Digital Commons Network^™

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

When It Happens Here: Reproductive Autonomy, Fascism, And Dobbs V. Jackson Women’S Health Organization, Robin Maril

Pace Law Review

Within six months after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, nineteen states passed laws prohibiting abortion within the first trimester. The most restrictive laws banned abortion entirely, except to save the life of the person giving birth. The Court’s eager abdication of its role in protecting individual liberty under the 14th amendment marks a grim chapter in the life cycle of American democracy. The Dobbs decision, along with the political environment that demanded the repeal of Roe v. Wade, promises to severely limit the role of women in public life. The specter …

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Cruel And Unusual Punishment: The Eighth Amendment And Ice Detainees In The Covid-19 Crisis, Nechelle Nicholas

Pace Law Review

No abstract provided.

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? …

How The United States Stopped Being A Pirate Nation And Learned To Love International Copyright, John A. Rothchild

Pace Law Review

From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them.

This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more …

The Forgotten Unitary Executive Power: The Textualist, Originalist, And Functionalist Opinions Clause, Zachary J. Murray

Pace Law Review

This article will analyze the Opinion Clause’s text, its history and intent, and its potential functions as a power. Part II catalogues much of the prior scholarship on the Opinions Clause, which generally fits into two categories: the anti-unitary approach, which argues that a substantive reading of the Vesting Clause renders the Opinions Clause redundant, and the unitary response, which essentially accepts that redundancy. To some extent, both sides miss the mark. The unitary approach misreads the text, assigning great substantive weight to the descriptive Vesting Clause, while assigning descriptive status to the substantive Opinions Clause. The anti-unitary approach, on …

Comrades Or Foes: Did The Russians Break The Law Or New Ground For The First Amendment?, Artem M. Joukov, Samantha M. Caspar

Pace Law Review

This Article discusses the recent decision by the United States Federal Government to indict more than a dozen Russian nationals for conspiracy to defraud the United States of America. The Government accused the Russians of staging protests, distributing false propaganda, and spreading political messages and ideologies online in an effort to affect the outcome of the 2016 Presidential Election. We argue that while the Defendants violated several other laws, the majority of the acts the Government classifies as a conspiracy to defraud the United States should not be considered criminal. Rather, these acts are protected political speech under the First …

Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu

Pace Law Review

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …

The Unconstitutionality Of Consolidated Planning Boards: Interlocal Planning Under New York Law, Albert J. Pirro Jr.

Pace Law Review

This Article will examine the nature and constitutionality of consolidated planning boards in light of the broad powers actually granted them. The issues surrounding the constitutionality of consolidated planning boards begs, yet again, Chief Justice Marshall's question respecting the extent of the power granted to the state governments. The question is whether a municipality may abdicate its power to regulate land within its own boundaries by delegating it to a separate planning entity.

The U.S Constitution: The Original American Dream, Judith S. Kaye

Pace Law Review

Adapted from Remarks delivered at Law Day ceremonies May 1, 1996, at Court of Appeals Hall, Albany, New York.

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

The Federal Criminal Forfeiture Statute: Reining In The Government’S Previously Unbridled Ability To Seize Pretrial Assets, Kristyn Fleming Francese

Pace Law Review

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that …

No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle

Pace Law Review

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section

Pace Law Review

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Updating New York’S Constitutional Environmental Rights, Nicholas A. Robinson

Pace Law Review

The stakes are high as New York State considers whether to amend the constitution. The electorate contemplates the gathering crises of sea level rise, disruption of weather patterns, intensified summer heat waves, and other climate change impacts. New York also faces escalating environmental problems, which the newly perceived climate impacts in turn exacerbate. It is timely to debate whether or not New York should recognize the right to the environment to its constitution. In 2016, the House of Delegates of the New York State Bar Association adopted the report of its committee on the constitution, regarding the environmental conservation article …

Subnational Environmental Constitutionalism And Reform In New York State, James R. May

Pace Law Review

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s constitution, with the next such opportunity on November 7, 2017. This article explores how subnational constitutionalism from around the world informs discussions about whether and how …

Home Rule In New York: The Need For A Change, Michael A. Cardozo, Zachary W. Klinger

Pace Law Review

This article is intended to provide a practical lens into how Home Rule issues unfold in complex matters involving the City, and to suggest how a much-needed Home Rule constitutional amendment could re-shape or, at the very least, clarify Home Rule standards. Section II will provide some historical and legal background on Home Rule; Section III will analyze some of the more well-known Home Rule cases that the Law Department litigated during the Bloomberg Administration; and Section IV will discuss insights gleaned with respect to, and will offer several recommendations for, the future of Home Rule in New York.

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court merger.

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …

Unusual “Politics As Usual”: The 2017 Ballot Proposition Calling For A Constitutional Convention In New York, Peter J. Galie

Pace Law Review

The first task of constitutional reformers is to make the people of the state aware that they live under a constitution that, for better or worse, affects their everyday lives whether they live on in remotes sections of the Adirondacks routes in villages or a teeming megalopolis. Until this is done, the people are not likely to demand or even accept the more thoroughgoing revision so badly needed in New York.

The Amending Clause In The New York Constitution And Conventionphobia, Gerald Benjamin

Pace Law Review

The amending clause is the nineteenth of the New York State Constitution’s twenty articles. Followed only by the enacting clause, for all intents and purposes this is the document’s final word. Well, maybe not the final word. An alternative is to think of this amending clause as a part of an ongoing several-centuries-long conversation. The clause is a message from one past group of designers and drafters of New York’s governing system, the 1846 Constitutional Convention majority, to all of us who gave them the charge to “secure [for us] the blessings of freedom,” that is to “we the people” …

Hope Vs. Fear: The Debate Over A State Constitutional Convention, Henry M. Greenberg

Pace Law Review

On November 7, 2017, New Yorkers will go to their polling places and receive ballots containing a thirteen-word referendum question: “Shall there be a convention to revise the constitution and amend the same?” That question appears on the ballot because the New York State Constitution commands that at least once every twenty years voters are asked whether or not to call a constitutional convention. The mandatory referendum reflects Thomas Jefferson’s belief that every generation the people should be given a chance to revise their basic law.

On The Categorical Approach To Free Speech – And The Protracted Failure To Delimit The True Threats Exception To The First Amendment, Wayne Batchis

Pace Law Review

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make …

Cell Phone Searches After Riley: Establishing Probable Cause And Applying Search Warrant Exceptions, Erica L. Danielsen

Pace Law Review

Part I of this note discusses the Fourth Amendment’s protection against unreasonable search and seizures and its probable cause requirement. The Fourth Amendment’s text remains the same since its enactment. However, interpretation of the Fourth Amendment continues to evolve in order to stay current with society. Interpretation of the Fourth Amendment also varies based on state constitutional law since states can provide its citizens with greater protection than the United States Constitution. This is why the United States Supreme Court, federal district courts, and state courts have all undergone thorough Fourth Amendment analyses when applying the true meaning of the …

You Have The Right To Be Confused! Understanding Miranda After 50 Years, Bryan Taylor

Pace Law Review

Part I of this article briefly explores the background and historical context that ultimately led to the Miranda decision. As the late Dr. Carl Sagan once said, “you have to know the past to understand the present.” Understanding the circumstances and cases leading up to Miranda helps in the overall application of Miranda to cases of today. Part II addresses whether a statement should be allowed into evidence and provides a practical working approach to conduct a Miranda analysis. This innovative approach provides a step-by-step process in determining the admissibility of statements pursuant to Miranda and its progeny. This process …

Babies Behind Bars: An Evaluation Of Prison Nurseries In American Female Prisons And Their Potential Constitutional Challenges, Seham Elmalak

Pace Law Review

This note opens the prison doors and delves into the United States female prison system, primarily focusing on the positive and negative impact of nursery programs on mothers and children, along with potential constitutional claims that can be brought against these programs. Part I provides a general background about the American prison system, and briefly touches on the constitutional standards of prisoners’ rights. It also discusses the history and development of female prisons and illustrates the rapid increase of female incarceration. Part II focuses on the prevalence of mothers within the female population in prisons. Part III introduces prison nursery …

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …