Catalog: Digital Commons at Pace - New Repository Articles
Falling into the TRAP: The Ineffectiveness of ‘Undue Burden’ Analysis in Protecting Women’s Right to Choose
This Comment will first examine existing Supreme Court abortion and reproductive autonomy jurisprudence before seguing into an exploration of the limits of the ‘undue burden’ analysis through the Jackson Women’s Health Organization v. Currier temporary and preliminary injunction decisions. The final section of this Comment explores potential solutions from other areas of constitutional law, and proposes that some techniques for limiting the reach of state regulatory power might be imported from environmental law, which frequently must deal with interactions amongst complex regulatory regimes.
When Bigger Is Better: A Critique of the Herfindahl-Hirschman Index’s Use to Evaluate Mergers in Network Industries
This Article argues that the current framework used by the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) to evaluate mergers is inadequate in that it fails to account for network benefits. In particular, I argue for abandoning the use of the HHI in analyzing network industry mergers because the index generates little useful information about these mergers’ effect on consumer welfare. Part II describes the HHI’s historical and theoretical underpinnings and its integration into the current Merger Guidelines. Part III considers general objections to the HHI before turning to its problems in evaluating network industries. Part IV presents a formal model for evaluating the effects of mergers in network industries. Part V proposes an alternative framework for merger analysis to account for network effects. Part VI concludes.
Part I of this Article discusses the limitation of the pre-emption doctrine on state self-deportation laws. Part II discusses a short history of the Supreme Court’s application of the right to travel. Part III explains why the lack of federal authorization or immigrant status does not exclude people from the right to travel’s protection. Part IV discusses how the right to travel relates to citizenship and how the undocumented may exercise what has been described as a privilege or immunity of citizenship. Finally, Part V examines how the current state-based “self-deportation” immigration laws violate the right to travel.
In Part I, this Article briefly describes some aspects of white immigrants’ educational experience (including extracurricular involvement and parental roles), exposing how it reflects immigrants’ lack of access to the cultural capital of native-born whites. The Article exposes some unique challenges faced by Caucasian immigrants in high school, during the college application process, and in taking advantage of college opportunities that amplify social benefits. These experiences are contrasted with those of American-born students who benefit from their families’ access to social capital that enables them to take advantage of its replication in college.
Part II addresses how some of the challenges white immigrants face in the educational context can be reduced. It then proposes some institutional programs and interventions in high school and in college. A more holistic and nuanced approach to admissions preferences is then proposed, compatible with the goals of increasing intra-group diversity per Fisher.
The Article concludes by calling for greater attention to diversity within racial categories and to commonalities among various groups that do not fit the norm. Ultimately, noting such similarities will lead to a greater visibility and inclusion of the contemporary immigrant experience. In a country where one out of four children is or has an immigrant parent, this approach will add to the richness of what it means to be an “American” for all of us, paving the way to a more integrated society and a more meaningful democracy.
This Article examines legal, political, sociological, and historical factors behind the limited weight of human rights as a domestic principle in America. This absence is particularly remarkable given the prevalence of “exceptionalist” practices raising fundamental humanitarian issues. The United States notably has by far the highest incarceration rate worldwide; is the only Western democracy to retain the death penalty; and has openly tortured alleged terrorists. In addition, America is the sole Western nation to lack universal health care, which is essentially considered a human right elsewhere in the West.
Finally, the Article explores the societal implications of the issue. Americans seldom invoke “human rights,” yet many invoke “civil rights,” “constitutional rights,” “fairness,” “equality,” or “due process of law” when denouncing practices that would be identified as human rights abuses elsewhere in the West. The difference between these concepts and human rights is sometimes semantic, albeit not always. The substantive scope of certain human rights goes beyond rights under domestic U.S. law. Human rights also have greater trenchancy than these other concepts in barring practices like the death penalty and torture. Americans opposed to these practices frequently advance procedural concerns (e.g., the death penalty is applied discriminatorily against minorities and erroneously against innocents) or utilitarian arguments (e.g., torture is counter-productive). While these points have merit, they do not necessarily lead to the conclusion that such practices should be categorically abolished. Human rights, by contrast, are inalienable. Their limited weight as a principle in contemporary American law is all the more striking given that the United States has made substantial contributions to the development of individual rights ever since they became the first modern democracy to emerge from the Enlightenment in the 18th century.
This Article provides an insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence, which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, confronting the Court with competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under Article III, addresses the horizontal balance of power among the three branches of the federal government. Erie addresses the vertical balance of power between federal and state courts. Standing is a malleable doctrine that federal courts have employed to avoid ruling —prematurely in the case of same-sex marriage—on the merits of a controversial issue. This Article employs Erie doctrine to critically assess whether a closely divided Supreme Court in Hollingsworth correctly privileged the horizontal balance of power concerns at the expense of the vertical ones.
This Article fills the gap in the debate on fighting cybercrime. It considers the role of intermediaries and the legal and cultural strategies that countries may adopt. Part II.A of this Article examines the critical role of intermediaries in cybercrime. It shows that the intermediaries’ active participation by facilitating the transmission of cybercrime traffic removes a significant barrier for individual perpetrators. Part II.B offers a brief overview of legal efforts to combat cybercrime, and examines the legal liability of intermediaries in both the civil and criminal context and in varying legal regimes with an emphasis on ISPs. Aside from some level of injunctive relief, intermediaries operate in a largely unregulated environment. Part III looks at what we can learn from other countries. The cleanest intermediary country, Finland, and the worst country, Lithuania, were selected in order to explore the causes for the differences between country performances. The section examines the remarkable distinctions between national cultures to explain differences in national cybercrime rates.
Part III.A of this Article argues that the criminal code laws do not account for the difference in host and ISP performances between Finland and Lithuania. There are few differences in the codified laws pertaining to cybercrime between these countries. Instead, it is Finland’s cultural and business environments that appear to drive its cybercrime ranking. Part IV suggests reforms to shift a country’s culture to make it less prone to corruption. However, changing a culture takes time so Part IV also proposes a private law scheme in which intermediaries are unable to wave the “flag of immunity,” as they do now. The guiding philosophy for this proposal is that harmed parties should be permitted to recover damages directly from “bad” intermediaries.
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 challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on.
Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides.
Part I of this article will provide an overview of the legal doctrines implicated in Adoptive Couple v. Baby Girl. First, Part I will discuss both Indian Child Welfare Act’s text and purpose and scholarly attention given to the law. Second, Part I will examine the law of putative fathers insofar as relevant to understanding ICWA’s application in Adoptive Couple. Part II provides insight into the Court’s equal protection jurisprudence with a particular emphasis on considerations of race in adoption and laws implicating Indian tribes. This Part introduces the limited scholarly treatment afforded to the equal protection issues implicated by ICWA and builds on the existing work that recognizes the inherently racial nature of any tribal classification. Part III tells the intriguing story of Adoptive Couple by providing a factual overview of the case, presenting the procedural history of the dispute, and summarizing the parties’ arguments before the Supreme Court. Lastly, Part IV analyzes the Court’s decision in Adoptive Couple. Incorporating the themes developed throughout this Article, Part IV critically examines the Court’s failure to resolve the putative father and equal protection issues raised in Adoptive Couple. Part IV suggests how the Court should have resolved Adoptive Couple in a constitutionally and doctrinally satisfying way while identifying some of the perils and repercussions of the Court’s judicial minimalism. This Part also includes a brief epilogue that provides an update to the status of Baby Girl’s adoption.
Understanding the Relationship between Perceived Bonding and Stress in Parents of Young Children: A Study of Intergenerational Transmission of Parenting Behavior
This study explored the way in which intergenerational transmission of parenting behavior takes place in parents of young children. Specifically, it explored how one's level of perceived parental bonding with their own parents affects their perceived amount of parental stress when they become parents themselves. Participants included 109 mothers and father who had at least one child under the age of 12. Findings were mixed, and indicated that there was a significant interaction between parental care and parental control. Specifically, findings showed that individuals who perceived their parents as both caring and overprotective or controlling, experienced the least amount of parental stress. Additionally, it was found that one's perceived amount of paternal care was significantly related to fewer reported parent child dysfunctional interactions. However, perceived maternal and paternal care and control were not significantly related to currently experienced total stress or parental distress. Clinical implications of these findings are discussed. ^
Posttraumatic Growth (PTG) represents growth in the aftermath of an extremely stressful event beyond one's previous level of adaptation, psychological functioning, or life awareness (Zoeliner & Maercker, 2006). The idea of personal growth found in suffering is explored from early philosophical roots; through existential psychological theory and preventative psychiatry; to modern day empirical research on PTG theory, process, assessment, correlates, and clinical application. Through administration of surveys to college and graduate students, the current research explored the various mediating, moderating, and predictive relationships between PIG and related variables of demographic information, personality characteristics, and religion and spirituality_ Contrary to what was hypothesized, results of the statistical analyses did not indicate a significant gender difference in overall, or domain-specific, PTG. Of all the personality variables, only extraversion and optimism significantly correlated with PTG, and pessimism was found to indirectly affect the likelihood of PTG. Religiousness alone significantly inversely predicted PTG, whereas spirituality alone, or combined religiosity and spirituality, did not significantly predict PTG. These results have theoretical and practical implications relevant to researchers and clinicians alike.^
The Effect of the Expectation of Monetary and Verbal Awards on Creativity: A Cross-Cultural Examination
A total of 132 college students from the United States and China were recruited to examine the effects of monetary and verbal rewards on creativity and motivation. Based on past research, it was hypothesized that an economic incentive would negatively affect one's intrinsic motivation, which subsequently would minimize creativity; however, a reputation-based incentive may not necessarily be detrimental to intrinsic motivation and creativity, especially among Chinese participants. This study also sought to examine which culture produced more creative work, with the hypothesis being that participants from an independent culture, such as the United States, would produce more creative work than those from an interdependent culture, such as China. The results partially supported these hypotheses. Economic incentive and reputation-based incentive were found to be both detrimental to one's intrinsic motivation in both cultures, but not necessarily creativity. Contrary to the stated hypothesis, the products produced by participants from China were more creative and original than those of the American counterparts. Findings from this research will assist in future studies in exploring how to motivate individuals to be creative in different cultures.^
Post 9/11, Sikh Americans became particularly susceptible to discrimination due to often being misidentified as Arab American or Muslim, and subsequently assumed by some to be associated with terrorism. Research has demonstrated that discrimination experienced by people of color can have a variety of negative effects on their physical and mental health. However, the discrimination experiences of Sikh Americans have not yet been captured utilizing a quantitative method in the psychology literature. The present study conceptualized religious identity as being comprised of both a psychological dimension (i.e., in-group ties, in-group affect, and centrality) and behavioral aspect (i.e., engaging in Sikh religious practices). The relationships between religious identity (both psychological and behavioral), perceived discrimination, and psychological well-being (specifically, life satisfaction and resilience) were examined using a quantitative method in a sample of 228 Sikh American adults who self-identified as South Asian and Sikh. In addition, this study investigated whether religious identity moderated the effects of perceived discrimination on psychological well-being. Participants completed an online survey comprised of the Lifetime Exposure scale of the Perceived Ethnic Discrimination Scale—Community Version, a multi-dimensional measure of social identity, items measuring the frequency in which Sikh principles and practices were followed, the Satisfaction with Life Scale, the Brief Resilience Scale, and a demographic questionnaire. Results revealed that individuals who had a stronger psychological identification as Sikh reported significantly higher satisfaction with their lives (p = .000). The behavioral aspect of Sikh identity was a marginally significant predictor of both life satisfaction (p = .055) and resilience (p = .091). Higher perceived discrimination scores significantly predicted lower life satisfaction scores (p = .004). The behavioral aspect of Sikh identity and perceived discrimination had a significant, positive relationship ( p = .003). There were no moderating effects found for either the psychological or behavioral dimensions of religious identity on the relationship between perceived discrimination and psychological well-being. Given the underrepresentation of Sikh Americans in the psychology literature, this study shed some light on this population's discrimination experiences and their identity. The major findings of this study suggest that Sikh Americans with a stronger behavioral identity experience or are more aware of discrimination; individuals who reported more discrimination also reported lower life satisfaction. However, individuals with a stronger psychological identity (e.g., sense of belonging and similarity with other Sikhs, positive feelings about being Sikh) reported having higher life satisfaction. Given that Sikh Americans are particularly vulnerable to discrimination, it is important for practitioners to develop an awareness of the complexity of the Sikh identity, the unique discrimination experiences they face, and identify factors such as strong psychological identity that may minimize the negative effects of discrimination.^
Understanding the "Manic Defense": An Examination of the Use of Defense Mechanisms among Depressed and Manic Outpatients
Through examining relationships between manic and depressive symptom endorsement and defense mechanism use, this study aims to provide empirical support for the manic defense construct. Participants included 176 adults seeking individual psychotherapy services at a low-fee outpatient clinic affiliated with a private urban university. Though findings do not support the proposed hypotheses, significant results were found with regard to relationships between defense style and specific defense employment among individuals who endorse symptoms of mania, depression, both depression and mania, and neither depression nor mania. In general, immature defense employment was found to correspond with higher levels of manic and depressive symptom endorsement. Depression was found to be more highly related to immature defense style when experienced in combination with mania, than when experienced without mania. Additionally, manic individuals demonstrated significantly greater use of neurotic defenses than depressed individuals. These findings and their implications are discussed. Findings with regard to use of specific defense mechanisms are also reported and discussed.^
Adolescent Depression and Individuation, Parental Representation and Stages of Ego Identity Among Female High School Students
Abstract not available.^
Research shows that parenting behaviors and parental religiosity are both variables that are related to child emotional and behavioral development. However, there is limited research on the relationship between parenting behaviors and the development of children in the Orthodox Jewish community, especially in the examination of positive child outcomes. This study was informed by the Parent Developmental Theory (PDT; Mowder, 2005) and the domains of positive and negative parenting behaviors identified within. Child developmental outcomes were examined for the presence of externalizing problematic behaviors, internalizing problematic behaviors, and adaptive skills.^ For the current study, 29 participants completed a demographic questionnaire (including a self-rating of religious adherence), the Parent Behavior Importance Questionnaire – Revised (PBIQ-R), and the Parent Rating Scales of the Behavioral Assessment for Children – 2nd Edition (BASC-2). Findings revealed that in this sample of Orthodox Jewish parents, (a) parenting behaviors involved in the PDT domains of Bonding and General Welfare and Protection were significantly negatively associated with child externalizing problematic behaviors and (b) parenting behaviors involved in the PDT domains of Bonding, Education, General Welfare and Protection, Responsivity, and Sensitivity were significantly positively associated with child overall adaptive skills and specific adaptive behaviors involved in adaptability, social skills, and activities of daily living. Exploratory analysis of the association between self-identified level of religious adherence to parenting behaviors and child outcomes produced non-significant results. The research results and limitations of the current study are discussed, along with implications for the field of school-clinical child psychology.^
This study examined the relationship between defense style and adolescent separation-individuation, and predicted an individual's primary defense style would be associated with aspects of the separation-individuation process. Successful progress toward individuation would be indicated by high levels of identity formation and the development of ego ideals. Lack of progress would be indicated by depressive reactions and unhealthy parenting relationships. 181 females and 62 males seeking psychological treatment at an urban university clinic (M age=24.67) were administered self-report measures. Data was examined using bivariate-correlations, MANOVAs, and a mediation analysis. Significant positive correlations were found between higher-order defense style and individuation. Lower-order internalizing defense style negatively correlated with individuation and positively correlated with depressive reactions. A mediation analysis demonstrated that defense style and identity factors were mediated by depressive reactions, but not unhealthy parenting relationships. This studies support the finding that defense styles play a role in assisting the adolescent navigate the separation-individuation process.^
This study was an effort to explore and expand the research in the field regarding the credibility of self-report measures when measuring psychopathic-like traits in children and adolescents. Some clinical research efforts have been devoted to developing screening indicators to ascertain whether a more comprehensive assessment of psychopathy traits might be advisable. This study examined the relationships between the abbreviated Psychopathy Content Scale (P-16; Salekin, Ziegler, Larrea, Anthony, & Bennett, 2003) taken from the Millon Adolescent Clinical Inventory (MACI; Millon, 1993) with performance and self-report based measures. Findings supported the convergent validity of the P-16 as a potential screener of psychopathic-like traits in youth. The strongest relationships were found when using the P-16 Total Scale score. Furthermore, using the P-16 cut off score of 10 or higher yielded the most predictable results. It was found that those adolescents that scored high in psychopathy were between 6 to 7 percent of the total inpatient adolescent sample. Conclusions showed that it is of upmost importance to obtain a clearer picture of those psychopathic traits that might develop early in childhood in order to delineate a more homogenous subgroup of children with conduct problems that may be at risk for psychopathy. The assessment of psychopathic-like features with vulnerable youth can then help facilitate prevention, early intervention, and treatment. ^
Abstract not available.^