Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Pace Law Faculty Publications

Discipline
Keyword
Publication Year

Articles 1 - 30 of 1075

Full-Text Articles in Law

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 ...


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 ...


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 ...


Wills Formalities In The Twenty-First Century, Bridget J. Crawford Jan 2019

Wills Formalities In The Twenty-First Century, Bridget J. Crawford

Pace Law Faculty Publications

Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent ...


Calming Troubled Waters: Local Solutions, Part I, John R. Nolon Jan 2019

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Pace Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the ...


Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman Jan 2019

Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman

Pace Law Faculty Publications

Lawyers are communicators. They communicate with clients, courts, adversaries, juries, witnesses, and the public. Lawyers have a special responsibility for the quality of justice. Their communications, therefore, are hedged by various ethical rules to ensure that their statements are knowledgeable, truthful, respectful, and not prejudicial to the administration of justice. But lawyers are not always knowledgeable of the facts. In fact, they sometimes behave disrespectfully, and stray from the truth. False statements by lawyers may be made unwittingly, sometimes intentionally, and sometimes with an indifference, even a contempt for the truth. Discourse of the latter kind may be characterized as ...


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 Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon Jan 2019

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Pace Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of ...


Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman Jan 2019

Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman

Pace Law Faculty Publications

Religious organizations enjoy many of the same benefits that other non-profit organizations do. Churches, temples and mosques, for example, generally are exempt from local real estate taxes. Economically speaking, a tax exemption has the same effect as a subsidy; freedom from tax liability means that the organization can devote its financial resources to other activities. But where an exemption afforded to a religious employee is broader than the equivalent exemption available to a secular employee, a significant Establishment Clause concern is raised. The parsonage exemption of Internal Revenue Code Section 107 presents such an issue: ministers are permitted to exclude ...


The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Bridget J. Crawford Jan 2019

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Bridget J. Crawford

Pace Law Faculty Publications

Introduction to Symposium on Feminist Judgments: Rewritten Tax Opinions.


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 ...


Neuroscience, Justice And The "Mental Causation" Fallacy, John A. Humbach Jan 2019

Neuroscience, Justice And The "Mental Causation" Fallacy, John A. Humbach

Pace Law Faculty Publications

Mental causation is a foundational assumption of modern criminal justice. The law takes it for granted that wrongdoers “deserve” punishment because their acts are caused by intentions, reasons and other mental states. A growing body of neuroscience evidence shows, however, that human behavior is produced by observable physiological activity in the brain and central nervous system--all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior.

Despite the evidence, neuroskeptics insist that intentions, reasons and other mental states can play a causal role in producing human ...


#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer Jan 2019

#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

This Article proceeds in five parts. Part I reviews the history of the legal and social movement from gender-specific to gender-neutral statutory rape laws. This Part includes an exploration of critical scholarship responding to the Supreme Court's Michael M. decision. Part II explains the limitations of gender-specific legislation. This Part illustrates that there are two categories of gender-neutral statutory rape jurisdictions: age-differential statutes and arbitrary prosecution statutes. This Part also explores challenges to these statutes, particularly arbitrary prosecution statutes, on equal protection grounds. Part III provides empirical data that men are prosecuted at a rate four times greater than ...


The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum Jan 2019

The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum

Pace Law Faculty Publications

Inversions--mergers in which one firm merges with another abroad to avoid taxes in its home country--have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling ...


Less Trust Means More Trusts, Bridget J. Crawford Jan 2019

Less Trust Means More Trusts, Bridget J. Crawford

Pace Law Faculty Publications

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political ...


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman Jan 2019

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Pace Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


Representing The Child In Child Protective Proceedings: Toward A New Paradigm, Merril Sobie Jan 2019

Representing The Child In Child Protective Proceedings: Toward A New Paradigm, Merril Sobie

Pace Law Faculty Publications

This article will attempt a new approach, one based on an analysis of the child's interests in a child protective proceeding. As will be discussed in Part 1, most interests are surprisingly overlooked or barely articulated in the representation debate. Part 2 will summarize the statutes and case law governing the role of the child's counsel in the child protective litigation continuum. The frequently lengthy process may range from initiation by a child protective agency to the achievement of family reunification or other permanency goal. For children, the continuum of sequential proceeding may span years or decades. Finally ...


California Dreaming?, Darren Rosenblum Jan 2019

California Dreaming?, Darren Rosenblum

Pace Law Faculty Publications

Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity. men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California's first mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just Utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate ...


Inclusion Riders And Diversity Mandates, Emily Gold Waldman Jan 2019

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Pace Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that ...


Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki Oct 2018

Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki

Pace Law Faculty Publications

Our global food systems create pervasive environmental, social, and health impacts. Impact valuation is an emerging concept that aims to quantify all environmental, social, and health costs of food systems in an attempt to make the true cost of food more transparent. It also is designed to facilitate the transformation of global food systems. The concept of impact valuation is emerging at the same time as, and partly as a response to, calls for the development of legal mechanisms to address environmental, social, and health concerns. Information has long been understood both as a necessary precursor for regulation and as ...


Shadowing Lenders And Consumers: The Rise, Regulation, And Risks Of Non-Banks, Shelby D. Green Sep 2018

Shadowing Lenders And Consumers: The Rise, Regulation, And Risks Of Non-Banks, Shelby D. Green

Pace Law Faculty Publications

Since the financial crisis of 2008, “shadow banking” or financial transactions by “non-banks,” has skyrocketed. Non-banks are not depositary institutions and as such, they roam free, largely outside the purview of the bank regulators. They occupy all parts of the credit markets, from mortgage loan origination to payday lenders. Untethered, they operate without government guarantees, such as deposit insurance and have no access to emergency government lending facilities, such as the Federal Reserve's discount window.

There are both positives and negatives in the rise of non-banks. On the positive side is market liquidity and greater diversity of funding sources ...


Nurturing A More Just And Sustainable Food System: The First Year Of Pace Law's Food And Beverage Law Clinic, Jonathan Brown Jul 2018

Nurturing A More Just And Sustainable Food System: The First Year Of Pace Law's Food And Beverage Law Clinic, Jonathan Brown

Pace Law Faculty Publications

This article looks back at the Clinic's first year and explores lessons learned in putting the theory behind the Clinic's model into practice. Launching the Clinic required a leap of faith. Was there in fact a client demand for its services? Was there sufficient interest from law students in the intersection of transactional law and food systems? Was the scope of legal matters too broad? Was the client focus too narrow? The early returns from the first year have given us valuable insights and experience from which to draw. First, this article discusses the unmet legal need the ...


The State Of American Juvenile Justice, Merril Sobie Apr 2018

The State Of American Juvenile Justice, Merril Sobie

Pace Law Faculty Publications

This article will summarize the major twenty-first century state legislative and case law developments. It will also briefly note the expansion of state and local initiatives limiting the prosecution of youthful offenders, such as diversion and restorative justice programs.

The state of American juvenile justice has improved significantly in the past several years. However, the reforms are best viewed as a work in progress. Much has been accomplished, but much remains to be accomplished. Crucially, after a generation of “tough on kids” measures, we are on the road toward a true “justice” system for children.


From Little Acorns, Nicholas A. Robinson Jan 2018

From Little Acorns, Nicholas A. Robinson

Pace Law Faculty Publications

Inaugurating Writing Nature: A Seasonal Program of Readings of Nature Writings, under the shared auspices of the Teatown Lake Reservation and the Hudson Valley Writers Center. Presented at the Hudson Valley Writers Center, Sleepy Hollow, New York.


Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford Jan 2018

Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford

Pace Law Faculty Publications

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O'Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very ...


Change Is Constant In Estate Planning: Reflections Of An Actec Law Journal Editor, Bridget J. Crawford Jan 2018

Change Is Constant In Estate Planning: Reflections Of An Actec Law Journal Editor, Bridget J. Crawford

Pace Law Faculty Publications

Change is the only constant in the life of a trusts and estates professional. The law changes; the needs of clients change; the methods for achieving certain results change; technology and modes of communication change. So, too, it can be said that change is the only constant running through more than forty years of our organization's flagship publication.


Bluebooking Environmental Resources, Deborah Heller Jan 2018

Bluebooking Environmental Resources, Deborah Heller

Pace Law Faculty Publications

Five-page tip sheet presented as a table covers how to properly cite environmental material according to the Bluebook. It includes federal and state bills, legislation, and regulations, federal and state administrative adjudications and other administrative material.


Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon Jan 2018

Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon

Pace Law Faculty Publications

This article describes strategies that local governments are employing to both mitigate and adapt to climate change, using their state-given powers to plan community development and to regulate private building. Local governments have significant legal authority to shape human settlements and, in so doing, lower CO2 emissions from buildings and vehicles, increase the sequestration of carbon by the natural environment, and promote distributed energy systems and renewable energy facilities that lower fossil fuel consumption. Local elected leaders are highly motivated to avoid the on-the-ground consequences of our changing climate. The effects of climate change manifest themselves at the local level ...