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When It Happens Here: Reproductive Autonomy, Fascism, And Dobbs V. Jackson Women’S Health Organization, Robin Maril Oct 2023

When It Happens Here: Reproductive Autonomy, Fascism, And Dobbs V. Jackson Women’S Health Organization, Robin Maril

Pace Law Review

Within six months after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, nineteen states passed laws prohibiting abortion within the first trimester. The most restrictive laws banned abortion entirely, except to save the life of the person giving birth. The Court’s eager abdication of its role in protecting individual liberty under the 14th amendment marks a grim chapter in the life cycle of American democracy. The Dobbs decision, along with the political environment that demanded the repeal of Roe v. Wade, promises to severely limit the role of women in public life. The specter …


Mutually Intelligible Principles?, Andrew J. Ziaja Dec 2022

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …


Countermajoritarian Criminal Law, Michael L. Smith Dec 2022

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …


Cruel And Unusual Punishment: The Eighth Amendment And Ice Detainees In The Covid-19 Crisis, Nechelle Nicholas Feb 2022

Cruel And Unusual Punishment: The Eighth Amendment And Ice Detainees In The Covid-19 Crisis, Nechelle Nicholas

Pace Law Review

No abstract provided.


The Emergency Next Time, Noa Ben-Asher Feb 2022

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …


Nys Bar Association Annual Meeting Lecture Outline: The New Environmental Rights In Ny’S Constitutional Bill Of Rights, Nicholas A. Robinson Jan 2022

Nys Bar Association Annual Meeting Lecture Outline: The New Environmental Rights In Ny’S Constitutional Bill Of Rights, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

It is too easy this winter to miss the signature Human Rights event in New York, the overwhelming vote last November 4th to recognizing the Human Right to the Environment. Competition for our attention is fierce: the Pandemic, political rivalries playing out in Washington, D.C., and angst about extreme weather events and other climate change impacts. So, I welcome this opportunity to illuminate the hope and promise of Article 1, Section 19 in New York’s Bill of Rights: “Each Person shall have a right to clean air and water, and a healthful environment.” Most New York lawyers have yet …


Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman Jan 2021

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …


Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney Jan 2021

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …


Menstruation And The Bar Exam: Unconstitutional Tampon Bans, Bridget J. Crawford Jan 2021

Menstruation And The Bar Exam: Unconstitutional Tampon Bans, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Some states have policies that prevent bar exam candidates from bringing their own menstrual products to the test. Via social media, awareness of these policies achieved new heights in the weeks leading up to the July 2020 bar exam. While states adopted different approaches to administering the bar exam during the COVID-19 pandemic, a small number of jurisdictions responded to public criticism by permitting test-takers to bring menstrual products with them to exams. Not all states have adopted permissive policies, however. This essay explains why outright bans on menstrual products at the bar exam likely are unconstitutional. So-called alternate policies, …


The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek Dec 2020

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …


Death Of Dillon’S Rule: Local Autonomy To Control Land Use, John R. Nolon Oct 2020

Death Of Dillon’S Rule: Local Autonomy To Control Land Use, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In order for municipal governments to promote sustainable and green development, create safe densities and open spaces in response to the pandemic, protect lives and property in areas vulnerable to natural disasters, and to manage climate change, they must be able to influence the development and preservation of privately owned land. For them to control the negative impacts of oil and gas facilities, they must find power to regulate matters that are typically the prerogative of state agencies. To legalize emerging renewable energy technologies, they must have authority to make them permitted uses in their zoning ordinances, and to innovate …


America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay Jun 2020

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …


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

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

Elisabeth Haub School of 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 that the common law …


Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin Jan 2020

Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …


Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey Jan 2020

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …


Establishing Climate Change Standing: A New Approach, Ian R. Curry Sep 2019

Establishing Climate Change Standing: A New Approach, Ian R. Curry

Pace Environmental Law Review

Climate change is one of the thorniest political, legal, and economic issues of our time. Therefore, a new legal approach to the issue is required. This Note proposes a streamlined approach for climate change standing, one that assumes injury in fact and causation for a class of discernible climate change harms. A streamlined approach will enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there has previously been none. Part II of this Note discusses the constitutional doctrine of standing. It begins with a summary of Article III and the logic behind …


Protecting Natural Resources - Forever: The Obligations Of State Officials To Uphold "Forever" Constitutional Provisions, Rachel E. Deming Sep 2019

Protecting Natural Resources - Forever: The Obligations Of State Officials To Uphold "Forever" Constitutional Provisions, Rachel E. Deming

Pace Environmental Law Review

This Article analyzes the attacks on a state constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. Former Florida Governor Rick Scott and his administration have spent an average of over $40 million a year in taxpayer money to defend and, in most cases, pay judgments, in lawsuits challenging mandates of the Florida Constitution.

I examine this issue of ignoring or deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, …


Presidential War Powers And Humanitarian Intervention, Michael J. Sherman Sep 2019

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? …


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

Elisabeth Haub School of 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 media in support …


How The United States Stopped Being A Pirate Nation And Learned To Love International Copyright, John A. Rothchild Apr 2019

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 Apr 2019

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 …


Comrades Or Foes: Did The Russians Break The Law Or New Ground For The First Amendment?, Artem M. Joukov, Samantha M. Caspar Apr 2019

Comrades Or Foes: Did The Russians Break The Law Or New Ground For The First Amendment?, Artem M. Joukov, Samantha M. Caspar

Pace Law Review

This Article discusses the recent decision by the United States Federal Government to indict more than a dozen Russian nationals for conspiracy to defraud the United States of America. The Government accused the Russians of staging protests, distributing false propaganda, and spreading political messages and ideologies online in an effort to affect the outcome of the 2016 Presidential Election. We argue that while the Defendants violated several other laws, the majority of the acts the Government classifies as a conspiracy to defraud the United States should not be considered criminal. Rather, these acts are protected political speech under the First …


Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu Apr 2019

Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu

Pace Law Review

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …


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

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

Elisabeth Haub School of 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 disadvantageous …


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

Elisabeth Haub School of 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 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

Elisabeth Haub School of 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 this Article …


Walking Out: Schools, Students, And Civil Disobedience, Michelle S. Simon Jan 2019

Walking Out: Schools, Students, And Civil Disobedience, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article begins in Part I by reviewing the history and impact of youth civil disobedience and the special issues school walkouts raise. Part II then discusses the legal doctrines that guide school administrators and courts as they aim to strike a suitable balance between free expression and the day-to day operations of a school. Part III analyzes the different approaches school districts have taken, and offers specific advice to school districts dealing with future walkouts. Part IV cautions that the only constitutionally permitted response by school districts is to subject students to the same consequences they would face for …


President Trump’S Unilateral Attempt To Cease All Implementation Of The Paris Agreement And To Withdraw From It: Constitutional?, Phillip M. Kannan Dec 2018

President Trump’S Unilateral Attempt To Cease All Implementation Of The Paris Agreement And To Withdraw From It: Constitutional?, Phillip M. Kannan

Pace Environmental Law Review

In his announcement, President Trump stated that he would comply with the withdrawal provision in the Paris Agreement. This Essay argues that, while compliance with that process may satisfy the treaty obligation, it probably does not conform to U.S. constitutional standards, and therefore, would not be binding on the United States. The argument demonstrating the failure of the President to satisfy constitutional standards proceeds as follows. Part I develops the context in which the Paris Agreement arose. Part II briefly summarizes the Paris Agreement. In Part III, I argue that President Trump’s attempt to cease implementation of the Paris Agreement …


Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin Nov 2018

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …


The Unconstitutionality Of Consolidated Planning Boards: Interlocal Planning Under New York Law, Albert J. Pirro Jr. Aug 2018

The Unconstitutionality Of Consolidated Planning Boards: Interlocal Planning Under New York Law, Albert J. Pirro Jr.

Pace Law Review

This Article will examine the nature and constitutionality of consolidated planning boards in light of the broad powers actually granted them. The issues surrounding the constitutionality of consolidated planning boards begs, yet again, Chief Justice Marshall's question respecting the extent of the power granted to the state governments. The question is whether a municipality may abdicate its power to regulate land within its own boundaries by delegating it to a separate planning entity.