Learning Law from Pelé’s Life
Edson Arantes do Nascimento died yesterday at the age of 82. Better known as “Pelé” and the only man to win three World Cups, Edson Arantes do Nascimento was widely considered to be the greatest soccer player of all time.
In my continued effort to connect bar exam concepts to history, pop culture, and entertainment to make somewhat potentially boring, confusing, and difficult topics more relatable and accessible to those preparing for the bar exam, I've listed Biography.com’s compilation of 10 not-too-commonly-known Pelé facts and discussed how they connect to some testable areas on the bar exam:
Fact #1. "He was named after Thomas Edison"
The Constitution generally prohibits only governmental infringement of constitutional rights (spoiler alert: see Fact #8 below). However, this doesn’t mean that the government infringement of constitutional rights must be committed by a government actor. Instead, actions by private individuals who (1) perform exclusive public functions or (2) have significant state involvement in their activities can constitute government action. Keep in mind, though, that government action won’t be found simply because the government has granted a monopoly to a business or heavily regulates it.
Thomas Edison is often credited with inventing the light bulb, and several utilities companies are named after him as a result. In Jackson v. Metropolitan Edison, 419 U.S. 345 (1974), the Supreme Court found that subjecting a company to extensive regulations or providing it with a partial monopoly doesn’t convert its actions into government action. Services that affect the public interest don’t automatically rise to the level of government action. Also, the government has no obligation to provide utility services, so the company isn’t fulfilling a public function.
Fact #2. "He got creative when he couldn’t afford a soccer ball or shoes"
Let’s talk about creativity here. Entrapment occurs if the intent to commit the crime originated not with the defendant, but rather with the creative activities of law enforcement officers. If this is the case, it is presumed that the legislature didn’t intend to cover the conduct and so it isn’t criminal. The defense of entrapment consists of two elements: (i) the criminal design must have originated with law enforcement officers; and (ii) the defendant must not have been predisposed to commit the crime prior to the initial contact by the government.
The defense of entrapment consists of two elements: (i) the criminal design must have originated with law enforcement officers; and (ii) the defendant must not have been predisposed to commit the crime prior to the initial contact by the government.
That’s why the arrests on the old “To Catch a Predator” show on NBC wasn’t entrapment.
Fact #3. "His first contract was far from lucrative"
This Pelé fact reminds me of all the classic Contracts questions where two parties entered into a contract, but one party later realized that the contract wasn’t as profitable as that party originally thought. As a result, that party either attempts to terminate the original contract or enters into an identical—but more profitable—contract with someone else.
Sometimes, these kinds of questions raise the possibility of the contract being discharged by impracticability. However, a mere change in the degree of difficulty or increased expenses (like wages, prices of raw materials, costs of construction, etc.), unless well beyond the normal range, doesn't amount to impracticability because these are the types of risks that a contract is intended to cover. Thus, the fact that a contract isn't as profitable as one of the parties originally isn't a valid ground to discharge obligations under an otherwise valid contract.
Fact #4. "He’s a Brazilian national treasure—literally"
This is a stretch, but I’m also literally tying this back to something connected to the national treasury. Under the Fourth Amendment, government-required drug testing constitutes a search. However, the Supreme Court has upheld drug testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs” beyond the general interest of law enforcement.
For example, in National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Supreme Court held that the government can require applicants seeking United States Customs Service positions connected to drug interdiction to be tested for drugs. The Court reasoned that there is a special need for such testing because Customs positions connected to drug interdiction will have ready access to large quantities of drugs.
Fact #5. "He held two Guinness World Records"
Here’s a discussion of two other records: the public records exception and the business records exception. Remember that the “devil is in the details” when you’re examining exceptions to the hearsay rule.
Public Records Exception
Rule 803(8) creates a hearsay exception for most public records and reports. Properly certified official records from public offices are generally admissible if they are routine, factual, based on personal knowledge of public officials, and appear reasonably reliable.
Rule 803(8) explicitly doesn’t apply to “matter[s] observed by law-enforcement personnel” or to “factual findings from a legally authorized investigation” when proffered by the prosecutor against the defendant in a criminal case.
Business Records Exception
Rule 803(6) creates a hearsay exception for the regularly kept records of businesses and other business-like entities. Under this exception, a record of an event will be admissible if: (i) it was made in the regular course of the business; (ii) it was the regular practice of the business to make the record; and (iii) it was made at or near the time of the event by, or from information transmitted by, someone with personal knowledge of the event and a business duty to report the information. The record also must be authenticated through the testimony or written certification of a records custodian or other qualified witness.
Although certain public records are also considered business records, the business records exception doesn’t include a prohibition on the use of law enforcement reports in criminal prosecutions. However, courts have held that law enforcement reports are nonetheless inadmissible against criminal defendants under the business records exception.
Fact #6. "Henry Kissinger convinced him to play in the U.S."
Henry Kissinger was appointed Secretary of State by President Richard Nixon and served in that position from 1973 to 1977. The Secretary carries out the President's foreign policies through the State Department and the Foreign Service of the United States.
Let’s focus on the President’s power to represent and act for the United States in day-to-day foreign relations. The President has the power to appoint and receive ambassadors and make treaties (with the advice and consent of the Senate), and to enter into executive agreements. His power is broad even as to foreign affairs that require congressional consent.
The power to recognize foreign states lies exclusively with the president. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) required the Supreme Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. This legislation conflicted with the Executive Branch’s long-standing policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Presidents Bush and Obama refused to implement the statute. The Court sided with the Presidents and declared the statute unconstitutional. (John Kerry was Secretary of State from 2013 to 2017 under the Obama Administration.)
Fact #7. "He once (temporarily) stopped a war"
Let’s talk about war powers.
Congress has the power to declare war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize, arm, discipline, and call up the militia. Of course, several other congressional powers may have direct or indirect application to military purposes: tax and spending power, commerce power, Senate’s treaty consent power, maritime power, investigatory power, etc.
The President has extensive military powers even though the President lacks the power to declare war. The President may act militarily under his power as commander in chief of the armed forces in actual hostilities against the United States without a congressional declaration of war. But Congress may limit the President under its power to enact a military appropriation every two years (since a military appropriation may not be for more than two years.)
Fact #8. "He was friends with Nelson Mandela"
Nelson Mandela was a South African anti-apartheid activist who served as the first president of South Africa from 1994 to 1999.
In the United States, the Thirteenth Amendment provides that neither slavery nor involuntary servitude shall exist. The importance of the Thirteenth Amendment is that the amendment contains no language limiting its effect to governmental action. Therefore, the Thirteenth Amendment is applicable even to private action.
The Fourteenth Amendment prohibits discrimination by the state government. The Fifth Amendment prohibits discrimination by the federal government. And the Thirteenth Amendments prohibits discrimination by anyone.
The Fourteenth Amendment prohibits discrimination by the state government. The Fifth Amendment prohibits discrimination by the federal government. And the Thirteenth Amendments prohibits discrimination by anyone.
Fact #9. "He played for both teams in his final pro game"
When it comes to valid contracts, consideration must exist on both sides of the contract. In other words, promises must be mutually obligatory. There are many agreements in which one party has become bound but the other hasn’t. Such agreements lack mutuality—i.e., at least one of the promises is “illusory”—and consideration fails.
However, the requisite mutuality will be found to exist in certain situations even though the promisor has some choice or discretion. Take requirements and output contracts, for example. “Requirements” contracts (promises to buy “all that I will require”) and “output” contracts (promises to sell “all that I manufacture”) are enforceable. Consideration exists, as the promisor is suffering a legal detriment—he has parted with the legal right to buy (or sell) the goods he may need (or manufacture) from (or to) another source.
Fact #10. "He was knighted by Queen Elizabeth II"
Even though Pelé lacked British citizenship, Queen Elizabeth II bestowed upon Pelé the honorary title of Knight Commander of the British Empire (KBE) in 1997 for his humanitarian work and activism.
Questions of citizenship on the bar exam often show up in Civil Procedure and Constitutional Law questions. When it comes to Constitutional Law questions, alienage classifications are those which treat citizens and non-citizens differently. Be mindful of alienage classifications because that’s a classification that seems to give examinees the most difficulty because alienage classifications can be examined under either strict scrutiny or rational basis.
Be mindful of alienage classifications because that’s a classification that seems to give examinees the most difficulty because alienage classifications can be examined under either strict scrutiny or rational basis.
While most alienage classifications are examined under strict scrutiny, there are two exceptions where alienage classifications are examined under rational basis. First, federal alienage classifications are subject to rational basis because of Congress’s plenary power over aliens. Second, the rational basis standard applies if state or local laws discriminate against alien participation in government (e.g., voting, jury service, elective office) or if they limit certain non-elective offices involving important public policy (e.g., police officers, probation officers, and primary and secondary schoolteachers).
