Pace Law Faculty Publications

Copyright Law and Pornography: Reconsidering Incentives to Create and Distribute Pornography

Ann Bartow — Wed, 05 Jun 2013 09:58:45 PDT

As it moved into the mainstream in the 1970s and early 1980s, pornography obtained copyright protections through judicial fiat, rather than as a result of legislative action. This essay explains how pornography came to be eligible for copyright protections, discusses the social and legal effects of this change, and raises questions about the propriety of according pornography the full benefits of copyright law without taking into account the harms that pornography production can inflict on subordinated or coerced ―performers.

Reversing Course: A Critique of the Court of Appeals New Rules for Unjust Enrichment and Criminal Legal Malpractice Actions

Jay C. Carlisle II — Tue, 04 Jun 2013 13:00:16 PDT

This article will discuss recent developments by the New York Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder and Dombrowski v. Bulson.

The Constitutionality of Citizen Suit Provisions in Federal Environmental Statutes

Jeffrey G. Miller — Tue, 04 Jun 2013 12:26:27 PDT

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in environmental and other social justice cases.

Part II of this article describes citizen suits and their role in the enforcement of environmental law. Part III outlines the background of separation of powers and the dominant theories of analyzing separation of powers issues. Part IV explores the roles of public and private enforcement before and after the framing of the Constitution and the effects of those roles on interpreting the three relevant constitutional clauses. Part V examines Appointments Clause challenges to citizen suits. Part VI examines Vesting Clause and Take Care Clause challenges to citizen suits. This article concludes that citizen suits are constitutional under the Vesting Clause and the Take Care Clause and do not violate the Appointments Clause.

The Past, Present, and Future of Critical Tax Theory: A Conversation

Bridget J. Crawford — Tue, 04 Jun 2013 12:26:23 PDT

The publication of Taxing America in 1997 is a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professor Karen B. Brown and Professor Mary Louise Fellows created one of the first—if not the first—working group of critical tax theorists. The significance of Taxing America is underappreciated both by self-identified critical tax scholars and by others. A published history of the “Critical Tax Conference” notes its antecedents in conferences held in 1995 and 1997, but makes no mention of Taxing America. This essay endeavors to document and to preserve the story of the book’s origins, its reception, and the significance of its themes.

Non-State Actor Access and Influence in International Legal and Policy Negotiations

Elizabeth Burleson — Tue, 04 Jun 2013 12:26:19 PDT

This article analyzes the importance of increasing civil society actor access to and influence in international legal and policy negotiations, drawing from academic scholarship on governance, conservation and environmental sustainability, natural resource management, observations of civil society actors, and the authors’ experiences as participants in international environmental negotiations.

Transcript of panel discussion at McGill University, March 26, 2010. This piece is based on the article Elizabeth Burleson & Diana Pei Wu, Non-State Actor Access and Influence in International Legal and Policy Negotiations, 21 Fordham Envtl. L. Rev. 193 (2010).

The Importance of Information and Participation Principles in Environmental Law in Brazil

David N. Cassuto et al. — Tue, 04 Jun 2013 12:26:15 PDT

This article explores the two different kinds of uncertainty, ‘hard’ uncertainty (unknown unknowns) and ‘soft’ uncertainty (known unknowns), in the context of environmental law decision making. First, the authors argue that these different categories should not be treated the same when facing decisions under uncertainty. To deal with these different uncertainties, a tiered risk analysis process is called for, using participatory techniques to turn hard uncertainty into (more manageable) soft uncertainty as well as to increase the legitimacy of environmental decision making, even in cases of hard uncertainty. This methodology can and should apply to all instances of domestic, transnational and international environmental law making. This article applies this conceptual platform to analyze how participatory techniques can be factored in to manage uncertainty by reference to two domestic systems – American and Brazilian environmental law – as well as to international (environmental) law. The authors conclude that managing uncertainty in the environmental decision-making process is a procedural justice tool to promote more balanced and equitable outcomes.

The Lawmaking Family

Noa Ben-Asher — Tue, 04 Jun 2013 12:26:10 PDT

Increasingly there are conflicts over families trying to "opt out" of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In fact, the position of U.S. courts on opting-out conflicts has shifted dramatically over the twentieth century. In the early twentieth century, parents mostly prevailed in such conflicts. Today, the state typically prevails. Contemporary conflicts often involve public-school management of health, sexuality, and liberal development of students through surveys, nudges, and mandatory readings. When these techniques infringe on familial liberty, lawmakers lack conceptual tools to respond. A new understanding of familial liberty is needed.

This Article offers that understanding. The approach here is based on the idea of family laws. Family laws are legal systems that families create or adopt to govern their day-to-day lives. These rules exist independently of state laws, and can be religious, such as Amish or Buddhist family laws, or secular, such as feminist or vegetarian family laws. The Article identifies three basic characteristics of family laws: They are (1) general and articulable; (2) grounded in religion, ethics, or morality; and (3) perceived as binding by members of a particular family. The Article argues that, with some limiting principles, lawmaking families should possess a liberty to opt out of programs and policies that conflict with a family law. Through an examination of three different types of family laws-religious, feminist, and vegetarian-the Article demonstrates how the proposed approach would empower existing lawmaking families. Almost a century has passed since the Supreme Court declared the liberty of parents to educate their children in Meyer v. Nebraska. It is time to breathe new life into this moribund liberty by empowering the Lawmaking Family.

The Professor and the Judge: Introducing First Year Students to the Law in Context

Michael B. Mushlin et al. — Thu, 30 May 2013 08:52:45 PDT

For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of the profession. This article describes our approach in four parts. In Part I we describe our experiment by relaying the alterations we have made to a typical first year civil procedure course in order to make the course more relevant and to use it to introduce students more realistically to the profession. In Part II we discuss the students’ evaluation of the course. These evaluations provide rich data on the students’ perceptions of the experiment immediately after they have taken the course, but prior to final examinations. In Part III we describe how this experiment aligns with the movement to reform legal education by addressing change to the introductory months which are critical in professional training programs, and we describe how our experiment compares to similar changes that are currently being implemented to professional education in other settings, particularly in medical, dentistry, and engineering programs. We conclude the article in Part IV with our analysis of the benefits and potential costs of implementing such change. Based on our experience and study we conclude that this (or a similar variation) should be made a part of the normal first semester law school experience. Our experience demonstrates that change to the first year curriculum to inculcate at the outset a more rounded understanding of the context in which lawyers engage is meaningful, is duplicable and is necessary.

Ottinger Hall Dedication Remarks

Richard L. Ottinger — Mon, 06 May 2013 14:20:21 PDT

Remarks by Richard L. Ottinger on the occasion of the dedication of Richard Ottinger Hall at Pace Law School, April 30, 2013. Video includes excerpts from remarks and interview with Dean Ottinger.

Hydrofracking: State Preemption, Local Power, and Cooperative Governance

John R. Nolon — Mon, 29 Apr 2013 15:26:35 PDT

Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking—risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of fracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating fracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.

Rio+20 and Biodiversity: What Next? The International and Brazilian Perspectives

Nicholas A. Robinson — Mon, 29 Apr 2013 15:26:32 PDT

Extended written remarks of the oral panel presentation by Professor Nicholas A. Robinson at the international colloquium in tribute to Ambassador Luiz Alberto Figueiredo do Machado on Rio+20 and Biodiversity: Assessing the Future We Want. Presented as part of the Inaugural Panel, held in the Senate Chamber of Brazil in Brasilia on 26 April 2013 and televised nationally.

Dynamic Governance Innovation

Elizabeth Burleson — Tue, 02 Apr 2013 12:53:33 PDT

This article frames environmentally sound innovation in the context of transnational network theory with the goal of setting forth a preliminary framework for international legal policy coherence. I consider how network dynamics can facilitate broad diffusion of environmentally sound technologies, concluding that what appears to be fragmented trade, environment, and human rights regimes are indeed sustainable development building blocks with which to achieve dynamic governance. Collaborative environmentally sound innovation networking may be able to shepherd whole renewable energy sectors across the innovation valley of death and help turn a global responsibility to ramp up green technology into a global initiative to do so.

The Evolution of the Brazilian Regulation of Ethanol and Possible Lessons for the United States

David N. Cassuto — Tue, 02 Apr 2013 12:32:21 PDT

The oil shocks of the 1970s propelled the search for alternative fuel sources by oil-dependent countries. The United States and Brazil–then the two largest producers and consumers of ethanol in the world – focused intensely on biofuels as a substitute for oil, while other countries – such as Japan and European Union members – focused more on nuclear energy and other methods of power generation. However, from the 1980s onward, climate change emerged as a significant concern. This new focus on climate change revived the discussion about the need for alternative energy sources. In addition, during the 2000s, oil prices spiked anew. Political and social instability in areas of oil abundance, combined with the widespread belief that oil extraction would peak in ten or twenty years and then decline, contributed to this price volatility.

Biofuels, emerged into this turbulent landscape, offering the promise of partially or completely supplanting fossil fuels. This article focuses on the Brazilian experience using ethanol as a substitute for gasoline for motor-vehicle fuel. Part I offers a brief discussion of the nature and role of biofuels. Part II details the development of ethanol regulation in Brazil, from its inception during the era of military dictatorship through the present. Part III discusses the environmental issues and criticisms concerning ethanol production and how they apply to the Brazilian model. Part IV analyzes the Brazilian experience and explains why it would be very difficult or impossible to replicate in the United States. Overall, this article portrays the difficulties and challenges the United States will face in trying to follow the Brazilian model.

AT&T Mobility and the Future of Small Claims Arbitration

Jill I. Gross — Fri, 29 Mar 2013 09:58:33 PDT

This article focuses on small claims arbitration and examines the impact of AT&T Mobility on the legitimacy of the process. Part II of the article describes the Supreme Court’s AT&T Mobility decision, which held that the FAA preempts a California rule that declared a class arbitration waiver in a consumer contract unconscionable. Part III describes the primary features of the two options remaining for the Concepcions—small claims court and small claims arbitration, as well as their perceived advantages and disadvantages. Part IV demonstrates that courts have endorsed simplified arbitration. Part V examines whether simplified arbitration is a fair method of resolving small arbitration claims. Part VI explores other dispute resolution models for resolving small dollar value commercial disputes, including on-line dispute resolution, telephonic arbitration, and a small claims arbitrator. Part VII concludes by urging dispute system designers to consider changing the default mechanism of arbitrating small claims cases from paper or “desk” arbitration to a live hearing before a small claims arbitrator.

The Inevitable Irrelevance of Affirmative Action

Leslie Y. Garfield — Fri, 29 Mar 2013 09:36:44 PDT

This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely outcome of the Fisher case based on past rulings by members of the current Court and predicts that the Court will decide Fisher on very narrow grounds. In Part III, I explore the underpinnings of the postsecondary education admissions process. This section explores the contemporary goals of most institutions' admissions, including their moral sense of providing a compensatory education to groups that previously experienced academic disadvantage, the nature of elitism in education fueled in large part by U.S. News & World Report, and the goal of colleges and universities to admit the most qualified students in the wake of an ever growing volume of applicants. This section concludes that colleges and universities, for both financial and egotistical reasons, are more concerned with their academic reputation than with Constitutional limitations on their admissions policies, and as a result, for the most part, colleges and universities will continue to try to use race as a plus, regardless of any future Supreme Court edict.

Squaring Affirmative Action Admissions Policies with Federal Judicial Guidelines: A Model for the Twenty-First Century

Leslie Y. Garfield — Fri, 29 Mar 2013 09:36:40 PDT

This article will highlight the legal limitations law schools confront when adopting diversity admission policies in light of the new judicial climate that disfavors considering non-traditional race criteria in the admission decision process. Part I highlights the difficulty law schools face when trying to admit a fully diverse class under the traditional application process. Part II discusses the judicial response to voluntary diversity admission policies and other race-based preference policies and defines the appropriate standard for court review. Part III proposes a model diversity admission policy. Part IV analyzes this model policy under the Court's strict scrutiny test.

Land Use and Climate Change: Lawyers Negotiating Above Regulation

John R. Nolon — Thu, 28 Mar 2013 07:43:13 PDT

Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use and environmental regulations. It then demonstrates how this causes lawyers and public officials to rise above regulations and adopt new approaches to limiting development at the ocean’s edge where sea level rise and storm surges threaten lives, ecosystems, private property, and public sector investments. The article advocates the use of negotiated problem-solving strategies for controlling coastal development in this post-regulatory moment. It concludes with some reflections on the impact of these changes on both the practice of law and legal education.

Meat Animals, Humane Standards and Other Legal Fictions

David N. Cassuto — Wed, 27 Mar 2013 08:30:14 PDT

Law and food are distinct concepts, though the discipline (Law and Food) implies a relationship worthy of study. The conjunction (“and”) creates meaning. However, its absence also conveys meaning. For example, “meat animal” suggests that animals can be both meat and animal. This conflation has powerful legal implications. National Meat Association v. Harris (2012) makes chillingly plain the law’s indifference to whether a meat animal is alive or dead. This essay examines the way supposedly humane federal practices ignore the systematic brutalization of “food animals” as those animals get processed into marketable flesh. It concludes with some observations about why this legal blindness exists.

Cooperative Federalism and Hydraulic Fracturing: A Human Right to a Clean Environment

Elizabeth Burleson — Tue, 12 Mar 2013 11:50:33 PDT

United States natural gas production is likely to stunt the direction and intensity of renewable energy by up to two decades according to a MIT study. Gas will not provide a “’bridge’ to a low-carbon future if it erodes efforts to prepare a landing at the other end of the bridge.” Unconventional natural gas extraction need not become a “transition” to a new addiction. This article analyzes how cooperative federalism and inclusive decision-making can provide legitimacy and transparency when balancing property rights versus police powers to regulate natural gas production.

The Third Wave's Break from Feminism

Bridget J. Crawford — Tue, 12 Mar 2013 11:50:29 PDT

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more complicated than third-wave vs. second-wave, young vs. old, fertile vs. menopausal. The wave metaphor obscures a more complicated story of the power of labels. "Feminism" is such mighty label that third-wave feminists want to remake it and Janet Halley wants to take a break from it. In spite of their different vocabulary, though, third-wave feminists and Janet Halley share similar goals and methods. Feminism has no use as a label - a theory, even - unless it yields to the complex realities of human experience.

This essay explores the goals that third-wave feminists and Janet Halley share. They have similar purposes and methodologies, but they differ in the vocabulary they use to describe their goals. Third-wave feminists embrace the feminist label when Halley wants to leave it aside, at least temporarily. The core idea of both third-wave feminism and Janet Halley's Split Decisions is a departure from a certain kind of feminism - a feminism does not account in a meaningful way for some women's desires for sex, subordination and (sometimes) sex that is subordinating. Third-wave feminists and Janet Halley and third-wave feminists share an affection for the interstitial, the spaces between theory and experience. That space remains unexplored and messy - with no neat division between waves or breaks to be made.