Published by Husson University Bangor, Maine For the NORTH ATLANTIC REGIONAL BUSINESS LAW ASSOCIATION EDITORS IN CHIEF William B. Read Husson University Marie E. Hansen Husson University BOARD OF EDITORS Robert C. Bird Gerald A. Madek University of Connecticut Bentley University Gerald R. Ferrera Carter H. Manny Bentley University University of Southern Maine Stephanie M. Greene Christine N. O’Brien Boston College Boston College William E. Greenspan Lucille M. Ponte University of Bridgeport Florida Coastal School of Law Anne-Marie G. Hakstian Margo E.K. Reder Salem State College Boston College Chet Hickox Patricia Q. Robertson University of Rhode Island Arkansas State University Stephen D. Lichtenstein David Silverstein Bentley University Suffolk University David P. Twomey Boston College i GUIDELINES FOR 2011 Papers presented at the 2011 Annual Meeting and Conference will be considered for publication in the Business Law Review. In order to permit blind refereeing of manuscripts, papers must not identify the author or the author’s institutional affiliation. A removable cover page should contain the title, the author’s name, affiliation, and address. If you are presenting a paper and would like to have it considered for publication, you must submit two clean copies, no later than March 29, 2011 to: Professor William B. Read Husson University 1 College Circle Bangor, Maine 04401 The Board of Editors of the Business Law Review will judge each paper on its scholarly contribution, research quality, topic interest (related to business law or the legal environment of business) writing quality, and readiness for publication. Please note that, although you are welcome to present papers relating to teaching business law, those papers will not be eligible for publication in the Business Law Review. This subject matter should be submitted to the Journal of Legal Studies Education. Also note that the Board of Editors will consider only one paper per person, including co-authored papers. Only papers presented at the Annual Meeting will be considered for publication. FORMAT 1. Papers should be no more than 20 single-spaced pages, including endnotes. For fonts, use 12 point, Times New Roman. Skip lines between paragraphs and between section titles and paragraphs. Indent paragraphs 5 spaces. Right-hand justification is desirable, but not necessary. 2. Number pages in pencil on the back in the lower right corner. Do not number the front of the page. Please do not fold or staple your paper. 3. Margins: left—1-1/2 inches, right, top, bottom (except first page)—1 inch. 4. Upon acceptance, the first page must have the following format: a. The title should be centered, in CAPITAL LETTERS, on line 10. b. Following the title, center the word “by” and the author’s name, followed by an asterisk (*). c. Space down 3 lines and begin your text. d. Please add a solid line (18 spaces in length) beginning from the left margin, toward the bottom of the first page, leaving enough room under the line to type on the next line an asterisk and the author’s position or title and affiliation. This information should appear as the last line on the page. 5. Headings: FIRST LEVEL (caps, flush with left margin) Second Level (center, italics) Third Level: (flush with left margin, italics, followed by a colon [:]) Fourth Level: (flush with left margin, italics, followed by a colon [:], with text immediately following). 6. Endnotes should conform to the Uniform System of Citation, 19th edition and should begin 3 lines after the end of the text. 7. E-mail a copy of the final version of your paper in Microsoft Word to [email protected]. ii The Business Law Review is published once each year. Its purpose is to encourage scholarly research in Business Law and the Legal Environment of Business. Publication is made possible by gifts and grants from: Andover IP Law, Andover, MA. Bentley University, Waltham, MA. Husson University, Bangor, ME. North Atlantic Regional Business Law Association Suffolk University, Boston, MA. University of Bridgeport, Bridgeport, CT. West Educational Publishing THANK YOU Next Annual NARBLA Meeting April 2, 2011 Bentley University Waltham, MA Please contact: Professor Elizabeth A. Brown Law, Taxation and Financial Planning Department Bentley University 175 Forest Street Waltham, MA 02452 Mobile Phone: 415-260-6077 Office Fax: 781-788-6413 [email protected] iii TABLE OF CONTENTS Contract Issues and Specialized Courts: The Price of Admission Eric T. Bellone and Graham Kelder ......................................... 000001 Whistleblower Reform: Insufficient Protections, Uncertain Future David A. Goodof ......................................................................... 000017 Copying Copyrighted Coursepacks at Copyshops for Classroom Consumption: Copyright Owners 3, Copyshops 0 William E. Greenspan ............................................................... 000031 America’s Game: One Hundred Years of the Baseball Rule or “The Timorous May Stay at Home.” Chet Hickox ................................................................................ 000045 The CISG After Medellín: The Supreme Court and Self-Executing Treaties Carolyn Hotchkiss......................................................................000061 Independent Contractor v. Employee: The Never Ending Battle David S. Kistler..........................................................................000077 Online Behavioral Targeting: Efforts to Limit Unfair Information Practices Carter Manny ............................................................................. 000091 Practically Preempting Federal Predatory Lending: A Logical Roadmap Jason H. Peterson ...................................................................... 000113 Grumbling, Retaliation and the Fair Labor Standards Act: Kasten v. Saint-Gobain Performance Plastics Corp. Patricia Quinn Robertson and John F. Robertson .................. 000133 New Rules For Computing U.S. Patent Terms After Wyeth v. Kappos David Silverstein ....................................................................... 000151 8 Copyright 2010 North Atlantic Regional Business Law Association v CONTRACT ISSUES AND SPECIALIZED COURTS: THE PRICE OF ADMISSION by ERIC T. BELLONE J.D.* AND GRAHAM KELDER, J.D.** INTRODUCTION Business law is the foundation of many legal concepts and principles used in other fields of learning. More and more disciplines are using basic business law principles in their daily matters. Health care providers use proxies for health care decisions; land developers employ the business law principle of the Statute of Frauds to transfer an interest in land; family law employs the business concept of agency in deciding how parents must care for their children; and the criminal justice system utilizes contract law for agreements between the State and a defendant where the defendant pleads guilty to a crime in exchange for a reduced sentence or charge. Unfortunately, business law principles are often misunderstood and misused by these other areas creating negative outcomes. In recent years, the criminal justice system has begun using specialized courts to deal with specific issues. The main type of specialized court is the drug court. Drug courts push basic business law concepts to new heights. Proponents maintain that while drug courts bend these legal concepts, they do not break them. Critics charge that drug courts not only break these legal concepts, but use their trappings * Eric T. Bellone is an Assistant Professor of Legal Studies at Suffolk University and a Ph.D. Candidate in Law, Policy & Society at Northeastern University. ** Graham Kelder is an Assistant Professor of Legal Studies at Suffolk University. 2 / Vol. 43 / Business Law Review to highjack the legitimacy that these legal concepts have attained through centuries of pedigree. Drug courts, like many specialized courts, press the judiciary and judges beyond their traditional roles. Drug courts hope to combine law and drug treatment as an effective and efficient means of drug therapy. Critics maintain that mixing therapy and law, dubbed “therapeutic jurisprudence,” creates a paradox that cannot be rationalized. Therapy presupposes that the offender is the victim of an illness and does not exercise free will, and therefore should be treated and not punished for the illness. Alternatively, criminal law presupposes free will. Punishment is based on altering individual choice through deterrence. These two concepts are diametrically opposed. In the drug court, when an offender cannot be “cured,” the law mandates that he or she be punished.1 This paper examines the allegation that drug court plea agreements/drug court contracts violate the basic legal principles of plea-bargaining and contract law and can only be aligned with such principles under limited circumstances. It presents an analysis of drug court post-plea entry through a framework of contract. Specifically, this paper will explore the allegation that when the State, as a drug court, enters into a contract with a defendant through the plea bargaining process, the arrangement creates a situation where one party to the contract (in particular the drug court judge) interprets the terms of the contract and also has the power to enforce its interpretation, leading to a lack or failure of consideration under contract law. A second concern involves the “point of failure” for drug court defendants when the drug court judge acts as both a participant in the drug court process and a fact-finder of a defendant’s