Catalog: Digital Commons at Pace - New Repository Articles
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.
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.^
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.^
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.
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.
Horton the Elephant Interprets the Federal Rules of Civil Procedure: How the Federal Courts Sometimes Do and Always Should Understand Them
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.
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.
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.
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).
Recently, U.S. activists, scholars, and policy makers have turned their attention to one notable effort to address the gender gap in management: gender quotas for corporate boards of directors. Twelve European countries have pioneered quotas in this context. France, Italy, the Netherlands, Norway, and Belgium now have mandatory quotas ranging from 30%-40%. Spain, Germany, Denmark, Finland, Greece, Austria, and Slovenia have voluntary quotas, and Germany and the EU are considering legislation to mandate quotas. Gender quotas for corporate boards represent an intriguing option, even if the case for quotas is not airtight. The argument for gender quotas rests on a number of empirical propositions, all of which remain contested. Scholars cannot yet show definitively whether gender quotas shatter the glass ceiling or improve board decisionmaking or business performance. Indeed, critics worry that quotas could produce a backlash, if female appointees are tokens or if female directors are untrained or inexperienced, but these claims, too, await further empirical investigation.
The excellent conference organized by Darren Rosenblum comparing global approaches to board diversity inspired me to think about how progress in this context has unfolded in the United States. Even though the issue of diversity on corporate boards has become a global issue, few U.S. boards have moved beyond mere tokenism when it comes to female directors. One reason for the lack of diversity among corporate directors is that board selection has been based on membership in a particular network. This essay, however, focuses on the persisting problem of discrimination—a more invidious explanation for the fact that very few corporate boards reflect the gender and racial diversity of their workers, consumers, and the communities in which they do business.
This symposium essay summarizes our ongoing ethnographic research on corporate board diversity. This research is based on fifty-seven interviews with corporate directors and a limited number of other persons of interest (including institutional investors, executive search professionals, and proxy advisors) regarding their views on race and gender diversity in the boardroom.
Using a method rooted in anthropology and discourse analysis, we have worked from a general topic outline and conducted open-ended interviews in which respondents are encouraged to raise and develop issues of interest to them. The interviews range from forty-five minutes to two hours in length and each interview is taped and transcribed. As a group, we then listen to each taped interview at least once with transcript in hand, analyzing each interview qualitatively with a focus on the themes that the respondents identify, the emphases given to these themes, the stories (or narratives) that they tell, and the details of the language that they use. We also thematically code the transcripts and use sorting software to get another, complementary view of the frequency and distribution of the various themes.
As we discuss at length in other published work, there are numerous tensions in directors’ accounts of race and gender in the boardroom. In this essay, we discuss what we view as the central tension in our respondents’ views on corporate board diversity—their overwhelmingly enthusiastic support of board diversity coupled with an inability to articulate coherent accounts of board diversity benefits that might rationalize that enthusiasm.
My work in this field has focused on regulation by quota and regulation by disclosure. With regard to quotas, strikingly, the Norwegian law is not located in regulation that explicitly deals with human rights or equality issues; rather, it is found in the heart of the legal regime that gives life and personality to corporations – in Norwegian corporate law. I have conducted qualitative, interview-based research with Norwegian corporate directors, both men and women. It is only through understanding how the goals of the law have translated into the day-to-day existence of these individuals that we can begin to consider the “big picture” questions that accompany the quota-based approach. With regard to disclosure, I have chosen to focus on the U.S. as a second case study for four principal reasons. First, similar to the Norwegian law, the site that houses the U.S. rule is noteworthy. Once again, it is not found in regulation that focuses on anti-discrimination etc…; rather, it is located in the heart of the legal regime that governs the public issuance of shares – in U.S. securities law. Second, and related to the first, the U.S. rule (like the Norwegian law) has been controversial, painted by some as an unjustified intervention into market terrain and as being in tension with the underlying purpose of securities regulation. Third, quite simply, U.S. markets represent the biggest share of overall global market capitalization. Fourth, I am mindful of the argument of scholars such as Schuck that there is something special – something unique –about the U.S.’s historical engagement with the idea of diversity.
My inquiry into the U.S. approach, using the diversity disclosure rule promulgated by the SEC, begins with an overview of its conceptual underpinnings. I then explore reactions to the rule and consider whether, in promulgating it, the SEC acted reasonably, or if it strayed significantly from its mandate. From there, I use a mixed-method, qualitative–quantitative content analysis to investigate the micro-dynamics of this approach. I take an initial temperature reading of corporate articulations of diversity under the first years of the rule. These articulations are particularly fascinating given that the SEC does not provide firms with a definition of the term “diversity”.
The specific results of my study are forthcoming. Overall, it establishes that the concept of diversity carries multiple connotations for U.S. corporations. However, perhaps its most salient finding is that, when left to their own devices (i.e. in the absence of regulatory guidance), firms most frequently think in experiential terms and focus on a director’s prior experience, or knowledge and skills — rather than in socio-demographic terms with an eye to gender or racial diversity. As I have reported elsewhere, only approximately half of firms in my sample fell into the latter camp.
In February 2013, on the day of the worst snowstorm in many years, Pace International Law Review conducted a symposium on “Comparative Sex Regimes and Corporate Governance.” Despite a total shutdown of all transport networks and the consequent absence of a few stranded scholars, we met to discuss the fraught questions posed by corporate board quotas and formulate answers.
Led by Norway in 2003, several nations have begun to mandate certain levels of women’s inclusion on corporate boards. In the face of widespread exclusion of women from corporate power that suggests structural biases, these quotas appear radical and compelling. The wake of the financial crisis has accentuated this phenomenon, as stereotypes of women as more risk-averse prompt legislatures to attempt to ensure more economic stability.
This article focuses on the action localities have taken toward mitigating some of the adverse impacts of hydraulic fracturing, or hydrofracking. The Article will explore impacts at the local level and will show the governance gap that has resulted from federal and state regulations that leave many local impacts unmitigated. Zoning laws and other practices that local governments are adopting are also discussed, explaining why state preemption over the traditional role of local governments in regulating this particular heavy industrial activity is not the ideal situation.
New York’s Decanting Statute: Helping an Old Vintage Come to Life or Spoiling the Settlor’s Fine Wine?
The Comment examines trust decanting in four parts. Part I reviews the historical evolution of decanting statutes, first from common law roots, and later focusing on the legislative history of New York’s decanting statute. Part II briefly explains the functionality of section 10-6.6 of the NY EPTL; the “how does it work” explanation of the statute that authorizes decanting. Part III will discuss the many practical uses of the decanting statute. Finally, Part IV will transition into a discussion on how the trustee’s use of this statute not only leaves him in limbo regarding the tax treatment of his actions, but places him in a head on clash with New York’s longstanding commitment to honoring settlor intent.
Moving Beyond Marriage: A Proposed Unit of Presumed Economic Interdependence for Joint Filing Purposes in Bankruptcy and in Tax
In order to promote both equality and efficiency, this Comment proposes that individuals should have the opportunity to file jointly for tax and bankruptcy purposes when they have a relationship predicated upon economic interdependence, as opposed to basing the opportunity to file jointly upon marital status. Part I of this Comment will briefly discuss the history of marriage in the United States. In particular, Part I will discuss the role that the government has had in promoting and regulating marriage and how the treatment of married persons operates to the exclusion of the unmarried. Parts II and III of this Comment will provide a history of the joint income tax and joint bankruptcy petition. In Parts IV(A) and IV(B), this Comment will evaluate and critique both the benefits and drawbacks of allowing individuals to file jointly for tax and bankruptcy purposes, and discuss the implications of joint filing. In Part V(A), this Comment will analyze and critique the relevance of the current system, and will conclude that both the Bankruptcy Code and the Internal Revenue Code must be modernized in order to reflect the changing demographics of the American household. In Parts V(B) and V(C), this Comment will present the reader with two alternative options for modernization: a strictly individual or modified individual system or allowance of a unit based on presumed economic interdependence. Ultimately, this Comment will conclude that a unit based on presumed economic interdependence would achieve the most equitable result.
Too Complex to Perceive? Drafting Cash Distribution Waterfalls Directly as Code to Reduce Complexity and Legal Risk in Structured Finance, Master Limited Partnership, and Private Equity Transactions
This Article proposes that complex structured finance transactions involving sophisticated investors should adopt an analogous solution to the home construction agreements’ strategy of contracting by reference to blueprints. First, dealmakers should, preferably by choice, place as much of their waterfall distribution specification and related inputs as possible into automated, programmatic representations that will be used to make the actual distribution. In many cases, these agreements already have programmatic representations, so this change should pose relatively few practical challenges logistically. Second, they should, like their counterparts in construction contracts, define the terms of those waterfalls by reference to their functional representations. The contract should be depicted by the same code that will decide the actual distribution, and that coded depiction should be the legally binding contract. By unifying the functional and legal realities of the structured finance products, dealmakers will avoid wasting resources on creating unnecessary and inaccurate legal depictions, and will also reduce the legal and financial risk created by the imprecision and inaccuracy of perception those poor depictions create.
This Article will proceed as follows: In Part II, this Article sets out to restate and expand Professor Henry Hu’s explanation of the intermediary depiction problem with what this Article terms the challenge of perception. Professor Hu observes that the difficulty with the current regulatory disclosure regime is one of imperfect depictions and could be fixed with pure information disclosure. By contrast, this Article contends that so long as there are multiple potentially legally determinative depictions, there will be financial, legal, and systemic risk. Because of that, no regime of additional disclosures can, by itself, reduce those risks; if anything, adding to the number of potentially legally binding disclosures increases risk. Therefore, in Part III, this Article proposes that in complex structured finance agreements’ waterfalls and other similar agreements between sophisticated parties, the functional code that creates the functional reality should, as described above, become the contract by reference in the legal deal document and thus should become the legally determinative reality. This would reduce the confusion that impedes perception of the future reality of the financial product’s cash flow distributions.
This Article, which is the first to examine the relationship between the ACA’s insurance market reforms and state regulation of insurance, argues that states’ decisions to forego creating their own exchanges may mark the beginning of an important shift of regulatory authority from the states to the federal government. It begins by sketching the historical antecedents of the current allocation of state and federal authority over insurance regulation. The aim of this discussion is to highlight the unique role states play in the regulation of insurance as opposed to other financial products. Part III explains the pre-ACA structure of health insurance regulation. It discusses both the objectives of health insurance regulation and the substantive and institutional frameworks states have evolved to meet those objectives. Part III also explains the reasons why states are well suited to regulate health insurance. Before turning to the regulatory structure introduced by President Obama’s health reforms, Part IV explains the federal government’s involvement in health plan regulation before the ACA. Part V details the relevant ACA provisions, explaining the new rules that will apply to health plans and carriers. It pays special attention to the application of these rules—some apply to all health plans, regardless of how they are sold, while others apply only to plans sold through the exchanges. These latter rules are particularly important to this Article’s analysis, as they represent the regulatory functions that the federal government will assume—via its exchange—in states that elect not to create exchanges. Part VI explores the effect the ACA’s exchange rules will have on the balance of state and federal regulatory authority, and highlights how the opt-in character of the exchanges will alter this balance. Lastly, it offers observations about the impact increased federal regulation of health insurance may have on the regulation of other lines of insurance.
A Failure to Supervise: How the Bureaucracy and the Courts Abandoned Their Intended Roles under ERISA
This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses how the courts abdicated their duty to supervise ERISA fiduciaries once bureaucratic failings made ERISA’s private litigation remedy and the supervisory function of the courts increasingly important.