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Full-Text Articles in Law

The Most Fundamental Change In The Criminal Justice System: The Role Of The Prosecutor In Sentence Reduction, Bennett L. Gershman Oct 1990

The Most Fundamental Change In The Criminal Justice System: The Role Of The Prosecutor In Sentence Reduction, Bennett L. Gershman

Pace Law Faculty Publications

As every lawyer knows, the prosecutor is the most powerful figure in the American criminal justice system. The prosecutor decides whom to charge, what charges to bring, whether to permit a defendant to plead guilty, and whether to confer immunity. In carrying out this broad decision-making power, the prosecutor enjoys considerable independence. Indeed, one of the most elusive and vexing subjects in criminal justice has been to define the limits of the prosecutor’s discretion.


The Adversarial System At Risk, Bennett L. Gershman Apr 1990

The Adversarial System At Risk, Bennett L. Gershman

Pace Law Faculty Publications

The most ominous recent development affecting the balance of forces in the adversary system is the unprecedented attack by prosecutors on criminal defense lawyers themselves. Grand jury subpoenas to attorneys, law office searches, disqualification motions, fee forfeiture proceedings, and, most recently, IRS attempts to enforce currency-reporting regulations do not seem to be isolated occurrences or mere happenstance. Rather, perhaps inspired by Shakespeare's injunction in Henry VI to "kill all the lawyers," some prosecutors appear to have concluded that the most effective way to prevail in the battle against crime is to cripple the defense lawyers, particularly those who represent ...


Torts, Ralph Michael Stein Jan 1990

Torts, Ralph Michael Stein

Pace Law Faculty Publications

This Article surveys the most significant torts cases decided in the courts of New York State during the Survey year. Only cases which challenged existing law, modified longstanding doctrine, or announced new decisional law have been included. While 1989 was not a year of signal change for the law of torts, a number of cases deserve examination and analysis.


Of Persons And Property: The Politics Of Legal Taxonomy, David S. Cohen Jan 1990

Of Persons And Property: The Politics Of Legal Taxonomy, David S. Cohen

Pace Law Faculty Publications

The essay falls into three major parts. In the first part, we explain and describe what we believe to be the core idea of law - that it represents a discursive and taxonomic economy which is used to give meaning to the world by creating a particular and partial reality. The concepts and language lawyers use, the way those media are deployed, the argumentative devices relied upon, and the values inculcated combine in conscious and unconscious ways to constitute law and a legal style of life. In part two, we tell two stories. One involves the Supreme Court's treatment of ...


Regulating Regulators: The Legal Environment Of The State, David S. Cohen Jan 1990

Regulating Regulators: The Legal Environment Of The State, David S. Cohen

Pace Law Faculty Publications

In this paper I focus on the ability of tort law to reduce primary costs, or losses associated with the number and seriousness of accidents. In one sense I will be analysing the state as if it were a private firm in which losses suffered by private individuals and firms are externalities. Several years ago Mark Spitzer wrote a paper on this topic in which he posited several models of state activity and analysed the incentive effects of liability rules in each case. In my view Spitzer's general conclusion - the rule which may be synthesized from all of the ...


Suing The State, David S. Cohen Jan 1990

Suing The State, David S. Cohen

Pace Law Faculty Publications

As one examines the ways in which we have chosen to respond to claims of individuals and firms to compensation from the federal administration, one is immediately struck by the rapid rate of growth in the number of claims and the magnitude of the compensation that has been sought in recent years. What is even more dramatic, however, is the shift in the focus of our attention away from low-level bureaucratic activity, and towards alleged administrative failures to ensure air traffic safety, combat international terrorism, regulate financial institutions, protect the interests of businesses in international trade negotiations, privatize the delivery ...


Corporate Philanthropy And The Business Benefit: The Need For Clarity, Shelby D. Green Jan 1990

Corporate Philanthropy And The Business Benefit: The Need For Clarity, Shelby D. Green

Pace Law Faculty Publications

The need for clarity or harmony is the subject of this essay. Part II summarizes a philosophical debate between two scholars on the mission of the corporation. Part III briefly traces the historical development of the relevant principles and Part IV examines the actual philanthropic practices of several large publicly held corporations. Finally, Part V considers the continuing significance of the common law rule in light of these practices and urges support for the ALI proposal.


The Illusion Of Fairness Through Special Committees In Management Buyouts, Shelby D. Green Jan 1990

The Illusion Of Fairness Through Special Committees In Management Buyouts, Shelby D. Green

Pace Law Faculty Publications

This essay will explore these deficiencies and argue for real, and not illusory, safeguards against directors' self-dealing in management buyouts. Part II provides an overview of corporation law regarding the decisionmaking authority of the board. Part III discusses self-dealing transactions as exceptions to the normal judicial deference accorded board decisions. Part IV discusses the flaws in the use of the special committee to address conflict of interest problems. Part V provides an analysis of the case introducing this essay and Part VI offers conclusions and suggestions for reform.


Can It Really Be Unconstitutional To Regulate Product Safety Information?, David S. Cohen Jan 1990

Can It Really Be Unconstitutional To Regulate Product Safety Information?, David S. Cohen

Pace Law Faculty Publications

In this paper, I examine the impact of two Supreme Court decisions on information-based product safety regulation which, in a variety of guises in Canada, can be said to restrict manufacturers', distributors' and marketers' ability to "express" themselves. In the end, I conclude that, if one appreciates the justification for and the processes by which this kind of product safety regulation is instituted, there is only a small risk that the current regulatory activity will be held unconstitutional. When one takes into account the degree of co-operation between business and government in establishing the content of most regulatory activity and ...


Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin Jan 1990

Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin

Pace Law Faculty Publications

In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting ...


"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg Jan 1990

"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg

Pace Law Faculty Publications

This Article will address primarily the lack of textual and historical support for the Court's narrow construction of jurisdictional provisions that cause it to deny the existence of jurisdiction. In addition, the Article will briefly describe the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share democratic theory and institutional legitimacy concerns that Professor Redish will address, but let me respectfully suggest that these issues are best understood in light of the congressional thought underlying the Title 28 authorizations.


Review Of "Honorable Justice: The Life Of Oliver Wendell Holmes" By S. Novick, James J. Fishman Jan 1990

Review Of "Honorable Justice: The Life Of Oliver Wendell Holmes" By S. Novick, James J. Fishman

Pace Law Faculty Publications

No abstract provided.


What Was Discovered In The Quest For Truth?, Steven H. Goldberg Jan 1990

What Was Discovered In The Quest For Truth?, Steven H. Goldberg

Pace Law Faculty Publications

Criminal discovery has outstripped Justice Brennan's claim of "mixed" results. His description of the twenty-five year transformation as merely "rapid" is too modest. From the picture in 1963, which he accurately describes as "quite a bleak one," discovery is, today, de rigueur in criminal cases. There is little to suggest a general reduction of criminal case discovery in the future.


The Work Of A Cuny Law Student: Simulation And The Experiential Learning Process, Vanessa Merton Jan 1990

The Work Of A Cuny Law Student: Simulation And The Experiential Learning Process, Vanessa Merton

Pace Law Faculty Publications

The work you do as part of a simulation is selectively, but not exactly, the same as what you would do as a lawyer confronted with a comparable problem. By drastically shortening the time frame of the actual process, the simulation allows you to experience the consequences of your choices relatively quickly. In a simulation, you are asked to assume certain roles, and to engage in a variety of tasks, some in-role and some out-of-role (except for the ubiquitous role of "law student").


Toward A Housing Imperative And Other Reflections On Balanced Growth And Development, John R. Nolon Jan 1990

Toward A Housing Imperative And Other Reflections On Balanced Growth And Development, John R. Nolon

Pace Law Faculty Publications

In a series of recent cases, the New York courts have commented on the legislative acts of the state and local governments which have restricted or expanded the access to housing for limited income households or minorities. From these holdings, we can glimpse the outlines of a housing imperative: an emerging right running generally to low and moderate income households and minorities not to be excluded from living in any given community. As important, there also emerges the understanding that our legislators are empowered to act decisively to solve New York's much-lamented housing problem.


English White Paper Law Reforms: An Outline For Equal Access To Justice?, Jay C. Carlisle Jan 1990

English White Paper Law Reforms: An Outline For Equal Access To Justice?, Jay C. Carlisle

Pace Law Faculty Publications

It is highly likely that by the end of 1989, legislation proposing the most dramatic changes in the English legal profession in this century will be introduced by the Lord Chancellor of Great Britain in the House of Lords. If Lords approve the legislation, it will be sent to the House of Commons early in 1990 and will become effective by Royal Assent shortly thereafter. The Lord Chancellor's reforms will abolish the barristers' monopoly of audience in higher courts, partially limit the statutory bar on multidisciplinary and multinational partnerships, introduce a modified contingency fee, permit building societies and banks ...


Civil Practice, Jay C. Carlisle Jan 1990

Civil Practice, Jay C. Carlisle

Pace Law Faculty Publications

During the Survey year the New York Court of Appeals upheld the constitutionality of the state toxic tort revivor statute and adopted the market share theory in DES cases. The court also gave the bar a Christmas present in Tewari v. Tsoutsouros3 and clarified important discovery issues .Two appellate courts held that the AIDS virus falls within New York Civil Practice Law and Rules ("CPLR") 214-c and issued important decisions in notice of claims cases.6Also, several trial courts actively applied new sanctions rules. Perhaps the most important developments during the Survey year were the bench and bar proposals relating ...


Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg Jan 1990

Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg

Pace Law Faculty Publications

The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents ...


Joining Hands And Smarts: Teaching Manual Legal Research Through Collaborative Learning Groups, Thomas Michael Mcdonnell Jan 1990

Joining Hands And Smarts: Teaching Manual Legal Research Through Collaborative Learning Groups, Thomas Michael Mcdonnell

Pace Law Faculty Publications

My hypothesis was that a group of law students who research a problem together will learn legal research better than students who work individually. I further hypothesized that if the group research could be undertaken during class time under the direct supervision of the instructor and the teaching assistant, the students would be less intimidated by manual research tools and would be better prepared to work on their own. The following three-step method was employed: (1) the students read about the tool; (2) the instructor discussed the tool in class; and (3) immediately following the discussion, students went to the ...


The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin Jan 1990

The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin

Pace Law Faculty Publications

This Article closely examines the rationale offered for the new quasi in rem jurisdiction, and concludes that it cannot withstand careful analysis. Courts have explained that the new theory of quasi in rem jurisdiction is necessary to fill gaps in the state's long arm statute. However, gaps in a long arm statute can be filled by legislative amendments which can provide in personam jurisdiction up to the full extent permitted by due process. In fact, long arm statutes have steadily expanded over the last decade to take up the slack left by Shaffer. In personam jurisdiction under a long ...