Catalog: Digital Commons at Pace - New Repository Articles
In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it remains unadopted in any jurisdiction. There is a reason for this. In this Article, I reexamine the proposal as to its likely intended and unintended effects. The unintended effects were overlooked in the original article because of its static analysis. A dynamic analysis reveals these unintended effects. These effects do not invalidate the proposal. I conclude that Cooter’s proposal continues to have merit, but several modifications are necessary if the proposal is to succeed. Without these modifications, the proposal will fail to accomplish its goals and will have serious adverse unintended effects. In short, this Article argues for the adoption of measures to permit the development of a limited market in unmatured tort claims. The primary limitation is the exclusion of potential injurers in the market for their own unmatured tort claims. Other modifications include utilizing a different measure of damages and a prohibition on liability limiting agreements.
Upholding a 40-Year-Old Promise: Why the Texas Sonogram Act is Unlawful According to Planned Parenthood v. Casey
This Article begins with a brief review in Part II of the three crucial Supreme Court cases on abortion rights: Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Gonzalez v. Carhart. Based on these cases, Part III formulates a constitutional test that courts should be using to determine whether an abortion regulation is constitutional that includes all of the factors identified by the Supreme Court as part of the “undue burden” analysis, factors that have been overlooked by many courts. Finally, Part IV applies this constitutional test to the Texas Sonogram Act, concluding that the act is unconstitutional because it: (1) requires the delivery of misleading, untruthful and irrelevant information; (2) unconstitutionally hinders women’s decision-making liberty; and (3) poses a substantial obstacle for a large fraction of the relevant group of women affected by the regulation.
False Persuasion, Superficial Heuristics, and the Power of Logical Form to Test the Integrity of Legal Argument
This Article will generally describe philosophical logic, logical form, and logical fallacy. Further, it will explain one specific logical fallacy—the Fallacy of Negative Premises—as well as how courts have used the Fallacy of Negative Premises to evaluate legal arguments. Last, it will explain how lawyers, judges, and law students can use the Fallacy of Negative Premises to make and evaluate legal argument.
Social Insecurity: A Modest Proposal for Remedying Federal District Court Inconsistency in Social Security Case
This Article addresses a relatively narrow but consequential problem in the system: the inadequacy of federal judicial resolution of appeals from the denial of Social Security disability benefits. It addresses the problem with an equally narrow, and hopefully equally consequential, solution: granting a published district court decision in such a case the power of binding precedent with respect to the judicial district in which the opinion is issued. In so doing, greater uniformity, consistency, fairness, and efficiency would be brought to a process that is badly in need of all.
The Article proceeds in five parts. Part I provides some brief background on binding precedent in the court system generally. With that background in mind, Part II surveys the Social Security disability process, summarizing its basic structure. Part III then transitions into a discussion of the federal courts’ role in the process, focusing on the problems afflicting their decisions: inconsistency, lack of appellate guidance, unfairness, unpredictability, and inefficiency. To solve those problems, Part IV proposes imbuing all published federal district court opinions in Social Security appeals with the force of binding law with respect to all other judges in the district. Finally, Part V applies the proposal, demonstrating how this reform would help deal with each of the flaws in the process.
This Article begins by identifying and drawing the outline of this previously unrecognized source of law: technology-made law. It then focuses on one paradigmatic case: changes in the meaning of “zero” and the closely related concept of a mathematical limit (for example a speed limit). It defines “zero” and demonstrates its explicit and implicit uses in law. It then posits that there are two ways to interpret a law involving a technological limit: a technology-static approach, in which comparisons are made using the technology available at the time the law was enacted, and a technology-dynamic approach, in which comparisons are made using the technology available at the time compliance is determined. It then sets the stage for a comparison of these approaches by surveying the sources of authority for making law. The approaches are then compared using examples of the type of law which should be interpreted under the technology-static rubric (vehicle speed limits) and the type of law which should be interpreted under the technology-dynamic rubric (environmental law). The analyses are then compared so as to extract a set of principles that should aid in resolution of the question (static or dynamic interpretation) in other cases. Finally, it offers a generalized theory of how problems of technology-made law can be minimized and how they should be addressed in circumstances where they have not been avoided.
Affluent Populations and Their Effect on Biological Diversity through the Consumption of Meat, Electronics, and Motor Vehicles
The human has caused a far greater impact on the planet's biodiversity than any other species in existence, due to the impact of population, afflluence, and technology. This thesis will argue the importance of biological diversity and how affluent populations are reducing biodiversity through the consumption of meat, electronics, and motor vehicles. Aldo Leopold's "The Land Ethic" and Herman Daly's "The Impossibility Theorem", among others, create a rubric evaluating human activities and provide alternative views on economic impossibilities. Consumption is reviewed from an ecocentric perspective, a holistic outlook placing emphasis on the ecosystem. The reader will become cognizant of their impact through a presentation of these product's life cycles and its impacts. The literature review is complemented by a minor piece of social research in the form of a one-on-one interview with a Pace University economics professor.
This article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. The article merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.
Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, lack of water in residential, commercial, and agricultural areas, and real concerns with mudslides in vulnerable areas. Cumulatively, these changes are causing a reverse economic bubble associated with land use that mirrors the effect of the infamous housing bubble of 2008, but is potentially much more harmful to the nation.
Much of the article consists of local case studies demonstrating these adverse economic effects. It then points out that these effects are being accounted for in the private sector while public regulation is stunted by concerns over the per se takings doctrine established in the case of Lucas v. South Carolina Coastal Council. The article examines the lawyer’s role in assisting real estate purchasers with their due diligence duties under the historical doctrine of caveat emptor. It argues that this duty includes the consideration of present but also emerging property conditions and how those conditions are accounted for in the casualty insurance and mortgage industries and by real estate appraisers.
As the private market adapts to climate change, new building techniques and locational preferences for new construction are emerging, evidencing strategic adaptation to increasingly evident risks associated with climate change. The article concludes with a reflection on how these private market realities should influence land use and environmental regulation, particularly local land use controls.