Pace Law Review

Protecting Children? The Evolution of the First Amendment: A Historical Timeline of Children and Their Access to Pornography and Violence

Nicole DiGiose — Thu, 21 Mar 2013 12:51:04 PDT

This paper will explore the evolving relationship between children and their access to potentially harmful materials. The timeline will start at Part II.A with the landmark decision of Prince v. Massachusetts, a 1940’s case, wherein children were afforded the most constitutional protection. In Part II.B, this paper will evaluate another landmark decision: Ginsberg v. New York. In this 1968 case, the Supreme Court declared that children shall not have access to harmful, pornographic materials. By the 1990s, there appeared to be a notable shift in how the Supreme Court decided cases pertaining to children and their access to potentially harmful materials. Part III of this paper will assess less stringent protections of children. Particularly, Part III.A will review Denver Area Educational Telecommunications Consortium, Inc. v. FCC, a 1996 case concerning children and their access to materials on cable television.13 Additionally, in Part III.B, this paper will explore children’s access to materials on the Internet in Reno v. ACLU. In Part III.C, this paper will take an interesting look at Ashcroft v. Free Speech Coalition, a 2002 case exploring a new technological development, virtual child pornography. In Part IV.A, the timeline will come to an end with the recently decided Brown v. Entertainment Merchants Ass’n, wherein the Supreme Court opted to allow children to have access to violent video games, a 180 degree shift from the Ginsberg decision regarding pornography, decided only forty-five years earlier.

Searches Incident to Arrest and the Aftermath of Arizona v. Gant – A Circuit Split as to Gant’s Applicability to Non-Vehicular Searches

Nicholas De Sena — Thu, 21 Mar 2013 12:51:03 PDT

The nation’s struggle to balance individual rights of privacy and legitimate law enforcement efforts continues without any clear resolution in sight. The Fourth Amendment of the United States Constitution guarantees citizens the right to be free from unreasonable searches and seizures, stating that search warrants shall be issued only with a showing of probable cause, a description of the place to be searched, and the persons or things to be seized. Complementing the warrant requirement is the principal that searches done without a warrant are per se unreasonable. The Supreme Court, however, has recognized exceptions to the warrant requirement under certain situations, based on various legal theories and factual scenarios. This article will discuss only one of these exceptions, searches incident to arrest. The evolving standards and rules for these searches, their significance, how and when they apply, and recent changes in the scope of these searches will be the main focus of this article. In addition, a circuit split regarding this issue will be discussed and analyzed.

Inlaid-Ivory Towers: Higher Education Joint-Use Facilities as Community Redevelopment Bulwarks

Michael N. Widener — Thu, 21 Mar 2013 12:51:02 PDT

This paper describes an unusual public-private partnership for real property development not involving typical infrastructure like bridges and roads. It addresses how communities like Mesa manage their way (adopting policies implicating land use and environmental sustainability principles via repurposing of buildings and sharing of additional community assets and “campus” leasing actions) to attract private sector higher education providers to establish a downtown as a node of intellectual stimulation, including cultural diversions. Etching the ivory tower environment into community centers sustains the quality of place. This quality attracts the “creative class,” which forms the core of leadership and entrepreneurship in America’s knowledge economy. Community interest in occupation-based approaches to urban economic development remains strong in this country.

This paper identifies the goals of higher education institutions attracted to this opportunity to expand their student base in a time of heightened competition from proprietary institutions capitalizing on career orientations. Having identified the “town’s” and “gown’s” respective objectives, this paper then analyzes the essential interests of each party to a leasing transaction and how these parties’ respective vital needs can be met in a commercial lease instrument. Finally, an appendix to this paper affords the reader evidence of essential leasing terms in establishing this unique form of higher educational cooperative. First, however, the paper describes what is at stake for a community’s downtown revitalization.

Evolving with the Times: A Push to Legalize Surrogate Parenting Contracts in the State of New York

David F. Eisenberg — Thu, 21 Mar 2013 12:51:01 PDT

In opposition to New York’s current prohibition on surrogate parenting contracts, this paper will focus on explaining why, despite its controversial nature, New York should amend its existing law and permit the enforceability of such contracts. Here, common myths surrounding surrogacy will be debunked, arguments made to support the practice of surrogacy will be justified, and an alternative to the current statute will be offered. This alternative statute will propose legislation in a way that can protect New York’s social policy interests while still permitting the enforceability of surrogate parenting contracts.

The Collision of Law and Science: American Court Responses to Developments in Forensic Science

Sarah Lucy Cooper — Thu, 21 Mar 2013 12:51:00 PDT

This paper considers how American courts have responded to developments in forensic science by focusing on four popular forensic science disciplines: (1) fingerprint identification (friction ridge analysis); (2) firearms identification (tool-mark analysis); (3) bite mark identification (forensic odontology); and (4) arson investigation (fire science). Part I briefly explores the relationship between law and science. Part II charts the development of the legal frameworks that govern the admissibility of expert evidence in America. Part III discusses the identification methods employed by these four disciplines and provides examples of erroneous identifications. Part IV comments on the NAS Report findings that relate to these four disciplines. Part V critically surveys responses by criminal courts between 1999 and 2011 to various admissibility challenges raised with respect to these four disciplines. Part VI concludes that over recent years the fingerprint identification, firearms identification, bite mark identification, and arson investigation communities have attempted to improve the reliability of their disciplines, but have failed to use identification methods with solid scientific underpinnings.

The Visual and the Law of Cities

Stephen R. Miller — Thu, 21 Mar 2013 12:50:59 PDT

This article will attempt to explore, through four separate “tableaux,” or brief sketches, four ways in which the visual interplays with the law of cities, and how a deeper understanding of this intersection can assist in the development of these laws and their underlying policies. This discussion will by no means be definitive. However, by presenting these four approaches in which the visual complicates and assists the law of cities, and sometimes even acts as the law of cities, it is hoped the article will spur a dialogue on the law’s relationship to the visual.

Putting Boomers to Pasture: Does the 2010 MIPPA Legislation Reinforce the Nursing Home Bias?

Robert S. Bloink — Thu, 21 Mar 2013 12:50:58 PDT

This article seeks to explore what lessons can be learned from how Medicaid end-of-life health care services are provided to the poor post-Olmstead, and how these lessons can be applied to middle class and upper middle class boomers. The article equally seeks to address how such lessons can be integrated into a meaningful dialogue with retiring boomers in a fashion that encourages discussion and decisions regarding end-of-life health care, as opposed to leaving such tough calls for surviving adult children.

To this end, Part II of this article begins by examining the hurdles seniors face in accessing HCBS after the defunding of the Medigap at-home recovery option in 2010, taking into account the difficulties involved in planning for long-term care that are caused by significant cost variances depending on the community in which the care is provided. This section further explores the impact of informal care provided by family members on the cost and effectiveness of long-term care performed in the home.

Part III provides a summary of the historical background of long-term care in the United States and explores the genesis and perpetuation of the bias toward providing end-of-life care in an institutional setting, despite the high costs of nursing home care, leading up to the integrated care mandate handed down by the Supreme Court in Olmstead. In Part IV, the varying degrees to which states have implemented the Olmstead mandate are examined to provide an empirical analysis of the cost-savings and reduction in nursing home admission rates that can be realized through effective and widespread implementation of HCBS programs. Spending on long-term care in states with underdeveloped HCBS programs is compared to expenditures in states offering comprehensive programs to determine the overall effect of increasing access to HCBS.

Evidence-Based Federal Civil Rulemaking: A New Contemporaneous Case Coding Rule

Will Rhee — Thu, 21 Mar 2013 12:50:57 PDT

This Article proposes a new Federal Rule concerning the federal courts’ online case management/electronic case filing system (CM/ECF). Whenever a party, the court clerk, or the presiding judge in a civil lawsuit electronically files a document, the Model Rule requires her to answer standardized online questions about that document. These questions are limited to indisputable factual information about case-related outcomes. By answering these questions, the filer codes research variables contemporaneously with the filing of every document. Such mandatory contemporaneous coding would provide comprehensive, reliable, and inexpensive descriptive empirical data6 for evidence-based rulemaking. This Federal Courts CM/ECF Descriptive Dataset should be publicly available.

Part I of this article explains why evidence-based policymaking needs not only objective descriptive data to provide a universal baseline for policy evaluation but also a paradigm shift in the way evidence is viewed and used in policymaking. Part II reviews the history of empirical research of federal civil rulemaking from its humble beginning, through its acceptance and institutionalization, to today’s so-called “New Legal Realist” or “Empirical Legal Studies” movement. Part III summarizes the CM/ECF revolution in the federal courts and explains how contemporaneous coding can code more federal cases at less cost than current methods. Finally, Part IV explains the proposed empirical coding Model Rule and provides sample coding outcomes.

Justice James D. Hopkins: Jurist, Dean, Scholar and Expert on New York Law

Jay C. Carlisle II et al. — Thu, 21 Mar 2013 12:50:56 PDT

It is an appropriate tribute to our late Dean James D. Hopkins that this edition of Pace Law Review be dedicated to a man who many leaders of the bench, bar, and academia believe is one of the twentieth century’s greatest common law appellate jurists. Dean Hopkins, better known as Judge Hopkins, was Pace Law School’s second Dean from 1982 to 1983, an associate justice of the Supreme Court of New York, and a justice of the Appellate Division for the Second Department from 1962 to 1981. He authored hundreds of significant majority, dissenting, and concurring judicial opinions on New York law, many of which continue to be relevant to the development of substantive and procedural law in the Empire State. Hopkins’s opinions have been cited and relied on by courts throughout the nation. He is recognized and praised as a “compleat jurist,” a leading law reformer, and an outstanding scholar.

Foreword

Mark C. Dillon — Thu, 21 Mar 2013 12:50:55 PDT

Introduction to special issue honoring the accomplishments of Hon. James D. Hopkins, the former dean of Pace Law School.

Playing the Mysterious Game of Online Love: Examining an Emerging Trend of Limiting § 230 Immunity of the Communications Decency Act and the Effects on E-Dating Websites

Matthew Altenberg — Tue, 13 Nov 2012 08:48:38 PST

Tribal Consultation for Large-Scale Projects: The National Historic Preservation Act and Regulatory Review

S. Rheagan Alexander — Tue, 13 Nov 2012 08:48:37 PST

Not Designed to Fit: Why the Innovative Design Protection and Piracy Prevention Act Should Not Be Made into Law

Alexis N. Stevens — Tue, 13 Nov 2012 08:48:36 PST

Bail Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives

Clara Kalhous et al. — Tue, 13 Nov 2012 08:48:35 PST

Is There a Legal Recourse Available in New York When the Press Fails to Protect the Identity of a Child Abuse Victim?

John H. Wilson — Tue, 13 Nov 2012 08:48:35 PST

“Beyond the Scope of Ordinary Training and Knowledge”: The Argument for Droit Moral, U.S. Research Science Intellectual Property Moral Rights

Joan Elise Jackson — Tue, 13 Nov 2012 08:48:34 PST

Standards, Patents, and the National Smart Grid

Jorge L. Contreras — Tue, 13 Nov 2012 08:48:32 PST

Catch Me if You Can: An Analysis of New Enforcement Measures and Proposed Legislation to Combat the Sale of Counterfeit Products on the Internet

Jeffrey A. Lindenbaum et al. — Tue, 13 Nov 2012 08:48:30 PST

Scope of Liability under the Alien Tort Statute: The Relevance of Choice of Law Doctrine in the Aftermath of Kiobel v. Royal Dutch Petroleum

Jon E. Crain — Tue, 16 Oct 2012 08:58:14 PDT

Recently Judge José A. Cabranes, of the United States Court of Appeals for the Second Circuit, issued a decision that drastically undermined the efficacy of the Alien Tort Statute (ATS). Writing for the majority in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), Judge Cabranes ruled that corporate entities cannot be held liable under the ATS. This Comment will examine the choice-of-law aspect of that decision, and argue that Judge Cabranes erred in interpreting the ATS to mandate application of customary international law (CIL).

Reading Between the Lines: Charging Instruments at the ICTR and the ICC

Claire Knittel — Tue, 16 Oct 2012 08:58:13 PDT

International criminal procedure, including the principle of notice, has grown exponentially from the Nuremburg Trials conducted after WWII, but the tribunals of today still face many sticky procedural issues. This Article will focus on two problems that the ICTR and the International Criminal Court (ICC), respectively, have faced with regard to notice. Part I reviews the jurisprudence of the ICTR and ICC, focusing particularly on requirements of notice and the requirements of the charging instruments in each tribunal. Part II discusses in detail a problem that each tribunal is facing: vagueness in the indictment at the ICTR and informal changes to the charging instrument at the ICC. Part III explores the shortcomings of partial solutions the tribunals have adopted and possible future consequences of these solutions. I argue that the ICTR has a troubling jurisprudential gap regarding the sufficiency of the indictment and that this gap remains unaddressed by the Appeals Chamber, which means that there is no standard for a proper pre-trial indictment. I also argue that, while the ICC took a questionable procedural shortcut in allowing informal changes to the charging instrument, the practical effects of this shortcut may be less dire than some have claimed.