow competitors, their caddies, or any rules official who may have originally been present) noticed the supposed misplacement. Instead, the problem came to light because a viewer watching TV emailed the LPGA. Yes, when you watch the replay and you’re told to look for it, it’s possible to see that Thompson’s ball is perceptibly “misplaced.” However, it’s not really apparent without a zoom-in shot, and I highly doubt that anyone watching her at the time could have seen it without standing over her to monitor every movement in detail. No golfer does that to a fellow competitor.
Accordingly, there is ample room to argue that Thompson did indeed “replace” her ball within the meaning of the applicable rules. I am of course aware that one could reach a different interpretation, one based on a more literal meaning attached to “replace.” However, it’s not as if the Rules of Golf require remorseless literalism. For example, Rule 20-1 clearly states that a player suffers a one-stroke penalty if she picks up her ball without marking it first. Nevertheless, decision 2-4/3 excuses such a violation, despite the apparently “no exceptions” wording of the rule, when a player reasonably makes a mistake about whether her putt has been conceded in match play.
Mind you, I am not claiming that only one interpretation of the rules is possible. Rather, I’m pointing out that the rules used to punish Thompson were not as clear as people may think, and that the precise outcome of her situation is not truly “covered by the Rules.” Thus, equity should have played a role in applying the rules to Thompson, and I believe that equity would have led away from finding her in breach of the rules.
It may be appropriate to come up with new rules about not accepting violations found by TV viewers or imposing a "statute of limitations" on how much time can pass before rules violations will not be acted upon. However, it also behooves those responsible for applying golf's rules to think carefully about the role of equity in their administration of existing rules. Observers of golf will keep calling in potential minor rules violations, and escalating all of them into tournament-altering incidents risks souring the public on the game itself.
Tuesday, February 28, 2017
Rugby and the Infield Fly Rule
I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.
As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.
In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."
But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.
First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.
But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.
Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.
Wednesday, February 22, 2017
How To Pay College Athletes Without Taxing Their Scholarships (UPDATED LINK)
I would encourage those interested in college athletics, education law, tax law, and the college athletes rights movement to read this article. All feedback is encouraged.
Boston College Law School Sports Symposium
Boston College Law School will be hosting their "Second Annual Sports Law Symposium" this Saturday, February 25 from 2:00 to 5:00 pm. There will be three panels, two of which will be moderated by two of our own editors: Michael McCann and Warren Zola. (Note: as they do the circuit they will also both be at Harvard Law School on Tuesday, March 7. Details here.)
The Legality of Daily Fantasy Sports
Moderator: Michael McCann, University of New Hampshire
Panelists: Fred Yen, Boston College Law School and Faisal Hasan, DraftKings
Keynote on Collective Bargaining in Professional Sports
Speaker: Lyman Bullard, Choate, Hall & Stewart
Legal Issues in College Athletics
Moderator: Warren K. Zola, Boston College
Panelists: Alex Roy, Brown University and Paul Kelly, Jackson Lewis
The day is open to the public, but the organizers ask you email Kayla Acklin.
Update: The symposium was great, and three Sports Law Blog contributors were there....
Intentional walks and limiting rules
Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.
Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).
The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).
Monday, February 20, 2017
Northwestern Law 3rd Annual Sports Law Symposium
For anyone who will be in Chicago this coming Wednesday, February 22nd, Northwestern University's Pritzker School of Law will be hosting its 3rd Annual Sports Law Symposium, and I am honored to join the panel. See below for details:
From Colin Kaepernick's refusal to stand for the national anthem to the NCAA's decision to relocate the men's basketball tournament, 2016 saw several political stands in the sports world. In 2017, this trend is set to continue, as Super Bowl champions plan to skip the customary White House trip and figures like NBA coach Gregg Popovich criticize the President's policies. Join us as our panelists discuss these and other headlines, as well as the risks and legal issues associated with activism in the sports industry.
6:15 PM -8:30 PM
FORMAT: PANEL DISCUSSION FOLLOWED BY NETWORKING HOUR
ATTIRE: BUSINESS CASUAL
OPEN BAR, FOOD
Timothy Liam Epstein, Chair of Duggan Bertsch Sports Law practice group, Adjunct Professor of Law at Loyola University Chicago School of Law.
John Kaites, Principal and founding partner at Global Security and Innovative Strategies; Of Counsel at Fennemore Craig in Phoenix, Arizona; Has represented fourteen Major League Baseball Clubs, two NBA Basketball Teams, and the National Hockey League.
Tony Pashos, 1L at Northwestern Pritzker School of Law; Former American football offensive tackle who played in the NFL with the Baltimore Ravens, Jacksonville Jaguars, San Francisco 49ers, Cleveland Browns, Washington Redskins and Oakland Raiders.
Rick Smith, Partner of Priority Sports & Entertainment agency, alum of Northwestern Pritzker School of Law.
Marques Sullivan, Vice President of the NFL Retired Players Association; Head Coach at Midwestern Preparatory Academy; Former professional American football offensive lineman for the Buffalo Bills, the New York Giants, the New England Patriots and the Chicago Rush.
Friday, February 17, 2017
The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read.
Legal & Ethical Issues Affecting NFL Player Health
DeMaurice Smith, Executive Director, NFLPA
Concussion Legacy Foundation
Chris Nowinski, Co-Founder & CEO, Concussion Legacy Foundation
Robert Cantu, MD, Co-Founder & Medical Director, Concussion Legacy Foundation
Isaiah Kacyvenski, Co-Founder & Managing Director, Sports Innovation Lab
Peter Carfagna, Lecturer on Law, Harvard Law School
Oliver Luck, EVP of Regulatory Affairs, NCAA
Brant Berkstresser, Assoc Dir of Athletics, Head Trainer, Harvard University
Buddy Teevens, Head Football Coach, Dartmouth University
A.L. (Lorry) Spitzer, Partner, Ropes & Gray
Warren K. Zola, Carroll School of Management, Boston College
Andrew Hawkins, Cleveland Browns
Stephon Tuitt, Pittsburgh Steelers
Johsnon Bademosi, Detroit Lions
Michael McCann, University of New Hampshire
Team, NFL & NFLPA Perspectives
Arthur McAfee, SVP of Player Engagement, NFL
Joe Briggs, Public Policy Counsel, NFLPA
Kevin Warren, COO, Minnesota Vikings
Christopher Deubert, Senior Law & Ethics Associate, Petrie-Flom Center, Harvard Law School
Kenneth Shropshire, Professor, Wharton School
Open to the public, the event will run from 9:00 am to 3:30 pm in Milstein West on the Harvard Law School campus. For more details on the event, feel free to contact Carlin O'Donnell, the Director of the Sports Symposium for HLS's student-run Committee on Sports & Entertainment Law (CSEL).
Friday, February 03, 2017
Trade Secrets in Professional Team Sports
Earlier this week, Major League Baseball's commissioner Rob Manfred closed the book on the professional sports industry's first known case of corporate espionage in the digital era. Back in 2015, news reports emerged that the Federal Bureau of Investigations was exploring whether one or more officials from the St. Louis Cardinals had illegally accessed -- or hacked -- a proprietary database belonging to the Houston Astros. The Cardinals' former scouting director, Christopher Correa, was ultimately identified as the perpetrator and charged for the offense. As a result, Correa is currently serving a 46-month jail sentence in federal prison.
On Monday, Commissioner Manfred docked the St. Louis Cardinals the team's first two draft picks in the 2017 draft, and ordered the team to pay a $2 million fine. Both the draft picks and the fine will be given to the Astros as compensation for the illegal intrusion. In addition, Manfred also placed Correa on the permanently ineligible list, banning him from future employment in professional baseball for life.
The Cardinals-Astros incident highlights the emerging importance of the legal protection of proprietary information and analytics to the professional sports industry. In order to learn more about the steps that sports teams are taking to protect these types of data, I conducted a survey of the in-house legal counsel working for teams in the four major North American sports leagues this past spring, in the hopes of discovering both the types of proprietary information that teams are protecting under trade secret law, as well as the measures these teams are utilizing to safeguard their data.
The results of the survey are now available part of a new law review article, "Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports" (co-authored with my wife, Lara Grow), to be published this fall in the Washington & Lee Law Review. A working draft of the paper is now available for download. Here's the article's abstract:
Any thoughts or feedback on the article would be much appreciated!