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Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford Aug 2020

Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford

Pace Law Faculty Publications

Many universities around the United States are attempting to grapple with their institution’s history of direct and indirect involvement with transatlantic slavery. One of the first schools to do so was Brown University, which appointed a special committee in 2003 to study its historic institutional ties to slavery. After three years of investigation and discussion, the Brown committee recommended the creation of a public campus memorial and widespread educational efforts. In 2015, Georgetown University undertook a similar investigation on its campus; the working group ultimately recommended renaming certain university buildings, erecting public memorials, creating an academic center of the ...


Blockchain Wills, Bridget J. Crawford Jul 2020

Blockchain Wills, Bridget J. Crawford

Pace Law Faculty Publications

Blockchain technology has the potential to radically alter the way that people have executed wills for centuries. This Article makes two principal claims--one descriptive and the other normative. Descriptively, this Article suggests that traditional wills formalities have been relaxed to the point that they no longer serve the cautionary, protective, evidentiary, and channeling functions that scholars have used to justify strict compliance with wills formalities. Widespread use of digital technology in everyday communications has led to several notable cases in which individuals have attempted to execute wills electronically. These wills have had a mixed reception. Four states currently recognize electronic ...


Title Ix & Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford Jul 2020

Title Ix & Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford

Pace Law Faculty Publications

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can be an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. They may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education ...


What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford Jun 2020

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Pace Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees and ...


Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross May 2020

Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross

Pace Law Faculty Publications

In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants' access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties' access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties ...


The Common Law As A Force For Women, Bridget J. Crawford May 2020

The Common Law As A Force For Women, Bridget J. Crawford

Pace Law Faculty Publications

This essay introduces a collection of Symposium Essays examining Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press, 2019). Professor Bernstein explores the common law's recognition of both rights and liberties, highlighting in particular negative liberties such as the right to be left undisturbed. The Symposium Essays test and explore Professor Bernstein's thesis as applied to the right to be free from rape and unwanted pregnancies. Grounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these Essays--together with Professor Bernstein's book--suggest ...


From Public Health To Public Wealth: The Case For Economic Justice, Barbara L. Atwell Apr 2020

From Public Health To Public Wealth: The Case For Economic Justice, Barbara L. Atwell

Pace Law Faculty Publications

This Article examines how we can overlay the principle of serving the common good, which undergirds public health law, onto financial well-being. It suggests that we apply public health law principles to corporate law and culture. In matters of public health, we view quite broadly states' police power to protect the public good. Government is also empowered to protect the general welfare in matters of financial well-being. Using the “general welfare” as a guidepost, this Article challenges the conventional wisdom that corporations exist solely to maximize profit and shareholder value to the exclusion of virtually everything else. It proposes two ...


The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman Apr 2020

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Pace Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal ...


The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson Jan 2020

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Pace Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing ...


Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger, Gabrielle Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, J. Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa E. Munro, Pamela A. Wilkins Jan 2020

Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger, Gabrielle Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, J. Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa E. Munro, Pamela A. Wilkins

Pace Law Faculty Publications

This conversational-style essay is an exchange among fourteen professors—representing thirteen universities across five countries—with experience teaching with feminist judgments. Feminist judgments are ‘shadow’ court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the ...


The Right Family, Noa Ben-Asher, Margot J. Pollans Jan 2020

The Right Family, Noa Ben-Asher, Margot J. Pollans

Pace Law Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not ...


Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton Nov 2019

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

Pace 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 ...


Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili Oct 2019

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

Pace 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 ...


Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach Oct 2019

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

Pace 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 ...


The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh Oct 2019

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Pace 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 ...


Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green Oct 2019

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

Pace 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 ...


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 Oct 2019

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

Pace 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 ...


Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson Oct 2019

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

Pace 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 ...


Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi Oct 2019

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

Pace 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 ...


Tax Talk And Reproductive Technology, Bridget J. Crawford Sep 2019

Tax Talk And Reproductive Technology, Bridget J. Crawford

Pace Law Faculty Publications

The tax system both reacts to and helps create attitudes about the value of certain behaviors and choices. This Article makes three principal claims—one empirical, one normative, and one interpretative. The Article demonstrates through data that a representative sample of fertility clinics in the United States does not make information about the tax consequences of compensated human egg transfers—commonly called egg “donation”—publicly available. In 2015, in a case of first impression, the United States Tax Court decided in Perez v. Commissioner that a compensated egg transferor must report as income any amount she receives for her eggs ...


The New Food Safety, Margot J. Pollans, Emily M. Broad Leib Aug 2019

The New Food Safety, Margot J. Pollans, Emily M. Broad Leib

Pace Law Faculty Publications

A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is often narrowly understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not just acute, ingestion-related risks, but also whole-diet cumulative ingestion risks, and cradle-to-grave risks of food production and disposal. This broader definition, which we call “Food System Safety,” draws under the header of food safety a variety of historically siloed, and under-regulated, food system issues including ...


You Don’T Need Lungs To Suffer: Fish Suffering In The Age Of Climate Change With A Call For Regulatory Reform, David N. Cassuto, Amy O'Brien Aug 2019

You Don’T Need Lungs To Suffer: Fish Suffering In The Age Of Climate Change With A Call For Regulatory Reform, David N. Cassuto, Amy O'Brien

Pace Law Faculty Publications

Fish are sentient — they feel pain and suffer. Yet, while we see increasing interest in protecting birds and mammals in industries such as farming and research (albeit few laws), no such attention has been paid to the suffering of fish in the fishing industry. Consideration of fish welfare including reducing needless suffering should be a component of fisheries management. This article focuses on fisheries management practices, the effects of anthropogenic climate change on fisheries management practices, and the moral implications of fish sentience on the development and amendment of global fishing practices. Part I examines domestic and international fisheries, including ...


Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger Jul 2019

Why Women: Judging Transnational Courts And Tribunals, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Pace Law Faculty Publications

Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges ...


Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman Jul 2019

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Pace Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which ...


Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin Jul 2019

Judging During Crises: Can Judges Protect The Facts?, Lissa Griffin

Pace Law Faculty Publications

With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation.

This Essay argues that the judiciary's ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out ...


Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer Jun 2019

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...


Bargaining In The (Murky) Shadow Of Arbitration, Jill I. Gross Apr 2019

Bargaining In The (Murky) Shadow Of Arbitration, Jill I. Gross

Pace Law Faculty Publications

Disputing parties who are unable to settle their differences will end up before an adjudicator (typically a judge or jury) who will decide their dispute for them. Dispute resolution scholars have long theorized that disputants bargain in the shadow of this adjudicated outcome, predicting what would happen in court substantively and procedurally, and negotiating based on an assessment of the strength of “bargaining endowments” derived from applicable legal norms. The increasing use of arbitration to resolve commercial disputes in the U.S. means that more and more disputants are negotiating in the shadow of arbitration, not litigation. This Article explores ...


The Most Fundamental Right, Nicholas A. Robinson Jan 2019

The Most Fundamental Right, Nicholas A. Robinson

Pace Law Faculty Publications

The Magna Carta and successors recognize a right to the environment as central to human existence. Along with associated rule of law and due process, 193 national charters recognize such a right — but not the U.S. Constitution. This right does lie latent in America’s state constitutions, however, and can also be read into the federal document as well. Meanwhile, recognition of environmental rights is expanding globally.


The Birth Of A Nation: A Study Of Slavery In Seventeenth-Century Virginia, Randolph M. Mclaughlin Jan 2019

The Birth Of A Nation: A Study Of Slavery In Seventeenth-Century Virginia, Randolph M. Mclaughlin

Pace Law Faculty Publications

Race based slavery in North America had its origins in seventeenth-century Virginia. Initially, the position of the African worker was similar to that of the indentured servants from England. During the early to mid-seventeenth century, both African and English indentured servants served for a period of years and received the protections to which a servant was entitled. However, during the 1640s there appeared examples of Africans also being held as slaves. Thus, during the seventeenth century there existed a dual system of servitude or bondage for the African worker. One basis for this duality was the common law practice that ...


The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman Jan 2019

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

Pace Law Faculty Publications

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any ...