Catalog: Digital Commons at Pace - New Repository Articles
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.
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.
A Spectrum of International Criminal Procedure: Shifting Patterns of Power Distribution in International Criminal Courts and Tribunals
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.
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.
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.
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.
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.
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.
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.^
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.^
Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes the critical importance of law in protecting the environment and promoting sustainable development.
Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and threats to charge corporations unless they refuse to pay the legal fees of employees. Then, Part II examines the legitimacy and illegitimacy of threats, provides a framework for analyzing the legitimacy of threats, and uses this framework to determine whether a prosecutor’s threats have crossed the line.
In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.1 Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.
Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing mention.
This Article counters the anti-retributive strain by arguing that retributivism can indeed provide a meaningful framework for understanding ICL. First, I argue that in most respects retributive theory is no less plausible in the international setting than it is in the domestic setting. Understanding what claims retributive thinking might have upon ICL requires one to distinguish claims regarding the general justification required to defend punishment as a social practice--the core concern of retributive theory--from the more specific questions of institutional design--such as whether and when to create an international criminal tribunal, and how to set enforcement priorities--that are most pertinent to ICL scholars. I argue that, once these distinctions are sorted out, the anti-retributivist strain in ICL scholarship does little to engage retributivism's core claim that desert is necessary to morally justified punishment and provides an inherently good (if not exclusive) reason to punish irrespective of potential social benefits.
I also argue that retributivism is more compatible than commonly supposed with current thinking about international criminal justice. The theory permits various models for engaging the compromises of real world institutions. It provides a powerful lens for understanding the design of ICL institutions such as the International Criminal Court (“ICC”), and it is also compatible with dominant approaches to institutional decisions such as case selection and sentencing. Perhaps counter-intuitively, retributivism can also supply a framework for sometimes favoring alternatives to the traditional criminal prosecutions pursued by international courts, or even for opposing ICL altogether.
Finally, I argue that choice of punishment philosophy has less practical significance for ICL than theorists often assume. In particular, I argue that the choice between retributivism and other competing theories does little to resolve important policy dilemmas dividing theorists of ICL, including whether prosecution should sometimes be abandoned for amnesty or other alternatives. This point supports a broader argument that ICL is simultaneously overdetermined and underdetermined by traditional punishment theory: While the core of ICL is consistent with multiple theories of punishment, these theories provide only limited practical guidance on the most divisive questions.
In one of the most anxiously awaited New York land use decisions in recent memory, the State’s highest court held that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the Towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their borders. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the operations of the oil and gas industry, not matters normally associated with land use regulation.
The aim of this study was to contribute to the research on using the Rorschach Inkblot Test to identify adolescents that are at risk for experiencing psychotic symptoms. It was hypothesized that the utility of the Perceptual Thinking Index (PTI) and its components would be affected by Erlebnistypus (EB Style), because this variable is representative of the way an individual is likely to have approached the Rorschach task. It was further hypothesized that the quality of the specific responses associated with one's primary mechanism for problem-solving would be most likely to predict psychotic diagnosis as well as self-report and therapist ratings of psychotic features. Pearson correlations revealed differences between the three EB Style groups in terms of which Rorschach variables were correlated with various indicators of psychotic features. In particular, the PTI composite variable was correlated with whether or not an individual was diagnosed with a psychotic disorder only when individuals had introversive or ambitensive EB styles. On the other hand, the use of a new variable, C-%, was correlated with multiple self-report measures of psychotic features, but only when individuals had an extratensive style. Finally, a significant interaction effect was found between extratensive EB Style and C-% on color cards when predicting scores on the MMPI-A Schizophrenia Scale. Although not entirely consistent with the hypothesized trends, these patterns are of interest, and possible implications are explored in this text. Of importance is the dearth of research available on EB Style, despite the likelihood that one's problem-solving style affects the response process on the Rorschach test itself. Given the patterns observed in the results of this study, further research on the usefulness of this particular variable is necessary.^
Program Evaluation of Jacob's Pillows Curriculum in Motion (JP-CIM) Program Residency: The Effects of Utilizing a Kinesthetic Instructional Program & Students Perceived Multiple Intelligence Strengths on Academic Motivation, Academic Self-Efficacy, & Exec
Skoning (2010) stated that special and general education teachers are challenged to effectively meet the academic needs of their students. No matter how frequently class materials are read, discussed, and reviewed, some students do not understand the information or remember it when asked to recall information later. Literature has shown that there is a connection between kinesthetic movement, executive functioning and academic achievement. Brain based learning and multiple intelligence theories depict how individuals take in, retain and learn information. Theorist postulate that academic motivation combined with academic self-efficacy can improve academic achievement. (Caine & Caine, 1991; Campbell & Campbell, 1999).^ The researcher conducted a quasi-experimental study that aimed to investigate the effects of the Jacob's Pillow Curriculum in Motion Program (a kinesthetic/dance movement program) on the academic motivation, academic self-efficacy, and executive functioning of high school students. Furthermore, this study explored how students self-identified multiple intelligence abilities impacted the relationship between JP-CIM and the outcome variables. The participants in the study were 86 students who attended a public high school in Berkshire County Massachusetts. The intervention group consisted of 37 students and the control group consisted of 49 students. Quantitative results indicated that although there were some changes in the student scores on the outcome variables from time 1 to time 2, the two groups did not differ significantly. Results also revealed that there was no significant difference on the outcome variables of the students who had perceived high and perceived low kinesthetic intelligence. Although there were no statistically significant findings, further examination of the results revealed general trends and patterns of scores amongst the participants. Patterns of scores indicated that the JP-CIM student participant's scores on self-esteem, self-regulation, and emotional control, increased more than their counterparts. Trends also revealed that students with perceived low kinesthetic strength portrayed an overall pattern of improvement on all three of the variables compared to the students with perceived high kinesthetic strength.^ The results are considered in regard to the current knowledge and research of kinesthetic/dance programs and perceived multiple intelligence strengths, on student learning, as well as, their social-emotional and executive functioning skills. Limitations and future directions are discussed.^
As communication becomes more technology based with less emphasis on in-vivo communication, it is important to understand the effects of prolonged technology use (specifically Internet usage) on interpersonal interactions. Online communications and prolonged Internet usage have been found to impact how people express and understand social cues. Previous studies have shown that Internet usage and certain online communications can negatively effect in-vivo social interactions in adolescents. This study examined the effects of Internet usage on in-vivo aggression in young adults, ages 18-24; as well as the moderating effect of cyberbully status on this relationship. Participants were given questionnaires to assess their Internet usage, online aggression, online victimization, and in-vivo aggression. Findings indicated that there was a significant relationship between Internet usage and in-vivo aggression; such that as Internet usage increased, in-vivo aggression increased. Cyberbully status was found to be a moderator for this relationship. For cyberbullies, cyberbully/victim, and abstainers in-vivo aggression increased as Internet usage Increased. However, those participants who reported being victims of cyberbullying displayed a decrease in in-vivo aggression as Internet usage increased. No differences were found between cyberbullies, cyberbully/victims, and abstainers in their moderating effect on the relationship between Internet usage and in-vivo aggression. Future research and implications are discussed. ^