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Let the Sunshine In: The ABA and Prison Oversight

Wed, 12/10/2014 - 16:51

2010 may be remembered as the year in which prison oversight finally found a place on the national correction agenda, thanks in significant part to the attention that the American Bar Association has focused on this topic. In this article, we briefly describe the state of American prisons, trace the recent movement toward prison oversight, describe the rationale for oversight and the benefits it provides, and describe the contribution made to this effort by the ABA through the passage of its landmark resolution in 2008, through its Standards on the Treatment of Prisoners calling for prison oversight, and through the follow up work of the Committee on Corrections and its Subcommittee on Implementation of the ABA Resolution on Oversight (which is co-chaired by the authors).

Categories: Books

To Yoder or Not to Yoder? How the Spending Clause Holding in National Federation of Independent Business v. Sebelius Can Be Used to Challenge the No Child Left Behind Act

Mon, 12/08/2014 - 11:51

States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be coercive.

Part II of this Article discusses the history of the coercion theory as a theoretical limitation on Congress’s spending power. This Article will focus on the reluctance and difficulty past courts have expressed in formulating a workable limit based on an argument that states are unconstitutionally coerced into accepting federal spending legislation. Part III briefly examines the Affordable Care Act in order to contextualize the Court’s ruling in Sebelius. Part IV discusses the Sebelius decision, focusing on the opinions of Chief Justice Roberts and the joint dissent authored by Justice Scalia. Part V provides a brief introduction and background of the No Child Left Behind Act. Part VI makes the case that NCLB is unconstitutionally coercive based on the decision in Sebelius.

Categories: Books

Is It Law or Something Else?: A Divided Judiciary in the Application of Fraudulent Transfer Law under § 546(e) of the Bankruptcy Code

Mon, 12/08/2014 - 11:51

In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate judges may or may not consider in applying § 546(e). Part IV will then more thoroughly define § 546(e) and its application to fraudulent transfer analysis. In Part V, I will describe the split of interpretation of § 546(e) as demonstrated by an empirical study. In Part VI, I will discuss the formal legal rules for the disagreement among the bankruptcy and federal appellate judges. Finally, in Part VII, I propose several explanations for the remarkably divided application of the statute.

Categories: Books

Meaningful Involvement in Collections: Should Ethics or the FDCPA Govern?

Mon, 12/08/2014 - 11:51

This Note will explain and analyze the Fair Debt Collection Practices Act (FDCPA) and its case law. It will also discuss the interplay between the FDCPA case law and its ethical overtones. To understand the basis of this issue, Part II of this Note will begin by briefly developing the history and background of the FDCPA and discuss specific sections of the law designed to protect debtors from abusive debt collection practices. Notably, these sections relate to the prevention of improper practices for misleading debtors, and are the focus of the lawsuits that this Note will discuss. Accordingly, Part III will briefly discuss what a dunning letter is and the similarities of the two standards of review used by the federal courts of appeals to determine whether a dunning letter is misleading. Part IV of this Note will discuss the judicially created doctrine of “meaningful involvement” and how the federal courts have allowed attorneys to include an appropriate disclosure of the level of involvement. Part V of this Note will discuss the Ethics Opinion in detail and its resulting impact on disclaiming attorney involvement. Specifically, this Note will address the direct conflict between the Ethics Opinion and federal case law, which allows attorneys to disclaim their involvement when sending an initial communication under the FDCPA. Finally, Part VI will propose a solution to resolve the conflict between the varying case law and the ethical issues presented.

Categories: Books

Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights

Mon, 12/08/2014 - 11:51

This article does more than describe British and American anti-terrorism laws; it shows how those laws go through conflicted government branches and the bargains struck to create the anti-terrorism laws that exist today. Instead of taking these laws as given, this Article explains why they exist. More specifically, this article focuses on the path anti-terrorism legislation followed in the United States and the United Kingdom, with particular focus on each country’s ability (or lack thereof) to indefinitely detain suspected non-citizen terrorists. Both countries’ executives sought to have that power and both were limited by the legislatures and courts but in different ways. These differences show the human rights concerns both countries grappled with when enacting anti-terrorism legislation and how the two governments approached balancing those concerns.

These anti-terrorism laws also show which government branches possessed the most power when creating the legislation, which branches dictated the terms of these laws, and which branches were forced to compromise. The different paths taken by the anti-terrorism legislation in both countries also show the different styles of the two governments. The branches of the United States government are more likely to openly defy each other, knowing that checks and balances will ensure that no branch dominates. In the United Kingdom, there is no strong tradition of checks and balances so informal bargaining and consulting among the branches is more common before legislation is proposed or amended. The United Kingdom’s Human Rights Act has, however, begun to change the culture and has caused more open opposition among the three branches.

Categories: Books

Bigger Isn’t Always Better: An Analysis of Court Efficiency Using Hierarchical Linear Modeling

Mon, 12/08/2014 - 11:51

One important measure of trial court efficiency is overall case length—that is, the elapsed time from a case’s initial filing to its final disposition. Using a large, recent dataset from nearly 7000 federal civil cases, we find that two variables are particularly useful in predicting overall case length: the total number of attorneys filing an appearance in the case, and the number of authorized judgeships for a given district court. Further, we find a significant and surprising interaction between these two variables, indicating that smaller courts are more efficient than larger courts at processing civil cases when more than three attorneys appear in a case, but that the opposite holds true when three attorneys or fewer appear in a case.

Categories: Books

Opening the Gate to Money Market Fund Reform

Mon, 12/08/2014 - 11:51

This article proceeds as follows. Part I outlines briefly the background of MMFs. Part II discusses the role of the board of directors in governing MMFs, a role upon which our proposal would build. Part III discusses MMF-related events during the financial crisis of 2007-2008 and describes the government’s response to these events. Part IV describes the reforms the SEC instituted in 2010. Part V outlines options for further reform. Part VI outlines and discusses benefits and drawbacks of our proposed solution—unrestricted discretionary gating by fund boards. Part VII concludes.

Categories: Books

Taxpayers’ Lack of Standing in International Tax Dispute Resolutions: An Analysis Based on the Hybrid Norms of International Taxation

Mon, 12/08/2014 - 11:51

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim full or partial tax on accrued income.

In 1924, the Permanent Court of International Justice defined dispute as “disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” In the case brought before the Court in 1924, it determined that the dispute started between an individual and a state, but then the individual’s government “took up the case. The dispute then entered upon a new phase; it entered the domain of international law, and became a dispute between two States.” If we analogize that case to a tax case derived by a cross-border transaction, there is no doubt that we have a dispute — a dispute on tax liability. But there are still two lingering doubts. First, is it an international dispute? And second, who are the parties to it? If one examines the current mechanisms available in the OECD Model Tax Convention for resolving double taxation disputes, one realizes that the taxpayer’s standing is somewhat ambiguous. In order to clarify this ambiguity we need to address the question of categorizing the conflict as a national or international one.

The question at stake is whether a taxpayer should be a party to the dispute resolution process. In this paper, the cases cited are limited to where double tax treaties apply. I reserve the cases where they are inapplicable to further discussion.

Part I highlights the tax complexity arising from cross-border transactions. Since the article focuses on OECD Model dispute resolution mechanisms, Part II briefly introduces the model’s history and its official aims. Part III discusses the available dispute resolution mechanism in the OECD Model — the Mutual Agreement Process (MAP) and Arbitration. Part IV reviews the hybrid elements of international taxation. This paper suggests that international taxation has both national and international characteristics. This hybrid nature is the basis of the discussion in Part V: after identifying the parties to the international tax dispute, this paper suggests two solutions to the research question — the apparent and normative solutions. In the former, a taxpayer should have standing in the international dispute, though recall that this solution is not based on normative grounds. The normative rationale introduces the equity principle whereby taxpayers should have no official role in resolving the dispute. Finally, this paper offers a brief recommendation in Part VI.

Categories: Books

Reexamining the Seventh Amendment Argument Against Issue Certification

Mon, 12/08/2014 - 11:51

Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, and then reexamine some part of the class decision. These multiple suppositions should not preclude issue classes. Second, even if the matter becomes ripe, the defendant will still lack standing: it is only when the issue-class plaintiff prevails on the first round that a second jury could exist. If the second jury spurns the trial court’s instructions by revisiting issues decided in the first trial, that reexamination would likely redound to the defendant’s benefit, diminishing in some manner the common issue finding favoring the class plaintiffs. Thus, the defendants would lack standing to advance a Seventh Amendment claim because the defendants would suffer no harm. Finally, Part III(B) notes that the class plaintiffs—the likely potential victims of any jury reexamination—can avoid a Seventh Amendment complaint by voluntarily and knowingly waiving violations, just as American citizens can for any of their constitutional rights.

Categories: Books

Tipping the Scales in Favor of Charitable Bequests: A Critique

Mon, 12/08/2014 - 11:50

The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History shows that similar policy conflicts have arisen periodically since late antiquity, if not earlier. The parameters of the problem, however, are somewhat new. The governing law, available technologies, and familial relationships have certainly evolved since the time of late antiquity. This article examines how the public policy favoring charitable bequests conflicts with various aspects of the equally important public policies of testamentary freedom and family protection.

Part II considers the competing public policies of testamentary freedom, family protection, and charitable bequests, as well as the existing legal doctrines aimed at furthering these policies. Part III examines the social and legal origins of charitable bequests and the periodic attempts to balance charitable bequests with other important policy considerations. Part IV examines the role of the non-profit sector in America today. Specifically, Part IV considers the size and scope of the nonprofit industry, the legal and economic benefits the nonprofit industry enjoys, and the manner in which nonprofits solicit charitable bequests. Part V illustrates how the current law fails to strike the appropriate balance between the competing policies, as the current law is too favorable to charities and reform is needed. Part VI concludes.

Categories: Books

A Contextualized Account of General Principles of International Law

Tue, 11/25/2014 - 13:20

This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law—international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinct claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely “domestic approach” and a “hybrid approach”. The Article argues that international environmental law has tended to use a hybrid approach, whereas international investment law has limited itself to a domestic approach, manifesting immediately the differentiated analysis in different areas. International criminal law and international law on indigenous rights manifest more mixed approaches to analysis, again based on the needs of these different areas. These areas, however, also manifest some criticisms of the use of general principles that have led sometimes to restraints on them in the service of policy needs of different areas of international law. The Article ultimately puts the novel argument that this contextual analysis is not simply descriptively accurate but is a manifestation of an appropriate contextually-differentiated development of international law in light of concerns for its legitimacy in regulating actors other than state entities.

Categories: Books

Unmanned Aerial Vehicles: Legitimate Weapon Systems or Unlawful Angels of Death?

Tue, 11/25/2014 - 13:20

Since the invasion of Afghanistan, the United States has utilized Unmanned Aerial Vehicles (UAVs) to locate, surveil and kill members of the Taliban, Al-Qaeda and its associated forces. Such killings have decimated the leadership of these groups and disrupted their operations. However, there are collateral effects from UAV killings including civilian deaths. These deaths increase resentment and hatred toward the US, which is channeled by terrorist groups to recruit new members and for local support. Moreover, targeted killings outside a combat zone have political and diplomatic consequences. This paper argues that the current uses of UAV are legal under international and domestic law. However, it proposes amended targeting criteria, greater transparency and increased checks on the executive branch for future use of UAVs.

Categories: Books

A Spectrum of International Criminal Procedure: Shifting Patterns of Power Distribution in International Criminal Courts and Tribunals

Tue, 11/25/2014 - 13:20

Using the pure adversarial model expounded in part I (a) as the baseline for analysis, Parts II, III and IV of this article will explore the procedural evolution that has taken place at the International Criminal Tribunal for the Former Yugoslavia (II), the International Criminal Court (III) and the Extraordinary Chambers in the Courts of Cambodia (IV). Part V will then plot the structural and procedural shifts that have taken place at those courts onto the spectrum of procedure identified in part I (c), before concluding, in Part VI, with what these shifts teach us about the convergence of adversarial and inquisitorial mechanisms and the development of international criminal procedure.

Categories: Books

Justice or Peace? A Proposal for Resolving the Dilemma

Tue, 11/25/2014 - 13:20

This article will address the question of how the international community should respond when the pursuit of justice and the attainment of peace are incompatible. It begins with an overview of the international human rights movement prior to World War II, a period when there was almost no effort to hold human rights violators accountable. The article then discusses how Nuremberg transformed international human rights law and created the framework for holding individuals accountable for committing egregious human rights violations. In the next section there is a discussion of how, despite Nuremberg, there was an era of impunity as a result of the Cold War. The Cold War permitted many of the twentieth century’s worst human rights violators to escape accountability for their actions. Next, there is a discussion of how the end of the Cold War ushered in a new era of accountability; specifically, in this new era many human rights violators have been brought to justice.

This article suggests that although this new era is welcome, a one size fits all approach should not be adopted. Rather, this paper proposes that whether human rights violators should be prosecuted needs to be determined on a case-by-case basis. It may very well be that in particular situations, an attempt to prosecute may make it more difficult to attain peace and that other approaches may be necessary. The approach taken by South Africa, creating a Truth and Reconciliation Commission and granting amnesty to many perpetrators is examined and supports the position that flexibility is needed when dealing with human rights violators. Finally, the article recommends that when faced with a justice versus peace dilemma, the Security Council should be given the authority to suspend criminal proceedings if it determines that the threat of criminal prosecution presents a risk to international peace and security.

Categories: Books

Excuses, Justifications, and Duress at the International Criminal Tribunals

Tue, 11/25/2014 - 13:20

This article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application of the defense.

Categories: Books

Raped by the System: A Comparison of Prison Rape in the United States and South Africa

Tue, 11/25/2014 - 13:20

The main objective of this article is to create overall awareness and to give people a real sense of the events that go on every day inside prison walls. The article is meant to show people that the way they think about prison and prison rape specifically is severely jaded. What happens behind prison bars should certainly not stay behind prison bars. The stories within this article are unlike any prison rape stories people have heard before. They are harsh, inhumane, and deeply disturbing. The only way to incite change is to open people’s eyes to the true conditions within prisons. People tend to want to change things that pull at their heartstrings and evoke strong emotions. Most people do not exactly reserve a warm spot in their heart for criminals. Hopefully, this article will change their minds.

This article will compare prison rape in two countries, the United States and South Africa. These two specific countries were strategically chosen because of their contrasting societies. The United States is one of the most affluent countries in the world, while South Africa severely lags behind. The dynamics between gender and race are also very different within the countries, which would lead one to believe their treatment of prisoners would be drastically different. This article will illustrate how two radically different countries are surprisingly and disturbingly alike in how they manage their prison systems. It will first compare the basic prison conditions and general populations of the two countries. It will then journey into the unchartered territory of sexual violence in each country’s prison systems. Then it will explore the actions that each country is taking to better their prison systems. Lastly, it will present the argument that prison rape is considered torture under international law, in addition to a violation of the Eighth Amendment.

Categories: Books

Climate Change Negotiations and Doha, Qatar

Tue, 11/25/2014 - 13:20

This comment will focus on the role that the principle of common and differentiated responsibilities plays in global climate negotiations under the United Nations Framework on Climate Change and more recent climate negotiations by the Conference of the Parties. More specifically, this comment will focus on the implications this has for developing and developed countries, namely on China and the United States as the two largest emitters of greenhouse gases in the world, and as developing and developed countries respectively.

Categories: Books

Recognizing Education Rights in India and the United States: All Roads Lead to the Courts?

Tue, 11/25/2014 - 13:20

The approaches of United States and India take disparate form: India has recognized the right to education and is attempting to implement the right, whereas the United States has not formally recognized the right to education itself but has acknowledged a limited right to educational opportunity, but has implemented some sort of right to education unequally by relying on the states to guarantee and implement some kind of remedy. This paper aims to evaluate the American and Indian approaches towards the right to education. Section II discusses the interrelatedness of social and economic and civil and political rights and the right to education in international law. Section III examines constitutionalism and the right to education. Section IV reviews the right to education in America. Section V examines the right to education in India.

Categories: Books

The Developmental Outcome of Very Low Birth Weight Infants at 18 Months

Mon, 11/24/2014 - 17:55

The objective of this study was to identify perinatal variables and demographic characteristics that influence cognitive, language, and behavioral development in very/extremely preterm and low birth weight infants at the corrected age of 18 months. An additional study goal was to explore the interaction of language specifically with cognitive functioning, attention, and perinatal and behavioral characteristic for this population. The study consisted of a total of 117 participants, born weighing less than 1250g and at less than 28 weeks gestation. Outcome measures included cognitive functioning and expressive and receptive language as measured by the Bayley-III. Behavioral functioning was assessed based on parent report using the Child Behavior Checklist (CBCL/1.5-5). Correlational, multivariate analysis of variance, a hierarchical cluster analysis, and cross tabulations were completed to examine relationships and membership associations based on performance and demographic and perinatal variables. The demographic variables were gender, socioeconomic status and minority status. The cognitive and language functioning, with significant differences in reported behavior problems, and demographic and perinatal characteristics among the groups. The following were identified as demographic and perinatal variables significantly associated with group membership; SES, the presence of NH severe grades, chorioamnionitis, and BPD. The effect size of these variables were all measured as moderate. Many behavioral differences were identified on the CBCL (1.5-5) significantly associated with group cognitive and language functioning, with significant differences in reported behavior problems, and demographic and perinatal characteristics among the groups. The following were identified as demographic and perinatal variables significantly associated with group membership; SES, the presence of IVH severe grades, chorioamnionitis, and BPD. The effect size of these variables were all measured as moderate. Many behavioral differences were identified on the CBCL (1.5-5) significantly associated with group membership including; anxiety problems, pervasive developmental disability (PDD), total problems, anxiety/depression, somatic complaints, emotional reaction, withdrawn, attention, internalizing behaviors, and externalizing behaviors. Children with low cognitive and language scores were more likely to have had a serious health condition, low SES, and more reported behavioral problems on the CBCL (1.5-5). Identifying children with these particular perinatal and demographic profiles may benefit intervention timing, focus, design, and improve later outcome.^

Categories: Books

The Impact of Maternal Incarceration on Children: The Role of Contact During Incarceration

Mon, 11/24/2014 - 17:55

Rates of incarceration in the United States have been increasing at unprecedented rates. The number of parents in prison continues to increase over time, and the number of mothers in prison is increasing at a faster and faster rate. As a result, a greater and greater number of children are being impacted by the consequences of having a parent who is incarcerated.^ The purpose of the present study was to examine the impact of the type, frequency and quality of mother-child contact during maternal incarceration on child school engagement and psychological adjustment, while taking into account the mothers' social support and attachment relationship to her child. The study used a number of self-report measures that were administered to a sample of previously incarcerated mothers (n = 46).^ Results indicate that more frequent and positive mother-caregiver and mother-child phone contact and mother-child visits correlated with better child psychological adjustment. Social support was an important variable. Higher ratings of mothers' perceived social support correlated with speaking more frequently to her child's caregiver, higher ratings of communication and teamwork with her child's caregiver, and fewer reported barriers to in-person visits. Additionally, higher levels of mothers' perceived social support correlated with higher levels of child school engagement. Lastly, higher levels of mothers' attachment and trust scores correlated with and significantly predicted higher levels of child school engagement and lower psychological symptoms, and therefore, better child psychological adjustment.^ The study provides evidence for the importance of policy recommendations to improve child outcome during maternal incarceration. Recommendations include providing the opportunity for mothers to maintain contact with their child(ren) and their child(ren)'s caregiver; provide counseling services to children and caregivers to help them manage the separation; and provide resources to help ensure stable caregiving arrangements for children with mothers who are incarcerated.^

Categories: Books