Digital Commons Network^™

Community Leadership For Healthy Lakes In New York, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This is the text of a speech given at the 2024 New York State Federation of Lake Associations annual conference on May 3, 2024 in Lake George, New York.

Give It A Nudge: A Comparative Analysis Of The Values And Application Of Voluntary Environmental Programs In The United States, Pianpian Wang

Dissertations & Theses

In recent years, companies have increased their voluntary commitments to reducing carbon emissions and implementing sustainability goals. While existing research mainly focuses on government-organized voluntary environmental programs (VEPs), exploring corporate voluntary commitments is essential. The business sector’s active role in environmental management is noteworthy. Traditionally, governments have relied on command-and-control regulations and market incentives to compel companies to protect the environment. However, companies are now demonstrating a willingness to go beyond legal requirements. Naturally, we seek answers to whether these commitments are effective, what factors can contribute to their authenticity, and how we compare these voluntary commitments to other VEPs. …

Climate Change And Internal Displacement In Colombia: Chronicle Of A Tragedy Foretold, Camila Bustos

Elisabeth Haub School of Law Faculty Publications

One of the key challenges stemming from climate change will be climate displacement, as sudden and gradual events disrupt livelihoods and force millions to leave their homes. Despite the existing scholarship's focus on cross-border movement, the majority of climate displaced people will move internally instead of or before seeking refuge outside their nation's borders. What obligations do states owe to their citizens when those states have historically not been emitters but have still failed to protect domestic populations from displacement related to environmental disasters and climate change impacts? Through exploring the disaster management framework in Colombia and conducting a case …

Unintended Consequences Of Fetal Personhood Statutes: Examples From Tax, Trusts, And Estates, Bridget J. Crawford, Alexis C. Borders, Katherine Keating

Elisabeth Haub School of Law Faculty Publications

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the …

On The Human Right To Healthy Menstruation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This short essay introduces the Bellagio Declaration on the Human Right to Healthy Menstruation, a statement signed by an interdisciplinary group of academics, artists, policymakers, clinicians, and practitioners in 2024. The Declaration frames the human right to healthy menstruation as including (1) non-discrimination on the basis of menstruation; (2) dignity in all matters related to menstruation; (3) access to facilities, resources, and supplies that facilitate the management of menstruation in a manner that is affordable and safe and that fosters a clean, healthy, and sustainable environment; (4) lifelong access to timely and medically accurate information about all aspects of menstruation; …

Avoiding Performative Climate Justice, Katrina F. Kuh

Elisabeth Haub School of Law Faculty Publications

The Article first sketches the contours of precommitment strategies by identifying examples of precommitment strategies in existing climate change law, and contrasting them with other approaches for advancing justice that are not sticky, automatic, and early, and thus would not be considered precommitments. It then contemplates whether and why sticky, automatic, and early precommitments to justice may be an important strategy to advance justice goals in anticipation of and at high levels of warming. It concludes by analyzing the use of precommitments to justice in the context of the expedited siting and construction of renewable energy infrastructure.

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …

Powerless Beings: Solitary Confinement Of Humans And Nonhumans In America, Michael B. Mushlin, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Every day, thousands of humans and millions of nonhumans endure solitary confinement. Human prisoners held this way are confined for twenty-two to twenty-four hours a day for weeks, months, or even years on end in cells the size of a parking space. For these humans, the experience is tortuous. Captive animals held in solitary confinement similarly spend much of their lives locked into tiny spaces, isolated, and deprived of the types of interactions and environment essential to their wellbeing. And, like humans, they are driven mad. In human and nonhuman settings, the agony of solitary is chillingly alike and harmful. …

Gender Regrets: Banning Abortion And Gender-Affirming Care, Margot J. Pollans, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the use of “regret” in the campaigns to ban GAC and abortion. It identifies two overlapping threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal …

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment— which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the …

From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …

The Federal Future Of Medication Abortion, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court's 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration's regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone …

“With Intent To Destroy, In Whole Or In Part”: Genocide, Ethnic Cleansing, And A Lost History, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Drawing upon original research into the travaux préparatoires of the 1948 Genocide Convention, this Article advances several claims that complicate the standard account according to which genocide must entail a purpose to physically destroy at least a substantial part of a protected group. The core of the Article closely explores the words “intent,” “destroy,” and “in part,” showing how international authorities have settled on a received and largely uninterrogated wisdom regarding the meaning of these terms, one which is supported neither by the drafting history of the Genocide Convention, nor even by the actual results of the judicial decisions that …

The Transmogrification Of Moratoria In Support Of Rent Regulations: False Steps To Affordable Housing, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The real challenge in property law is demarcating its contours. In this Article, I explore current challenges to our conception of property and the courts' specification or retraction of long-recognized limits on government interference for larger societal benefits. I am largely prompted by recent rulings in state and federal courts on moratoria on evictions during the COVID-19 pandemic and the increasing burdens of rent regulation in a world of persistent housing shortages. In Part II, I discuss property law theories as a backdrop to the discussion of political limits, with a brief summary of how the concepts have evolved over …

Disclosure, Greenwashing, And The Future Of Esg Litigation, Jason J. Czarnezki, Barbara Ballan

Elisabeth Haub School of Law Faculty Publications

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

Just Extracurriculars?, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …

Attaining The Right To Environment Through Environmental Impact Assessment, Umair Saleem

Dissertations & Theses

The thesis discusses the interconnection between the right to environment and environmental impact assessment (EIA), elaborating their depth and collective potential to effectively address most – if not all – of the complex and interconnected environmental challenges.

Firstly, the thesis explores the evolution of the environmental laws from the year 1900 and provides a unifying synthesis of the diverse environmental components, obligations, rights, and principles within international, regional, and national environmental laws. Secondly, it identifies the right to environment as a unifying and holistic right that integrates these environmental concepts and encapsulates comprehensive environmental protection. Thirdly, it provides a comparison …

How Gender And Other Identity Factors Influence Attitudes Toward Will Making: Lessons From Australia, Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Stephen Whyte, Uwe Dulleck

Elisabeth Haub School of Law Faculty Publications

This essay aims to stimulate interest in further empirical study of attitudes toward will making by reporting the results of a 2022 survey conducted in Australia of the general population (n=1202) and legal professionals (n=112). We asked participants for their views about the ideal age at which to begin the will-making process and the relative contributions of the client and attorney to any resulting will. There was a discernible gender-based difference in views on both questions. Women preferred to initiate those conversations approximately six years earlier than men did and, especially at earlier life stages, preferred less professional input into …

Destroying Defamation, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories that almost every news story is, in fact, “Fake News,” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it is almost impossible for a plaintiff to prove the elements of defamation.

To establish defamation, a plaintiff must show defendant published an assertion of fact that is false and damages the plaintiff's reputation Hyperbolic language or other indications that …

Exploring Democratic Accountability In The Administrative State, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay seeks to add to the ongoing effort of defining accountability in practical terms by presenting an inconspicuous but directly on-point case study about administrative accountability. This is the story of the United States Department of Agriculture farmer committee system, which seems to be the one and only experiment in federal administrative elections. The experiment, however, has been a failure both as a matter of practical policy and constitutional validity. Indeed, in advance of legislative debate on the 2023 Farm Bill, a USDA advisory committee publicly recommended that Congress abolish the committee system. Nevertheless, there is much to learn …

Fostering Resilience Within Ecological Civilization: Contributions Of Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

My presentation will examine water, to illustrate the questions that Ecological Civilization presents. I shall address five points: (1) Often proposals for attaining Ecological Civilization raise issues relevant to environmental law, but do not examine the roles that environmental law can serve; (2) environmental law is essential to resolving unsustainable water management issues; (3) scientific studies indicate that trends in global environmental degradation limit the time available for implementing reforms to attain Ecological Civilization; (4) environmental legal systems for environmental impact assessment (EIA) can accelerate efforts to attain Ecological Civilization; and (5) For Ecological Civilization to ensure a firm foundation …

A Behavioral Economics Analysis Of Will Making Preferences: When To Begin And Who Should Have The Most Input, Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Uwe Dulleck

Elisabeth Haub School of Law Faculty Publications

The global COVID-19 pandemic has highlighted the need to plan for death, including the transmission of property through a valid will. Surprisingly little is known, however, about when people tend to make wills, how they go about doing so, and whether those practices vary from jurisdiction to jurisdiction. To begin building a foundation of knowledge, a research team comprised of United States and Australian lawyers and economists recently conducted the first-ever behavioral economics empirical study exploring these questions. This Article reports the results of the team's survey of both members of the Australian general public and estate planning lawyers in …

Climate Migration And Displacement: A Case Study Of Puerto Rican Women In Connecticut, Camila Bustos, Bruni Pizarro, Tabitha Sookdeo

Elisabeth Haub School of Law Faculty Publications

The climate crisis is increasingly forcing people to flee their homes, whether internally or across state borders. However, existing international and domestic law does not provide sufficient protection for those forcibly displaced by extreme weather events. In 2021, the Biden administration issued an executive order and subsequently a report on the impact of climate change on migration, which marked a first step in federal policy toward recognition of the nexus between climate change and displacement. At the local level, Connecticut has already become a destination for climate-displaced people. For instance, after Hurricane Maria landed in Puerto Rico in 2017, approximately …

Socio-Economic Considerations Of Living Modified Organisms And Impacts On Trade: Evolution Of Environmental Disputes At The World Trade Organization, Leonardo Munhoz

Dissertations & Theses

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ("LMOs"). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ("SECs") arising from LMOs, as stated in article 26.

However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, …

Post-Pandemic Finra Arbitration: To Zoom Or Not To Zoom?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. Though it is difficult to draw any conclusions about FINRA arbitration due to the confidential and non-reasoned nature of awards, the Article focuses on arbitration of securities industry disputes at one forum, FINRA DRS. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …

Monuments Without Faces?, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Monuments take many forms and can serve several purposes. Typically associated with honor and a need to commemorate significant events, monuments seem to represent the ideas of the communities which house them. However, it remains to be seen whether all monuments represent a “good” memory. In this essay, the author seeks to comment on the concept of collective memory, specifically in the context of the history and experiences of marginalized groups in the United States. The author argues that monuments are a tool of promoting a collective memory: monuments are not part of history but rather part of the creation …

The Intentional Community: Toward Inclusion And Climate-Cognizance, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In adapting communities to new levels of fairness, we must resist the notion that building equitable and accessible communities is antagonistic to building climate-cognizant communities. This paper will raise some of the core points in this endeavor and will offer suggestions for finding harmony between the two ends through creating communities with intention.

In Part I, I offer some details on what climate change, if unheeded, portends most in our daily lives. In Part II, I tell tales of two cities to frame the larger discussion. In Part III, I highlight some social, political, and economic history that produced a …

The Age Of Fraud, James Toomey

Elisabeth Haub School of Law Faculty Publications

We think of scams primarily as a problem for older adults. Indeed, in the past few years, states and the federal government have undertaken a range of legal actions designed to prevent seniors, as a distinct class, from scams-- from more harshly punishing perpetrators of scams directed towards older adults to authorizing financial institutions to closely monitor and rapidly freeze the accounts of their older clients. But this successful, popular, and bipartisan law reform movement has taken place without a thorough empirical understanding of whether, in fact, seniors fall victim to scams more frequently than other age groups.

This study …