Digital Commons Network^™

Italy And The Aquarius: A Migrant Crisis, Alexandra Larkin

Pace International Law Review

Italian journalist Indro Montanelli once wrote, “[w]e Italians are tolerant and civil with all those who are different. Black, red, yellow. Especially when they are far away, at a telescopic distance from us.” In recent years, Italy had a resurgence of nationalist and far-right political leaders, who have taken an anti-immigration stance. Public interest in migration of refugees and asylum seekers is due both to media coverage of their stories and to litigation before international courts. One high-profile story that made headlines in the summer of 2018 was Italy’s treatment of the Aquarius, a rescue vessel operated by the …

Towards A New Generation In Central American Trade: Proposals For Modernizing Cafta-Dr, Julia E. Johnson

Pace International Law Review

To the surprise of many, the Trump Administration has signaled its intent to renegotiate the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR). Why is the possible renegotiation of CAFTA-DR a surprise? CAFTA-DR has been largely favorable to the United States (U.S.)—the U.S. has enjoyed significant trade surpluses with CAFTA-DR countries since its ratification. CAFTA-DR has also promoted regional integration and co-production in Central America.Trade flows in and out of Central America have increased significantly. On balance, CAFTA-DR has benefitted all signatory nations from a trade standpoint, though it has left unaddressed a myriad of social, humanitarian, and governance issues. Consequently, …

The International Law Of Corporate Governance, Ram Sachs

Pace International Law Review

International economic agreements increasingly touch on fundamental principles of corporate governance. The trend contrasts with existing scholarship, which assumes corporate law evolves via domestic mechanisms. This Article introduces the EU-Japan Economic Partnership Agreement, with its dedicated chapter on corporate governance, as a case study. At the normative level, the emergence of corporate governance in international agreements represents a positive development by enabling countries to signal and put into action commitments for better governance. Given these recent developments, the field of comparative corporate governance should incorporate international agreements as an emerging source of law.

Bringing The Bosses To International Criminal Trials: The Problems With Joint Criminal Enterprise And The “Control Over The Crime” Approach As A Better Alternative, Juan-Pablo Pérez-León-Acevedo

Pace International Law Review

Similar to most international and hybrid criminal tribunals, the International Criminal Tribunal for the former Yugoslavia used the doctrine or theory of Joint Criminal Enterprise (JCE) as a mode of liability when prosecuting and convicting those most responsible, namely, state and non-state political and military leaders, in cases of international crimes. Against such background, the main research questions of this article are whether JCE should be applied in cases of those most responsible for international crimes and whether JCE should be replaced by the “control over the crime” approach. Overall, this article argues and finds two main points. First, JCE …

Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton

Elisabeth Haub School of Law Faculty Publications

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that …

Measuring Brief (United States Of America), Kayla Race, Gordon Rowe, Sydney Sell

Pace Environmental Law Review Online Companion

No abstract provided.

Measuring Brief (Hexonglobal Corporation), Yliana Trevino-Hawkins, Andrea Reed, Sarah Surgeoner

Pace Environmental Law Review Online Companion

No abstract provided.

Measuring Brief (Organization Of Disappearing Island Nations, Apa Mana, And Noah Flood), Tess Pocock, Sheridan Schuessler

Pace Environmental Law Review Online Companion

No abstract provided.

2019 Bench Memorandum

Pace Environmental Law Review Online Companion

No abstract provided.

2019 Competition Problem

Pace Environmental Law Review Online Companion

No abstract provided.

Udhr: Our North Star For Global Social Justice Or An Imperial And Settler-Colonial Tool To Limit Our Conception Of Freedom?, Jeena Shah

Pace International Law Review

On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.

Human Rights, Economic Justice And U.S. Exceptionalism, Natasha Lycia Ora Bannan

Pace International Law Review

On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.

Reclaiming Refugee Rights As Human Rights, Roni Amit

Pace International Law Review

On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.

Leahy—Sharpening The Blade, Nandor F.R. Kiss

Pace International Law Review

Over the course of the last 20 years, the Leahy Law has become one of the cornerstones of foreign and human rights policy. Yet, despite its largely unchallenged importance, field practitioners and other stakeholders have identified a number of substantive and practical deficiencies that greatly diminish the law’s ability to achieve the desired effect, and worse, may pose a risk to the United States’ interests. In reflecting on these deficiencies, and armed with decades of data and anecdotal evidence, this Article proposes adjustments focused on better aligning the law’s intent and effect. These recommendations range from semantic edits to substantive …

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.

Regulating Through Trade: The Contestation And Recalibration Of Eu ‘Deep And Comprehensive’ Ftas, Billy Melo Araujo

Pace International Law Review

Contemporary international trade politics is primarily focused on deep integration – that is, the removal of regulatory barriers to trade. The EU, in particular, has long been one of the main proponents of the use of trade agreements to promote regulatory disciplines on issues such as intellectual property regulation, procurement, services, competition and investment protection. This so-called ‘EU regulatory agenda’ has rapidly gathered pace over the past decade and culminated, more recently, in attempts to conclude mega-regional trade agreements such as the EU-US Transatlantic Trade and Investment Partnership. Such agreements have, however, proved highly contentious and are being fiercely contested …

Federalism: Necessary Legal Foundation For The Central Middle Eastern States, Issa Al-Aweel

Pace International Law Review

The Central Middle East—comprising of Syria, Israel, Palestine, Lebanon, and Jordan—is in need of a legal foundation defined by a constitutional umbrella that governs it as a whole. This is a proposed broad structure of such legal foundation that serves regional legal and economic needs and includes recognition of human rights.

The need for such restructuring is evident from the persistence of regional conflict and instability. Conflict and instability have been constants in the region in general and certainly in the listed five states. The issues include political instability, terrorism, continuous threats of fundamentalism, and pervasive disregard to human life …

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Elisabeth Haub School of Law Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and …

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Cultural heritage (historic buildings, landscapes, and natural monuments) is being threatened by all manner of evils--attacks by belligerents seeking military advantages, increased consumptive uses, and significantly, the idiosyncratic effects of climate change. Climate change portends sea level rise and coastal erosion threats that will inundate coastal areas and the historic structures located there. Melting permafrost and changes in soil composition threaten the loss of buried archaeological evidence and compromise the integrity of ancient buildings designed for a less malevolent climate.

State and local governments have been undertaking measures to build sustainable communities to mitigate the coming changes in the climate, …

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Elisabeth Haub School of Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written …

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of …

Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Anxiety about the fate of human civilization is rising. International Law has an essential role to play in sustaining community of nations. Without enhancing International Environmental Law, the biosphere that sustains all nations is imperiled. Laws in the United States can either impede or advance global environmental stewardship. What is entailed in such a choice?

The biosphere is changing. At a time when extraordinary technological prowess allows governments the capacity to know how deeply they are altering Earth's biosphere, nations experience a perverse inability to cooperate together. The Arctic is melting rapidly, with knock on effects for sea level rise …

Establishing Climate Change Standing: A New Approach, Ian R. Curry

Pace Environmental Law Review

Climate change is one of the thorniest political, legal, and economic issues of our time. Therefore, a new legal approach to the issue is required. This Note proposes a streamlined approach for climate change standing, one that assumes injury in fact and causation for a class of discernible climate change harms. A streamlined approach will enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there has previously been none. Part II of this Note discusses the constitutional doctrine of standing. It begins with a summary of Article III and the logic behind …

Climate Displaced Peoples: Utilizing Regional Approaches To Combat Climate-Induced Displacement In The 21st Century, Oshani Amaratunga

Pace Environmental Law Review

No abstract provided.

Preemption, I Think Not: Evaluating California’S Stored Energy Procurement Law Against Ferc Order 841, Raymond Richards

Pace Environmental Law Review

California’s Energy Storage Systems procurement mandate is a groundbreaking measure designed to supply more clean and reliable energy to the state by allowing the capture of power produced now to be used later. While this technology is still developing, a ready market for such resources will help advance capabilities and bring down cost. Federal Energy Regulatory Commission (“FERC”) Order 841 will springboard storage technology in regions covered by Regional Transmission Organizations (“RTOs”) by allowing storage providers non-discriminatory and accommodating access to the FERC wholesale markets. Although FERC’s new Order speaks directly to the issue of storage technology, it should not …

Protecting Natural Resources - Forever: The Obligations Of State Officials To Uphold "Forever" Constitutional Provisions, Rachel E. Deming

Pace Environmental Law Review

This Article analyzes the attacks on a state constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. Former Florida Governor Rick Scott and his administration have spent an average of over $40 million a year in taxpayer money to defend and, in most cases, pay judgments, in lawsuits challenging mandates of the Florida Constitution.

I examine this issue of ignoring or deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, …

The Semisecret Life Of Late Mao-Era International Law Scholarship, James D. Fry, Huang Yining

Pace Law Review

This Article is delimited by a focus on international law scholarship during the late Mao era, not on the PRC’s actual approach to or pronouncements on international law, mainly in order to respond directly to the assertion of U.S.-based international law scholars on late Mao-era scholarship. Of course, considerable ambiguity surrounds what constitutes scholarly work; no legal or even consensus definition generally exists. To be clear, definitions might exist in specific contexts such as the Foreign Agents Registration Act (“FARA”) of the United States, which prohibits foreign lobbying except for “bonafide religious, scholastic, academic or scientific pursuits or the fine …

The Devil In Recent American Law, L. Joe Dunman

Pace Law Review

Despite its secular aspirations, the American legal system is permeated by Christian and other religious ideas. One of the religious ideas that frequently appears in recent American law is the devil—the unholy antithesis of all that is good in the world. Called by many names, such as Satan, Lucifer, or the Antichrist, the devil is no stranger to the United States court system. The devil arises from the hot depths primarily in five contexts: (1) as a source of injury to reputation in defamation cases; (2) as a prejudicial invocation made during criminal trials to secure conviction, harshen sentences, or …