Law Student Land

Featuring articles written by law students from across the United States.

Tony Stewart Facing Potential Legal Challenges After Fatal incident

By: Josh Nightingale, Villanova University School of Law Class of 2016

 September 26, 2014

            Tony Stewart has captivated NASCAR audiences for years, displaying a passionate and aggressive racing style that has yielded consistent success on the track. Stewart has also capitalized on his likable and blue-collar persona to realize success off the track, securing lucrative endorsement deals which have resulted in a total net worth exceeding $100 million. However, due to the event that transpired in early August, and the subsequent threat of legal hurdles, the legacy that Stewart has worked so hard to build may come crumbling down.

            The incident occurred at a sprint-car race in Upstate New York, where Stewart’s car made contact with Kevin Ward Jr., causing Ward to spin out and wreck on the side of the track. When Ward exited his vehicle to seemingly confront Stewart, Stewart’s car struck Ward, causing blunt force trauma which ultimately killed Ward. The tragedy prompted Stewart to remove himself from three races, and has since issued a public apology for his actions.

Potential Criminal Charges

Because the incident involved Stewart killing another human being, there are a multitude of potential criminal convictions that may arise. The most severe crime would be first-degree murder, which would require evidence that Stewart possessed the requisite mental state by intending to kill Ward. The issue of intent could incite argument on both sides, as prosecutors could argue that due to Stewart’s expert racing abilities he could have easily avoided contact with Ward, and thus the only way he would make contact is if he was upset and intentionally did so. Stewart’s defense would likely appeal to the fast-paced and unpredictable nature of racecar driving, arguing that due to these factors it would be impossible for a driver to methodically plan in advance and make contact with a driver.

            Even if it is determined that Stewart did not intentionally kill Ward, prosecution may pursue either negligent homicide or manslaughter charges. Negligent homicide would require the actor to fail to perceive a substantial risk that a reasonable person would perceive under the circumstances. This analysis would require an evaluation of a “reasonable person” in a racing context, therefore requiring interviews/observation of drivers to glean how they would handle a situation similar to what unfolded during the incident. First-degree manslaughter requires the actor to intend to cause serious harm which eventually causes death, and second-degree manslaughter requires the actor to act recklessly to cause death. The former charge would again require a showing that Stewart intentionally made contact with Ward, and the latter would require a determination that Stewart’s driving was reckless, a standard that may be difficult to prove due to the reckless nature of racecar driving in general.

 Potential Civil Action

There is also the threat of a civil lawsuit that the aggrieved family may bring for wrongful death. Like the standard for negligent homicide, the family would need to prove that Stewart acted in a reckless or negligent manner that fellow below the standard of care of a reasonable person under the circumstances. The defense would likely argue that Ward contributed to the incident by exiting the vehicle and standing in the middle of the track, as well as assuming the risk of potential fatality due to the dangerous nature of the sport. If civil action were to arise and Stewart settled the matter out of the court, the damages would still be extremely high, and cause Stewart to lose a significant percentage of his career winnings. Due to the public nature of a lawsuit, various stakeholders in the matter may push him to settle, as sponsors may fear negative brand messages, and NASCAR would not want any negative publicity.

            Even though Stewart has now publicly apologized and has resumed racing, the aftermath of this incident is far from being over. The criminal investigation is still taking place, and even if Stewart does not face criminal charges, the Ward family has two years to decide if they want to pursue a civil suit. The consequences are innumerable for Tony Stewart, thus it is safe to assume his career may never be the same.

For full article please visit
at

IS THE “ACTUAL DILUTION” STANDARD IN TRADEMARK INFRINGEMENT CASES TRULY WORKABLE?

By: Steven M. Hinkes, The University of Memphis School of Law Class of 2015

March 3, 2014

Traditionally, the “likelihood of confusion” standard has been the touchstone used for assessing a trademark infringement claim. The Federal Trademark Dilution Act of 1995 (FTDA), however, signaled a sweeping break from that benchmark.  The FTDA’s legislative history instructed courts that “[D]ilution does not rely upon the standard test of infringement, that is, likelihood of confusion, deception or mistake.  Rather, it applies when the unauthorized use of a famous mark reduces the public’s perception that the mark signifies something unique, singular, or particular.” The FTDA was enacted into law in 1996. In fact, in 2003, the U.S. Supreme Court interpreted the meaning of that Act to forbid only actual dilution instead of a likelihood of dilution. But, in 2006, Congress made legislative changes which overruled that decision. Specifically, Congress reinstated the likelihood of dilution criterion.This article explains in further detail the likelihood of dilution measure, compares that yardstick to the actual dilution guideline, and evaluates whether the latter is even practical.

For full article please visit

The Likelihood Of Dilution Standard: A Method For Closing The Trademark Litigation Floodgates

at

Tennessee Law Student Land

Illinois Temporary Visitor Driver’s Licenses: Should Illinois Non-Visa Status Residents Fear Racial Profiling and Deportation?

By Noeli Serna, Chicago-Kent College of Law Class of 2016

January 8, 2014

Illinois has recently become one of the first U.S. states to pass legislation allowing non-visa holding resident immigrants to obtain a temporary visitor driver’s license (TVDLs). In order to obtain a TVDL, non-visa status U.S. residents must prove that they have lived in Illinois for at least a year, pass a driving and vision test, and purchase insurance. TVDL holders may not use the licenses to board a plane, vote, or purchase a gun. The licenses will feature a purple band across the top as opposed to the standard red band across the top of Illinois driver’s licenses. The distinguishable characteristic of the TVDL garners a discussion of whether immigrant residents carrying TVDLs are targets for racial profiling and questioning regarding their immigrant status. Immigrant rights have been a controversial issue in recent U.S. political debates. Anti-immigrant legislation, such as Arizona’s SB 1070, have placed immigrant rights issues at the forefront of national media coverage. The question of the extent of a state government’s ability to regulate immigration issues has spurred legal discussions nationwide.

For full article please visit

The Effect Of Anti-Immigrant State Laws On Illinois Temporary Driver’s License Initiatives

at

Illinois Law Student Land

DOES THE COMMUNITY PROPERTY REGIME DISCOURAGE PARTNERS FROM MARRYING EACH OTHER?

By: Steven M. Hinkes, The University of Memphis School of Law Class of 2015

November 21, 2013

            The community property system is based on the notion that property acquired during marriage (other than by gift or inheritance) is the fruit of joint efforts of the husband and wife.[1]Each spouse has a half share.[2]  Property acquired prior to marriage or by gift or inheritance is the separate, respective property of each spouse.[3]Additionally, each spouse can only bequeath or devise his or her community property share.[4]  Furthermore, if a spouse passes away intestate before the other spouse, all of his or her separate property and community property share will be distributed in accordance with the applicable state’s intestacy statute.[5]  However, allowing the spouse who labored to purchase or acquire property to be the sole owner and manager of said property seems only fair and equitable.  This article explains in further detail the features of the American community property system, discusses the economic (dis)incentives to marry which said features implicate, and calls into question whether the current system encourages lovers to form a marriage partnership.

For full article please visit

Encumbrances And Conditions On Marriage: The Economic Disincentives Of The Community Property System

at

Tennessee Law Student Land

Guilty or Not Guilty: An NFL Player’s Story

By: Erin Davis, Charlotte School of Law Class of 2015

November 11, 2013

While the increasing charges against professional athletes for different crimes have been on the rise, the most recent focus has shifted to former NFL player, Aaron Hernandez. Cases involving athletes have increasingly gained national attention. One of the most renown has proven to be the OJ Simpson case, which is still a leading case involving the debate over evidence obtained. As the whole world watches, cases involving professional athletes or other celebrities have grown not only in the courtroom, but also in the media. This article examines the most recent criminal case involving former NFL player, Aaron Hernandez, as he was indicted on murder charges. The whole world watches his story unfold, as the prosecution and defense face the challenge of developing a strong case.

For full article please visit

From NFL Star to Murder Suspect

at

North Carolina Law Student Land

Abortion on the Forefront

By: Erin Davis, Charlotte School of Law Class of 2015

November 5, 2013

The topic of abortion has continued to remain a highly controversial and a debated area of focus. Since the ruling in Roe v. Wade in 1973, abortion cases have made their way in and out of the courtroom. Many states have and continue to pass or strike down restrictions and provisions regarding the issue of law and proponents across the disagreement regenerate prospective arguments for or against their position. While the 1973 ruling may have seemed like the end of the discussion, it in fact was the beginning of a long journey of issue in the United States. This article discusses the ongoing debate throughout the state of Texas regarding the matter and in particular, highlights the specific provisions and restrictions that were recently struck down by a federal judge in Texas. The provisions that were opposed by the judge are just another stepping stone on the rising climb to reach an agreement between opposing forces in the debate.

For full article please visit

Texas Abortion Law Struck Down: Held Partially Unconstitutional

at

North Carolina Law Student Land

Stand Your Ground : Love it or Hate It?

By: Erin Davis, Charlotte School of Law Class of 2015

October 28, 2013

The debate over ‘Stand Your Ground’ laws continues to remain a controversial topic in the U.S. While not every state has adopted the law, the 22 states that have continue to argue whether or not to repeal the statute, asserting that individuals faced by an attacker have no duty to retreat. Proposed as a self-defense claim, many critics contend that the law is racially biased and allows for individuals to assert the claim as a “license to kill”. Supporters of the law declare that every individual has the right to self-defense when faced by an attacker and should not be required to retreat when such a situation may arise. This article delves into the issue and examines cases in which the law has been asserted as a defense to killings. In particular, the article observes the controversial acquittal of George Zimmerman in the killing of Trayvon Martin, in which the jury found Zimmerman properly invoked the ‘Stand Your Ground’ law in his claim of self-defense.

For full article please visit

Neighborhood Watchman Acquitted For Teen’s Death: The ‘Stand Your Ground’ Debate

at

North Carolina Law Student Land

HAS ATTEMPTING TO IMPLEMENTSCHOOL DESEGREGATION SCHEMES BEEN WORTH ITS COST?

By: Steven M. Hinkes, The University of Memphis School of Law Class of 2015

October 24th 2013

            In Brown v. Board of Education (I), the U.S. Supreme Court held that “separate educational facilities are inherently unequal.”[1]  School desegregation efforts across the United States have since been met with cultural, legal, political, and institutional resistance during the last sixty years.  For example, following the Warren Court’s decision, the people of Arkansas amended their Constitution to instruct the Arkansas legislature to resist “in every constitutional manner the un-constitutional desegregation decisions … of the United States Supreme Court.”[2]Other jurisdictions’ school boards and systems also evinced hostile reactions and opposition to the Court’s school desegregation jurisprudence.  This article explains the Court’s landmark decisions in Brown v. Board of Education (I) and (II), illuminates the Court’s struggle in attempting to strike a balance between vindicating federal constitutional guarantees and avoiding educational and administrative problems, and raises serious doubts about whether courts’ efforts to desegregate our Nation’s schools were worth the aggregate cost.

For full article please visit

The Cost Of Brown V. Board Of Education: Educational, Administrative, And Social Hurdles

at

Tennessee Law Student Land

Part II of the amateur athletics saga: Improper or Proper benefits?

By Philip B. Gouldon, Charleston School of Law Class of 2014

October 5, 2013

           With Johnny Manziel being thrust into the middle of the ongoing debate, the stakes have become much higher. This issue has become bigger than it has ever been and now more than ever there is a feeling that there may be real changes to this issue. There have been decisions in ongoing cases, namely the O’Bannon case that may forever change the landscape of college athletics with regards to if student-athletes should get compensated for playing. This article examines the ongoing progress and the new developments, while looking ahead to what we might expect to happen in the near future.

For full article please visit

Amateur Athletics Part II: The Players Strike Back

at

South Carolina Law Student Land

BEAUTIFUL ON THE INSIDE: WHAT IT MEANS TO HAVE “CHARACTER”TO GAIN ADMISSION TO THE BAR

By: Steven M. Hinkes, The University of Memphis School of Law Class of 2015

September 17th 2013

The bar is composed of many beautiful people.  Since the United States Supreme Court rendered its landmark decision in Schware v. Board of Bar Examiners over fifty years ago, state and federal judges, scholars, and commentators have attempted to flesh out the meaning of the vague word “character.”  Most members of the profession have settled on definitions encompassing morality andtrustworthiness.Of course, the presence of a bar applicant’s illiteracy or severe mental disabilities will probably prevent that applicant from being granted admission to the state bar due to failing the fitness prong.  This article, however, illustrates and describes specific examples of possessing good character to practice law based on courts’ decisions to either affirm or reverse board of bar examiner determinations in several states.  It also offers tips and hints on completing the challenging task of applying to sit for the state bar exam.

For full article please visit

BAR ADMISSION: A SURVEY OF GOOD (AND BAD) CHARACTER EXAMPLES AND A COMPASS FOR NAVIGATING THE EXAM APPLICATION

at

Tennessee Law Student Land