Digital Commons Network^™

Environmental Governance At The Edge Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Private environmental governance describes the affirmative efforts of private organizations to deliver public environmental goals, such as climate change mitigation, without government leadership or control. The scholarship on private environmental governance has grown quickly over its short life, but has largely described, catalogued, and quantified private environmental governance. This article begins the project of more fully theorizing private environmental governance. It is the first to explore and critique its political and democratic roles and responsibilities.

This article argues that despite the promise that private environmental governance is private and therefore “beyond politics,” it in fact calls loudly for democratic consideration. …

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing the English environment …

The Right Family, Noa Ben-Asher, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not. …

Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Lawyers are communicators. They communicate with clients, courts, adversaries, juries, witnesses, and the public. Lawyers have a special responsibility for the quality of justice. Their communications, therefore, are hedged by various ethical rules to ensure that their statements are knowledgeable, truthful, respectful, and not prejudicial to the administration of justice. But lawyers are not always knowledgeable of the facts. In fact, they sometimes behave disrespectfully, and stray from the truth. False statements by lawyers may be made unwittingly, sometimes intentionally, and sometimes with an indifference, even a contempt for the truth. Discourse of the latter kind may be characterized as …

Faith-Based Emergency Powers, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three …

Rebuilding Yonkers: How Open Government Laws Are Helping Level The Playing Field In The City Of Hills, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

This article will explore some examples of how people in Yonkers have used FOIL and the Open Meetings Law as effective tools to level the playing field in the"city of hills" and, in doing so, help the city move in a more positive direction.

Democracy, Gender, And Governance: Introduction, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Since at least the mid 1990s and the Fourth World Conference for Women in Beijing, gender as an analytic category and as a programmatic concern has become a mainstream part of international law. While feminists have traditionally understood their relation to international law in critical terms and from their position as outsiders, this turn toward gender equality places at least some feminists and some of their projects within the governance structure of international law itself. This crucial shift from exclusion to partial inclusion merits examination.

Keynote Address: We Must Take America Back, Robert F. Kennedy, Jr.

Elisabeth Haub School of Law Faculty Publications

I want to talk about what is happening in the United States, and the connection between the environment and democracy, and the corrosive impact of excessive corporate power and the impact to democracy everywhere. But particularly I want to focus on American democracy.

Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explores the prospects of achieving policy coherence in the field of land use regulation. It explains how, as municipal governments react to pressures and crises at the local level, they discover and adopt new strategies in a constant process of experimentation. Through a properly constructed legal framework, critical information can be relayed from local to higher levels of government, state and federal legislators and judges can respond, and a "system" of law can evolve. Using theories developed in the fields of systems analysis and diffusion of innovations, the Article describes the process by which local communities perceive land …

Law, Order And Democracy: An Analysis Of The Judiciary In A Progressive State--The Saskatchewan Experience, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

Current legal debates on the Charter of Rights and Freedoms in Canada have focused on the apparent shift in the location of power from elected representatives to the judiciary since 1982. In this paper, I take an historical perspective on that issue. I will explore the relationship of political power, as exercised by the judiciary through the interpretation of legislation, with concepts of parliamentary supremacy in Saskatchewan during the fist half of this century.

The paper first describes the political character of the judiciary in Saskatchewan from 1905 until 1941, and then describes the political movements which gave rise to …

Of Persons And Property: The Politics Of Legal Taxonomy, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

The essay falls into three major parts. In the first part, we explain and describe what we believe to be the core idea of law - that it represents a discursive and taxonomic economy which is used to give meaning to the world by creating a particular and partial reality. The concepts and language lawyers use, the way those media are deployed, the argumentative devices relied upon, and the values inculcated combine in conscious and unconscious ways to constitute law and a legal style of life. In part two, we tell two stories. One involves the Supreme Court's treatment of …

Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

Strategic Lawsuits Against Public Participation, or SLAPP suits, as they are commonly called, are a growing nationwide phenomenon which imperil the protection afforded by the petition clause of the first amendment to the United States Constitution. These suits also implicate fundamental freedom guarantees of the various state constitutions. My focus today, however, will be largely on the first amendment.