Catalog: Digital Commons at Pace - New Repository Articles
Public schools learn about their students' personal lives in many ways. Some are passive: a teacher observes a student kissing someone, or overhears a conversation among friends. But schools also engage in more active information-gathering about students' personal lives, through surveys and informal conversations between students and teachers, administrators, school psychologists, counselors, coaches, and other personnel. This Article explores the competing privacy considerations that result from such encounters. Once schools have learned highly personal information about their students, does it violate those students' privacy rights to disclose that information to their parents? Or does keeping the information secret violate the parents' constitutional right to direct the upbringing of their children, often framed as a privacy right of its own? And what are the limits on schools' ability to probe for such information in the first place?
This Article brings together the parallel lines of cases addressing these questions, showing how students' and parents' privacy interests converge in the context of schools' extraction of students' personal information, only to be pitted against each other regarding the disclosure of such information. Moreover, it explores the underlying normative question that links the extraction and disclosure issues: how should schools approach their-to some extent, inevitable-role in students' personal and family lives? This Article argues that recognizing stronger limitations on schools' ability to probe into students' personal lives, while giving schools broad discretion as to how to handle such information provided that it has been legitimately obtained, is not only consistent with both of the constitutional privacy interests at stake, but also good policy.
A comparison of form quality in two Rorschach scoring systems: The Comprehensive System and the Rorschach Performance Assessment System
Previous research has provided strong support for the Rorschach Comprehensive System (CS; Exner, 1974) as a valid and accurate tool for differentiating children with and without psychotic features (Hilsenroth, Fowler, & Padawer, 1998; Jorgensen, Andersen, & Dam, 2000; Smith, Baity, Knowles, & Hilsenroth, 2001; Stokes, Pogge, Grosso, & Zaccario, 2001). However, since the CS will no longer be revised, the Rorschach Performance Assessment System (R-PAS; Meyer, Viglione, Mihura, Erard, & Erdberg, 2011) was developed to make improvements to the CS and allow the Rorschach to evolve with new research. Due to the diagnostic utility of form quality (FQ), the need for a reliable and valid method of measurement with children is important. The current explorative study aimed to compare R-PAS form quality tables to the widely used CS form quality tables. The sample consisted of 90 psychiatric inpatient children, between the ages of 9 and 12 years old, who were selected based on completion of a valid Rorschach and a Personality Inventory for Children-Second Edition (PIC-2; Lachar & Gruber, 2001) completed by a guardian. The Childhood Psychiatric Rating Scale (CPRS; Pogge, 2001, unpublished manuscript) and chart diagnosis were also collected. Form quality of each protocol was re-scored using the CS and R-PAS. Results indicated that there were significant differences found between the CS and R-PAS form quality tables, form quality variables, and constellations that assess reality testing and thought disorganization. The R-PAS FQ tables provided slightly more utility in that more responses were listed exactly, ultimately requiring less extrapolation and subjectivity. However, neither FQ table was useful with distorted or thought disordered responses, at which point examiners must rely on clinical judgment. The R PAS TP-Comp demonstrated some external validity with a psychotic disorder chart diagnosis; however, this requires further exploration. Finally, when the FQ tables provided no guidance for a response, the form quality score seemed to have important diagnostic implications. Future research should focus on R-PAS FQ tables to inform psychologists of the system's utility, lead to better training, and provide support for its use across settings, ultimately contributing to better assessment and accurate diagnosis of children.^
2010 may be remembered as the year in which prison oversight finally found a place on the national correction agenda, thanks in significant part to the attention that the American Bar Association has focused on this topic. In this article, we briefly describe the state of American prisons, trace the recent movement toward prison oversight, describe the rationale for oversight and the benefits it provides, and describe the contribution made to this effort by the ABA through the passage of its landmark resolution in 2008, through its Standards on the Treatment of Prisoners calling for prison oversight, and through the follow up work of the Committee on Corrections and its Subcommittee on Implementation of the ABA Resolution on Oversight (which is co-chaired by the authors).
To Yoder or Not to Yoder? How the Spending Clause Holding in National Federation of Independent Business v. Sebelius Can Be Used to Challenge the No Child Left Behind Act
States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be coercive.
Part II of this Article discusses the history of the coercion theory as a theoretical limitation on Congress’s spending power. This Article will focus on the reluctance and difficulty past courts have expressed in formulating a workable limit based on an argument that states are unconstitutionally coerced into accepting federal spending legislation. Part III briefly examines the Affordable Care Act in order to contextualize the Court’s ruling in Sebelius. Part IV discusses the Sebelius decision, focusing on the opinions of Chief Justice Roberts and the joint dissent authored by Justice Scalia. Part V provides a brief introduction and background of the No Child Left Behind Act. Part VI makes the case that NCLB is unconstitutionally coercive based on the decision in Sebelius.
Is It Law or Something Else?: A Divided Judiciary in the Application of Fraudulent Transfer Law under § 546(e) of the Bankruptcy Code
In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate judges may or may not consider in applying § 546(e). Part IV will then more thoroughly define § 546(e) and its application to fraudulent transfer analysis. In Part V, I will describe the split of interpretation of § 546(e) as demonstrated by an empirical study. In Part VI, I will discuss the formal legal rules for the disagreement among the bankruptcy and federal appellate judges. Finally, in Part VII, I propose several explanations for the remarkably divided application of the statute.
This Note will explain and analyze the Fair Debt Collection Practices Act (FDCPA) and its case law. It will also discuss the interplay between the FDCPA case law and its ethical overtones. To understand the basis of this issue, Part II of this Note will begin by briefly developing the history and background of the FDCPA and discuss specific sections of the law designed to protect debtors from abusive debt collection practices. Notably, these sections relate to the prevention of improper practices for misleading debtors, and are the focus of the lawsuits that this Note will discuss. Accordingly, Part III will briefly discuss what a dunning letter is and the similarities of the two standards of review used by the federal courts of appeals to determine whether a dunning letter is misleading. Part IV of this Note will discuss the judicially created doctrine of “meaningful involvement” and how the federal courts have allowed attorneys to include an appropriate disclosure of the level of involvement. Part V of this Note will discuss the Ethics Opinion in detail and its resulting impact on disclaiming attorney involvement. Specifically, this Note will address the direct conflict between the Ethics Opinion and federal case law, which allows attorneys to disclaim their involvement when sending an initial communication under the FDCPA. Finally, Part VI will propose a solution to resolve the conflict between the varying case law and the ethical issues presented.
This article does more than describe British and American anti-terrorism laws; it shows how those laws go through conflicted government branches and the bargains struck to create the anti-terrorism laws that exist today. Instead of taking these laws as given, this Article explains why they exist. More specifically, this article focuses on the path anti-terrorism legislation followed in the United States and the United Kingdom, with particular focus on each country’s ability (or lack thereof) to indefinitely detain suspected non-citizen terrorists. Both countries’ executives sought to have that power and both were limited by the legislatures and courts but in different ways. These differences show the human rights concerns both countries grappled with when enacting anti-terrorism legislation and how the two governments approached balancing those concerns.
These anti-terrorism laws also show which government branches possessed the most power when creating the legislation, which branches dictated the terms of these laws, and which branches were forced to compromise. The different paths taken by the anti-terrorism legislation in both countries also show the different styles of the two governments. The branches of the United States government are more likely to openly defy each other, knowing that checks and balances will ensure that no branch dominates. In the United Kingdom, there is no strong tradition of checks and balances so informal bargaining and consulting among the branches is more common before legislation is proposed or amended. The United Kingdom’s Human Rights Act has, however, begun to change the culture and has caused more open opposition among the three branches.
One important measure of trial court efficiency is overall case length—that is, the elapsed time from a case’s initial filing to its final disposition. Using a large, recent dataset from nearly 7000 federal civil cases, we find that two variables are particularly useful in predicting overall case length: the total number of attorneys filing an appearance in the case, and the number of authorized judgeships for a given district court. Further, we find a significant and surprising interaction between these two variables, indicating that smaller courts are more efficient than larger courts at processing civil cases when more than three attorneys appear in a case, but that the opposite holds true when three attorneys or fewer appear in a case.
This article proceeds as follows. Part I outlines briefly the background of MMFs. Part II discusses the role of the board of directors in governing MMFs, a role upon which our proposal would build. Part III discusses MMF-related events during the financial crisis of 2007-2008 and describes the government’s response to these events. Part IV describes the reforms the SEC instituted in 2010. Part V outlines options for further reform. Part VI outlines and discusses benefits and drawbacks of our proposed solution—unrestricted discretionary gating by fund boards. Part VII concludes.
Taxpayers’ Lack of Standing in International Tax Dispute Resolutions: An Analysis Based on the Hybrid Norms of International Taxation
This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim full or partial tax on accrued income.
In 1924, the Permanent Court of International Justice defined dispute as “disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” In the case brought before the Court in 1924, it determined that the dispute started between an individual and a state, but then the individual’s government “took up the case. The dispute then entered upon a new phase; it entered the domain of international law, and became a dispute between two States.” If we analogize that case to a tax case derived by a cross-border transaction, there is no doubt that we have a dispute — a dispute on tax liability. But there are still two lingering doubts. First, is it an international dispute? And second, who are the parties to it? If one examines the current mechanisms available in the OECD Model Tax Convention for resolving double taxation disputes, one realizes that the taxpayer’s standing is somewhat ambiguous. In order to clarify this ambiguity we need to address the question of categorizing the conflict as a national or international one.
The question at stake is whether a taxpayer should be a party to the dispute resolution process. In this paper, the cases cited are limited to where double tax treaties apply. I reserve the cases where they are inapplicable to further discussion.
Part I highlights the tax complexity arising from cross-border transactions. Since the article focuses on OECD Model dispute resolution mechanisms, Part II briefly introduces the model’s history and its official aims. Part III discusses the available dispute resolution mechanism in the OECD Model — the Mutual Agreement Process (MAP) and Arbitration. Part IV reviews the hybrid elements of international taxation. This paper suggests that international taxation has both national and international characteristics. This hybrid nature is the basis of the discussion in Part V: after identifying the parties to the international tax dispute, this paper suggests two solutions to the research question — the apparent and normative solutions. In the former, a taxpayer should have standing in the international dispute, though recall that this solution is not based on normative grounds. The normative rationale introduces the equity principle whereby taxpayers should have no official role in resolving the dispute. Finally, this paper offers a brief recommendation in Part VI.
Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, and then reexamine some part of the class decision. These multiple suppositions should not preclude issue classes. Second, even if the matter becomes ripe, the defendant will still lack standing: it is only when the issue-class plaintiff prevails on the first round that a second jury could exist. If the second jury spurns the trial court’s instructions by revisiting issues decided in the first trial, that reexamination would likely redound to the defendant’s benefit, diminishing in some manner the common issue finding favoring the class plaintiffs. Thus, the defendants would lack standing to advance a Seventh Amendment claim because the defendants would suffer no harm. Finally, Part III(B) notes that the class plaintiffs—the likely potential victims of any jury reexamination—can avoid a Seventh Amendment complaint by voluntarily and knowingly waiving violations, just as American citizens can for any of their constitutional rights.
The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History shows that similar policy conflicts have arisen periodically since late antiquity, if not earlier. The parameters of the problem, however, are somewhat new. The governing law, available technologies, and familial relationships have certainly evolved since the time of late antiquity. This article examines how the public policy favoring charitable bequests conflicts with various aspects of the equally important public policies of testamentary freedom and family protection.
Part II considers the competing public policies of testamentary freedom, family protection, and charitable bequests, as well as the existing legal doctrines aimed at furthering these policies. Part III examines the social and legal origins of charitable bequests and the periodic attempts to balance charitable bequests with other important policy considerations. Part IV examines the role of the non-profit sector in America today. Specifically, Part IV considers the size and scope of the nonprofit industry, the legal and economic benefits the nonprofit industry enjoys, and the manner in which nonprofits solicit charitable bequests. Part V illustrates how the current law fails to strike the appropriate balance between the competing policies, as the current law is too favorable to charities and reform is needed. Part VI concludes.