Legal History Commons^™

Implied Warranty Claims Under The Magnuson-Moss Warranty Act: Resolving Fifty Years Of Uncertainty, Stephen E. Friedman

Pace Law Review

This Article addresses whether Congress intended for consumers to bring implied warranty claims on consumer products under the Magnuson-Moss Warranty Act in all instances or only when a defective product is covered by a written warranty. The question, unresolved almost fifty years after the Act’s passage, is of great practical importance because consumers who bring claims under the Act are eligible for attorneys’ fees and other potential advantages not available to plaintiffs bringing warranty claims under state law. This Article analyzes the two current approaches courts have taken to address the issue: a broad approach where consumers can bring a …

The United Nations And Human Rights Non-Governmental Organizations (Ngos) - Seventy-Five Years Of Consultations, Collaboration, And Contributions (1945-2000), George E. Edwards

Pace International Law Review

At the San Francisco Conference where the United Nations Charter was negotiated, participants and observers included representatives of “societies and organizations”—non-governmental organizations (NGOs). The precise number and identities of those NGOs is unclear, but 42 of the participants were consultants to the U.S. delegation that successfully lobbied for the Charter to include an official relationship between the U.N. and NGOs, and the promotion and protection of human rights. NGOs thus had a profoundly positive impact on the creation of the United Nations. For the first 75 years of the U.N.’s existence, NGOs have played an invaluable role in supporting the …

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

Elisabeth Haub School of 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 the English environment …

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 …

George Washington’S Attorneys: The Political Selection Of United States Attorneys At The Founding, Scott Ingram

Pace Law Review

This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 …

The Most Fundamental Right, Nicholas A. Robinson

Elisabeth Haub School of 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

Elisabeth Haub School of 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 …

Luther V. Borden: A Taney Court Mystery Solved, Louise Weinberg

Pace Law Review

It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court’s major opinions—those cases that tend to be anthologized and remembered by generalists. Those major cases which Taney did write are consistently about slavery (or states’ rights or state powers, which in Taney’s mind may have amounted to the same thing). There is a notable exception: Luther v. Borden—a case about the Guarantee Clause. This raises a question. Setting aside his opinions on slavery or states’ rights, what could have moved the author of Dred Scott, by consensus the worst Supreme Court opinion in …

Eying The Body: The Impact Of Classical Rules For Demeanor Credibility, Bias, And The Need To Blind Legal Decision Makers, Daphne O’Regan

Pace Law Review

This Article focuses on law students and attorneys, not parties, witnesses, experts, and others. Part I briefly provides background: the pivotal role of classical rhetoric in western education, including the United States, the dispositive position of demeanor credibility in oral trial, and the persistent doubts about its reliability—doubts turned into certainty over two decades of research. Part II compares modern and ancient manuals to explain the rules of elite demeanor and its ideological claim to truth. Part III compares ancient and modern understanding of popular delivery; that is, choices in non-verbal communication that run counter to the elite rules and …

Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This conference is a singular event, long over due. It has been 258 years since William Blackstone celebrated “these two sacred charters,”1 Carta de Foresta and Magna Carta, with his celebrated publication of their authentic texts. In 2015, the Great Charter of Liberties enjoyed scholarly, political and popular focus. The companion Forest Charter was and is too much neglected.2 I salute the American Bar Association, and Dan Magraw, for the ABA’s educational focus of the Forest Charter, as well as Magna Carta. Today we restore some balance with this conference’s searching and insightful examination of the Forest Charter’s significance.

The Passage Of The Fair Housing Act Of 1968: Stories To Be Told, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The enactment of the Fair Housing Act of 1968 ("FHA") is a story filled with intrigue - coercion, duplicity, and back-room deals. In The Secret History of the Fair Housing Act, Professor Jonathan Zasloff provides a riveting account of the maneuvers by the various protagonists in that story. Review of Jonathan Zasloff’s The Secret History of the Fair Housing Act, 53 Hary. J. on Legis. 247 (2016), http://property.jotwell.com/the-passage-of-the-fair-housing-act-of-1968-stories-to-be-told/.

The Improbability Of Positivism, Andrew Tutt

Pace Law Review

Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”

This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s …

False Persuasion, Superficial Heuristics, And The Power Of Logical Form To Test The Integrity Of Legal Argument, Stephen M. Rice

Pace Law Review

This Article will generally describe philosophical logic, logical form, and logical fallacy. Further, it will explain one specific logical fallacy—the Fallacy of Negative Premises—as well as how courts have used the Fallacy of Negative Premises to evaluate legal arguments. Last, it will explain how lawyers, judges, and law students can use the Fallacy of Negative Premises to make and evaluate legal argument.

The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Happy Anniversary To The Cplr: A Joint Achievement Of The Practicing Bar And The Academy, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This September, we celebrated the 50th anniversary of the Civil Practice Law and Rules of New York State. The CPLR was the handiwork of the Advisory Committee on Practice and Procedure, appointed in 1955 by the New York State Temporary Commission on the Courts. Under the leadership of the Committee's reporter, then Columbia Law School Professor Jack B. Weinstein, the Committee members, which included former New York State Bar Association presidents Jackson Dykman and S. Hazard Gillespie, spent five years overhauling, revising and reforming the Civil Practice Act of 1920. This remarkable joint venture between the practicing bar and the …

A Mindful Environmental Jurisprudence?: Speculations On The Application Of Gandhi’S Thought To Mcwc V. Nestlé, Nehal A. Patel, Lauren Vella

Pace Environmental Law Review

We attempt to engage modern legal reasoning with Gandhi’s thought. We hope to speculate on what jurisprudence would look like if it were more mindful of the concepts central to Gandhi’s thought. By using Gandhi as an intellectual anchor, we hope to take a step toward creating a more “mindful jurisprudence” that implicitly incorporates into its reasoning the needs of environmental stewardship, disempowered populations, and the poverty-stricken. Because Gandhi’s thought has been discussed at length in environmental justice campaigns, we begin this effort by examining the relationship between environmental law and Gandhi’s thought. Given Gandhi’s commentaries on exploitative and oppressive …

The Liberal Limits Of Environmental Law: A Green Legal Critique, Michael M'Gonigle, Louise Takeda

Pace Environmental Law Review

The field of environmental law embodies a deep contradiction—it is a product of the state, yet the state is the primary agent of development. This contradiction infuses state-supported resource regimes (energy, forestry, agriculture, water use) that have long been agents of environmental erosion while they have remained resistant to progressive reform. It also underpins the theoretical framework for proposed reforms today, ecological modernization. The result is that environmental law extends, rather than resolves, society’s underlying environmental “problematic.” This can now be seen in institutional responses to climate change and the “green economy.” To address this situation, the authors apply a …

The Unanimous Verdict According To The Talmud: Ancient Law Providing Insight Into Modern Legal Theory, Ephraim Glatt

Pace International Law Review Online Companion

Part I of this paper will provide background information regarding the current academic discussion surrounding the unanimous verdict. Part II will discuss the startling Talmudic passage on the unanimous verdict. It will additionally focus on one explanation that radically reinterprets this passage. Part IIIA will introduce two schools of thought on the rationale behind the anti-unanimity rule. Part IIIB will highlight two areas of modern legal theory affected by such rationales.

Social Construction Of False Necessities And The Material Basis Of Socio-Legal Power: A Reply To Irrationalism In Critical Legal Studies Critiques Identifying Latent Social Violence As A Potential New Material Foundation For Systematic Socio-Legal Theory, Samantha Godwin

Pace Law Review

This Article is deliberately unconventional and exploratory. It begins by raising many conceptually problematic questions which cannot be answered simply or definitively. The point is not to provide any one right answer for these questions but to raise possible directions for new lines of inquiry rather than accepting the theoretical dead end that is irrationalism. I do not necessarily hope to offer a new systemizing theory that can withstand rigorous critique, but rather to show that such attempts remain possible and worthwhile even after the influence of post-modernism and the deconstruction of the most significant social theories.

Lincoln At Pace Law School, Marie Stefanini Newman, Taryn L. Rucinski

Elisabeth Haub School of Law Faculty Publications

The authors recount the process of bringing the traveling exhibition Lincoln: The Constitution and the Civil War, to Pace Law Library. They discuss the application process, assembling (and dismantling) the exhibit, marketing efforts, and events and auxiliary exhibits centered around the Lincoln exhibit.

The Past, Present, And Future Of Critical Tax Theory: A Conversation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The publication of Taxing America in 1997 is a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professor Karen B. Brown and Professor Mary Louise Fellows created one of the first—if not the first—working group of critical tax theorists. The significance of Taxing America is underappreciated both by self-identified critical tax scholars and by others. A published history of the “Critical Tax Conference” notes its antecedents in conferences held in 1995 and 1997, but makes …

A Trusting Public: How The Public Trust Doctrine Can Save The New York Forest Preserve, Katherine R. Leisch

Elisabeth Haub School of Law Student Publications

The public trust doctrine was instituted in England as a permanent limitation on the powers of the Crown. The well-established doctrine was brought to America and applied equally in the states even after the states seceded from England. The doctrine has since served as an indestructible check on the government. Article XIV of the New York State Constitution ensures protection of its wilderness in perpetuity, solidifying the forest preserve as part of the public trust. The paper traces the beginnings of the public trust doctrine and its eventual application Article XIV. The author contemplates the indestructibility of the Forest Preserve …

South/North Exchange Of 2009 - Territorial Projections Of Law From The Left: Cities, Communities And Transnational Spaces. The Case Of Mexico In The Context Of The Global South, Miguel Rabago Dorbecker

Pace International Law Review Online Companion

No abstract provided.

The Third Wave's Break From Feminism, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more …

The Political Use Of Private Benevolence: The Statute Of Charitable Uses, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This article examines the circumstances that led to the passage of the Statute of Charitable Uses of 1601, whose preamble unintentionally created a definition charity that resonates in the law today. The Statute was part of a legislative package of poor laws passed by Parliament to deal with an economic and political crisis that threatened the Tudor regime. The Statute’s primary purpose was to provide a mechanism to make trustees accountable for the appropriate administration of charitable assets, which in turn would encourage increased private charity for the relief of poverty, lessoning the tax burden of poor relief. Certain charitable …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

To mark the ninetieth anniversary of the decision, Pace University School of Law sponsored a Symposium, The Enduring Legacy of Wood v. Lucy, Lady Duff-Gordon, to reconsider the case and to appreciate the accomplishments of Lucy, Lady Duff-Gordon, who as Lucile, became one of the twentieth century's most innovative fashion designers. The Symposium brought together leading contracts scholars from as far away as Australia and England as well as experts on Lucile from the worlds of fashion, museums and fashion scholarship.

The Symposium examined legal issues raised by the decision through panels that focused upon: implication, interpretation and default terms; …

The Enduring Legacy Of Wood V. Lucy, Lady Duff-Gordon, James J. Fishman

Pace Law Review

No abstract provided.

Wood V. Lucy: The Overlap Between Interpretation And Gap-Filling To Achieve Minimum Decencies, Nicholas R. Weiskopf

Pace Law Review

No abstract provided.

Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

National crises such as September 11th and Hurricane Katrina resulted in an unprecedented outpouring of charitable generosity by Americans, which was encouraged by the government through tax incentives. This paper examines an earlier period of crisis, Tudor England (1485-1603), where the state encouraged philanthropy as a tool of social and political policy. Certain charitable activities were favored and others disadvantaged to spur private sector resources to resolve public problems.

The article discusses the evolution of the laws regulating the poor, which culminated in the Poor Law Legislation of 1601, a process that developed attitudes toward the poor and concepts of …