Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P28 ppt

Because 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 the DISSOLUTION or 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 organizations. 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, however, may sell the assets or continue the business. CROSS REFERENCE S Corporation. SOLICITATION Urgent request, plea, or entreaty; enticing, asking. The crim i nal 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 commi t 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 leg al, 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 government, 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 COMMISSION has rigid rules concerning the solicitation of shareholders for votes involving changes in corporate structure or leadership. Criminal solicitation commonly involves crimes such as prostitution and drug dealing, though politicians have been convicted for solicitation of a bribe. The crime of solicitation 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 258 SOLICITATION prostitution. 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 because 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 in EQUITY courts, 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 solicit or 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 solicitors 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 the JUSTICE DEPARTMENT who represents the government in cases before the U.S. Supreme Court is called the SOLICITOR 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 representing 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 solicitors 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 of CERTIORARI 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOLICITOR GENERAL 259 Due 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, and THURGOOD 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 pollutan ts cause environmental 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 legislation; 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 processing of ores and minerals. But residential and commercial wastes are probably more fam iliar to the average person. These include everything from plastic bottles, aluminum cans, and rubber tires to yard trimmings, food wastes, and discarded appliances. Electronic waste has become a greater problem during the 2000s. In 2007, for instance, a total of 157 million computer products, 20 million tele visions, and 126 million cell phones w ere 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, processing, 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 landfills; the rest is incinerated. In 1970, when Congress began studying solid waste, about 90 percent of the dumps and 75 percent of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 260 SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS municipal 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, sometimes called reclamation or salvage, is the process by which energy and other resources are extracted 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 8.0 14.5 33.2 69.4 0 50 100 150 200 250 300 1960 1970 1980 1990 2000 2007 Year Millions of tons Amount generated Amount recovered SOURCE: U.S. Environmental Protection Agency, Municipal Solid Waste Generation, Recycling, and Disposal in the United States: Facts and Figures f or 2007. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS 261 problems 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 substances 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. Betw een 1942 and 1953, Hooker Chemical Corporation filled the canal with drums containing 21,800 tons of hazardous and toxi c 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 hazardous 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 holding the chemicals gradually corroded, their contents migrated from the canal through the neighbor- ing residential soil. In the late 1970s, following 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. § 136 2). Because toxic pollutants are a subset of hazardous materials, a pollutant may be hazardous 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, me rcury, 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 gover n the management of hazardous and toxic materials. The manufacturing of hazardous chemicals 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, other a 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 262 SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS has 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 technology 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 discharged as well as the dischargers themselves. CERCLA imposes JOINT 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 Su perfund provi- sions are triggered. The Superfund creates a multibillion-dollar haza rdous substance trust fund for cleanin g up seriously contaminated sites in which the r esponsible parties avoid liability. Revenue for the Superfund is raised through federal APPROPRIATION and taxes pa id 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 Insecticid e, Fungicide, andRodenticide 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, landowners can recover for any unlawful interference with their rights or interests. Trespass requires proof that the landfill owner intentionally or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOLID WASTES, HAZARDOUS SUBSTANCES, AND TOXIC POLLUTANTS 263 knowingly 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 requirement, 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 a CIVIL 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 264 SOLOMON AMENDMENT in 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 the VICTIMS OF CRIME ACT OF 1984 (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, anonfiction 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 conten t 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 becaus e 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 regulation of expressive activity and reconceptualize the law as a regulation of economic proceeds from crime. The Supre me 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. Atrialcourt’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 shooting 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 victims 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, King s County, issued temporary restraining orders, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SON OF SAM LAWS 265 and 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 attorney 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’sattorney 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. v SONOSKY, 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 ▼▼ ▼▼ Marvin J. Sonosky 1909–1997 1900 1950 1975 2000 1925 ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 266 SONOSKY, MARVIN J. mismanagement 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 Claim s Commission Act of 1946 (Ch. 959, § 1, Pub. L. No. 79-726 [omitted from 25 U.S.C.A. § 70 on termination of the commission 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 Indian CIVIL RIGHTS ACT of 1968 (Pub. L. No. 90- 284, tit. II, 82 Stat. 77 [co dified 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 government, 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 programs 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 television programs. The Supreme Court, in a 5–4 vote, determined 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 television programs is a “fair use” of the copyrighted material and, thus, does not violate the Copy- right Act. The Court’sdiscussionofthe“fair use doctrine” makes the Betamax case a landmark decision in copyright law. The Court also held that Sony was not liable for “contributory infringement” 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 videocassette 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SONY CORP. OF AMERICA V. UNIVERSAL CITY STUDIOS 267 . the land in the 192 0s, but legal ▼▼ ▼▼ Marvin J. Sonosky 190 9– 199 7 190 0 195 0 197 5 2000 192 5 ❖ 190 9 Born, Duluth, Minn. 191 4–18 World War I ◆ 193 2 Admitted to Minn. state bar ◆ 193 7 Moved to Washington,. Orly. 199 9. “Son of Sam Laws: Killing Free Speech or Promoting Killer Profits? Whittier Law Review 20 (summer). National Center for Victims of Crime. 199 7. “Notoriety for Profit/‘Son of Sam’. solicitation of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 258 SOLICITATION prostitution. Similar operations are used to reduce the sale of narcotics. SOLICITOR The title of the chief law officer of