From: Jay Flemma <jflemma@mailbox.syr.edu>
Subject: Stopping Scalpers
Reply-To: jflemma@mailbox.syr.edu
Organization: The Internet
Date: Tue, 10 Nov 1992 23:06:27 GMT

     Guys, Markhus Brakhman and I have had an interesting discussion regarding
   dealing with scalpers under the law.  We thought you might be
   interested in our solutions.  For further info, see our earlier
   digest. messages, or mail us for a copy.  Sorry about the length but
   we're only doing this once.  Have a sweet and peaceful night.
(Message inbox:69)
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To: MARKUS BRAKHAN <71201.1016@compuserve.com>
Cc: "\"Jay Flemma\"" <jflemma@mailbox.syr.edu>, jflemma@mailbox.syr.edu
Subject: Re: Federal Scalping Law - NO 
             <921110162217_71201.1016_EHL32-1@CompuServe.COM> 
Date: Tue, 10 Nov 92 17:06:57 -0500
|From: "Jay  Flemma" <jflemma@mailbox.syr.edu>

   Dear Markus,
        Sorry about the rude brevity of the last message, but things have
   taken a turn toward the hectic here.  Last night, Syracuse Univ.
   experienced a fatal crash to all communications systems.  Everybody
   was shut out till this afternoon.  Luckily nothing of mine was
   destroyed, but others were not so lucky.  On top of that, I saw a car
   catch on fire today.  What fun.
        OK, Federalism on Phishnet Part II.
   I.  Background and case law.
        Congress has the power to regulate commerce among/between the
   states.  This rule is of paramount importance; it is upon the commerce
   power that most Congressional activities are based.
        The Commerce Clause serves two distinct functions.  First, it
   acts as a source of Congressional authority.  Second, and most
   importantly to us, it acts IMPLICITLY as a limitation on state power.
        There is at least a moderate trend to which commerce clause 
   cases adhere.  Under present theories, the court will uphold commerce
   based laws if there is any RATIONAL BASIS upon which Congress could
   have found SOME RELATION between its regulation and interstate commerce.
   There are three theories upon which commerce based regulation may be 
   based:
                1) the substantial economic effect theory
                2) the cumulative effect theory
                3) an expanded commerce prohibiting technique.

I will limit my analysis to the CUMULATIVE EFFECT theory.
        THIS IS AN UNBELIEVABLY BROAD POWER!!!  The theory provides that
   Congress may regulate not only a whole class of acts, BUT MAY ALSO
   REGULATE A SINGLE ACT WHICH WHEN ADDED IN THEORY TO A WHOLE CLASS OF
   PEOPLE would, when added together, affect interstate commerce 
   substantially.  This is true NO MATTER HOW INNOCUOUS THE INDIVIDUAL ACT
   MAY BE ON ITS OWN!  
        The landmark decision on this topic was WICKARD V. FILBURN.  Here,
   Congress proclaimed a quota on how much wheat could be consumed by a family on  on the farm on which it was grown.  (Talk about coming into your house!)
   A farmer challenged Congress' law.  The law was upheld since even though
   the farmer's individual act of eating the wheat was harmless, taken
   theoretically, with all the other farmers' conduct, there would be a
   massive effect on interstate commerce.
         Carrying this argument to scalped Phish tix -- assuming that
   scalping is an individual local problem (A THEORY THAT I DO NOT AGREE
   WITH, but more on that later.)  taken in conjunction with all
   scalping added together, there is a substantial problematic effect
   on interstate commerce.  Many out-of-staters come to Phish shows
   (or ANY OTHER ENTERTAINMENT INDUSTRY EVENT i.e. sports or plays).
   These travelers infuse capitol into the local economy.  They are
   discuraged from coming when there are no tickets or only
   extortionistically priced tickets.
         Therefore, CONGRESS or THE INDIVIDUAL STATES SHOULD BE ALLOWED
   ON THIS GROUND ALONE TO ENACT ANTI-SCALPING LEGISLATION.
   I can't stress enough that the STATES AS WELL can take the problem by
   the horns themselves by banning the importation of tickets acquired
   solely for the purpose of scalping.  I AM NOT SUGGESTING that the FEDS
   are the way to go, but it is clearly a viable solution.
         There is a CRITICAL DISTINCTION that must be made at this point
   between which cases the Feds can act and cannot.  I will contrast the 
   abortion issue and tix scalping.  With abortion, there are many different 
   points of view.  States have reacted in radically different ways in
   response; some upholding freedom of choice, some not.  Since there
   is no uniformity of analysis, the Sup. Ct. and Congress have no mandate
   with which to react.  Scalping is a much easier problem.  At last count,
   47 states had anti-scalping legislation and the other 3 may have it,
   I don't know.  There is an across the board criminal ban on scalping,
   amost, if not in fact unanimous.  Thus, this is the classic example
   of an area that Congress, if it chose, could enact legislation with
   no great outcry.  Crime is everyones problem and this is
   unanimously thought, whereas with abortion, there is a whole spectrum 
   of thought that is reasonable and deeply personal.  Once more, this does
   not mean that the states should be pre-empted.  They just haven't
   dealt with the isue interms of interstate commerce.
         Markus Brakhman makes a 10th Amendment argument that the states
   should be left alone.  First let me say that I greatly respect his 
   political ideologies and his hard work.  Unfortunately, on this issue
   both I and the Supreme Court disagree.
         Dispairingly I must report that the 10th Amendment is dead for all
   intents and purposes, and attorneys have shunned arguments based on it
   for almost a century.  Three cases buried it.
         1) U.S. v. Darby -- This case expressly ruled that, "the tenth
   amendment is no longer an independant limitation on Congressional
   Authority over interstate Commerce."  As a result, Congress is
   completely free to impose whatever conditions it wishes upon the
   privilege of engaging in an activity that affects interstate commerce
   period.  What is most disturbing about this broad, sweeping power
   is that motive in acting is irrelevant."  I don't like this last part
   it goes against the main purpose of checks and balances, but this
   has survived over 50 years and it is proven that neither a liberal
   or conservative court will touch it. (Although Perot appoitees would
   head right for it or at least Perot himself might)
         Constitutional commentator Tom Maronry comments that the tenth 
   Amendment is completely dead as an independant check on Federal
   Power under the Commerce clause.
         2) U.S. v. Perez -- This doctrine has found its most potent
   firepower in criminal cases.  Perez involved both the CUMULATIVE EFFECT
   doctrine AND a clear rejection of the tenth Amendment as a 
   protection to state plice power.
         3) Lastly, Champion v. Ames provides a similar scenario to ticet sca            to ticket scalping.  I will not repeat my arguments, they
   were posted in an earlier digestifier.  ONE IMPORTANT CLARIFICATION...
   I am NOT saying that concert tix are a noxious substance, nor am I
   saying rock music promotes depravity.  That interpretation is
   COMPLETELY WRONG.  I AM saying that "concert tix taken for the express
   purpose of commiting a crime and engaging in usurious and illegal
   contracts ARE NOXIOUS SUBSTANCES and promote depravity and immoral
   conduct IN THE SELLER."  See Champoin v. Ames.
     II Direct responses to Markus' well conceived concerns.
        I agree with evrything that Markus said in his earlier
   Digestifier article, except that I am not so quick to rule out
   Federal aid, which he belives is more akin to Federal incompetant
   meddling.  I encourage all to read his article, he raises some great
   points, especially about repeatedly paying scalpers through the nose
   on the off chance you'll catch "Dark Star" instead of "Wharf Rat".
        I already explained my view on noxious substances.  He 
   disagrees, I respect that.  His ideas are well-conceived.
        Alot of our differences stem from our choice of solutions and
   our view of when action need be taken.  Markus appears to be happy
   with the status quo.  I am not.  We have been invaded by an 
   insidious, sinister group.  I am not so passive as to let it happen.
                    IF NOT US, WHO?
                    IF NOT NOW, WHEN?
   There is an additional solution to not buying, fight back.
   But, herein lies the dilemma...HOW?
   III Proposed solutions
       1) For now, nothing.  Shelly says she's working on the problem.
  I have a great respect for her abilities, love of the band, and 
  wisdom.  She says wait for now while we try something, I defer to her
  more informed judgment.
       2) Future Solutions
          A) Is litigation necessary?  I don't know, but I can
  unequivacably say it is effective.  We have several statutes on our
  side.  First the band or the fans can independantly bring an
  action against scalpers for violations of the RICO statute. (Racketeering
  and mail fraud.)  Proposed problems -- showing damages.  The band
  probably can't claim damages since they still get the face value of the
  tickets, but could claim lost of fan interest in coming to gigs
   due to the presence of scalpers is a pecuniary loss.
      Also cost is a problem, unless we find an attorney willing to work pro
   bono or cheaply.
       I am looking into whether the Consumer Credit protection act is
  being violated.  One of my professors, the drafter of New York's
  Uniform Commercial Code, Debtor-Creditor Law, and Consumer
  Protection Acts believes it is and we can fight under this statute.
      Last, the Criminal law is in our favor.  If we arrest them, and the tickets
     tickets aren't sold, they lose money.  Unless they are part of an organbized
       Unless the scalpers are part of an organized crime ring that uses
  scalping as a tax shelter, (and many believe this is the case) they
  will lose money and will look elsewhere for easy pickings.
      For Now, lets all stick together and boycott the leeches.
  The problem is being brainstormed and rest assured those of us that
  really love the band are ready to make that sacrifice.  Let us never
  forget that we all must do what we can to help out.
   The price of freedom has always been eternal vigilence.
   Thank you for your time and patience...as always I am
         ...from the land where the oceans freeze...
                      Jay

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