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Articles 31 - 60 of 81
Full-Text Articles in Law
“Sexting” And The First Amendment, John A. Humbach
“Sexting” And The First Amendment, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
“Sexting” and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur …
Privacy Revisited: Gps Tracking As Search And Seizure, Bennett L. Gershman
Privacy Revisited: Gps Tracking As Search And Seizure, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Part I of this Article discusses the facts in People v. Weaver, the majority and dissenting opinions in the Appellate Division, Third Department, and the majority and dissenting opinions in the Court of Appeals. Part II addresses the question that has yet to be decided by the U.S. Supreme Court – whether GPS tracking of a vehicle by law enforcement constitutes a search under the Fourth Amendment. Part III addresses the separate question that the Court of Appeals did not address - whether the surreptitious attachment of a GPS device to a vehicle constitutes a seizure under the Fourth Amendment. …
Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach
Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The concept of free will is a problematic basis for assessing legal accountability.
First of all, free will could never have evolved in a world of ordinary biological pressures. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.
The essay proceeds …
Preventing Identity Theft And Other Financial Abuses Perpetrated Against Vulnerable Members Of Society: Keeping The Horse In The Barn Rather Than Litigating Over The Cause And/Or Consequences Of His Leaving, Irene D. Johnson
Elisabeth Haub School of Law Faculty Publications
This article examines a troubling issue: the execution of important documents by individuals who are vulnerable, because of age, hospitalization, or other impairment, to financial abuse. Oftentimes, such individuals execute wills that are subsequently challenged on the grounds of lack of capacity or undue influence or execute writings which enable financial predators to prey on the individuals. Such predatory schemes often result in injury to the vulnerable individuals which might then be remediated by criminal or civil statute.
The purpose of this article is to propose a procedure by which much suffering and litigation could be prevented. If such a …
Islam & International Criminal Law: A Brief (In) Compatibility Study, Michael J. Kelly
Islam & International Criminal Law: A Brief (In) Compatibility Study, Michael J. Kelly
Pace International Law Review Online Companion
This paper explores why that incompatibility between Islam and international criminal law persists and considers recommendations for mitigating that dynamic. Why is this important? Primarily because the Western-influenced international criminal law apparatus and the Muslim world are likely to collide more often in the future. If a war crimes tribunal is established in Afghanistan, or if the trial of Syrian agents for the assassination of Lebanon’s former prime minister goes forward, it is imperative that Islamic societies touched by those processes feel a sense of “buy-in” or participation that is meaningful for them. Otherwise, it becomes the same old story …
Russian Federation's Law No. 87- Ф 3: Political Machination Or Procedural Reform?, Kirill Ershov
Russian Federation's Law No. 87- Ф 3: Political Machination Or Procedural Reform?, Kirill Ershov
Pace International Law Review Online Companion
Law 87- ф 3 was signed by Russian President Vladimir Putin six months prior to the December 2007 presidential election. Law 87- ф 3 rearranged the division of functions between the investigator and the procurator during the preliminary investigation. It also saw the creation of the investigative committee within the procuracy, which would have exclusive supervision of all investigations within that branch. Because of the Committee’s personal jurisdiction over investigations involving individuals with official immunity and agents of Russia’s power structures, both Russian media and Western academia saw the law as being politically motivated by the upcoming transfer of power. …
Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman
Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Part I of this Article discusses Imbler’s adoption of absolute immunity for prosecutors. Part II discusses Imbler’s extension of absolute immunity to a prosecutor’s violation of his disclosure duty under Brady v. Maryland. Part III describes the ease with which prosecutors are able to evade the Brady rule and the difficulty of enforcing compliance with Brady. Part IV discusses the absence of any meaningful sanctions to deter and punish prosecutors for willful violations of Brady. Part V proposes a bad faith exception to absolute immunity of prosecutors for Brady violations.
Doubting Free Will: Three Experiments, John A. Humbach
Doubting Free Will: Three Experiments, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This paper describes three experiments that cast doubt on the existence free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it.
While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As …
Fisa Amendments Act 2008: Protecting Americans By Monitoring International Communications--Is It Reasonable?, Jessica Loconte
Fisa Amendments Act 2008: Protecting Americans By Monitoring International Communications--Is It Reasonable?, Jessica Loconte
Pace International Law Review Online Companion
No abstract provided.
Director Liability For Corporate Crimes: Lawyers As Safe Haven?, John A. Humbach
Director Liability For Corporate Crimes: Lawyers As Safe Haven?, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The fines and penalties assessed against corporations are running into the billions of dollars each year. Part of the reason is that the managers and employees of entrepreneurial organizations have inherent incentives to engage in conduct that exposes the entity to fines and penalties. This article considers the legal bases for shifting these law-enforcement losses back to directors who are actively involved in creating them, either because they approved or they deliberately ignored the corporation’s legal or regulatory violations (Part II). It then examines bases for shifting these losses back to directors even when their involvement in the non-compliance is …
“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman
“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.
A Little More Mascara: Response To Making Up Is Hard To Do, Darren Rosenblum
A Little More Mascara: Response To Making Up Is Hard To Do, Darren Rosenblum
Elisabeth Haub School of Law Faculty Publications
Response to the exploration of the dynamics of race, gender, and sexual orientation in the law school classroom by Professors Adrienne Davis and Robert Chang.
Legalism And Decisionism In Crisis, Noa Ben-Asher
Legalism And Decisionism In Crisis, Noa Ben-Asher
Elisabeth Haub School of Law Faculty Publications
In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is …
From Nondiscrimination To Civil Marriage, Elizabeth Burleson
From Nondiscrimination To Civil Marriage, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Climate Change Displacement To Refuge, Elizabeth Burleson
Climate Change Displacement To Refuge, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Sovereignty In The Age Of Twitter, Donald L. Doernberg
Sovereignty In The Age Of Twitter, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
To a degree unimaginable even as recently as twenty-five years ago, people all over the world can communicate with each other easily, cheaply, and frequently, with the concomitant result that people learn more about what is happening elsewhere in the world and even in their own countries. Governments can no longer control information flow nearly to the extent that was once possible, and that has enabled people outside of government to know much more about what government is doing and to know it considerably sooner than might otherwise have been the case. That availability of information is changing the nature …
Revealing The Naked Truth About Solos, Gary A. Munneke
Revealing The Naked Truth About Solos, Gary A. Munneke
Elisabeth Haub School of Law Faculty Publications
Like most tabloid journalism, the truth about solos is a lot less titillating than the headlines. This group of lawyers makes up the largest segment of legal practitioners in New York and every other state in the United States. Outside of metropolitan areas, solos represent the bulk of most law practices, and even a “large” firm in many small towns likely will have five lawyers or fewer.
When Good Courts Go Wrong: A Critique Of The Supreme Court's Domestic Maritime Boundary Jurisprudence, Gayl S. Westerman
When Good Courts Go Wrong: A Critique Of The Supreme Court's Domestic Maritime Boundary Jurisprudence, Gayl S. Westerman
Elisabeth Haub School of Law Faculty Publications
In addressing the concerns presented in the introduction, Part II of this article will argue that the Supreme Court and its Special Masters have misapplied the rules embodied in the 1958 Convention and UNCLOS in regard to the establishment of juridical bays, in every domestic maritime boundary case since 1965. Part III will criticize the approach taken by the Special Master and thereafter by the Court in the Alaska case, and will suggest the correct methodology to be applied in cases with complex coastlines, such as the Alexander Archipelago. Part IV will briefly suggest that U.S. policy on the use …
Public Trust Limits On Greenhouse Gas Trading Schemes: A Sustainable Middle Ground?, Karl S. Coplan
Public Trust Limits On Greenhouse Gas Trading Schemes: A Sustainable Middle Ground?, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
There is a some consensus among economists, environmentalists, and politicians that some form of “cap and trade’ program is the appropriate regulatory mechanism to achieve the greenhouse gas emissions reductions necessary to avoid disastrous global climate disruptions. “Cap and trade” programs necessarily incorporate tradable emissions rights – essentially tradable rights to pollute. As such, they run into principled objection by some environmentalists who oppose the notion of creating economic rights in the global commons – essentially the “right to pollute.” This principled objection derives doctrinal support from the public trust doctrine – the ancient notion rooted in common law and …
Taxation, Pregnancy, And Privacy, Bridget J. Crawford
Taxation, Pregnancy, And Privacy, Bridget J. Crawford
Elisabeth Haub School of Law Faculty Publications
This Article frames a discussion of surrogacy within the context of existing income tax laws. A surrogate receives money for carrying and bearing a child. This payment is income by any definition, even if the surrogacy contract recites that it is a "reimbursement." Cases and rulings on the income tax consequences of the sale of blood and human breast milk, as well as analogies to situations in which people are paid to wear advertising on their bodies, support the conclusion that a surrogate recognizes taxable income, although the Internal Revenue Service has never stated so. For tax purposes, the reproductive …
The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg
The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum …
Bundling Public And Private Goods: The Market For Sustainable Organics, Margot J. Pollans
Bundling Public And Private Goods: The Market For Sustainable Organics, Margot J. Pollans
Elisabeth Haub School of Law Faculty Publications
Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation.
In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA's primary purposes are to facilitate the growth of the organic sector and …
Jurists For Jesus, Barbara L. Atwell
Jurists For Jesus, Barbara L. Atwell
Elisabeth Haub School of Law Faculty Publications
This article focuses on Jesus’ fundamental mandate to ―love your neighbor as yourself. These five words encompass two prongs: honoring every individual (yourself), and caring for the human community as a whole (Your neighbor). This article refers to these two fundamental prongs as the Jesus Principles. An individual does not need to be a Christian or otherwise religious to embrace the Jesus Principles; in fact, they are universal. Developing laws and policies consistent with the basic concept of love reflected in the Jesus Principles can guide us toward a more just society.
Stealth Preemption: The Irs's Nonprofit Corporate Governance Initiative, James J. Fishman
Stealth Preemption: The Irs's Nonprofit Corporate Governance Initiative, James J. Fishman
Elisabeth Haub School of Law Faculty Publications
The Internal Revenue Service, the primary federal regulator of charities, has initiated a corporate governance initiative. The intervention by the Internal Revenue Service into an area traditionally the preserve of state nonprofit corporate law has little relationship to issues of tax compliance. This corporate governance initiative has been accomplished in the face of IRS acknowledgement that it has no statutory authority relating to these issues. Yet, the power of the Service to recognize tax exempt status and the method it has used to ensure it vision of correct corporate governance practices through a series of questions when an organization applies …
China’S Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman
China’S Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman
Elisabeth Haub School of Law Faculty Publications
Because of China’s enormous and fast-growing economy and its increasing role in shaping global governance, the evolving rule of law system in the People’s Republic poses some of the most critical challenges and opportunities for peace and prosperity in our era. This article examines a feature of the private law system which has developed over the past three decades alongside—arguably instead of—a reliable public order for resolution of international commercial disputes. It does so by focusing on the decisions issued by China’s pre-eminent arbitral association—the China International Economic and Trade Arbitration Commission (CIETAC) in Beijing. This article examines the role …
Review Of Defending Humanity: When Force Is Justified And Why By George P. Fletcher And Jens David Ohlin, Alexander K.A. Greenawalt
Review Of Defending Humanity: When Force Is Justified And Why By George P. Fletcher And Jens David Ohlin, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Investment In Water And Wastewater Infrastructure: An Environmental Justice Challenge, A Governance Solution, Alexandra Dapolito Dunn
Investment In Water And Wastewater Infrastructure: An Environmental Justice Challenge, A Governance Solution, Alexandra Dapolito Dunn
Elisabeth Haub School of Law Faculty Publications
This article evaluates the impact of the growing presence of privatized water and wastewater infrastructure projects in some of the world’s most populous countries: China, India, the United States, Brazil, and Nigeria. Together, these nations account for nearly 50 percent of the world’s population. The article discusses environmental justice issues associated with contaminated drinking water and insufficient sanitation and explores the role that public versus private ownership of water infrastructure plays in ensuring access to clean water for the lower-income echelons of society. It articulates the importance of the rule of law and sound environmental governance in this arena and …
Emerging Law Addressing Climate Change And Water, Elizabeth Burleson
Emerging Law Addressing Climate Change And Water, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
The World Economic Forum recognizes that while restrictions on energy affect water systems and vise versa, energy and water policy are rarely coordinated. The International Panel on Climate Change predicts that wet places will become wetter and dry places will become dryer. Transboundary water, energy and climate coordination can occur through international consensus building.
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction …
Practically Grounded: Convergence Of Land Use Law Pedagogy And Best Practices, John R. Nolon
Practically Grounded: Convergence Of Land Use Law Pedagogy And Best Practices, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The changing dynamics in the field of land use and sustainable community development law demand that land use law professors rethink the way in which we prepare law students to practice law in this area. This needed paradigm shift converges with the growing momentum of the best practices movement which urges law schools to dramatically revise the curricular approach to legal education, arguing that traditional models are no longer effectively serving the goal of producing competent and fully prepared new lawyers. A perfect storm is present and a unique opportunity exists through the application of many “best practices” concepts for …