Catalog: Digital Commons at Pace - New Repository Articles
The average tenure of a law school dean in the United States is three years, in large part because the task is both eclectic and difficult. Michelle Simon, the longest tenured Dean at our law school, was able to surpass that average because she was a dean for all seasons: Leadership and care of faculty; attention to student concerns; financial acumen; curricular relevance; keeping the day-to-day operation of a multi-faceted institution on track; maintaining a close but arms-length relationship with the university; and managing external relations on all fronts.
Others in the Festschrift will list Dean Simon’s many decanal accomplishments and initiatives, and I join them in their praise. I understand and accept the principle that law school faculty should be primarily engaged in teaching and scholarship, but I will always remember Dean Simon’s commitment to encouraging and supporting faculty involvement in outreach activities that benefit legal reform, the bench and bar, and the citizens of our community and state. I hope her successors will continue her outreach work and wish my old friend and valued colleague Dean Michelle Simon many more years of professional success and personal happiness.
Despite Francis Bacon’s cautionary note, I have always been a fan of parables, and perhaps the most poignant one to speak for perils of the legal profession is Franz Kafka’s “Vor dem Gesetz” (“Before the Law”), one of the relatively few works to be published in his lifetime. It was seen first in the almanac Vom Jüngsten Tag: Ein Almanach Neuer Dichtung in December 1915 before it was included in his novel Der Prozess (The Trial), which was unpublished in his lifetime. He wrote it at one sitting on December 13, 1914, and in fewer than 650 words, Kafka illustrates the menace of the law to those for whom it is a mystery and the indifferent cruelty possible from those who have access to it. He does this while subtly referencing, through metaphor, the social, political, and educational barriers that have always separated those who have access to the law and those whose ignorance of it can cost them everything. And he does it with a sheen of absurdist humor that reflects the existentialist artistic response against the alienation of the modern world that was unfolding around him.
The Abraham Lincoln Brigade is the unit of American volunteers fighting within the International Brigades and on the side of the Republic during the Spanish Civil War. Analysis of the Brigade and their role in Spain has led to greatly diverging views on why their service ended in defeat and who was to blame for it. While revisionist historians such as Ronald Radosh and Cecil Eby conclude that the Soviet Union was at fault for imposing political pressure on the Republic, sending incompetent officers to command the International Brigades, and using the volunteers to stall as they bled Spain’s gold reserve dry, the veterans predominantly reach a different conclusion. The Veterans of the Abraham Lincoln Brigade claim that the US and the other western democracies were at fault for failing to aid Spain at all and potentially stopping Fascism’s military advancements years before World War II even began. Both sides present convincing evidence, the revisionists presenting declassified documents, the veterans presenting first-hand accounts, but they present the fullest picture together, balancing out the biases inherent in the 1930s as well as the modern biases the revisionists hold today.
In 1980, the American Bar Association (ABA) promulgated a far-reaching comprehensive body of Juvenile Justice Standards, thereby providing a blueprint for the reform of a system that had serious deficiencies. Developed in partnership with the Institute of Judicial Administration (IJA) at New York University, the standards address the entire juvenile justice continuum, from police handling and intake to adjudication, disposition, juvenile corrections, and ancillary functions. Approximately 300 professionals collaborated for a decade to produce the 23 volumes approved by the ABA House of Delegates.
To this day, the standards remain relevant and reformist. Several have been implemented in whole or in part. However, since institutional resistance has compromised the meaningful consideration of the standards as a whole, the ABA must redouble its efforts to promote their acceptance and implementation.
This article looks at the history of the standards' development and implementation, and delineates the need for updating several provisions and the urgent need to advocate for their application.
Recent rates of mass incarceration have become a concern, but those rates are only part of the challenge facing (and posed by) the American criminal justice system. An estimated 25% of the U.S. adult population already has a criminal record and, with new felony convictions churning out at a rate of a million per year, America is well on its way to becoming a nation of ex-cons. Already, the ex-offender class is the nation’s biggest law-defined, legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain, But whatever the details, this is surely not good path for the nation to be on.
Abstract not available.^
The Relationship between Parental Attachment and Competence and Child Psychosocial Adjustment in a Clinically Referred Child Sample
The present study examined the relationship between parent/caregiver self-appraisal of attachment and competence and pre-adolescent psychiatric symptoms and psychosocial adjustment. The study explored the independent and interactive effects of parental attachment and competence on child psychosocial outcomes within the overall clinical sample (preadolescents hospitalized for psychiatric reasons), as well as that for the subsets of parents who rated themselves at the extremes for both parental attachment and competence (Clinical Exemplar Parent Groups).^ Within the overall sample, there were significant relationships between poor parental attachment and nine child outcomes, strong parental attachment and two child outcomes, and poor parental competence and six child outcomes; no interactions between parental attachment and competence were identified. Results of the analyses identified significant group differences between some Clinical Exemplar Parent Groups with regards to five child outcomes and one validity index.^ There were various important findings from this study. First, the strongest model within the overall clinical sample was parent report of child delinquency, which thereby highlighted the strong independent relationships between poor parental attachment and competence and child delinquency. Second, it was a parent's perception that his/her child was exhibiting externalizing behaviors – and not necessarily the presence of truly severe externalizing features – that closely related to poor parental attachment and competence. Third, extreme parental competence did not serve as an adequate buffer against child depression when a parent felt extremely unattached to his/her child. Fourth, parents of children with psychotic features tended to feel poorly attached to their children, but did feel competent. Fifth, the study elucidated parental reporting phenomena within a clinical child population. That is, parents of children with clinical psychiatric issues who presented overly positive images of themselves were also likely to engage in defensive reporting about their children's issues. Lastly, parent report of extremely high parental attachment when the children exhibited clinical internalizing issues may have indicated the presence of intrusive parenting practices, insecure attachment, and related problems in the parent-child relationship.^ Keywords: attachment; competence; parenting; parenting stress; Parenting Stress Index; Personality Inventory for Children; pre-adolescents; child; inpatient; psychiatric symptoms^
The current study uses a sample of 35 mother-child dyads to examine the degree to which parenting stress and personality style correlate with parenting behaviors and features of dyadic interaction. Parenting stress was measured using the Parenting Stress Index (Abidin, 1995) and personality was assessed using the NEO Five Factor Inventory-3 (McCrae & Costa, 2010). Mother-child interactions were coded using the Parent-Child Early Relational Assessment (Clark, 1985). Interactions between parenting stress, personality style, and parenting behaviors were explored as well. Extraversion was positively correlated with enthusiasm/joyfulness/mutual enjoyment, dyadic reciprocity, and overall adaptive parenting style. Parenting stress was negatively correlated with enthusiasm/joyfulness/mutual enjoyment and overall adaptive parenting style. Extraversion and conscientiousness were negatively correlated with parenting stress. The moderator effect of personality on the relationship between parenting stress and parenting behaviors was less significant than expected. However, neuroticism was found to moderate the relationship between stress and angry/hostile tone of voice used by the mothers. Implications of this study and areas of suggested further research are discussed.^
The Role of Personality Prototypes in Mental Health Risk and Substance Use Behavior among Single Gay and Bisexual Men
Background: Gay and bisexual men experience disproportionately high rates of mental health and substance use issues. The study of personality is one source of potential information about mental health risk and resiliency. Yet, despite efforts to understand gay and bisexual men's elevated risk for psychological disorders and distress, there is an absence of research studying the associations of personality traits with mental health and substance use outcomes within this vulnerable population. This study aimed to identify patterns of personality traits (i.e., prototypes), as well as their relationship with mental health outcomes in gay and bisexual men. Methods: Data were collected from 122 single gay and bisexual identified men. Participants completed the Ten Item Personality Inventory (TIPI), in addition to reporting their level of stress, negative affect, and recent drug and alcohol use. Results: Latent profile analyses identified three distinct personality prototypes: "over-controlled," "well-adjusted," and "under-regulated." Participants in the over-controlled and under-regulated prototype groups were more likely to report higher stress and negative affect than participants in the well-adjusted group. There was a statistically non-significant trend suggesting elevated risk for drug use among the under-regulated prototype. Alcohol use was not found to be associated with the observed personality prototypes. Conclusions: Consistent with previous research, two of the three prototypes were associated with negative mental health outcomes (i.e., the over-controlled and under-regulated prototypes). Both demonstrated significantly higher levels of stress and negative affect. Additionally, the under-regulated group had a higher odds of risky drug use compared to the over-controlled and well-adjusted prototypes. Notably, the pattern of personality traits associated with positive mental health outcomes in this sample of gay and bisexual men differed from corresponding well-adjusted prototypes observed in samples that were not differentiated by their sexual orientation. Thus, this study provides preliminary evidence for the utility of personality information in predicting mental health risks and protective factors among gay and bisexual men.^
This paper explores the role of social media in increasing a company’s brand equity and strengthening its customer relationships. The data collected consists of three case studies of major American companies, two interviews with Brazilian entrepreneurs, and a survey conducted to start-up companies in the New York City area. The paper then concludes that the use of social media by businesses, leads to a positive relationship with brand equity and improved customer relationships. Nevertheless, further research is required to see how other factors interact with brand equity and customer relationships to get a better understanding of social media and its impact on each variable.
One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an undue administrative and financial burden on the government.
This aspect of procedural due process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between “the generality of cases” and “the rare exceptions” has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether due to subgroup members' capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of due process, it is time to move beyond the Court's narrow focus on “the generality of cases” and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as “rare exceptions” unworthy of procedural accommodation, courts should evaluate the due process rights of subgroups under the traditional Mathews balancing test. This refinement of due process doctrine is necessary to ensure that members of due process subgroups--and not just average or typical individuals--are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause.
Babies Behind Bars: An Evaluation of Prison Nurseries in American Female Prisons and Their Potential Constitutional Challenges
This note opens the prison doors and delves into the United States female prison system, primarily focusing on the positive and negative impact of nursery programs on mothers and children, along with potential constitutional claims that can be brought against these programs. Part I provides a general background about the American prison system, and briefly touches on the constitutional standards of prisoners’ rights. It also discusses the history and development of female prisons and illustrates the rapid increase of female incarceration. Part II focuses on the prevalence of mothers within the female population in prisons. Part III introduces prison nursery programs and explains their history and how they operate. Part IV discusses the positive impact prison nurseries have had on both mothers and children. Part V touches on a few negative effects and the limitations of these programs. Finally, Part VI raises three potential constitutional challenges that can be raised against prison nurseries: two arguments based on the Fourteenth Amendment Equal Protection Clause and one argument based on the Fourteenth Amendment Due Process Clause. As this note will conclude, there should be an increase in the implementation of prison nursery programs in American prisons, as the value of these programs greatly outweighs their limitations. Moreover, potential constitutional attacks on these programs should not be discouraging, as they are unlikely to prevail.
This paper is broken down into three parts. Part I traces the history and evolution of flood insurance in the United States, including the establishment of federal flood insurance and key reforms over the 20th and 21st centuries. Part II discusses the 2012 flood insurance reform package, subsequent legal challenges to the reforms, and the government’s response to political pressure over the reform. Part III concludes discussing the continued need for flood insurance reform, especially in a world of rising sea levels and more frequent, stronger weather events.
Sirius XM Radio, Inc., Defendant: The Case for a Unified Federal Copyright System for Sound Recordings
This article observes the surviving gap between state and federal protection of music recordings through the lens of the current litigation against Sirius XM. Part II sets out a history of copyright protection in the music industry. Part III outlines the relevant provisions of the federal Copyright Act and the Digital Millennium Copyright Act and the role played in the federal system by the Copyright Royalty Board. Part IV examines the pertinent statutory property protection of music recordings in the state of California. Part V then discusses the merits of the current lawsuits against Sirius XM. After considering the potential legal and economic ramifications of the current lawsuits, Part VI then concludes by advocating for a unified federal system of copyright protection for all sound recordings regardless of the date on which they were originally fixed.
When Are the People Ready? The Interplay Between Facial Sufficiency and Readiness Under CPL Section 30.30
In this article, we will explore the intersecting concepts of conversion, facial sufficiency, and readiness. As we shall see, readiness for trial does not necessarily follow from the conversion of a complaint and dismissal on CPL section 30.30 grounds does not necessarily follow from a finding of facial insufficiency.
In this article, I outline the latest version of the Shared Economic Growth package proposal and explain how it accomplishes all of its goals, with reference to some of the recent scholarly works that support it. I then walk through the derivation of the numbers to show that it really works, based on conservative assumptions and without any reliance on economic growth or voodoo, and that it would provide a substantial addition to revenue in the coming years. These numbers are based on 2010 data, the most recent comprehensive data available, and thus prove that the proposal works in the post-2008 economy. I next compare the proposal to the emerging “corporate consensus.” Finally, I walk through an analysis of the propriety of certain offsets that can only work as part of the Shared Economic Growth package.
Whistleblowers have a long and honorable history. From Ralph Nader blowing the whistle on the hazards of GM’s Corvair in Unsafe at Any Speed1 in the 1960’s to Jeffrey Wigand in 1996 exposing the duplicity of the tobacco industry, whistleblowers have put conscience ahead of career and personal success to expose corporate fraud and wrongdoing. Not surprisingly, they have had to endure ridicule and ostracism as well as financial hardship. Legislation has sought to protect them from retribution, often with mixed success. The most recent legislative effort is the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that allows whistleblowers to collect a bounty for the whistleblowing and also protects the whistleblower from retaliatory acts by his or her employer. One of the challenges currently dividing the courts is determining who should come within the protection of the legislation. The Fifth Circuit Court of Appeals, in Asadi v. GE Energy, interpreted the definition of “whistleblower” quite narrowly to encompass only those individuals who make information available directly to the Securities and Exchange Commission (SEC). This interpretation by the Fifth Circuit not only rejects the broader interpretation of SEC regulations, but is also inconsistent with the decisions of various district courts that have considered this question. Part I opens with a discussion of the requirements of “whistleblower” status under both the statutory language of Dodd-Frank and the accompanying SEC regulations. Part II reviews the Asadi decision and calls into question the soundness of the court’s decision to disregard SEC regulations. Part III explores the circumstances in which administrative regulations are entitled to deference and those situations in which they may be disregarded as an overreach of power. Part IV surveys several district court decisions that have interpreted the term “whistleblower” under Dodd-Frank. Part V argues that even public policy dictates that the courts should adopt a broad interpretation of “whistleblower” so as to provide maximum safeguards against fraud and abuse. The paper concludes that the Fifth Circuit in Asadi reached an incorrect result, and, therefore, that this renegade decision which advocates a narrow scope of whistleblower protection should be rejected in future judicial interpretations of who is a whistleblower.
Begone, Euclid!: Leasing Custom and Zoning Provision Engaging Retail Consumer Tastes and Technologies in Thriving Urban Centers
Is urban center retailing in a death spiral? Competition for consumers with Internet vendors is afoot; winners and losers shall be anointed. The threats to physical retailing in an era of the “Internet of Goods” initially are described below. Adaptations by tenants, landlords, and stakeholders in urban centers will be required quickly, and new perspectives and partnerships, including those among local and regional governments, are instrumental if physical retail operations in municipal cores are to survive. The balance of this article describes these needs from the vantage point of each stakeholder; but this article argues that integrating information and communication technological infrastructure into retail leasing practices and land use planning and zoning strategies is inescapable for the maintenance of resilient town centers. Part II of this article describes the overwhelming impact of Internet consumerism upon physical retailing while Part III explains the physical milieu’s remaining but shrinking opportunities to remain competitive with the online consumer realm. Parts IV and V demonstrate how information and communication technologies, with innovative strategizing by retailers and their landlords, can be leveraged to incite lasting consumer interest in physical shopping environments within a community’s commercial nodes. Parts VI and VII articulate the municipal imperatives, including policies to implement robust technology infrastructure and capitalizing on ICT’s inherent “intelligence,” required to maintain commercial core competitiveness.
This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury trial has been waived in the context of civil actions seeking both legal and equitable relief arising out of the same transaction. Part IV of this article addresses the evolution toward non-jury trial in England and Wales and the policy in favor of non-jury trials in civil actions today.
This article is written to encourage New York advocates to examine closely the analyses developed and the results which have emerged concerning waiver of a jury trial by the joinder of law and equity claims. Trial by jury, so fundamental to the American and New York systems of jurisprudence, should not be deemed waived, and is not waived, merely because litigants seek both legal and equitable relief arising from the same transaction. There is a careful analysis meant to be employed to protect the sacred right to a trial by jury, and an advocate confronted with the issue should make certain that the court properly utilizes it.