Catalog: Digital Commons at Pace - New Repository Articles
The Expanded Use of Wiretap Evidence in White-Collar Prosecutions: Rebalancing Privacy Through More Vigorous Enforcement of the Predicate Offense Requirement and the Suppression Provisions of Title III
With the expanded use of wiretaps, courts will be faced in the coming years with questions concerning the contours of statutory authorization and the consequences of this expanded use into areas not traditionally associated with wiretap evidence. This is especially true in light of the fact that the United States Department of Justice (“DOJ”) has already promised that its use of wiretaps will “continue to go up dramatically.” This Article attempts to highlight some of the consequences of failing to strictly adhere to the statutory requirements of Title III, most importantly the predicate offense and necessity requirements. It then suggests several ways to rebalance privacy interests in the larger context of wiretap use. Part II of this article will provide a brief history of wiretap jurisprudence leading up to the passage of Title III of the Crime Control Act in 1968. Part III will provide an overview of the current statutory scheme applicable to the use of wiretaps. Part IV will examine several recent trends in which wiretap evidence was used to obtain convictions for crimes not specifically listed in Title III and in which courts have adopted a constitutional analysis in determining whether evidence should be suppressed for a violation of the statutory-based necessity requirement. Finally, Part V will discuss several alternative approaches courts could adopt in enforcing the strictures of Title III in order to more appropriately balance privacy interests as Congress originally intended.
In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational commercial interactions, it is therefore important to focus on the site for the resolution of transnational commercial disputes: international arbitration. International arbitration is a form of private dispute resolution in which parties submit their dispute to third-party decision-maker(s). Arbitration has become an increasingly popular choice for resolution of transnational business disputes because of the confidentiality it affords the parties, the neutrality of the decision-makers, the flexibility of the process, and the enforceability of the awards. Additionally, parties often resort to arbitration when they want to preserve their business relationship. Part III explains how a remedy of a public apology, as a supplemental remedial tool, can aid the restoration of a positive relationship between the parties and increase the likelihood that they will work together in the future.
Playing in the Sandbox: Moral Development and the Duty of Care in Collaborations between For-Profit and Nonprofit Corporate Persons
Over the history of the corporate entity, U.S. law has evolved to treat the corporate entity as a legal person under the U.S. Constitution. Despite the increased rights granted to the corporation as a legal person, both for-profit and nonprofit corporations have come under considerable scrutiny for misconduct and issues related to corporate governance. When for-profit and nonprofit organizations collaborate together, however, both organizations generally seek to achieve philanthropic good. On the other hand, both organizations and their management are bound by law to fulfill specific duties to their individual constituents. In the 1930s, psychologist Jean Piaget noted, “[t]he good, in short, is not, like duty, the result of a constraint exercised by society upon the individual. The aspiration to the good is of different stuff from the obedience given to an imperative rule.” Guided by the basis for Piaget’s above assertion related to the natural person, this article begins an analysis of the relationship between legal persons: collaborating for-profit and nonprofit organizations in light of duty, arguing that there is a balance between too much constraint and none that leads to sustainability of the cooperative venture.
Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status.
The goal of this Article is to survey the legislative activity, identify the factors driving it, and analyze its potential ramifications. I contend that it is unreasonable to project that this legislation will significantly reduce unemployment because there is only anecdotal data regarding the prevalence of discrimination against unemployed candidates in hiring and, regardless of the frequency of such a practice, none of the proposed or enacted legislation directly promotes job creation. However, I argue that the anti-unemployment discrimination legislation is a positive example of interest convergence in that it benefits the economy by reducing arbitrary discrimination in hiring and long-term unemployment. Furthermore, such legislation expresses a set of positive societal values and protects members of constitutionally-protected groups who are likely disproportionately impacted by current-employment requirements. I then discuss why the concerns advanced by the business community are overstated given the generally limited scope of the legislation, the lack of a private right of action, and the legally-approved uses of employment status as a proxy for characteristics about which a business might reasonably care. In sum, when taking an objective look, the anti-unemployment discrimination legislation is neither panacea, placebo, nor poison.
Measuring the Justice Gap: Flaws in the Interstate Allocation of Civil Legal Services Funding and a Proposed Remedy
With the supply of legal services not particularly responsive to demand, we conclude that the justice gap could be narrowed simply by reforming the way in which policymakers distribute legal services funds while holding constant the total amount of funds distributed.
In reaching this conclusion, we proceed in two parts. First, drawing largely from Access Across America and LSC data, we analyze the supply of legal services funding across states. Since eligibility for Legal Services Corporation (LSC) funds is principally determined by income (only individuals in households with income at or below 125% of the federal poverty level are LSC eligible),8 variations in legal services funding among states are strongly correlated with LSC eligibility levels. However, LSC funding likely accounts for well under forty-three percent (43%) of overall legal services funding, with the remainder (“non-LSC funding”) generated by, inter alia, state and local grants, filing fees, interest on lawyer trust accounts (“IOLTA”), and private grants. Because the precise magnitude of non-LSC funding is unclear, we estimate it with three different measures. Using each of these measures, we then analyze its disparity among states. In every case, after explaining Access Across America’s finding that non-LSC funding is not proportional to population, we conclude that it also has no statistically significant relationship to key economic indicators, such as LSC eligibility, median household income, or unemployment. In fact, of the variables we tested, only the number of lawyers in a state relates significantly to any of our measures of non-LSC funding, and of these three measures, the only one for which the number of lawyers has statistical significance is non-LSC funding received by organizations that also receive LSC funding.
After examining how legal services funds are supplied across states, we then analyze how they are demanded. Measuring demand is quite challenging, particularly on the state level, because it requires assessing not the amount of legal services that low-income individuals do use, but rather the amount that they want to use, which is an unobservable variable. The LSC has attempted to measure such demand through a survey of individuals seeking assistance from LSC-funded programs, but, as the LSC concedes, this approach comes with inherent limitations that likely under-represent unmet needs. We therefore take a different approach: after assuming that the overall frequency with which civil legal services are delivered reflects the relative demand for these services across states, we estimate demand within each state through proxies for the most significant categories of services. Because, according to LSC data, nearly eighty-five percent (85%) of LSC-eligible cases arise from just four types of disputes (consumer finance, family, housing, and income), we can reasonably project state-level demand for legal services by estimating the frequency of these disputes within each state. Upon doing so, we find that there is no clear connection between state-level demand and supply, particularly with respect to LSC funding. In other words, states with the greatest need for LSC funding (because their residents encounter legal problems the most based on our estimates) do not necessarily have more funding than states with lower funding needs.
Though we recognize that fixing this imbalance will not be easy, we conclude by offering a proposal that attempts to do so. In this regard, we recommend that the LSC move away from complete reliance on an income-based test toward a needs-based test. Such a framework would allow the LSC to more effectively serve unmet demand for civil legal services and thus, help realize Justice Powell’s ideal.
Caught in the Cross-Fire: The Psychological and Emotional Impact of the Individuals with Disabilities Education Act (IDEA) upon Teachers of Children with Disabilities, A Therapeutic Jurisprudence Analysis
The shortage of special education teachers in the United States, and the adverse consequences flowing from factors related to this condition provide a unique opportunity for scholars to study these issues through interdisciplinary research. Educational scholars have typically focused their research on educational practice and institutional policy. Although this scholarship frequently acknowledges the statutory and regulatory foundations of the IDEA, the literature does not generally adopt a legal framework for research purposes. This is not a criticism of educational scholars. It is merely an observation that opportunities exist to study special education teacher issues in a broader context. This Article argues for such an approach, and thus, seeks to analyze the psychological and emotional impact of Special Education Law upon special education teachers through the lens of Therapeutic Jurisprudence.
Therapeutic Jurisprudence is one of the vectors of a comprehensive law movement that began during the last few decades as a means to assess ways by which law and its processes could better serve the needs of society. Examples of other vectors of this movement include: collaborative law, creative problem solving, holistic justice, preventive law, problem solving courts, procedural justice, restorative justice, and transformative mediation. The list is not exhaustive, and the vectors are not exclusive. Indeed there have been occasions where the interests among vectors have overlapped creating synergies and opportunities for collaboration found useful to both. An example of this paradigm is the successful collaboration between Preventive Law and Therapeutic Jurisprudence.
The presenting question for the 2012 Symposium was how can engaged scholarship enhance teaching to prepare students for the legal profession and help to solve the critical problems of the day.12 The event employed a format designed to discover new ways of thinking about engaged scholarship. Each participant was asked to draft and submit in advance brief reflections on this question. At the Symposium, each professor attended seven breakout sessions held throughout the day. At each of these sessions, one participant presented to a small group of professors for ten minutes on her reflections, pinpointing issues, challenges, and themes involved in engaged scholarship; the remaining thirty minutes were spent in discussion with the group led by a facilitator. With three roundtables operating for each of these seven periods, twenty-one sessions were held, enabling each participant to present and to facilitate a forty minute roundtable. Every participant had an opportunity to engage in a small group with all those participating in the Symposium at some point during the day. The breakout sessions were followed by an hour-long wrap up conversation designed to define and discuss the principal issues that participants should address in their final reflections.
Part II of this article synthesizes the critical issues presented at the Symposium. Part III contains the reflections of the Symposium participants—a group of scholars deeply focused on the question of what, exactly, engaged scholarship means in an era of fundamental change in legal education. In Part IV, we conclude with several themes that we recommend for our colleagues’ consideration as they reflect on and move us further toward a clear definition of engaged scholarship.
This article makes the case for food security law and policy as a component of global environmental law in recognition of the global economy, trade liberalization, and concerns for food safety and environmental harm. It further describes rule of law as a significant force in mitigating food safety concerns and pollution in China. Part II explores global food safety concerns in the context of United States-China relations, while Part III discusses the U.S. Food & Drug Administration's on-the-ground presence in China as an example of the emergence of cooperative agreements in global environmental governance. Part IV shows how increased rule of law may mitigate environmental harm and food safety concerns in China. The article concludes by arguing that increased international cooperation on traditionally domestic issues is both likely and desirable, and it illustrates the need for increased rule of law efforts in the developing world.
Acculturation and ethnic identity development are crucial components of development for individuals of diverse cultural backgrounds. The impact of these developmental processes on psychological health is well documented. Research has also documented the relationship between acculturation and ethnic identity with delinquent, aggressive, or problematic behaviors. This study explored aspects of acculturation and ethnic identity as potential resilience or risk-factors with regard to gang involvement. The relationships between acculturation, acculturative stressors, ethnic identity and gang-affiliated activities in Latino youth were examined. Keeping in mind that the term Latino incorporates a vast range of cultures and heterogeneity, this project attempted to understand the thread of this group while not undermining the richness and diversity within it. The Multigroup Ethnic Identity Measure-Revised (MEIM-R); the Acculturative Stress Inventory for Children (ASIC); the Acculturation, Habits, and Interests Multicultural Scale for Adolescents (AHIMSA); the Acculturative Dissonance Scale, the Gang Membership Inventory (GMI); and the Attitudes toward Gangs Survey were administered to Latino children ranging from 4th - 8th grade. Results revealed that high levels of ethnic identity exploration were significantly correlated with low levels of gang affiliation. Perceived Discrimination as a measure of acculturative stress was also significantly related to higher levels of gang affiliation. No significant findings were found in the relationships between acculturation stages and gang affiliation; although participants in the Assimilated stage demonstrated the highest gang affiliation levels and those in the Separated stage showed the lowest. The findings provide a first step in identifying valuable information regarding protective factors against gang affiliation for Latino youth in the form of exploration of their ethnic identity and minimizing experiences of perceived discrimination. Implications for culturally sensitive, preventive efforts with Latino youth towards decreasing their involvement in gangs are discussed.^
For students and practitioners, one of the most confusing issues posed today by The Bluebook lies in when and how to abbreviate federal and state administrative agency names. Or to put it another way: Do I use: EPA, E.P.A., Envtl. Protection Agency, or U.S. Envtl. Protection Agency?
Examining the Role of Ego Development, Individuation, and Resiliency on Symptomatology Following a Traumatic Event
Trauma focused research has recently flourished. It seems the world has become increasingly captivated by "trauma", its prevalence, correlates, and consequences. It is part of our DNA to maintain the genetic wiring that facilitates the flight or flight response, indicating that early on, humans were armed to contend with difficulties and disasters. Humans innately possess biological assets that allow us to escape and survive traumas. Contending with the aftermath, the psychological consequences that we face subsequent to the event is a mystery that continues to elude us. ^ This study examined three specific variables: ego development, outcomes of separation-individuation, and resilience capacity that could potentially serve as psychological resources toward enhanced adaptation following trauma. In essence, this study sought to explore whether these three psychological assets could equip individuals to cope more adaptively after experiencing a trauma as measured by their degree of symptomatology. The sample consisted of 143 participants who sought psychological services at a university based community clinic in downtown Manhattan. Participants completed the Posttraumatic Stress Diagnostic Scale, Loevinger's Sentence Completion Test, the Profile of Adolescent Depression and Individuation, the Resilience Scale, and the Personality Assessment Inventory. It was hypothesized that individual's with higher levels of ego development, more adaptive outcomes of separation-individuation, and higher resilience capacity would endorse a lesser degree of symptomatology. ^ Results varied, with some hypotheses being fulfilled and others nullified. Specifically, results revealed that level of ego development of an individual who experiences trauma did not influence their symptomatology. Outcomes of separation-individuation and resilience capacity, however, were related to symptomatology, indicating that positive outcomes of differentiation and higher levels of resilience often times resulted in decreased symptoms. Finally, results highlighted the relationship between resilience and differentiation outcomes, corroborating previously established research that positive outcomes of individuation are related to significant markers of psychological health and well-being including one's capacity for resilience. This study is demonstrative of the ongoing need for trauma-based research to delineate what psychological assets may serve as protective factors given the complexity and degree of suffering associated with having experienced trauma. ^
Will bundling savings accounts with loans increase the effectiveness of microfinance as a tool for alleviating poverty? Microfinance is the practice of offering small loans to poor people in developing countries. The development of this practice into a poverty dimishining, self-sustaining business won Muhammad Yunus a Nobel Prize in 2006. Today, there are thousands of microfinance institutions (MFIs) serving millions of people in developing countries. However, there is recent evidence that these loans do not help reduce poverty, and may do as much ahrm as good.
In truth providing credit to the poor may not be enough to eliminate poverty. However, the micrfinance pioneered by Yunus and utilized by thousands of other MFIs is not limited to simply providing affordable credit. Other services such as business training, insurance, savings accounts, etc. are bundled with the loans.These services are offered because microfinance is not just about making profits, but helping pull people out of poverty. This paper looks at one of the non-credit services offered with most microloans: savings accounts. Through a study done with microenterprise owners in Kenya, this paper looks at the benefits of savings accounts to women who are ideal candidates for microfinance insitutions but who are not borrowers. By looking at women who are not yet borrowers, we can see if savings accounts provide enought gain to be bundled with microloans. The goal of the paper is to examine if providing participants with a safe place to keep their money will help them increase their overall financial resources and thus be able to invest more in their business.
The results of the study present positive and significant increases in savings account balances for the treatment group as well as improvements in the labor supply, business investment, and consumption. These results indicate that there is a demand amongst the poor for formal savings accounts and that these accounts can improve business outcomes for microenterprise owners.
This paper explores the ways in which humans have historically viewed animals, with a focus on Descartes theory automata. Further concepts of the problem of different minds, inherent value, empathy, love, friendship, grief, isolation, anthropomorphism, and biochemistry (focusing on oxytocin, cortisol and the prefrontal cortex) are all explored. Numerous literature reviews are used as examples to fight against the argument that animals are merely machines and can therefore be used and abused. Animal social bonds, including parent-child, purely social, and animal-human, are analyzed for their evolutionary and biological purposes in attempt to highlight the relationships that are not obviously valuable for survival. Inferences of bonds for pleasure, or love are therefore suggested. A social survey of 62 Pace University Honors College students analyzes human perception of 8 animals. The results suggest that the animals with whom humans spend the most positive interaction time with are those we, significantly, feel most capable of bonding, and seen in highest esteem. The results of the survey help to explore common misconceptions associated with animals. Reasoning behind these false beliefs ishypothesized.
Three Grimm Fairy Tales - The Little Mermaid, The Seven Ravens, and Little Red Riding Hood, - rewritten with eco-feminist, radical feminist, and liberal feminist perspectives.
The two short stories in this work are a reflection of the social wrongs in today's modern society that so often go overlooked.