Contemporary Issues in Sports

by Jacob Oldaker

In sports today there are a variety of issues that sports officials, universities, and NCAA associates must understand and deal with on a day to day basis. One of the most controversial issue in contemporary sports is whether college athletes should be allowed to receive compensation for their performance on the court. NCAA players are currently prohibited to receive salaries while participating in college athletics, but some feel that since these athletes are the ones bringing in all the money to campuses then they should be thusly rewarded. On the other side of the argument comes the facts of how paying “STUDENT-athletes” to play would take away from the true meaning of going to college, getting an education. Also, many students would be quick to choose power house schools like Duke, Ohio State, Alabama who could pay the highest salaries instead of picking the school that would offer them the best education for their field’s major. Both sides of the issue provide pros and cons for college sports and college athletes. One side, defends the student side of student athlete and how NCAA players receiving money for their performance would take away from the college-athlete experience. The counter would argue that the athletes are the ones working the hardest in college and also the ones that provide the most income at universities; and therefore, they should be rewarded for the amount of work they put into the classroom and what they do to represent and provide for their school. In defending, the student athlete receives president over rewarding college level student-athletes with financial benefactors.

Each year athletic programs at the NCAA and college level generate billions in profits, but student athletes who are the key component to these profits never see a penny. Thomas Lott, Prominent NBA Players weigh in on whether NCAA players should be paid, http://www.sportingnews.com/ncaa-basketball/news/ncaa-basketball-pay-for-play-lonzo-ball-players-should-be-compensated-ucla/17ix218hq3702179reldg8zil4, (Last visited Mar. 21, 2018). Many people involved would argue at least part of the monies generated should be granted as compensation to student athletes. Unfortunately, handing a check to collegiate athletes each month is not a simple process or necessarily positive for college athletics. The first problem with paying college players is the recruiting market because it would be killed. If an 18-year-old heading to college had the option of playing close to home or playing at a big university and making thousands of dollars; then they would easily choose the large university who is able to compensate their athletes beyond scholarship funding. Id. When college athletes choose their college, the decision should never be based solely on how much money they will be able to generate for themselves through scholarships, and paychecks if college athletes were to eventually receive salaries. College is in fact a privilege that is earned, not simply bestowed upon someone for being an exceptional athlete. Paul Daugherty stated, “Scholarship was expected. It was, after all, what I was there for.” Id. Despite not being a college athlete, he was fulfilling the true role of a student which takes precedence in student-athlete. The next issue concerning paying student athletes involves the amount of privileges they are granted, and the amount of networking they are able to do by simply being a part of a large division one sports program. As an athlete at a large, successful university in the sports field, one is able to audition for prospective employees each day they set foot on the court or field. Id. Many times this audition does not consist of four years because athletes are able to pass the audition blessed upon them and move on to professional leagues to make large sums of money. Along with the idea of auditioning, athletes who make it to the top never have to compile a resume because their game is their resume. Id. Even while traveling in chartered jets or visiting first-class hotels or tropical islands, athletes are burnishing their resume instead of having to sit through hours of class and go above and beyond to have a superior resume like the typical college student. Lastly, athletes are blessed with private tutors, private study lounges, and many times are able to be placed in privileged classes for their benefit. Id. I am not saying the life of a college athlete is not difficult, but colleges have implemented a variety of benefits for their well being, to help them to continue being good students. So, money does not need to be added in compensation for college athletes because they are not professional athletes; they should instead be professional students. The next and probably most significant issue with paying college athletes is money. Duncan Currie explained, “…Paying them would be a logistical nightmare; indeed, it would prove impossible to devise a truly ‘fair’ revenue-distribution scheme. There are better ways to make college sports more equitable.” Madisen Martinez, Should College Athletes Be Paid? Both Sides of the Debate, https://www.collegexpress.com/articles-and-advice/athletics/blog/should-college-student-athletes-be-paid-both-sides-debate/, (Last visited Mar. 21, 2018). Not only is developing a breakdown of how much to pay athlete nearly impossible, but the biggest question still remains. Where would the money come from to pay salaries for college athletes? A breakdown of major athletic organizations showed, ” Between 2004-2009, fewer than 7 percent of all Division I sports programs generated positive net revenue, according to NCAA data. Id. Fewer than 12 percent of all FBS schools–14 out of 120–did so in fiscal year 2009. Id. For that matter, the NCAA reports that only 50 percent to 60 percent of FBS football and basketball programs make money. Id. With these numbers, it would be impossible for universities, in the negative after the sports year, to generate yet another fund to pay athletes. The numbers also point back towards recruiting, would it be fair for only half of the FBS schools to be paying their athletes wages? These schools would easily swoop up the best talent and take away from the competitiveness and fairness of the college game. Another issue with only some schools offering salary to their players is the effects it would bring into playing concerning the laws of title IX. Woman’s sports would be underrepresented along with the other male sports that are not division I basketball or football. Id. So, paying athletes in that sense would not be plausible because it violates NCAA rules. As a college athlete it is hard to disagree with an opportunity that in the long run could be truly beneficial, but as a college student-athlete, student is the priority. People come to college to obtain an education and better their chances of finding a successful job in the future; not immediately start their job in college by being paid to play in an extracurricular sport.

As a counter, some feel that college athletes are deserving of money for their play. Every year college athletics generates billions of dollars, and therefore the kids leaving it all on the court and in the classroom should be able to see at least part of the large sums they generate. Michael Wilbon, College Athletes Deserve to be Paid, http://www.espn.com/college-sports/story/_/id/6778847/college-athletes-deserve-paid, (Last visited Mar. 21, 2018). Michael Wilbon feels, “…football and men’s basketball players get paid; lacrosse, field hockey, baseball players get nothing. You know what that’s called? Capitalism.” Id. The real world is not fair, for example, Nick Saban will make roughly $6 million this year which will by far exceed the most distinguished professor’s life time earnings at the university. Id. The idea of paying these athletes is solely focused around players on revenue-producing teams. Id. The players are the people who make the lucrative television and internet right fees wholly possible says Wilbon. Id. Another issue about college athletes is their inability to acquire gifts or benefits from the outside world. Wilbon states, “If somebody is willing to give A.J. Green $750 or $1000 for his Georgia Bulldogs jersey, fine, good. If one of his teammates, a tackle, can only fetch $50 for his jersey, then it’ll be a good marketing lesson for the both of them. It is called supply and demand.” Id. All of these lessons apply to the real world, supply and demand and capitalism are issues dealt with every day and there is no reason college athletes should not be able to partake and work with in these concepts. In fact, college athletes are adults and should be allowed to make their own decisions. Allen Sack (former Notre Dame football player) agrees wholeheartedly with Wilbon in saying, “no good reason exists for preventing athletes from engaging in the same entrepreneurial activities as their celebrity coaches. Big time college athletes should be able to endorse products, get paid for speaking engagements and be compensated for the use of their likenesses on licensed products. They should be allowed to negotiate an actual contract with the N.B.A. as part of a final project in a finance class, and have an agent.” Id. In retrospective, college athletics is a money-making field and without the athletes there would be no income of money. If a music student goes out one summer and strikes a lucrative deal worth $50,000, who objects? The music student is still a college student despite the deal, which would be the same case scenario for student athletes. According to Wilbon, college athletes, in the two revenue producing sports, have always exceeded the sum of tuition, room, board, and books. Id. One prime example came from the Big 10 which has,” …a television network that has become the model for every conference in America, a network worth at least tens of millions of dollars…yet no player can benefit from that work. The players have become employees of the universities and conferences as much as student-employees with no compensation, which not only violates common decency but perhaps even the law.” Id. Like an employee receives a weekly paycheck for the services he provides for a company, athletes should also be justly compensated. College athletes should not be forced to work both in the classroom for the betterment of their future, but also for millions upon millions of dollars that is distributed throughout the NCAA and universities and not see a penny. Working for free is something no person wants to do or even supports happening to others. Since college sports have become such a monetary power, the NCAA would do justice in reevaluating their jurisdiction on what players can receive in compensation for their performances. College athletics are simply going to continue growing, and college athletes should be included in the steps forward involving money, not left behind to reap non-existent benefits.

The NCAA would not have to pay athletes as a solution to the controversial issue over whether college athletes should be paid but solutions have been proposed including salaries for students. Michael Wilbon proposed the first possible solution which involved the $10.8 billion deal between the NCAA and CBS sports for March Madness from 2011-2024. Id. This deal breaks down to roughly $257 million for just three weekends of basketball a year. Id. Also, ESPN just entered into a deal that pays the BCS $500 million. Id. Wilbon suggests making those deals worth $10 billion which still leaves sufficient funds for coverage and broadcasting. Id. After all expenses have been paid, the NCAA would be left with $1.3 billion to invest, shelter, and make available as a stipend for college athletes. Id. No person would willingly argue paying the players who are the ones making the college events possible each year. The next possible solution involves the scholarship funding offered to college athletes. According to PBS,” The average scholarship falls about $3000 short of covering an athlete’s essential college expenses.” Id. With this in mind, the NCAA could easily boost scholarships to cover the essential college expenses for athletes. This solution would be an easy way to help players struggling to pay their living costs because they lack the essential time to take a part time job. This proposed idea avoids the hassle and confrontations that paying players would cause, but at the same times covers the main issue college students, especially college athletes, have which is lack of money for the bare essentials. Lastly, the most unique and in my opinion most effective solution was brought forward by former PSU basketball player Stephen Danley. He suggested that schools take a portion of the profits generated from their revenue sports and add a fifth-year option to athletic scholarships. Id. Danly explained, “many student athletes competing at the highest levels just do not have the time to handle a normal academic load.” Id. He even mentioned certain programs disallowing players to take enough classes to graduate in four years. Id. Also, many players were let down and high school and were simply aided in to the university for their athletic ability. So, in turn, if many of the richest college-sports programs are going to continually treat student athletes as full-time athletes, then they should give them the financial means to return and easily complete their education. In the end, college is a place for receiving a degree, not scoring 1000 points or rushing for 1000 yards. This solution is the best because it focuses solely on the education of the student aspect of student athlete, but it also helps eliminate fiscal issues athletes deal with once their playing career ends. By being able to achieve a degree of higher education, they will be able to flourish in the outside world and obtain a job that will support their life needs for the remainder of their life.

Examining Systematic Racism through Music

by Thomas Lovecchio

Systematic racism includes a wide array of racialized concepts that have led to oppressions of Americans of color to lend its self into all major societal institutions. In Systematic Racism: A Theory of Oppression Joe R. Feagin examines different societal structures and institutions and how they perpetuate racism in different ways today. Rapper Wise Intelligent’s song “Globe Holders” allows the listener to gain a better understanding of the systematic racism in societal institutions such as the criminal justice system and the government and how these institutions still perpetuate racism today.

Wise Intelligent explains different discriminatory practices within the criminal justice system regarding drug use in his outro. He argues that the war on drugs is a war on “poor urban African-American men and women”[1] he follows this up by noting that African-Americans have an arrest rate that is five times higher than whites. Along with this Wise Intelligent notes that “90% of crack arrests are African Americans” and “75% of powder cocaine arrests are whites[,]”[2] but it takes 5 grams of crack and 500 grams of powder cocaine to get a 5 year prison sentence.[3] This is an example of systematic racism of “white racist dimensions” of “ideas, attitudes…and institutions[.]”[4] The arresting practices and the way the drug laws/war on drugs was created and implemented perpetuate a system of racism because race does drugs, but in this instance different policies and practices disproportionately affect two different races. When two similar drugs have a high majority of white and African-American users and it takes 100 times the amount of the white drug (powered cocaine) to have the same sentence as a majority African-American drug (crack),

Wise Intelligent cites condemns the CIA, ATF, and FBI calling them, “the juggernauts, the alphabet cops [.]”[5] The War on Drugs was instituted by the Nixon administration and carried out by different justice and governmental agencies, which at the time both were presumably made up of a white majority. Feagin explains that, “rarely are whites seen as currently the central propaganda actors and agents in a persisting system of racial discrimination and other racial oppression[,]”[6] but this doesn’t make logical sense, especially due to the political climate in the status quo. Wise Intelligent mentions “the globe holders, the population controllers, the AIDS makers, dark nation depopulators [,]”[7] which presumably he is referring to whites. Wise also indicts three white presidents. This further contradicts the theory Feagin advances about whites not being seen as actors and agents of systematic racism.

The population control that Wise Intelligent cites is due to systematic racism in the criminal justice system. He states that African-Americans are 50% of the prison population and that “1 out of every 17 African-American adult males was incarcerated[.]”[8] In order to see such a high disparity in numbers, something must have been put in place to allow this disproportionate outcome. Recently, systematic racism has been gaining more attention, which is why criminal justice reform is happening throughout the nation.

 

 

[1] Wise Intelligent, The Globe Holderz Lyrics, Rap Genius, https://genius.com/Wise-intelligent-the-globe-holderz-lyrics.

[2] Id.

[3] Id.

[4] Joe R. Feagin, Systematic Racism A Theory of Oppression 3 (2006).

[5] Id.

[6] Feagin at 5.

[7] Wise Intelligent.

[8] Id.

Legal Services Corp. and Equality Before the Law

By Kristina Forrey

“Justice for only those who can afford it is neither justice for all nor justice at all.”

― Texas Chief Justice Nathan Hecht

 

Justice Earl Johnson, Jr. called legal services “a precept of the social contract.” (Earl Johnson, Jr., Equality before the law and the social contract: When will the United States finally guarantee its people the equality before the law the social contract demands?, 37 Fordham Urb. L.J. 157, 159 (Feb. 2010). Most European countries have provided legal services to low income citizens since the late 1800s, whereas in the United States funding such services is still met with a question mark. (Id. at 160-61.) The Swiss Supreme Court, for example, determined in 1937 that “poor people could not be equal before the law” without having lawyers, and therefore the Swiss government was obligated to provide free civil litigation services for the poor. (Id. at 162-63). In other European countries, right to counsel has not been a question because that right is built into the constitutions or mandated by statutory law. (Id. at 164).

In the United States, the Legal Services Corp. (LSC) is a 501(c)(3) non-profit corporation established by Congress in 1974 to provide legal assistance to low income populations who otherwise would be unable to afford a civil attorney. (Legal Services Corporation, https://www.lsc.gov/). The LSC funds programs in all 50 states that provide attorneys to represent the poor in civil litigations and is constantly seeking donations to supplement the amount allocated to them in the federal budget. (Id.) However, in May 2017, President Donald Trump’s budget proposal eliminated the entire $375 million in LSC funding from the prior fiscal year. (Matt Ford, What will happen to Americans who can’t afford an attorney?, The Atlantic (Mar 19, 2017) https://www.theatlantic.com/politics/archive/2017/03/legal-services-corporation/520083/).

The negative response was immediate. News agencies, the American Bar Association (ABA), civil rights group, and legal services groups denounced the proposed budget. The ABA cited a multitude of studies that demonstrate how the benefits of LSC services far outweigh the monetary cost and extolled the importance of these services to vulnerable populations including veterans, the elderly, domestic violence victims, and disaster survivors. (http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp) The issue of cutting the LSC budget rears up periodically. Ronald Regan failed to abolish the program in 1981 (Matt Ford), and the program was reauthorized by the 104th Congress with restrictions in 1995 (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1).

This fight is not a new one. In 1995 the Heritage Foundation, a far-right conservative group, wrote an attack article while the LSC was facing congressional review. (Peter Flaherty and Kenneth Boehm, Why the Legal Services Corporation Must be Abolished, The Heritage Foundation (Oct. 19, 1995) https://www.heritage.org/node/20680/print-display) The authors accuse the LSC of not providing legal services, of squandering federal funding with lobbying, and of promoting “homosexual, feminist, or environmental movements” rather than conservative values such as gun rights. (Id.) Less than a year later, the 104th Congress acknowledged the importance of LSC’s work to the country and renewed its charter through the Legal Services Reform Act of 1996. (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1) Congress noted that “in 1994, [LSC] assisted with 50,000 child support cases; 375,000 housing matters; 52,000 spousal abuse cases; and 251,000 divorce cases.” (Id.) Further, LSC spent its resources helping veterans, victims of natural disasters, and low income people at risk for bankruptcy. (Id.) The program is necessary, Congress observed, because there is only one LSC lawyer per 6,000 to 7,000 indigent clients whereas there is one lawyer per about 300 people of the rest of the population. (Id.) Today, conservatives continue to seek the end of this important program.

The argument for cutting the program stems from what Professor Weissman calls “suspicion and scorn” for the poor. (Deborah Weissman, Law as Largess: Shifting Paradigms of Law for the Poor, 44 Wm. & Mary L. Rev. 737 (Dec. 2002)). She proposes that there are two conflicting views regarding legal services. (Id. at 740). The “Rule of Law” view centers on themes of equality and justice, where no one should be left on the courthouse steps with justice just out of reach. (Id.). The second view of “Self-sufficiency” exalts independence and acting on one’s own interests as virtues. (Id.). We’ve heard this argument before. Poverty is the fault of the impoverished—they simply don’t work hard enough and merely need to “pull themselves up by their bootstraps.” This age-old fallacy blames the poor and assumes that they somehow deserve their circumstances. This could not be further from the truth.

“If you don’t have a job, where do you go from there? You hear people say ‘Pull yourself up by your bootstraps’, and you don’t even have shoes. You’re barefooted. What are you going to pull yourself up by? Our country owes every citizen of the United States of America a means of livelihood. Not a handout, but a way to make it.”

― Studs Terkel

 

When examining the psychological impact of poverty, psychologists have found that poverty tends to precipitate more poverty, not just for the individual but for their children and beyond. (Johannes Haushofer and Ernst Fehr, On the psychology of poverty, 334 Science 862 (2014), http://www.princeton.edu/~joha/publications/Haushofer_Fehr_Science_2014.pdf). Those who live in poverty are more likely to hold onto guaranteed income from a low-paying job than risk quitting for a better opportunity. (Id.) They have less ability to qualify for stable lending from a bank or credit union and are pushed by their circumstances and desperation to resort to payday lenders, merchants employing exploitative interest rates, or reliance on friends and family when things go awry. (Id. 863). Those subject to the stresses of poverty experience greater physical health consequences, increased likelihood of hospitalization for mental health, and increased drug and alcohol abuse. (Id. at 864). This causes a “feedback loop” of reoccurring circumstances that render it virtually impossible for a person in poverty to get free on their own.

The purpose of legal services is to provide that helping hand, to give the poor and indigent access to justice what would be otherwise unaffordable and unattainable. When I worked as a student intern at legal services, I walked in not really understanding what I was getting involved in. Over the course of that summer I saw first-hand how essential this program is for people to defend themselves. Without legal services, low income people would not have equal access to the law. Legal services is not just dollars-and-cents on a page. It represents the one and only lifeline for real people in real situations that stand to lose everything. It is unfortunate that a politician in Washington who has never struggled for a meal or a place to sleep can so blithely declare that this service is costing too much and not worth the money spent. What are we if we do not allow everyone equal access to the legal system? Legal services can defend the poor from the corrupt landlord, the unscrupulous mortgage company, and the abusive domestic partner. Eliminating legal services would allow those with money and no moral s to step upon the poor. The poor cannot get out of these circumstances without help from legal services because there are no “bootstraps” to pull up. There never were.

Black Panther Beyond The Movie Screen

by Terry Davis

“If you are reading this and you are white, seeing people in mass media probably isn’t something you think about often.”[1] Instead it is the norm to see white individuals that you can relate to in all facets of life. Even our President, has returned to “normal” that white America has come to expect (certainly not for the better). I wake up every day not even pondering if I have a home. I don’t mean the dwelling I reside in, but more the America that I live in. I never come across comments on the Internet implying that I should leave America to return to Ireland. As someone with Irish heritage, I can probably trace my family’s arrival to the United States to the early twentieth century. Most blacks in the United States ancestry arrived here long before that through the slave trade prominent in the 18th century before being outlawed in 1808.

To be black in America is to be with and without a home.[2] We hear the constant rhetoric of American pride and gratefulness to be living in America. How one should be thrilled knowing they can carry out the American dream. Blacks are told they should honor this opportunity that promotes injustice towards them every day.[3] On the opposite end, if you have the audacity to complain about anything white society can’t relate to then you can leave this country to return back to Africa. History is just that history. Slavery ended over 150 years ago. Jim Crow’s separate but equal was voided 60 years ago, and civil rights were granted not long after. However, those “without a home” can still feel the systemic racism and isolationism that existed then. The country is still littered with the segregationist and racist of half a century ago. While not as outspoken in their demeanor, undeniably just as enthusiastic in their purpose.

Wakanda, the fictional African nation created by Stan Lee with his Black Panther superhero is a representation of that ideal homeland for blacks in America.[4] It explores a thriving and technologically advanced society centered on those who are black. We aren’t dealing with black pain, suffering, and poverty, but instead black experience with a lot of agency.[5] T’Challa, the Black Panther, represents a superhero unlike anything we had. Of course we had moves like Blade and Shaft, but those characters felt the color of the skin was incidental to who they were. Here, T’Challa isn’t being played for laughs or as a sidekick.[6] Instead, it is a strong character celebrating the existence and confidence in being black.

I have four nieces and one nephew who have a white mother and a black father for parents. My nephew being nine years old loves video games and superheroes as much as any other child at his age. I watched Halloween after Halloween where he dressed as Woody from Toy Story, Iron Man, Batman, and even pulled off a great looking Joker. We went and saw the Black Panther a few weeks ago and he loved it. As we walked out, he said, “I’m going to be T’Challa next Halloween!” “Yep that’s me!” I didn’t think much of it at the time, but instead smiled thinking that was great. Reflecting on it I realized he was right this is him. When coloring in his superhero coloring book, he may now reach for the black and brown crayons.[7] No longer does he have to be Bruce Wayne or Peter Parker, but can be T’Challa even once the mask is removed.

Black Panther is long overdue not only in superhero movies that have seen mountains of Batman, Superman, and Spiderman films in the past two decades, but also in the narrative of what being black is about. It provides a continuation of a timeline for acceptance that has been far too slow to take place. Just as Roots in the late 70’s captured the attention of many and illustrated the struggles of blacks during slavery and Jim Crow, Black Panther may give teens and adults hope that being black is beautiful. I’m a white male who doesn’t know oppression or what it feels like being discriminated against because of my skin color. I can go through every facet of my life to find indivuals to whom I can relate to including my professors at law school. Many blacks cannot do the same, when sometimes that’s the only thing they really need to experience success. I can only hope that the Black Panther and Wakanda provides blacks with a common place where they feel at home, until society alters their archaic ways and realizes they belonged here as equals all along.

[1] Jamil Smith, The Revolutionary Power of Black Panther, Time, http://time.com/black-panther/ (last visited Mar. 19, 2018).

[2] Carvell Wallace, Why ‘Black Panther’ Is a Defining Moment for Black America, N. Y. Times Magazine, (Feb. 12, 2018), https://www.nytimes.com/2018/02/12/magazine/why-black-panther-is-a-defining-moment-for-black-america.html.

[3] Id.

[4] Smith, The Revolutionary Power of Black Panther.

[5] Id.

[6] Tre Johnson, Black Superheroes Matter: Why a ‘Black Panther’ Movie is Revolutionary, Rolling Stone, (Feb. 16, 2018), https://www.rollingstone.com/movies/news/black-superheroes-matter-why-black-panther-is-revolutionary-w509105.

[7] Id.

Right (Necessity) to Counsel

by Liana Stinson

Imagine: you are seventeen years old. Instead of being in math class or at football practice, you are out joyriding with your friends. You then get convicted of joyriding and are only sentenced to two years’ probation, thanks to your court-appointed counsel. However, four months later, it is alleged that you were involved in a burglary. Consequently, you then must attend a hearing for the possible revocation of your probation. At the hearing, you were not represented by counsel, you were not asked whether you wished to have counsel appointed for you, and you were not asked about your previously appointed counsel that represented you at the joyriding trial. You were asked at the hearing if you were involved in the burglary and you answered yes, without the advice of counsel. A probation officer testified at the hearing but was not cross-examined, because of your lack of counsel. You were not asked if you had anything to say or any evidence to supply, because of your lack of counsel. Then at seventeen years old, instead of two years’ probation, you were sentenced to 10 years in the penitentiary.

This is the story of Jerry Douglas Mempa. He served six years in the penitentiary from 1959 until 1965 when he filed a writ of habeas corpus to the Washington Supreme Court, claiming that he was denied his right to counsel at the hearing where his probation was revoked. Mempa v. Rhay, 389 U.S. 128, 131 (1967). This writ was denied. Id. However, the Supreme Court granted certiorari in 1967. Id. at 132.

Thurgood Marshall delivered the majority opinion of the Court. It was ultimately held that criminal defendants must be afforded a lawyer at all stages of the trial, “whether it be labeled a revocation of probation or a deferred sentencing.” Id. at 137. There were various policy considerations driving this decision.

First, Marshall recognized that there may be a number of legal rights lost if counsel is not present at the proceeding. In the state of Washington, “an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation.” Id. at 135. Therefore, if counsel is not present at the imposition of the deferred sentence, a criminal defendant may lose the right to appeal. Id. at 136. Granted, there are less appeals when there is a guilty plea involved. However, Marshall recognized that “the incidence of improperly obtained guilty pleas is not so slight as to be capable of being characterized as de minimis.” Id.

Second, an uncounseled criminal defendant may be unaware of the fact that, in the state of Washington, a guilty plea can be withdrawn at any time prior to the imposition of a sentence. Id. If Mr. Mempa’s guilty plea was improperly obtained at the hearing and then he is sentenced without the aid of counsel, there is no way to revoke that guilty plea. This would be essentially allowing improper methods of getting criminal defendants to confess to crimes they may or may not have committed and then sentencing them to take away their right to revoke that improper guilty plea. That is the opposite of justice.

In cases like these, the Court recognized that “counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicted on misinformation or misreading of court records, a requirement of fair play in which absence of counsel withheld from this prisoner.” Townsend v. Burke, 334 U.S. 736, 741 (1948). In the case of Mr. Mempa, having counsel present would have allowed evidence to be produced, cross examination of the probation officer, statements from Mr. Mempa to be placed on the record, etc. Prior Court cases have consistently stood for the proposition that counsel needs to be appointed at every stage of a criminal proceeding where “substantial rights of a criminal accused may be affected.” Mempa 389 U.S. at 134. Here, Mr. Mempa’s freedom was affected. At seventeen years old, he was sentenced to ten years in the penitentiary absent any advice from counsel. Thurgood Marshall took an enlightened step forward in this opinion by requiring counsel to supply criminal defendants with due process of the law.

The Last Opinion

by Jacob Oldaker

Justice Marshall had a powerful career as a writer from the bench which focused on protecting the civil and criminal rights of others. His writings in criminal law were centered around protecting defendant’s rights against the injustices of the judicial and criminal system. Bruce A. Green & Daniel Richman, Of Laws & Men: An Essay on Justice Marshall’s View of Criminal Procedure, 26 Ariz. St. L.J. 369 (1994). His beliefs and focus were built around his personal understanding of the criminal justice system that was acquired as a criminal defense lawyer. 25 U. Ark. Little Rock L. Rev. 443 (2003). These experiences with the criminal justice system shaped Justice Marshall’s final Supreme Court opinion: a powerful dissent in Payne v. Tennessee. Payne v. Tennessee, 501 U.S. 808 (1991).

Payne was a 6-3 Supreme Court decision in which the majority held “victim impact evidence” to be constitutionally permissible during the penalty phase of the trial. Id. at 827. Justice Marshall was well known as a lifelong opponent of the death penalty because he believed that capital punishment was unconstitutional and never once voted in favor of the death penalty in a case that came before him while on the bench. 27 Miss. C. L. Rev. 335, 336 (2008). This firm opposition to capital punishment had been developed throughout his many years of practice with the NAACP and the Legal Defense Fund. Id. Marshall frequently represented lower income, minority clientele who were commonly falsely charged and were tried before all white juries, in towns filled with segregation. 26 Ariz. St. L.J. 369 (1994). From these trials, Marshall gained an understanding of how human failings can adversely affect the implementation of Constitutional safeguards, and how a common bias can affect the entire criminal justice system and directly resulted in the foundation of his opinions and can be evidently seen in his dissent in Payne. Id.

For Justice Marshall, his concern came with the Court’s decision to overturn certain precedent. Payne overturned decisions from two previous cases, Booth v. Maryland and South Carolina that held victim impact evidence was prohibited. Payne, 501 U.S. at 817. Marshall found issue with change in precedent without “special justification” that had previously been required by the court. Id. He found that the majority’s rationale for overturning two cases of sound precedent had no ground of “special justification” because there were no changes in facts or laws supporting these opinions that had been decided only two and four years previously. Id. He found that the only change was a change in the personnel of the Court and their personal political beliefs instead of a reasoned justification for a policy change. Id. Justice Marshall defended his position with the law and the Court’s overlooking of the principle of stare decisis. Id. I personally find his justification to be sound and a correct observation; I do not believe policy changes should be promulgated by the Court without following the appropriate steps that are in place. Marshall sums it up in his dissent with “Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent” which shares a warning the not only the Court but the United States of the dangers of a politicized court. Id. at 856.

Marshall’s words are powerful and well founded in legal foundation. Capital punishment is not a topic of light conversation. It is powerful, it is serious, and it is one of the most powerful powers of the court because the Court has the power to take a life, the thing the hold to the highest standard when evaluating cases. As a personal advocate of the death penalty, I believe that Marshall may have been too divulged into his own beliefs to see the steps forward that the Court was attempting to make. In Payne, a woman and her child were murdered, while the second child survived the brutal beating. Id. at 851. The surviving child and the grandmother now taking care of that child will forever suffer the pain of this man’s decision to murder them. Id. No man or woman that murders multiple human beings in cold blood should be afforded a free pass to the highest level of criminal punishment due to political beliefs. While Marshall never found a just reason to vote in favor of the penalty, I believe that the Court as a whole could have worked together to develop more rigorous standards for proper implementation of this severe punishment. Many prisoners sit on life sentences or multiple life sentences and will forever be a liability to the law-abiding citizens of the United States. Many courts and states continue to be advocates against the death penalty. I understand the severity of these decisions and the implementation of such a strong penalty but I do believe that it holds value that will benefit society as a whole. Members of the legal community that hold similar beliefs to me, as well as members who follow in the steps of Justice Marshall, need to come together and work together to continue to strengthen our criminal justice system for future generations.

Materially Test under Section 14(a) of the Securities Exchange Act from TSC Industries

By Thomas Lovecchio

In TSC Industries, Justice Marshall developed a new test for materially under Section 14(a) of the Securities Exchange Act. The case arose out of TSC Industries acquiring National Industries. Tsc Indus. v. Northway, 426 U.S. 438, 440 (1976). Prior to the initiation of the case, “National acquired 34% of TSC’s voting” stock and had placed five of its nominees on TSC’s board. Id. TSC’s board, notwithstanding the National members, voted to sell to National. Id. at 441. In TSC and National’s statement to its shareholders it recommended the acquisition. Id. A TSC shareholder sued TSC and National claiming the joint statement was “incomplete and materially misleading in violation of § 14(a) of the Securities Exchange Act. . ..” Id. The Court took the case because the various Courts of Appeals had different standards regarding materially. Id. at 443.

The Court rejected the test the lower court used which was “all facts which a reasonable share holder might consider important” as the test for material facts, Id. at 445, and announced a new rule based of the Act’s purpose to have companies provide information to shareholders so that they are able to make informed decisions. Id. at 448. The Court found that using the word “might” would lead to a variety of dangers, such as a company overloading shareholders with information. Id. at 448-49. Therefore, a better standard for materially and the one the Court used in the case at bar was “an omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” Id. at 449. This standard requires that a reasonable shareholder would have placed some importance in their respective decision-making process. Id.

The Court had to develop a type of test that was not too strict but also was not too easy. Id. Doing so required a weighing of numerous factors and dangers that shaped the overall rule. For example, the information dump. Companies could dump information into the shareholder report to either protect themselves from liability or to just provide information so that it would take longer for shareholders to sort through already lengthy financial statements. Id. at 448-49 Justice Marshall did an excellent job writing for the Court and articulating these dangers. Acquisitions generally take a lot of time and a lot of analysis goes into the decision to acquire another company. If a company provided all of the information that pertained to the topic of the respective statement to its shareholders, those shareholders would potentially be overwhelmed with all of the information. If the information is important in deciding how that shareholder would vote, then it is imperative that a company provide the shareholders with that information. The rule set forth in TSC Industries was based of the Act’s purpose to have companies provide information to shareholders so that they are able to make informed decisions based off of the information that company provides them. Id. at 448.

Another part of the test is the “substantial likelihood” which provides a proper balancing mechanism for companies to decide what information to disclose. Under this rule companies would still have to include the obviously important information and could exclude the irrelevant information. Now, companies know how to evaluate all of the information that falls in-between obviously important and irrelevant. By using substantial likelihood, the Court paved a way so that companies do not feel compelled to do an information dump when providing information to shareholders.

Justice Marshall’s opinion in TSC Industries set forth the test for material fact under the Securities Exchange Act that is still used today. This provides a bright-line test for companies to use when deciding what information to include and exclude in its report. This test properly balances the interests of shareholders and companies to allow for better securities regulations.

Segregation to Integration

By Liana Stinson

For Thurgood Marshall, experiencing discrimination started from birth. Twelve years prior to his birth, the Supreme Court held that in places of public accommodations, black citizens could be legally segregated from white citizens as long as the separate facilities were “equal.” Marshall was born in the year 1908. In that same year, the Supreme Court of the United States allowed Kentucky to prohibit the integration of black and white students in a private college. There were eighty-nine lynchings recorded.

Baltimore was a “Jim Crow” town in that time. African Americans attended “colored schools” where its superintendent (Caucasian) very openly stated that “Negroes don’t deserve swimming pools.” Downtown, there were not department stores open to African Americans nor even restrooms. Segregation was very much alive when Marshall was growing up and was the “practice of the land.”

In high school, Marshall was a trouble maker. When a student was bad at Douglas High School, they were sent to the basement until they were able to memorize a paragraph of the Constitution. Marshall graduated high school able to recite the whole Constitution forwards and backwards. After high school, he attended Lincoln University in Pennsylvania, a college for black males with an all-white faculty. Two thirds of the student body, included Marshall voted to keep it segregated. To get along in a segregated society, his mother taught him to just go along with it. However, a debate altered Marshall ‘s view that an all-white faculty evidenced his inferiority so he voted for integration the next time around.

Then came law school. Marshall applied to the University of Maryland Law School where he was denied admission, simply because he was black. Marshall ended up attending Howard University Law School and went on to graduate at the top of his class.

After law school, Marshall opened his own office at home in Baltimore. Ironically, one of his earlier cases was the representation of a man named Donald Murray. Murray was denied admission to the University of Maryland Law School because of his race. The school offered Murray a scholarship to attend an out-of-state school on “separate but equal grounds.” Marshall argued, and later won, that an out of state education is not equal to a legal education at home.

Marshall continued to represent the powerless and poor blacks of Baltimore which left him in dire financial straits. Fortunately, he was then offered a position at the NAACP where he would travel to different courthouses to “knock holes in the walls of segregation.” However this road was not one without peril. During one instance while on the road, Marshall wanted to unwind at the local pub only to be told that they had no more drinks to serve. Marshall then attempted to left town only to be stopped by the police, one of whom was still upset that Marshall had helped get a defendant acquitted, and charged with drunk driving. While the charge was later dismissed by the judge the point remained clear, it was going to be a long road. Another instance occurred when Marshall was in Dallas to contest that blacks should not be excluded form jury duty. The police Chief gave orders to leave Marshall alone because the Chief “personally wanted the pleasure of assaulting Marshall.” Marshall, thankfully, had a State trooper guard him however, this situation ended with Marshall coming face to face with the Chief when Marshall was leaving the courthouse. The police Chief actually went for his gun but luckily, the trooper intervened.

The road Marshall had chosen was not without its benefits as with a number of incidences like these, came numerous Supreme Court victories: illegal to exclude blacks from jury duty; illegal to force black passengers to sit in the back of an interstate bus; illegal to exclude blacks from participating in the Texas primary elections; illegal to enforce restrictive covenants where property owners bind themselves not to sell or lease the property to a person of a certain race or color; etc. Perhaps one of Marshall’s greatest victories, was the desegregation of public education.

Before Marshall within the public education system, the schools for blacks and whites were ruled by “separate but equal.” However, in the unanimous decision Chief Justice Warren wrote: “To separate black children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” These children simply wanted a chance to learn and grow equal to those chances of their white counterparts. Marshall vigorously fought against the segregated education, which at one point he voted for at Howard, and won.

Subsequently, thanks to Marshall, “white only” signs were taken down in public schools as well as publicly-owned facilities across the United States including places such as courtrooms, golf courses, and liquor stores.

Thurgood Marshall always thought of himself as a “lawyer first and a civil rights ‘leader’ – a term he was skeptical about – second.” Many people know him as one of the great Supreme Court Justices, however, most people seem to forget how many people Marshall helped that were wrongfully accused simply based on the color of their skin before he took the bench. He was an incredible trial lawyer with one of his colleagues noting that he had “never encountered in his years in practice or on the bench an attorney more skilled in cross-examination” than Marshall. The Supreme Court victories leading up to Marshall’s appointment as a Supreme Court Justice were indicative of his career to follow.

Mark Trushnet, Lawyer Thurgood Marshall, 44 Stan. L. Rev. 1277 (1992)

Daniel Pollitt, Thurgood Marshall, 21 N.C. Cent. L.J. 179 (1995)

http://chnm.gmu.edu/courses/122/hill/marshall.htm

Thurgood Marshall

by Jennifer Breneman

As a descendant of slaves, Justice Marshall no doubt did revolutionary work as an attorney and Supreme Court justice striving to ensure equal treatment for all. However, before he took his seat upon the highest bench in the United States, he was just like us (kind of).

Thurgood Marshall was raised not too far from here, in Baltimore, Maryland.[1] His mother was a teacher and his father was a railroad porter.[2] Marshall as a youth is said to have “worn life like a loose garment.”[3] In elementary school, he misbehaved so often that the principal sent him almost daily into “solitary confinement” in the school’s basement.[4] He graduated high school one year early with a B average. Although, the perceived stoic image of a supreme court justice was far from what Marshall portrayed in high school. In fact, as a youth, he got into trouble so often that he was punished by being made to memorize lines of the U.S. Constitution[5] (which just happened to come in handy later in life). By the time he graduated, according to biographers, Marshall knew the document by heart.[6]

He went on to attend Lincoln University.[7] At Lincoln, the future justice apparently exceled at more than just his studies. He wasn’t known for taking himself seriously, and often disobeyed authority. During college, Marshall skipped studying to play pinochle and poker.[8] He was actually thrown out of college two times for fraternity pranks.[9] Marshall’s career path may have been very different and it has been said that he may have pursued a career in dentistry, except for his inability to behave in biology class. He antagonized his biology teacher so much that he flunked the class.[10]

Despite all of this collegiate shenanigans, Marshall graduated from college with cum laude honors,.[11] He went on to Howard Law School where he buckled down in his studies.[12] However, even in law school, it was said that he “was boisterous, paid minimal attention to clothing and cussed a lot,” according to University of Maryland’s Gibson. He was further described as a “chain smoker” who could “hold his liquor.” Despite this, Marshall graduated first in his law school class.[13]

Despite the nonchalant façade, Marshall was deeply interested in seeing equal treatment become a reality. After law school, Marshall actively and aggressively pursued this goal. In fact, it is noted that he

represent[ed] criminal defendants, soldiers, and laborers in jury trials. He coordinated the NAACP’s national legal strategy in countless lawsuits and hounded the FBI to prevent or respond to racial violence. When he learned of a racist product on the shelf, like Whitman’s Pickaninny Peppermints, Marshall fired off a note to its manufacturer; he answered bigoted newspaper stories with letters to the editor. More than once, he almost got himself killed.[14]

And the rest, as they say, is history. Knowing that a youthful troublemaker like Thurgood Marshall could grow into someone who was known as arguably the greatest civil rights and constitutional lawyer of the 20th century provides hope for other law students who may not have it all together quite yet.

[1] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

[2] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[3] Id.

[4] http://www.researchomatic.com/thurgood-marshall-138319.html

[5] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[6] Id.

[7] http://chnm.gmu.edu/courses/122/hill/marshall.htm

[8] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[9] Id.

[10] Id.

[11] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[12] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

[13] Id.

[14] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

Book Review: “Evicted”

Matthew Desmond’s book illustrates the issues and complications inherent in discussions of overhauling landlord-tenant law. To the average person, being “EVICTED” sounds bad—it means you didn’t fulfill your obligations to your prior landlord to pay your bills, or you caused damage to that landlord’s property and they put you out. The blame falls on the tenant having some sort of personal failing that caused their circumstances. Desmond illustrates how eviction is not quite that simple. There aren’t just bad tenants, there are bad landlords; and sometimes eviction isn’t the tenant’s fault, but the result of external circumstances beyond their control.

Mr. Desmond makes several points worth noting. First, he points out the disparity in how genders deal with eviction notices: women simply move when they run out of time; whereas men will confront the landlord or will try to make a deal to exchange work for rent. Some landlords take advantage of these tenant’s desperation and inability to pay and wring every bit of work they can out them for far less than fair value. Second, Mr. Desmond discusses how landlords abuse the “rent certificate program” by charging more for the same apartment when the tenant is on an assistance program. Tenants in assistance programs are charged an average of $55 more a month, costing housing programs an overage of $3.6 million a year. Third, Mr. Desmond discusses how police involvement can increase the problems for at-risk tenants. When local governments cite landlords for repeat 911 calls, it effectively encourages landlords to punish at-risk tenants with eviction.

Mr. Desmond’s asserts that building more housing doesn’t serve most tenants. Rather, he proposes expanding the voucher program to benefit all low-income families. He says that such an action would rebalance the interests, allowing landlords to maintain to profits from rent and provide safe and affordable housing for tenants. I disagree that throwing money at the problem will be effective unless two of the big underlying issues are resolved: lack of oversight on pricing of rental units, and local governments citing landlords for tenants use emergency services. I also think that there are certain populations that would benefit from special housing programs. For example, a large scale half-way houses for ex-cons and drug addicts could be a good thing if they are properly managed and treated as a social project that offers positive socializing, social and psychological services, education, and legal services, these people have a better chance of avoiding reoffending, relapsing, and/or finding themselves homeless. Overall Matthew Desmond’s book “EVICTED” is a good overview of the problems inherent in current landlord-tenant law and uses stories of real people to bring the circumstances and problems alive for the reader.

 

Matthew Desmond, Evicted: Poverty and Profit in the American City (2016).