SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS Millions of homes and residential neighbor-hoods contain hidden killers such as lead, mercury, and cyanide.. In many instances, s
Trang 1Because a sole proprietorship is not a separate legal entity, sole proprietors may avail themselves of certain legal rights not available to corporate officers and directors For example, a sole proprietor can raise the FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION to shield records from disclosure during a judicial pro-ceeding However, an officer or director cannot raise the privilege to shield corporate records from being disclosed, even if disclosure of those records may connect him or her to a crime
One major concern for persons organizing
a business enterprise is limiting the extent to which their personal assets, unrelated to the business itself, are subject to claims of business creditors A sole proprietorship gives the least protection because the personal liability of the sole proprietor is generally unlimited Both the business assets and the personal assets of the sole proprietor are subject to claims of the sole proprietorship’s creditors In addition, existing liabilities of the sole proprietor will not be extinguished upon theDISSOLUTIONor sale of the sole proprietorship
Unlike the managers of a corporation or a partnership, a sole proprietor has total flexibil-ity in managing and controlling the business
The organizational expenses and level of formal-ity in a sole proprietorship are minimal as compared with those of other business organiza-tions However, because a sole proprietorship
is not a separate legal entity, it terminates when the sole proprietor becomes disabled, retires, or dies As a result, a sole proprietorship lacks business continuity and does not have a per-petual existence as does a corporation
For working capital, a sole proprietorship
is generally limited to the individual funds of the sole proprietor, along with any loans from outsiders willing to provide extra capital During his or her lifetime, a sole proprietor can sell or give away any asset because the business is not legally separate from the sole proprietor At the death of the sole proprietor, the business is usually dissolved The proprietor’s estate, how-ever, may sell the assets or continue the business
CROSS REFERENCE
S Corporation.
SOLICITATION Urgent request, plea, or entreaty; enticing, asking
The criminal offense of urging someone to commit
an unlawful act
The term solicitation is used in a variety
of legal contexts A person who asks someone
to commit an illegal act has committed the criminal act of solicitation An employee who agrees in an employment contract not to solicit business after leaving her employer and then mails a letter to customers asking for business may be sued by the former employer for violating the non-solicitation clause of the contract The letter constitutes a solicitation However, if the person had placed a newspaper advertisement, this would not have been a solicitation because
a solicitation must be addressed to a particular individual
Many solicitations in everyday life appear to
be legal For example, a telemarketer who tries
to sell a legitimate product by calling potential customers is making a solicitation It may or may not be legal, however, depending on the laws of the states where the telemarketer and the caller reside If either of the states requires that telemarketers register with the state gov-ernment, then the legality of the solicitation will depend on whether the telemarketer met this registration requirement Failure to register may make the telemarketing company liable for civil fines or criminal penalties
Solicitation laws and regulations govern specific types of organizations and economic activities For example, charitable organizations must register with state agencies before legally soliciting money The federal SECURITIES AND EXCHANGE COMMISSIONhas rigid rules concerning the solicitation of shareholders for votes involv-ing changes in corporate structure or leadership Criminal solicitation commonly involves crimes such as prostitution and drug dealing, though politicians have been convicted for soli-citation of a bribe The crime of solisoli-citation is completed if one person intentionally entices, advises, incites, orders, or otherwise encourages another to commit a crime The crime solicited need not actually be committed for solicitation
to occur
When law enforcement agencies seek to curtail prostitution, they use decoy operations
A person who offers to perform a sex act with
an undercover officer for money can be arrested for solicitation of prostitution Police decoys are also used to nab customers When a person looking to pay for sex approaches a decoy officer and makes, by words or gestures, this request, the person can be arrested for solicitation of
258 SOLICITATION
Trang 2prostitution Similar operations are used to
reduce the sale of narcotics
SOLICITOR
The title of the chief law officer of a government
body or department, such as a city, town, or
MUNICIPAL CORPORATION
England has two types of practicing lawyers:
solicitors and barristers Unlike the United States,
where a lawyer is allowed to handle office and
trial work, England has developed a division of
labor for lawyers Solicitors generally handle
office work, whereas barristers plead cases in
court However, there is some overlap Solicitors
may appear as legal counsel in the lower courts,
and barristers often prepare trial briefs and
other written documents Barristers depend on
solicitors to provide them with trial work
be-cause they are not allowed to accept work on
their own
The distinction between solicitors and
barristers was originally based on their roles in
the English court system Solicitors were lawyers
who were admitted to practice inEQUITYcourts,
whereas barristers were lawyers who practiced
in common-law courts The modern English
judicial system has abolished this distinction
Barristers may appear in legal and equitable
court proceedings, and solicitors handle
out-of-court lawyering
The role of the solicitor is similar to that of a
lawyer in the United States who does not appear
in court The solicitor meets prospective clients,
hears the client’s problems, gives legal advice,
drafts letters and documents, negotiates on the
client’s behalf, and prepares the client’s case for
trial When a court appearance appears
inevita-ble, the solicitor retains a barrister on the client’s
behalf The solicitor instructs the barrister on
how the client wishes to proceed in court
There are more solicitors than barristers
because most legal work is done outside the
courtroom Solicitors are required to take a law
school course, but they must serve an
appren-ticeship with a practicing solicitor for five
years (three years for a college graduate) before
becoming fully accredited
The regulation and administration of
solici-tors is managed by the Law Society, a voluntary
group incorporated by Parliament The Law
Society is similar to U.S bar associations, setting
standards of professional conduct, disciplining
solicitors for ethical violations, and maintaining
a client compensation fund to repay losses that result from dishonesty by solicitors
In the United States, the term solicitor generally has not been applied to attorneys
Some towns and cities in the Northeast have called their chief law enforcement officer a solicitor, rather than a chief of police Also, the officer in theJUSTICE DEPARTMENTwho represents the government in cases before the U.S
Supreme Court is called theSOLICITOR GENERAL
SOLICITOR GENERAL
An officer of the U.S Department of Justice who represents the federal government in cases before the U.S Supreme Court
The solicitor general is charged with repre-senting the executive branch of the U.S
government in cases before the U.S SUPREME COURT This means that the solicitor and the solicitor’s staff are the chief courtroom lawyers for the government, preparing legal briefs and making oral arguments in the Supreme Court
The solicitor general also decides which cases the United States should appeal from adverse lower-court decisions
Congress established the office of solicitor general in 1870 as part of the legislation creating the DEPARTMENT OF JUSTICE Although early soli-citors occasionally handled federal trials, for the most part the solicitor general has concentrated
on appeals to the Supreme Court In this role, the solicitor has come to serve the interests of both the executive branch and the Supreme Court
The federal government litigates thousands
of cases each year When a government agency loses in the federal district court and the federal court of appeals, it usually seeks to file a petition for a writ ofCERTIORARI to the Supreme Court
The Court uses this writ procedure as a tool for discretionary review The solicitor general reviews these agency requests and typically will reject most of them This screening function reduces the workload of the Supreme Court
in processing petitions, and it enhances the credibility of the solicitor general when he or she requests certiorari The Court grants review
in approximately 80 percent of the certiorari petitions filed by the solicitor general, compared with only 3 percent filed by other attorneys
Trang 3Due to the special relationship between the Supreme Court and the solicitor general, the solicitor general has been nicknamed the“tenth justice.” The solicitor general is the most frequent advocate before the Court (solicitors general appear dozens of times before the Court each term, whereas even experienced private Supreme Court litigators often have fewer than ten appearances in their careers), and they are extremely comfortable with the justices during the intimidating oral argument process As a result, the solicitor general is considered to be among the most influential and knowledgeable people about the Supreme Court and CONSTITU-TIONAL LAW, other than the justices themselves
The solicitor general occasionally files AMI-CUS CURIAE(FRIEND OF THE COURT) briefs in cases where the U.S government is not a party, but important government interests are at stake
Sometimes the Court itself will request that the solicitor file a brief where the government
is not a party The Court also allows the solicitor general to participate in oral arguments as an amicus
Four former solicitors general later served
on the Supreme Court: WILLIAM HOWARD TAFT,
STANLEY F.REED,ROBERT H.JACKSON, andTHURGOOD MARSHALL
FURTHER READINGS Caplan, Lincoln 1988 The Tenth Justice: The Solicitor General and the Rule of Law New York: Vintage Books.
Pacelle, Richard L 2003 Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation College Station: Texas A&M University Press.
Salokar, Rebecca Mae 1992 The Solicitor General: The Politics of Law Philadelphia: Temple University Press.
U.S Government Manual Website Available online at www.gpoaccess.gov/gmanual (accessed November 22, 2009).
SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS
Millions of homes and residential neighbor-hoods contain hidden killers such as lead, mercury, and cyanide These harmful substances can cause cancer, neurological damage, and even death They can also hurt various aspects
of the environment, including the wilderness, wildlife, and aquatic life
In many instances, solid wastes, hazardous substances, and toxic pollutants cause environ-mental and residential damage by migrating
through the soil from nearby landfills Both state and federal governments regulate landfills and the pollutants deposited there Federal regulation of solid wastes, hazardous substances, and toxic pollutants comes in the form of legis-lation; state regulation comes through state and local legislation as well as common-law principles
As of 2007, the United States produced 4.62 pounds of solid waste per person, which represented only a slight decline from 2000 Municipal solid waste has increased during the 2000s—municipalities produced 254 million tons of solid waste in 2007 Efforts to promote recycling during the 2000s have resulted in a
7 percent increase in the amount of waste recycled
Legislation on Solid Wastes
Solid waste is useless, unwanted, and discarded material lacking sufficient liquid content to be free-flowing More than 10 billion tons of solid waste is generated each year in the United States, most of it from agricultural activities This waste
is primarily produced by farm animals, slaugh-terhouses, and crop harvesting The mining industry is another major producer of solid waste, generating over 2 billion tons a year Its solid waste comes from the extraction, benefi-ciation (preparation for smelting), and proces-sing of ores and minerals But residential and commercial wastes are probably more familiar
to the average person These include everything from plastic bottles, aluminum cans, and rubber tires to yard trimmings, food wastes, and dis-carded appliances
Electronic waste has become a greater problem during the 2000s In 2007, for instance,
a total of 157 million computer products, 20 mil-lion televisions, and 126 milmil-lion cell phones were discarded Although 18 percent of televisions and computer products are recycled, about 80 to 85 percent of electronics are discarded
Solid waste management, which involves the storage, collection, transportation, proces-sing, recovery, and disposal of solid waste, has been a daunting task The United States spends more than $6 billion a year on it, most of which goes to collection and transportation Most solid waste is transported to dumps and land-fills; the rest is incinerated In 1970, when Congress began studying solid waste, about
90 percent of the dumps and 75 percent of the
260 SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS
Trang 4municipal incinerators were considered
inade-quate and were major polluters of air, land,
and water
Disposal sites pose two chronic problems
for communities First, they are an aesthetic
NUISANCE, or eyesore The federal Highway
Beautification Act of 1965 (23 U.S.C.A §§ 131
et seq.) targeted this problem with some success
The second, more vexatious problem is created
by disease-carrying agents that transmit bacteria
from landfills to nearby human populations
Such agents include water, wind, soil, birds,
insects, and rodents
Since the 1980s, state and federal attention
has turned to productive uses for landfills, such
as resource recovery Resource recovery,
some-times called reclamation or salvage, is the process
by which energy and other resources are
extra-cted from solid waste for recycling or reuse
Aluminum cans and plastic bottles are two forms
of solid waste that can be both recycled and
reused Energy extracted from solid waste has
been used to generate steam, electricity, and fuel
Federal regulation of solid waste is governed
by the Resource Conservation and Recovery Act
(RCRA) (42 U.S.C.A §§ 690 et seq.), sometimes
called the Solid Waste Disposal Act When
enacting the RCRA, Congress stated that “land
is too valuable a national resource to be
need-lessly polluted by discarded materials,[yet] most
solid wastes are disposed of on land in open
dumps and sanitary landfills.” At the same time,
Congress determined that millions of tons of
solid waste were being buried each year that could
have been treated and salvaged Better technology
must be developed, Congress concluded, to
recover useful resources from solid wastes
The RCRA defines solid waste as garbage,
refuse, and sludge generated by treatment plants
and AIR POLLUTION control facilities Other
discarded materials, such as semisolid and some
liquid materials, are also included within the
broad RCRA definition of solid waste Excluded
from this definition are solid and dissolved
materials from domestic sewage and irrigation
systems, both of which are regulated at the state
and local levels
Under the RCRA, the administrator of
the ENVIRONMENTAL PROTECTION AGENCY (EPA) is
required to publish guidelines for the collection,
storage, transportation, treatment, and disposal
of solid waste During the first several years
after the RCRA’s enactment, particularly during
President RONALD REAGAN’S administration, the EPA was slow to enact any guidelines whatso-ever In 1987, four environmental groups sued the EPA in an effort to compel the agency to fulfill its responsibilities under the RCRA After that case was settled, the EPA began promul-gating a number of guidelines concerning solid waste management, three of which govern the management of paper products, oil lubricants, and retread tires
Paper is the largest single component, by both weight and volume, of municipal solid waste More than 50 million tons of such waste are discarded each year, primarily in solid waste landfills Oil lubricants are also discarded in massive amounts Of the more than 1.2 billion gallons of oil generated each year, 30 percent is discharged into sewers and land The numbers
of discarded tires is equally staggering Over
4 billion tires have been dumped into landfills and stockpiles around the country, and that number grows by 200 million each year
Because tires do not biodegrade, they provide enduring shelter for many rodents and insects, both carriers of disease
The guidelines drafted by the EPA were designed to diminish the magnitude of these
Generation and Recycling of Municipal Waste in the United States,
1960 to 2007
88.1
121.1
151.6
205.2
239.1
254.1
5.6
85.0
33.2
69.4
0 50 100 150 200 250 300
Year
Amount generated
Amount recovered
SOURCE: U.S Environmental Protection Agency, Municipal Solid Waste
Generation, Recycling, and Disposal in the United States: Facts and Figures for 2007.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING.
Trang 5problems by encouraging technological innova-tion, recycling, and reuse In particular, the guidelines require that such waste be treated through new or available technology so that valuable resources can be identified and sepa-rated from materials that are truly waste These guidelines may be enforced by the state or federal governments, as well as by private individuals through so-called citizen suits Criminal and civil penalties are imposed on offenders who fail
to comply with the guidelines Violators may also face additional penalties imposed by state and local governments that have enacted solid waste regulations of their own
Legislation on Hazardous Substances and Toxic Pollutants
The alarming dangers posed by hazardous sub-stances and toxic pollutants were brought to the fore in Niagara Falls, New York, where the infamous Love Canal incident took place The canal was originally excavated in the 1890s as part of an unsuccessful scheme to divert the Niagara River for hydroelectric power Between
1942 and 1953, Hooker Chemical Corporation
filled the canal with drums containing 21,800 tons of hazardous and toxic chemicals Later, Hooker sold the dump site to the Niagara Falls School Board for $1, with a deed containing a provision that relieved the chemical company
of liability for any harm resulting from hazard-ous and toxic materials deposited at the canal
A school was built near the site, and a residential neighborhood grew up surround-ing the canal But as the drums holdsurround-ing the chemicals gradually corroded, their contents migrated from the canal through the neighbor-ing residential soil In the late 1970s, followneighbor-ing several years of heavy rainfall, the presence of the chemicals became more apparent as sludge seeped into basements and emitted toxic fumes Numerous lawsuits soon followed
Regulation of hazardous and toxic materials
is marked by its nomenclature Hazardous substances are defined by federal law as “solid wastes” that “cause, or significantly contribute to
an increase in mortality or illness” or “pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed” (42 U.S.C.A § 6903) Toxic pollutants, a subset of hazardous substances, include pollutants that
“after discharge and upon exposure, ingestion
or inhalation [by] any organism” will “cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions,
or physical deformations in such organisms or their offspring” (33 U.S.C.A § 1362)
Because toxic pollutants are a subset of hazardous materials, a pollutant may be haz-ardous without being toxic, but not vice versa The EPA has published a list of pollutants it deems toxic, including arsenic, asbestos, ben-zene, cyanide, DDT, lead, mercury, nickel, and silver Pollutants not included on this list, such
as acetic acid, ammonia, and cobalt, may still be considered hazardous if they pose a substantial threat to human health or the environment Myriad federal and state regulations govern the management of hazardous and toxic mat-erials The manufacturing of hazardous chemi-cals is governed at the federal level by the Toxic Substance Control Act (TSCA) (42 U.S.C.A
§ 9604) The purpose of the TSCA is to identify potentially harmful substances before they are manufactured and placed in the market, in order to protect the public from any “unrea-sonable risk.” Pursuant to the TSCA, the EPA
a Includes recovery of other municipal solid waste organics for composting.
Sources of Municipal Solid Waste in 2007
Textiles
4.7%
Paper and paperboard 32.7%
Glass 5.3%
Metals 8.2%
Plastics 12.1%
Rubber and
leather
2.9%
Wood 5.6%
Food,
12.5%
Other wastes 16.0%
SOURCE: U.S Environmental Protection Agency, Municipal Solid Waste Generation,
Recycling, and Disposal in the United States: Facts and Figures for 2007
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
262 SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS
Trang 6has adopted rules requiring manufacturers to
test chemicals that “enter the environment in
substantial quantities” or present a likelihood of
“substantial human exposure.” The TSCA also
requires manufacturers to give the EPA notice
90 days before they begin manufacturing any
new chemicals
Facilities that transport, store, and dispose
of hazardous and toxic substances, also called
TSDs, are governed by the RCRA The RCRA
provides “cradle-to-grave” regulation of toxic
and hazardous substances based partly on their
persistence, degradability, corrosiveness, and
flammability TSDs must obtain a permit under
the RCRA before they are allowed to manage
toxic or hazardous materials To obtain a
permit, the applicant must demonstrate the
ability to manage such materials in compliance
with stringent standards One of these standards
requires TSDs to take corrective action
imme-diately after any improper release of toxic
chemicals
The RCRA makes landfills the last alternative
for the disposal of hazardous and toxic materials
Before land disposal is permitted under the
RCRA, TSDs must comply with treatment
standards that mandate the use of certain
tech-nology to minimize the harmfulness of particular
substances When land disposal is authorized,
new landfills must use double liners and
ground-water monitoring systems unless the EPA finds
that an alternative design or practice would be
equally effective in preventing hazardous and
toxic materials from migrating through the soil
The EPA has broad powers under the RCRA to
inspect TSDs for violations
The Comprehensive Environmental
Re-sponse, Compensation, and Liability Act
(CER-CLA) (42 U.S.C.A § 9622) is the third major
piece of federal legislation governing hazardous
and toxic materials Congress established
CER-CLA in 1980 to deal with thousands of inactive
and abandoned hazardous waste sites in the
United States CERCLA directs the EPA to
identify sites at which hazardous or toxic
substances may have been released and ascertain
the parties potentially responsible for cleaning
up these sites Potentially responsible parties
(PRPs) include the owners and operators of
sites where hazardous material has been
dis-charged as well as the dischargers themselves
CERCLA imposesJOINT AND SEVERAL LIABILITY
on responsible parties, which means that once
liability is established among a group of owners, operators, and dischargers, any one of them could be held liable for the entire cost of cleanup Although responsible parties can seek reimbursement from each other, the wealthiest defendants are usually held responsible for the CERCLA cleanup bills
Some responsible parties escape liability because they cannot be identified or located
Others have become insolvent or bankrupt In such situations, the CERCLA Superfund provi-sions are triggered The Superfund creates a multibillion-dollar hazardous substance trust fund for cleaning up seriously contaminated sites in which the responsible parties avoid liabi-lity Revenue for the Superfund is raised through federal APPROPRIATION and taxes paid by some TSDs
The sale and distribution of pesticides is governed at the national level by a separate piece
of legislation known as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.A
§§ 136 et seq.) Under FIFRA, no pesticide may
be introduced into the stream of commerce without approval by the administrator of the EPA A pesticide will not be approved if the administrator finds it is likely to“cause unrea-sonable adverse effects on the environment.” The reasonableness of an adverse environmental effect is measured by taking into account the economic, social, and environmental costs and benefits of the pesticide
Common Law
In addition to the remedies provided under federal and state legislation for injuries caused
by solid waste, hazardous substances, and toxic pollutants, common-law principles of nuisance,
TRESPASS, and NEGLIGENCE provide alternative avenues of recourse against landfill owners
The common-law doctrine of nuisance gives injured landowners a cause of action when
“substantial” injuries result from an “unreason-able” use of a particular landfill The gravity of the injury and the reasonableness of the use are measured by a cost-benefit analysis in which the utility and appropriateness of the landfill’s activities are balanced against the value of the landowner’s interests
Under the COMMON LAW of trespass, land-owners can recover for any unlawful interference with their rights or interests Trespass requires proof that the landfill owner intentionally or
Trang 7knowingly interfered with the landowner’s rights or interests Mere accidental or inadver-tent interferences will not suffice
Landowners suffering injuries from acci-dents and inadvertence can turn to the common law of negligence, which allows recovery for injuries caused by a landfill owner’s failure to act with reasonable care
FURTHER READINGS Air Force Law Review 1989 The Master Environmental Lawyer ’s Edition, 31 (spring).
Bergeson, Lynn L 2000 TSCA: The Toxic Substances Control Act Chicago: Section of Environment, Energy, and Resources, American Bar Association.
Browner, Carol 2002 “Polluters Should Have to Pay for Cleanups.” Chicago Daily Law Bulletin, March 1.
Girdner, Eddie J., and Jack Smith 2002 Killing Me Softly:
Toxic Waste, Corporate Profit, and the Struggle for Environmental Justice New York: Monthly Review Press.
Lowe, Mary Frances 2003 “Toward a Globally Harmonized System: Negotiating to Promote Public Health, Envi-ronmental Protection, and International Trade ” Fletcher Forum of World Affairs 27 (winter-spring).
Pellow, David Naguib 2002 Garbage Wars: The Struggle for Environmental Justice in Chicago Cambridge, Mass.: MIT Press.
Rogers, William H., Jr 1986 Environmental Law: Air and Water Pollution St Paul, Minn.: West.
Sprankling, John G., and Gregory S Weber 1997 The Law
of Hazardous Wastes and Toxic Substances in a Nutshell.
St Paul, Minn.: West.
Vietzen, Laurel A 2008 Practical Environmental Law New York: Aspen.
CROSS REFERENCES Air Pollution; Environmental Law; Land-Use Control;
Pollution; Tort Law; Water Pollution.
SOLOMON AMENDMENT The Solomon Amendment, 50 U.S.C.A App
§ 462(f), is federal legislation that denies male college students between the ages of 18 and 26 who fail to register for the military draft (under the Selective Service Act, 50 U.S.C.A App § 451
et seq.) eligibility to receive financial aid provided
by the Basic Educational Opportunity Grant Program
Registration for the draft, which had been suspended on July 1, 1973, resumed in 1980 To compel compliance with the registration require-ment, Congress enacted the Solomon Amend-ment, sponsored by Gerald B H Solomon (R-N.Y.) The amendment provides that appli-cants for financial aid under the Basic Educa-tional Opportunity Grant Program certify that they have satisfied the registration requirement
relating to the draft In 1984 the U.S Supreme Court upheld the constitutionality of the Solo-mon Amendment in Selective Service System v Minnesota Public Interest Research Group, 468 U.S 841, 104 S Ct 3348, 82 L Ed 2d 632
CROSS REFERENCES Armed Services; Selective Service System.
SOLVENCY The ability of an individual to pay his or her debts
as they mature in the normal and ordinary course
of business, or the financial condition of owning property of sufficient value to discharge all of one’s debts
SON OF SAM LAWS Laws that enable a state to use the proceeds that a criminal earns from recounting his or her crime in
a book, movie, television show, or other depiction The laws are named after David Berkowitz, a New York City serial killer who left a note signed “Son
of Sam” at the scene of one of his crimes Since 1977, 42 states and the federal government have enacted various types of Son
of Sam laws that take any proceeds a criminal earns for selling the story of his or her crime and give them to the victims of the crime or to
a victims’ compensation fund Since a 1991 U.S Supreme Court ruling struck down the New York law as unconstitutional, states have sought ways to modify their laws to avoid similar decisions Despite the apparent virtue of deny-ing criminals the ability to profit from their crimes, serious FIRST AMENDMENT issues have been raised about Son of Sam laws
The New York legislature enacted the first Son of Sam law (N.Y Exec Law § 632-a) in
1977 after it learned that David Berkowitz was planning to sell his story of serial killing The statute affected an accused or convicted person who contracted to speak or write about his or her crime It required the person contracting with the criminal to turn over the criminal’s proceeds to the state’s Crime Victims Compen-sation Board, which established an ESCROW
account for the benefit of the crime’s victims and publicized the existence of the account To obtain funds, a victim had to bring aCIVIL ACTION
and obtain a judgment against the criminal within three years (originally five years) of the establishment of the account At the end of this time period, the criminal received any funds
264 SOLOMON AMENDMENT
Trang 8in the account upon showing that no actions
were pending against him or her
Forty-one other states adopted similar laws,
and the federal government established such a
process in theVICTIMS OF CRIME ACT OF1984 (18
U.S.C.A §§ 3681–3682) In a few states, victims
may apply directly to a victims’ compensation
program rather than sue the criminal directly
Some states seek to prevent criminals from ever
profiting from their crimes by retaining any
money remaining in the escrow account at the
end of the statutory period Under the federal
statute, a court directs the disposition of the
remaining funds and may require that part or
all of the money be turned over to the Federal
Crime Victims Fund
The constitutionality of the New York Son of
Sam law was challenged in Simon and Schuster,
Inc v New York Victims Crime Board, 502 U.S
105, 112 S Ct 501, 116 L Ed 2d 476 (1991)
This case involved profits from the book
Wiseguy: A Life in a Mafia Family, a nonfiction
work about ORGANIZED CRIME in New York City,
published by Simon and Schuster Nicholas
Pileggi wrote the book with the paid cooperation
of Henry Hill, a career criminal who agreed in
1980 to testify against organized crime figures
The book told Hill’s life story from 1955, when
he first became involved with crime, until 1980
Simon and Schuster argued that the law was
based on the content of a publication and
therefore violated the First Amendment The
Court agreed Writing for a unanimous Court,
Justice SANDRA DAY O’CONNOR struck down the
law, concluding, “A statute is presumptively
inconsistent with the First Amendment if it
imposes a financial burden on speakers because
of the content of their speech.”
The Son of Sam law singled out income
derived from expressive activity and was directed
only at works having a specified content Because
of the financial disincentive to publication that
the act created, and its differential treatment
among authors, the Court applied the strictest
form of review to the New York law The Court
acknowledged that the state had a compelling
interest in compensating victims from the fruits
of crime but concluded that the law was not
narrowly tailored to achieve that interest The
New York law was overinclusive, applying to
a work on any subject as long as it expressed
the author’s thoughts or recollections about
the crime, however tangentially or incidentally
If the author admitted to committing the crime,
it did not matter whether he or she was ever actually accused or convicted Under this stan-dard, works by St Augustine,HENRY DAVID THOREAU, and MALCOLM X would be covered because their writings discussed crimes that they committed
The Simon and Schuster decision has put the validity of all Son of Sam laws in doubt
New York quickly amended its law to apply to any economic benefit to the criminal derived from the crime, not just the proceeds from the sale of the offender’s story This redefinition was intended to eliminate the unconstitutional regu-lation of expressive activity and reconceptualize the law as a regulation of economic proceeds from crime
The Supreme Court did not strike down all Son of Sam laws as unconstitutional, yet states have followed New York in modifying their statutes to designate that all profits of the offender
be subject to attachment, not just those derived from selling his or her crime story It remains unclear, however, whether these other laws will withstand a First Amendment challenge
A trial court’s application of New York’s revised Son of Sam Law was tested by rap artist Jamal Barrow, also known as“Shyne” and “Moses Leviy.” Barrow was convicted of ASSAULT in the first degree and other offenses in connection with
a nightclub shooting on December 27, 1999 He was sentenced to 10 years in prison The shoot-ing victims commenced a civil action to recover damages for their personal injuries While the action was pending, Barrow entered into a recording agreement with Island Def Jam Music Group (Def Jam) The agreement called for Barrow to receive up to $3 million for the first album he recorded, as well as 50 percent of Def Jam’s net profits on the album After entering into the agreement, Barrow received an advance payment in the sum of $500,000
On August 30, 2004, the New York State Crime Victims Board notified the shooting vic-tims of Barrow’s contract with Def Jam Sub-sequently, one of the victims, Natania Reuben, invoked the state’s Son of Sam law, asking a New York state court for a PRELIMINARY INJUNC-TION to prevent Barrow from dissipating the funds and any additional money he might receive in the future pursuant to the Def Jam contract The New York Supreme Court, Kings County, issued temporary restraining orders,
Trang 9and then a preliminary INJUNCTION, preventing Barrow from disbursing the funds
Barrow subsequently challenged the court’s order, asking the trial judge to permit him to use a portion of the advance payment to pay the attorneys representing him The court agreed to release $100,000, concluding that paying attor-ney fees did not constitute“profiting” from his crime However, the court denied a subsequent motion for release of an additional $32,000, even though Barrow also sought to use the money for payment of attorney fees Thompson v
76 Corp 54 A.D.3d 844, 865 N.Y.S.2d 233 (N.Y.A.D 2 Dept 2008.) Barrow’s attorney promised to appeal on the grounds that Barrow was due to be released from prison in 2009, and their representation was critical to his regaining
a livelihood that would help pay his shooting victims for their losses
FURTHER READINGS Cobb, Tracey B 2003 “Making a Killing: Evaluating the Constitutionality of the Texas Son of Sam Law ” Houston Law Review 39 (spring).
Gauthier, Ashley 2002 “California, Massachusetts Courts Nix Son of Sam Laws ” News Media & the Law 26 (spring).
Nosrati, Orly 1999 “Son of Sam Laws: Killing Free Speech
or Promoting Killer Profits? Whittier Law Review 20 (summer).
National Center for Victims of Crime 1997 “Notoriety for Profit/ ‘Son of Sam’ Legislation.” Available online at
<>www.ncvc.org/gethelp/notorietyforprofit> (accessed January 12, 2004).
Olenn, Julie J 2001 “‘Til Death Do Us Part: New York’s Slayer Rule and In re Estates of Covert.” Buffalo Law Review 49 (fall).
Rohde, Stephen F 2003 “The Demise of California’s Son
of Sam Law.” Los Angeles Lawyer 26 (May).
CROSS REFERENCES Freedom of Speech; Publishing Law; Victims of Crime.
vSONOSKY, MARVIN J
Marvin J Sonosky’s legal work on behalf of Native Americans resulted in victories in Congress and the courts Sonosky championed Indian causes during his long career as an attorney, representing several tribes His single greatest accomplishment was winning the Black Hills case, a 24-year legal odyssey in which the Sioux nation asserted its claim to sacred ground taken by the federal government a century earlier
Born on February 20, 1909, in Duluth, Minnesota, Sonosky completed his under-graduate and law studies at the University of Minnesota and was admitted to the state bar in
1932 He practiced briefly in Duluth before moving to Washington, D.C., in 1937 to join the JUSTICE DEPARTMENT He spent more than a decade as a special assistant to the attorney general
in the Justice Department’s Lands Division
In 1951 Sonosky returned to private practice with a focus on Indian law Over the next three decades, he would successfully represent the Assiniboin, Shoshone, and Sioux tribes in a number of cases involving land claims against the federal government His work went beyond trial practice; his clients were often stymied
by discriminatory federal laws, especially in the area of court jurisdiction, and Sonosky’s efforts helped to remove barriers that prevented their full use of the federal courts
Sonosky played a leading role in the effort
by the Sioux to reclaim the Black Hills of South Dakota The case had a long history: the Sioux had temporarily ceded title to the land to the federal government in 1876 under contro-versial circumstances They began attempting
to reclaim the land in the 1920s, but legal
❖
1909 Born, Duluth, Minn.
1914–18 World War I
◆
1932 Admitted
to Minn.
state bar
◆
1937 Moved to Washington, D.C., and joined Department of Justice
1939–45 World War II
◆
1950–53 Korean War
1951 Returned to private practice to focus on Indian law
◆
1976 Established law firm of Sonosky, Chambers, Sachse, and Endreson, in Washington, D.C.
1997 Died, Washington, D.C.
◆
1982 Endowed the Marvin J.
Sonosky Chair
at the University of Minnesota
1980 Sioux Nation v United States
affirmed judgment of $105 million
to the Sioux Nation
1968 Indian Civil Rights Act passed
◆
1961–73 Vietnam War
266 SONOSKY, MARVIN J.
Trang 10mismanagement stalled their claim until the late
1950s, when the Sioux turned to Sonosky and
his colleague Arthur Lazarus
Sonosky and Lazarus spent 24 years fighting
the case in various courts, Congress, and even
the White House Legislative reform was
neces-sary for their victory, and they helped change
the Indian Claims Commission Act of 1946
(Ch 959, § 1, Pub L No 79-726[omitted from
25 U.S.C.A § 70 on termination of the
com-mission on September 30, 1978, pursuant to
Pub L No 94-465, sec 2, 90 Stat 1990
(1976)]) as well as bring about passage of the
IndianCIVIL RIGHTS ACTof 1968 (Pub L No
90-284, tit II, 82 Stat 77 [codified at 25 U.S.C.A
§§ 1301–1303 (1988)])
Their success was mixed In 1980 the U.S
Supreme Court affirmed a judgment for the
Sioux in the amount of $105 million (Sioux
Nation v United States, 602 F.2d 1157 [Ct Cl
1979], aff’d., 448 U.S 371, 100 S Ct 2716, 65
L Ed 2d 844 [1980]) Although the amount
represented the largest judgment ever won by
Native Americans against the federal
govern-ment, the Sioux refused it, preferring return of
the land to a monetary award The attorneys,
who had accepted the case in 1956 under a
contingent-fee agreement, received a $10 million
legal payment from the U.S.COURT OF CLAIMS
In 1976 Sonosky established the firm of
Sonosky, Chambers, Sachse, and Endreson in
Washington, D.C As one of the leading firms
specializing in Indian law, its work includes
LOBBYING, general tribal practice, mineral and
natural resources issues, and representation of
tribes before federal agencies In 1982 Sonosky
endowed the Marvin J Sonosky Chair at the
University of Minnesota He remained active
at his firm until his death on July 16, 1997, in
Washington, D.C
FURTHER READINGS
Greenya, John 1986 “The Long Case.” Los Angeles Daily
Journal (March 21).
Review of Black Hills White Justice: The Sioux Nation vs the
United States 1775 to the Present, by Edward Lazan.
1992 Yale Law Journal 101.
Sylvester, Kathleen 1983 “Indians Win New Rights in
Court ” National Law Journal (May 23).
Zlock, Tracy N 1996 “The Native American Tribe as a
Client: An Ethical Analysis.” Georgetown Journal of
Legal Ethics 10 (fall).
CROSS REFERENCE
Native American Rights.
SONY CORP OF AMERICA V
UNIVERSAL CITY STUDIOS
In Sony Corp of America v Universal City Studios, 464 U.S 417, 104 S Ct 774, 78 L Ed
2d 574 (1984), also known as the Betamax case, the U.S Supreme Court determined that Sony, a manufacturer of videocassette recorders (VCRs) did not infringe on copyrights owned
by Universal City Studios and Walt Disney Productions by manufacturing and marketing Betamax VCRs (The Court’s opinion uses the terms videotape recorders and VTRs in referring
to VCRs.) Universal and Disney, which owned copyrights on many popular television pro-grams in the late 1970s, sued Sony after Sony introduced its Betamax VCR in 1976 Universal and Disney claimed that the Copyright Revision Act (17 U.S.C.A § 101 et seq [1976]) did not permit home viewers to record their television programs without their permission The studios argued that Sony contributed to the copyright infringement by enabling and encouraging Beta-max owners to record the copyrighted televi-sion programs
The Supreme Court, in a 5–4 vote, deter-mined that Sony did not infringe on the studios’
copyrights by manufacturing and marketing Betamax VCRs The decision, which analyzed difficult questions of copyright law, turned on two important legal concepts First, the Court held that home recording of copyrighted televi-sion programs is a“fair use” of the copyrighted material and, thus, does not violate the Copy-right Act The Court’s discussion of the “fair use doctrine” makes the Betamax case a landmark decision in copyright law The Court also held that Sony was not liable for“contributory infrin-gement” of the studios’ copyrights In other words, Sony was not liable to Universal and Disney for supplying television viewers with the means to record copyrighted television programs
In 1976 Sony introduced the Betamax video-cassette recorder The Betamax was the first compact, affordable VCR available to consumers
Sony encouraged potential Betamax buyers to engage in “time-shift viewing” by recording television programs and viewing them later
Universal and Disney believed that the unau-thorized recording of television programs by home viewers infringed on the copyrights they held on those programs The studios filed suit
in federal district court against Sony, Sony’s U.S subsidiary, Sony’s advertising agency, four