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The Executive and the Environment: A Look at the Last Five Governors in New York

Thu, 08/14/2014 - 12:34

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck me is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment today to secure tomorrow? The fact remains that these are the three major legs of the sustainability stool and the measure of gubernatorial leadership is not in the lofty goals that were set forth, but rather in what was actually accomplished. This Kerlin Lecture focuses on the broader theme of gubernatorial leadership and sustainability rather than perhaps the narrower reference to the environment, to reflect what in my opinion has enabled the global community to address core environmental challenges by forming alliances with other interest groups that might not have necessarily believed there was a logical affinity to strengthening environmental protections.

Categories: Books

Innovations in Energy and Climate Policy: Lessons from Vermont

Thu, 08/14/2014 - 12:34

We ask in this article: how can planners and policymakers replicate Vermont’s energy and climate policies? We begin by explaining the research methods utilized for this article—mainly research interviews with a pool of experts, coupled with a targeted literature review. We then analyze the success of Vermont energy policy across four areas: energy efficiency, renewable energy, the smart grid, and energy governance. The following sections first explain how Vermont accomplished these successes, next identify a number of remaining barriers and elements of Vermont’s approach that may not be replicable, and finally present the article’s conclusions.

Categories: Books

The Missing Link: U.S. Regulation of Consumer Cosmetic Products to Protect Human Health and the Environment

Thu, 08/14/2014 - 12:34

This article explores these lax regulatory efforts and their connection to risk assessment, and proposes changes to our current toxics regulatory paradigm. Part I of this article explores our current regulatory approach for consumer cosmetics. Part II discusses the specific and dire concerns regarding chemicals that are suspected carcinogens and those suspected of disrupting the human endocrine system. The article argues in Part III that because the framework for our current regulation of consumer cosmetic products is not designed to be protective of human health, our regulatory paradigm must shift dramatically in the future if this is to become our true goal. Part IV of the article compares our federal efforts to regulate toxic substances in cosmetics with those in other developed countries and at the state level in the United States. This section concludes that we lag far behind in our health protective regulatory efforts relative to other jurisdictions. If we are to make the protection of human health a fundamental goal of our toxics regulatory system and specifically, our cosmetic product regulation, we must change our normative goals and operate from a more precautionary stance. In Part V, the article reviews past and current federal legislative proposals regarding cosmetic regulation, and makes suggestions on how the current proposal could be strengthened to make U.S. cosmetics safer, and have a greater potential to protect human health.

Categories: Books

Fraud and First Amendment Protections of False Speech: How United States v. Alvarez Impacts Constitutional Challenges to Ag-Gag Laws

Thu, 08/14/2014 - 11:21

This article first explains the background and functions of undercover investigations of agricultural production facilities, and explains the bases upon which states pass laws intended to prevent these investigations. It then gives a background of research already conducted on the constitutionality of Ag-Gag laws, and examines the relevance of the Supreme Court case Alvarez. Based on the analysis provided in Alvarez, the article demonstrates that Ag-Gag laws would not be exempt from heightened First Amendment scrutiny as fraud statutes. Moreover, it demonstrates that, in particular, the Iowa and Utah Ag-Gag laws would not survive the heightened scrutiny outlined in Alvarez.

Categories: Books

Animal Agriculture Laws on the Chopping Block: Comparing United States and Brazil

Thu, 08/14/2014 - 11:21

Brazil and the United States are among the largest producers and exporters of livestock in the world. This raises important animal rights and environmental concerns. While many of the impacts of industrial animal agriculture are similar in Brazil and the United States, there are key differences in the effects on animals and the environment. The variations between Brazil and the United States are due to ecological, production method, and regulatory differences between the countries. Despite their dissimilarities, however, Brazil and the United States both largely fail to adequately protect farm animals and the environment from the impacts of large-scale animal agriculture. As the animal agriculture industry is profit-driven, economic considerations take precedent over environmental or ethical concerns. Because these two countries produce and export so much of the world’s meat, effective regulation and enforcement in this area is essential.

Section II of this article discusses the animal welfare abuses and environmental degradation animal agriculture causes in the United States and Brazil. Section III explains the regulatory schemes of both countries as they pertain to animal rights and environmental issues resulting from animal agriculture. Section IV compares the animal agriculture track records of Brazil and the United States relating to the animal welfare implications, resulting environmental degradation, and regulatory schemes of the countries. This section goes on to provide suggestions for the future of animal agriculture in each country. Lastly, Section V concludes with a brief summary and recommendations for the future.

Categories: Books

Origins and Development of Teaching Animal Law in Brazil

Thu, 08/14/2014 - 11:21

This paper examines the strategies utilized on each continent and shows the path made for these scholars to build a framework to discuss animal law within law schools. The conclusion is that this movement produced by such scholars has changed the way law schools are teaching law and is affording new opportunities to solve animal concerns, and likewise, social problems in Brazil and around the world.

Therefore, this article first discusses the philosophical Brazilian background to teach animal law, and how the animal rights movement creates a framework for professors and students working in this field. It then summarily explores the Brazilian and United States dialogue and how this partnership has expanded the animal law debate in South America, followed by an examination of the civil law countries that have historically influenced the Brazilian system. That section focuses on Portugal, Spain, and France to define new pedagogy to legal education in Brazil while looking at the Brazilian experience in teaching animal law. Some universities have begun to open discussion and create centers to debate this area. The challenge is to change the way of teaching law by showing students that human and non-human interests need to be considered by the law. Finally, this article proposes a direction and some perspectives for the immediate future and explains that it is time to overcome the obstacles and enjoy the atmosphere already shaped to teach animal law as an autonomous subject, that is, as part of the minimum curriculum in Brazilian law schools.

Categories: Books

Using Emerging Pollution Tracking Methods to Address the Downstream Impacts of Factory Farm Animal Welfare Abuse

Thu, 08/14/2014 - 11:21

CAFOs present numerous interconnected ethical, environmental, and public health threats, and this article will discuss opportunities to address the multiple adverse impacts of factory farming through advances in pollution tracking methodologies. The first section will introduce the factory farm issue, and the relationship between its environmental and welfare consequences. We then review approaches to establishing liability for surface and groundwater contamination under existing pollution control laws and describe the unique challenges of using these approaches in the context of CAFO pollution. We then discuss techniques that have been used to more precisely identify sources of pollution, including measurements of a range of chemicals and bacteria, pharmaceuticals used in livestock operations, antibiotic resistance, microbial source tracking, and fecal source tracking. We continue with a discussion of the state of the science and law with regard to these novel pollution tracking methods. To better understand the remaining barriers to effective use of emerging science in this arena, we conclude with a review of judicial acceptance of novel analytical techniques in CAFO-related and other contexts.

Categories: Books

Cultural Solipsism, Cultural Lenses, Universal Principles, and Animal Advocacy

Thu, 08/14/2014 - 11:21

Given the potpourri of human cultures and the need to take a global view of animal rights advocacy, how can animal rights advocates most efficiently and successfully advocate for animals? This article will address this issue.

First, I will describe and analyze views of the human/animal relationship from five example cultural traditions: Western culture, represented generally by Europe and North America, Indian culture, Chinese culture, South African culture, and Islamic culture, exemplified primarily here by Turkey. It is not asserted here that any of these cultures or countries are homogenous; they are not. Although Western culture is primarily constructed on Judeo-Christian traditions, there are many facets, tangents, and strands of these and other traditions in the West. India is, of course, an admixture of peoples and religious traditions, as is China. South Africa is a country with a mixture of different cultures and traditions, which have collided in recent history. And Islamic culture includes two major religious traditions as well as numerous offshoots from these major traditions and includes many ethnic groups. Moreover, it is also the case that there will always be individuals and groups within a culture whose views diverge from the cultural norm. The project here is not to attempt to represent each of these cultures as clearly defined and structured monoliths, but rather to attempt to ascertain a few fundamental principles and ideas that make significant contributions to thought about the human/animal relationship in these cultures and countries.

I will demarcate the contours and boundaries of these fundamental cultural ideas about animals through analysis of historical as well as current events and issues in these cultures, but for the most part will focus on the dominant religious thought of these cultures. This emphasis on religious thought is prompted by the fact that religious thought or conceptual constructs derived from religious thought are often the foundational ingredient in a culture’s view of the human/animal relationship, although it will be discovered that this may not always be the case.

Second, laws relating to animals from the chosen countries and cultures will be described and the cultural influences on these laws will be evaluated. Third, the implications of cultural differences and similarities for global animal rights advocacy will be scrutinized. In performing this analysis, this article will construct a model for global animal rights advocacy that incorporates consideration of cultural idiosyncrasies and, at the same time, has a foundation built on certain universally accepted principles. This model posits a “Compound Cultural Lens” of cultural influences that must be assayed in animal advocacy in a globalized world composed of a “Culturally Solipsistic Lens” representing the peculiarities of the particular culture and a “Universal Cultural Lens” that represents certain principles argued to be omnipresent in all cultures. It is posited that animal advocacy can benefit from crafting its messages utilizing these two aspects of the Compound Cultural Lens.

Categories: Books

Foreword

Thu, 08/14/2014 - 11:20

The overlap between animal law and environmental law arises because the two disciplines are fundamentally linked. One cannot talk about the environment without also discussing the nonhuman sentient beings that populate it. Indeed, as I shall discuss shortly, one of the most vexing issues for me— as a scholar working in both fields—involves my ongoing attempt to address the historical tension between the two disciplines. This volume of the Pace Environmental Law Review (PELR) marks an important step on the path toward resolving those tensions and moving environmental law forward. That path will not always be smooth, nor will it be obstacle-free.

Categories: Books

From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws

Mon, 07/28/2014 - 09:53

This Article traces the history of the child pornography laws and sentencing policy in Part I. Part II explains the technologies that have caused some of the current controversies, and then Part III describes how these technologies have blurred the offenses. Finally, Part IV makes suggestions as to how the law could better reflect technology and comport with a refined harm rationale. Courts, legal scholars, and medical experts have explained the harm includes the sexual abuse captured in the images and the psychological injury the victim endures knowing the images are being viewed. This Article further develops the harm rationale by explaining that the harm rests on a fundamental injury to the victim's human dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention's ban on photographs of prisoners of war, this Article states that all traders in child pornography violate the rights of the children depicted, and therefore, inflict harm, albeit at different levels. This Article suggests that a statutory scheme that divides pornographers into three groups-- producers, traders, and seekers--would best reflect how technology has changed the manner in which pornography is gathered and spread. Sentences could be calibrated accordingly to punish for the harm inflicted by the pornographers.

Categories: Books

The Prosecutor’s Contribution to Wrongful Convictions

Wed, 07/23/2014 - 15:07

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has a constitutional, statutory, and ethical duty to ensure that a defendant is convicted on the basis of reliable evidence in proceedings that are fair. Nevertheless, some prosecutors deviate from these rules and engage in conduct that distorts the fact-finding process and produces erroneous convictions. Indeed, if a prosecutor is motivated to zealously win a conviction by any means, and engages in conduct that either intentionally or carelessly undermines the integrity of the fact-finding process, the prosecutor inescapably will bring about the conviction of a defendant who is actually innocent.

Categories: Books

Ethnic Identity and Working Alliance in Psychology Supervisory Relationships

Mon, 07/21/2014 - 15:34

With the increasing percentage of non-mainstream (e.g., ethnically diverse) individuals studying and practicing psychology, research on race and ethnicity is critical towards understanding their role in professional development. Recent studies have demonstrated the importance of incorporating discussions of racial attitudes and culture in counseling supervision. Racial and ethnic identities have been suggested as potential facilitators or inhibitors in supervisory relationships. Racial identity (RI) development has been found to be related to supervisors' and supervisees perceptions of the supervisory working alliance. Supervisory dyads where both the supervisor and the supervisee have high levels of RI development have been found to have the strongest supervisory working alliance (i.e., most satisfied with the relationship). Conversely, dyads in which both members have low levels of RI development have been found to be the least satisfied with their relationship (Bhat & Davis, 2007; Ladany, Brittan-Powell, & Pannu, 1997). This study examined whether similar relationships exist between ethnic identity (EI) development and the supervisory working alliance. The sample included 164 participants, 68 supervisors and 96 supervisees. Analyses on supervisory dyads included 64 dyads, 57 supervisors and 60 supervisees. All participants completed the Ethnic Identity Scale to measure their level of El development. Supervisors and supervisees in supervisory dyads were assigned to interaction groups based on their level of EI development. Supervisors completed the Supervisory Working Alliance Inventory and supervisees completed the Supervisory Working Alliance Inventory - Trainee Version to measure the working alliance in counselor supervision. Results revealed that supervisors and supervisees did not differ significantly in their level of EI development. There was a significant difference found between supervisors and supervisees level of El affirmation (i.e., their feelings toward their ethnicity). In contrast to prior findings with RI development, a relationship was not found between EI development and the supervisory working alliance. Reliance on supervisor/supervisee self-report rather than their perceptions of each other's EI development may have contributed to disparate findings. In order to obtain less biased data, future studies should include participants' assessments on all of their supervisory relationships instead of allowing them to self-select individual supervisors/supervisees.^

Categories: Books

Attachment Transmission: Effects of Therapist Attachment Style on the Therapeutic Relationship

Mon, 07/21/2014 - 15:34

This study explored the relationship between attachment style and attachment in particular relationships. Specifically, this study compared the relationship between outpatient therapy patients' general adult attachment style and their attachment to their therapist. In addition, therapists' adult attachment style was investigated as a moderator between patients' global attachment and attachment to therapist. Attachment was conceptualized along two dimensions: attachment anxiety and attachment avoidance. It was hypothesized that patient's global attachment style and attachment to therapist would be positively correlated, and that therapist's attachment style would moderate the relationship between patient's global attachment and attachment to therapist. Participants included 50 patient-therapist dyads (N=50 patients, 75 therapists) from an outpatient clinic at a large, urban university. Results revealed that patients' global adult attachment style was positively correlated with attachment to their therapist. Also, therapists' attachment anxiety was found to moderate the relationship between patients' global attachment anxiety and therapist-specific attachment anxiety in female patients. No such results were found for male patients or on the attachment avoidance dimension.^

Categories: Books

Conferring Dignity: The Metamorphosis of the Legal Homosexual

Mon, 07/21/2014 - 15:33

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to engage in homosexual sodomy. In the second, the “Equal Homosexual Class Phase,” the Court in Romer v. Evans cast the legal homosexual as a member of a “class of citizens” whose exclusion from anti-discrimination protections the Constitution could not tolerate. In the third, the “Free Intimate Bond Phase,” the Court shifted its focus in Lawrence v. Texas to an enduring intimate bond involving private sexual acts protected from government intrusion. In the fourth and current phase, the “Dignified Married Couple Phase,” the Court in United States v. Windsor validated the decision of several states to “confer” upon homosexuals “a dignity and status of immense import.”

The heart of the Article is an analysis of this final phase. Although Windsor is an important civil rights victory, the Court’s opinion ushers in important consequences for the legal homosexual. In the process of dignifying the same-sex couple, the Court erased the terms “homosexual” and “lesbian,” cast marriage as an elevated moral state, and, most importantly, promoted a concept that the Article calls a “weak dignity.” Windsor’s dignity is weak in three ways. First, human dignity was not understood by the Court as inherent in all humans. The Court instead assumed that the State confers dignity upon individuals. Second, Windsor’s concept of dignity is much narrower than theories promoted by contemporary moral and legal philosophers. Third, Windsor adopted a rhetoric of injury and pity that presents all those in same-sex relationships and their children as the wounded and humiliated victims of DOMA. The Article concludes with suggestions on how advocates and courts applying Windsor can employ the concept of equal dignity while moving beyond Windsor’s weaknesses.

Categories: Books

How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member

Mon, 07/21/2014 - 15:29

Way ahead of the current chorus of critique of American legal education, Derrick Bell was a fierce, but lucid and incisive, critic of every aspect of American legal education, from law professors’ inadequacies, to the repetitive passivity of the law school classroom, to the financial exploitation of students, to the negative consequences of the tenure system. Dean Bell did not merely voice these concerns, he creatively structured his own courses to make them more relevant, effective, and student-centered. The author’s chance encounter with Dean Bell’s 1982 article, The Law Student as Slave, which presaged later calls for wholesale reform of legal education like the Carnegie Report, was transformative.

Categories: Books

Horton the Elephant Interprets the Federal Rules of Civil Procedure: How the Federal Courts Sometimes Do and Always Should Understand Them

Mon, 07/21/2014 - 15:26

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal Rule was substantive. Because those justices forgot the lesson of Hanna v. Plumer, the seminal 1965 REA case, their approach introduced new uncertainties to an area that had been clearer--which was a mistake. The Court's approach to Federal Rules problems from Hanna, in 1965, until Shady Grove, in 2010, is preferable. It provides a historically justifiable bright-line test for how to read a Federal Rule--as concerning only matters to which the Rule directly speaks.

This Article proceeds in four further Parts. Part II briefly summarizes the Erie doctrine and canvasses the Court's approach to the Federal Rules from 1938, when they took effect, to 1965, when the Court decided Hanna. Part III takes a close look at Hanna, which declared that a Federal Rule must speak with read-my-lips clarity to apply to an issue. Hanna did not say that federal courts may read a Rule for more than appears on its face, and Walker v. Armco Steel Co. continued that approach. Part III also discusses the implications of the Hanna analysis and subsequent cases that have applied Hanna's approach. Part IV briefly canvasses the opinions in Shady Grove with respect to the two approaches to REA questions. Part V argues that the Hanna-Walker line of cases exemplifies the proper method of inquiry under the REA and that REA questions need not be as hard as the Court, particularly in Shady Grove, has made them look.

Categories: Books

What Went Wrong: Prudent Management of Endowment Funds and Imprudent Endowment Investing Policies

Tue, 07/08/2014 - 13:04

Most colleges and universities of all sizes have an endowment, a fund that provides a stream of income and maintains the corpus of the fund in perpetuity. Organizations with large endowments, such as colleges, universities, and private foundations, all finance a significant part of their operations through the return received from the investment of this capital. This article examines the legal framework for endowment investing, endowment investing policies, their evolution to more sophisticated and riskier strategies, and the consequences evinced during the financial crisis of 2008 and beyond. It traces the approaches to endowment investing and chronicles the rise and, if not the fall, the challenges to modern portfolio management. It examines the impact of endowment losses on colleges and universities and their constituencies, as well as the problem of trustee deference to boards' investment committees. This article concludes that universities have learned little from the financial crisis and are more invested in illiquid, nontransparent assets than before the financial crisis. Finally, this article recommends the establishment of board level risk management committees to evaluate endowment investing policies.

Categories: Books

Norway’s Companies Act: A 10-Year Look at Gender Equality

Tue, 07/08/2014 - 12:00

This analysis assesses the amendment to Norway’s Companies Act, in light of the 10-year anniversary of the mandate of female representation on corporate boards. First, I discuss the implementation of the quota, Section 6-11a. Second, I compare three statistical studies that analyze the effects of the quota on corporate profitability, overall firm performance, and the changing dynamics of the managerial positions. Finally, I evaluate the various avenues to fully achieving diversity, such as the successes and failures of a quota-type system and possible initiatives that governments and companies can enact to achieve gender-balance in the workplace. While some hypothesize that the quota negatively affects overall firm capability and value, the statistical data on the effects of the legislation is not dispositive. Ultimately, it is in the best interest of corporations to learn from Norway’s example in implementing mandatory female representation, and to explore other avenues to achieving diversity.

Categories: Books

Corporate Governance Sex Regimes: Peripheral Thoughts from Across the Atlantic

Tue, 07/08/2014 - 12:00

The very recent and highly mediatized “Declaration of the 343 Salauds”, where 343 (male) signatures in support of prostitution in a form designed to echo the highly significant declaration of as many women in 1971 in favor of the legalization of abortion, sheds particularly interesting light upon debate about sex regimes in connection with French law. France has recently introduced compulsory quotas for women in corporate boards after imposing la parité for public appointments. A comparative perspective, confronting this recent legislative development from across the Atlantic with policy views on affirmative action and philosophical conceptions of diversity in the United States, highlights the importance of the social, political or economic environment in which the issue of sex regimes arises as well as other forms of enforced diversity. Moreover, the way in which the issues are framed (how are the stakes for women presented? what about other minorities?) and the salience they have in the public space (who reacts? with what political support?) reveals a variety of cultural idiosyncrasies or paradoxes on each side. This short paper will start by sketching out some of these issues in the form of a general approach (I). It will then look more closely at some of the tensions and contradictions within contemporary French feminist thought: first through Bourdieu’s specific brand of social theory in La Domination Masculine (II), then in the writings of Elisabeth Badinter on X Y Identité Masculine (III).

Categories: Books