Jessica Hoffman, class of 2012

Jessica Hoffman, a family law student clinician and juris doctor candidate slated to graduate in December, is an active contributor on the national Assisted Reproductive Technology (ART) scene.

She recently produced a session for the ABA’s Family Law section’s Las Vegas conference, and has been asked to help plan and produce another this fall – her fourth for the section. But despite her work earning national recognition, her fight for the cause began on a much more personal stage.

“A dear friend of mine suffered from infertility, and I helped her through the emotional and financial hurdles infertile women face,” Hoffman said. Hoffman’s friend eventually became pregnant, but died when she was four months along because of her body being unable to handle the physical stress of the pregnancy. Not long after her friend’s death, Hoffman faced another life-altering disappointment — her own fertility issues. Hoffman experienced several failed pregnancies in her attempts to carry a baby to term. After one health scare, Hoffman landed in the hospital. Her doctors told her to “prepare for the worst.”

“The first night, my husband and I had a long talk about our 11 years of wonderful experiences,” she said. “By the second night, the discussion turned into what I would do if I made it through the night. I said I wanted to honor my friend Rachel’s memory by using a surrogate to carry our baby.” Hoffman also told her husband she would become a lawyer and help others who faced the same intimidating legal hurdles of ART. “Surprisingly, my vitals started to improve the next day, and several months later I began law school,” Hoffman said.

She also found a willing surrogate in her husband’s sister, who carried their daughter, Lilly, to delivery. Lilly is now a healthy 10-month-old baby. Hoffman wants other women to have the same opportunities to experience childbirth, adoption, infertility treatments or surrogacy, and is working hard to protect them through her study of law at Florida Coastal.

“I worry that, someday, the community may have a vote on whether to allow women to use some forms of assisted reproductive technology,” Hoffman said, “and I want those strangers to think of me and my daughter — instead of the OctoMom.”

Hoffman began her studies in Professor Quince Hopkins’ Adoption course, and wrote her first paper about ART. Through her research, Hoffman said she realized there were very few ART legal counselors in Jacksonville — but a growing consortium around the country. She investigated attorneys and firms who were players on the national ART scene and discovered a serendipitous upcoming event — a committee of ART attorneys was meeting locally to brainstorm revisions to the ABA ART Model Act.

Hoffman decided to just show up and, upon arrival, realized the meeting was an intimate gathering of just 19 people. Undaunted, she scooted her chair up to the small conference table with confidence, and listened to the attendees — many of them authors of articles she had read in her ART research for Florida Coastal. The gathering included legal professionals, as well as fertility doctors and medical insurance specialists.

“I was sure I’d get kicked out!” Hoffman recalled. “But instead I was welcomed into a committee of people who were passionate about ART and creating the legal structure around it.” Through this experience, Hoffman is now helping reformat the Model Act. She is also an avid volunteer who raises her hand for any task.

“I have worked and shared meals with the people across the globe who are making ART possible. I feel so energized after these meetings and with the mentorship I receive, and I can’t wait until the next conference in the fall. The experience has been an invaluable networking opportunity for my career and a practical supplement to my legal education.”

Professor Hopkins called Hoffman’s story “fascinating.” “Here you have a burgeoning young professional who is on the cutting edge of this new field even before she graduates,” she said. “Most faculty do not have the honor to be asked by the ABA to be so involved in a committee, and almost never are students EVER (from any school) asked to participate in any ABA committee the way she has been.”

Regular readers of Coastal Law Magazine will already be familiar with Pimentel; two stories in our Winter 2011 issue detailed his Fulbright Scholarship work in Bosnia and his prolific output of papers, presentations and speaking engagements. Through his professional experience and academic research, Pimentel has developed an expertise in the reform and restructure of judicial systems, especially in developing and post-conflict societies. Pimentel, with both his J.D. and a master’s degree in economics from Berkeley, has more than 10 years’ experience working inside U.S. federal courts, trial courts, appellate courts, the Administrative Office of the U.S. Courts and as a Supreme Court Fellow. He spent four years in The Hague as the Chief of Court Management at the United Nations’ International Criminal Tribunal for the former Yugoslavia. He also headed the rule of law efforts in Southern Sudan for the United Nations mission, and has led court reform projects in Bosnia and Romania. A Coastal Law faculty member since 2007, Pimentel teaches Comparative Law and a seminar on International Rule of Law, among other courses.

Most recently, first at the request of The Brigham Young University (BYU) Institute on Law and Religion, and later on behalf of the American Bar Association (ABA) Rule of Law Initiative, Pimentel has been consulting in Nepal on the judiciary provisions for that country’s new constitution. A nation of over 29 million people wedged between China and India, the Nepal of 2011 certainly qualifies as a post-conflict society. The country is attempting to set up a secular democracy after more than 200 years as a Hindu monarchy, a failed first constitution from 1990, and a decade-long civil insurgency.

Pimentel said, “The constitutional negotiations in Nepal are bringing to light deep ideological divides among the different parties, and the structure of a new judicial branch has not been exempted from the debate.”

Breaking from other outside experts who preach a standard “international best practice” for a judicial structure, Pimentel is reframing the debate in terms of analyzing the proper balance of independence and accountability in a judicial system in light of a country’s specific history and culture. For Pimentel, that balance of independence and accountability is correlated, respectively, to what he calls a judiciary’s courage and integrity.

The reframed argument begins with the fact that every country, whether established, developing or in a post-conflict stage, has an inherent issue when addressing the power of its judicial branch—the tension created when trying to strike a balance between independence and accountability.

“The reason for judicial independence, for insulating judges against outside influence through institutional safeguards (such as life tenure), is to ensure that they can make the courageous decisions that protect the minority from the tyranny of the majority,” said Pimentel.

Free from the fear of reprisal and beholden to no one or no institution except for the law itself, an independent judiciary can make decisions that, while unpopular, are correct under the law. An example is the pro-civil rights rulings in the South in the 1960s. For Pimentel, if judges won’t stand up for the unpopular minority, there can be no justice in the society. Yet, while institutional safeguards promote judicial courage, they are merely vehicles. The true goal is to have judges with the internal courage to do the right thing.

However, we desire that the judiciary, as a branch of government, be accountable to the citizens—that there are repercussions for unwanted actions. A simple example would be the ability to remove a judge for accepting bribes.

“Accountability is about keeping judges honest, that they don’t lapse into corruption or pursue their own agendas,” said Pimentel. “This is demanding integrity from judges.”

Matching independence with courage and accountability with integrity, Pimentel has developed a unique graphic representation to illustrate the relationships. Along the x axis, low to high, is courage, while along the y axis, low to high, is integrity. Pimentel then delineates four quadrants within this graph and populates it with the type of judges / judiciary that are created by the characteristics therein. Any judge in any system falls into one of the four quadrants.

Those in the lower left quadrant—low courage and low integrity—Pimentel calls the “corruptible.” They do not stand on principle. These judges are easily influenced and swayed, whether by bribery, fear of reprisal or just prevailing public opinion.

Click for full image (Illustration by Heather Blanton)

The upper left quadrant—low courage but high integrity—Pimentel labels “good intentions.” These judges want to do the right thing under the law, but can be intimidated or lack the conviction to follow through.

The upper right quadrant—high integrity and high courage—is reserved for “heroes,” those judges that do what is right regardless of the ramifications to them. (See News & Events article on Charlie Swift in this issue). These are the judges we would all want to have.

Pimentel said, “Judicial heroes act with courage regardless of the institutional safeguards for independence, and do not need the institutional mechanisms that promote integrity, because they are already possess this trait.”

For Pimentel, the remaining lower right quadrant represents the worst possible combination—low integrity and high courage. These are the “monsters,” ready to carry out their own self-serving agenda regardless of potential consequences. Impeachment, dismissal, possible fines or imprisonment, they don’t care—they are in it for themselves.

In his research and his consulting work with countries that are struggling with constitutions and, within that, establishing or reformulating their judiciaries, Pimentel has noted the unintended, if not disastrous, consequences of not understanding these relationships in the context of a country’s culture and history. Nepal’s first foray into a constitutional monarchy in 1990, after centuries of autocratic Hindu rule, provides a clear example. Pimentel was not associated with Nepal at that time, but relates how Nepal never had a tradition of an independent judiciary. What judiciary that had existed had always been subject (accountable) to the power of the king. The 1990 constitution, while protecting the power of the king, also structured a judiciary that by all appearances was separate and independent. The problem created was that, without a history of judicial integrity, and rushing to promote independence over accountability, this new judiciary became terribly corrupt in both public perception and practice. Using the graph as the guide, increasing judicial independence should be a good thing—it should push the “good intentions” into the “heroes” quadrant. What happened in 1990s era Nepal, however, was that the new judicial independence, without the history of judicial integrity or enough institutional mechanisms for promoting integrity, affected only the lower half of the graph, and allowed “corruptible” to become “monsters.”

Nepal is still paying the price for this today. Fueled by dissatisfaction with the 1990 constitution (and the judiciary it created), a bloody, Maoist-led civil insurgency finally ended in 2006 when they agreed to stop fighting and become part of a new political process. With its 200-year-old Hindu monarchy swept away, Nepal is still struggling to establish a secular, multi-party democratic republic. A special legislative body called the Constituent Assembly was elected in 2008 with a self-imposed deadline of May 2010 to draft a new constitution. As May 2010 came and went, this deadline was extended to May 2011, and, at the time of this writing, extended a further three months. Structuring the judiciary is of course a main part of the constitutional negotiations. While many outside voices are calling for an independent Nepali judiciary as part of “international best practices,” this independence idea, even just in terminology, is striking a sour note with the Maoists and other factions in the debate. The last thing they want is a re-creation of the “monsters” of the 1990s. This is contributing to the constitutional gridlock and missed deadlines.

Thus, in papers and presentations, Pimentel is challenging what he calls the “one-size-fits-all” concept of judicial independence, and believes many rule-of-law reformers are missing this bigger cultural picture. When a society has no tradition, no culture, no expectation of judicial integrity, the worst thing that can happen is judicial independence. Pimentel stresses that in these situations judicial accountability has to be addressed first. Institutional mechanisms for this would include review boards, oversight committees, easier methods of removal, strict penalties and other means to let judges know that they have to “keep their noses clean” and do what is correct. Again using the graph as a guide, increasing accountability should push “corruptible” into the “good intentions” quadrant. These judges realize which way the system is moving, and they will change to remain part of it. This is a good step in the right direction.

Therefore, in these cultural situations, the trajectory of change for Pimentel is clockwise, starting in the lower left quadrant. Through accountability first, integrity can be promoted and “corruptible” can be moved to “good intentions.” Only after that can independence be introduced and those with “good intentions” become “heroes.” Of course it’s not as black-and-white as all accountability and all independence; the point is to strike the correct balance in an ongoing process given the culture. Eventually, the ultimate ideal is to have “heroes” in a society where institutional safeguards for independence and institutional mechanisms for integrity are not as necessary, because the good traits of independence and integrity are ingrained in everyone. Exceptions may be plentiful, but most would agree that judicial independence and integrity are highly present and expected here in the U.S. For Nepal, Pimentel believes it could take two generations for that attitude to prevail.

But, what about the “monsters?” Safeguards for independence don’t matter to them; they already have the courage to do what they want. Accountability initiatives don’t faze them; their low integrity makes them completely self-centered.

“‘Monsters’ can’t be moved in the graph—so they have to be moved out,” said Pimentel.

Pimentel served as a consultant on projects to reform and restructure the court system in post-war Bosnia. He relates how they literally fired every judge in the entire country, and immediately started a recruitment campaign to find new judicial appointees. All fired judges were asked—in fact encouraged— to apply for positions in the newly reformed system. Given this ability to mass review, about 70 percent of the previous judges were reappointed. The others, those with the worst ethical records, were able to be weeded out.

For Nepal, Pimentel believes that its specific situation, at this time, calls for constitutional provisions that emphasize judicial accountability over judicial independence. With a culture of judicial corruption, Pimentel feels that too much judicial independence could do more harm than good. He is recommending that a “Constitutional Court,” separate from the other branches of government (including the Nepali Supreme Court), be given the power of judicial review. This Constitutional Court would, at minimum, be a watchdog to steer the “corruptible” up the ladder as the country develops its own internal expectation of integrity.

That sports could provide Coastal Law a vehicle to broadcast its legal expertise nationally makes sense. Coastal Law established the Center for Law and Sports in 2005 in recognition of the growing interest in sports law and the expanding market for specialists in the area. The center, one of only a handful of sports law programs across the country, combines specialized courses taught by faculty with experience in sports as well as law.

Coastal Law professor and the center’s director Rick Karcher said that, in addition to extensive practical experience in the field, the faculty’s expertise is founded on scholarship and research.

“The scholarship aspect is very important to us, because it bolsters our credibility, makes us much more knowledgeable about specific areas within sports law, and provides us with a variety of perspectives and ways in which to analyze the issues,” he said.

Karcher speaks from experience. His numerous articles published in law reviews nationally have led to him being a frequent speaker on sports law topics at conferences and symposia nationwide. He’s testified in front of Congress and contributes to a leading sports law blog. Additionally, Karcher’s research and writing on illegal agent contacts with amateur athletes has made him a sought-after expert witness in those matters.

He served as an expert witness in James Paxton v. the University of Kentucky. In the case, Karcher was asked to give his opinion involving a college baseball player who returned to school his senior year after being drafted in the major leagues. However, his eligibility was threatened when he refused to cooperate with an investigation into alleged improper contact between UK players and agents.

Karcher’s research into the area of agent contacts was prescient. In 2005, he wrote the article: “How to Curb Agent Misconduct in Professional Baseball.” Five years later, illegal agent contact has made front-page news.

Reggie Bush, a former star tailback at the University of Southern California, had his eligibility stripped by the NCAA after an investigation revealed that he had taken improper benefits, including a house, from representatives of agents who hoped to represent him.

Bush probably wishes he had the benefit of Karcher’s research before he met with those would-be agents. The revelation of Bush’s improper agent contacts led to severe NCAA sanctions including a two-year postseason ban, loss of football scholarships, and the vacating of wins in the 2004-05 championship season. Since the NCAA retroactively stripped Bush of his eligibility, the status of the many awards he won in 2005 is in question. He may become the first player ever stripped of the Heisman Trophy, college football’s most prestigious award.

While USC fans may understand the impact of Bush’s actions, they may not understand the underlying NCAA bylaws that led to them. In explaining the interplay between sports and law, Karcher said the sports law expert must often explain an entire body of law separate from United States criminal and civil law.

ìCommentary on sports law can be made even more complex in that sports law is in many respects its own separate body of law with its own unique case precedent and league rules, constitutions and bylaws,î said Karcher.

The Center for Law and Sports continues to help to raise Florida Coastal’s profile nationally, with its faculty – Karcher included – being quoted more than 600 times in print, television and radio news outlets in recent years. Notable highlights since 2007 include mentions in the New York Times, ESPN, Sports Illustrated, The Associated Press, and USA Today. The combined audience: more than 250,000,000.

Sports coverage, once concerned only with on-field exploits, is now likely to include contract negotiations, gender discrimination, legal entanglements and an athlete’s choice of legal representation. ESPN recently devoted an entire hour of its airtime to basketball player LeBron James’ decision to sign a contract with the Miami Heat as a free agent.

Famed baseball pitcher Roger Clemens similarly secured exclusive airtime, albeit in less pleasant circumstances. His testimony before Congress about baseball’s steroid scandal went beyond ESPN and was broadcast by all the major news networks. That testimony led to Clemens being charged with perjury, which once again has him in the national spotlight.

According to Karcher, it seems that those athletes facing legal consequences garner the most interest from the media.

“Unfortunately, the stories that generate lots of interest are when athletes get into trouble off the field, whether it be an amateur athlete suspended or investigated for improper agent activity or an athlete suspended or investigated for taking [performance enhancing drugs] or doing something illegal or immoral,” said Karcher.

But while a fan might be naturally curious about an athlete’s legal challenges, that fan won’t necessarily understand the nature of a legal dispute no matter how hard a sports anchor tries to explain it. Collective bargaining is harder for the average fan to process than a quarterback rating or earned run average. Filling the gap between sports knowledge and legal concepts is where the Florida Coastal sports law faculty can be used to their best advantage.

“The business of sports is a multibillion dollar enterprise with as many facets,” said Peter Goplerud, Coastal Law’s dean and professor of law. “As with any business that comprehensive, a multitude of complex legal issues can arise ñ contract negotiations, labor disputes, government interactions, regulatory issues, or ethnic and gender concerns.”

Goplerud was elected to the Sports Lawyers Association Board of Directors in 1997. He is a frequent lecturer on sports law topics, has written numerous law review articles on sports law, and is co-author of one of the country’s leading sports law textbooks. Goplerud was involved in the representation of professional athletes in team and individual sports during the 1980s and 1990s and, more recently, has served as a consultant to universities, athletes and coaches on contracts, athlete eligibility issues, and collegiate athletic compliance matters.

Like Karcher and Goplerud, the remainder of Florida Coastalís sports law faculty brings substantive, hands-on experience as well as scholarly and research expertise, which allows them to render complex issues more understandable to legal contemporaries, the media, and everyday sports fans alike. Professor and sports law faculty member Nancy Hogshead-Makar knows first-hand the pressures and legal challenges facing modern athletes. She earned her law degree from Georgetown Law after an amateur swimming career that included three gold medals in the 1984 Olympics.

Hogshead-Makar has been one of the school’s highest profile faculty members. In 2007, she was named by Sports Illustrated as one of the 13 most influential people in the history of Title IX, the landmark gender equality legislation requiring colleges to allow women comparable sporting opportunities to men.

There are few people nationally more qualified than Hogshead-Makar to comment on coverage of Title IX issues or on gender equality issues generally facing sports. She has authored numerous articles on the legislation and wrote in 2007 ìEqual Play: Title IX and Social Policy.î

Joining Coastal Law in 2008, Associate Professor of Law Roger Groves has also served as a resource on the national level, penning several books and articles, and also serving as a frequent commentator on stories ranging from contract issues to, most recently, stadium financing with Forbes. Groves was a state and local tax judge for a decade in Michigan, and then a partner in the major Midwest law firm of Howard & Howard, where he represented multi-national corporations, high profile entertainers and coaches. In 2005 he wrote what is considered among the most comprehensive books regarding African-American football coaches, Innocence in the Red Zone, and has been called upon to be a NCAA speaker to coaches, and the Black Coaches Association.

Karcher, not surprisingly, points to the Center of Law and Sports faculty as its strength. He said it’s their commitment to cutting-edge research into emerging sports law issues that makes the center a go-to resource for not only the media on deadline but other sports industry attorneys and professionals. Karcher calls the center’s status as a research center and legal scholarship resource an important part of our mission.

“All of [our faculty] have made significant contributions in the sports industry through their publications, consultant work and expert witness testimony at congressional hearings and in high-profile lawsuits,” said Karcher. “I think media outlets frequently seek our advice because we have established a high level of trust with reporters, and they feel comfortable that our opinions are reliable.”