Law Commons^™

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

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In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.

Municipal Attorneys Can Find Answers In The Newly Released Third Edition Of Commercial Litigation In New York State Courts, Patricia E. Salkin

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This article contains a book review of the newest edition of Commercial Litigation in New York State Courts (West), edited by former New York County Lawyers President Robert Haig of Kelley Drye & Warren LLP. The author of this book review details why this treatise is an invaluable addition, not for the library shelf, but for prime desk space on the busy working lawyer’s desk. The author further notes that while the most recent edition of the treatise has been widely reviewed statewide, prior to this book review there has been little, if any, attention to the value of the …

Suburban Sprawl: Weaker But Still Alive, Michael Lewyn

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Review of The End of the Suburbs, by Leigh Gallagher.

How To Make America Walkable, Michael Lewyn

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Review of Walkable City, by Jeff Speck

How Often Do Cities Mandate Smart Growth Or Green Building?, Michael Lewyn

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Much has been written about the role of government regulation in facilitating automobile-oriented sprawl. Zoning codes reduce walkability by artificially segregating housing from commerce, forcing businesses and multifamily landlords to surround their buildings with parking, and artificially reducing density. The “smart growth” movement seeks to reverse these policies, both through regulation and through more libertarian, deregulatory policies. The purpose of this paper is to examine to what extent cities have in fact chosen the former path, and to discuss the possible side effects of prescriptive smart growth and green building regulations. In particular, this paper focuses on attempts to make …

Land Use Law Update: New York's New Climate Change Resiliency Law, Sarah Adams-Schoen

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New York State’s lawmakers passed 2,603 bills over the course of the 2013-14 session, 658 of which passed both houses. Although counties and local governments are likely focusing their attention on budget-related items such as the property tax freeze/rebate program, local governments — and zoning and planning officials and practitioners in particular — should also take note of the newly enacted Community Risk and Resiliency Act (CRRA).

Recent Developments In Land Use Ethics, Patricia E. Salkin

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Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. Sadly, there are countless other media accounts of alleged and proven conflicts of interest and other ethical misconduct. In this annual review of reported decisions involving ethics in land use, recent decisions are discussed in the hopes that municipal attorneys will use this information as the basis of ongoing training for members of planning boards, zoning boards, and local legislative bodies who must be routinely reminded of not only their legal but ethical responsibilities in upholding the public trust.

Exporting The Legal Incubator: A Conversation With Fred Rooney, Fred Rooney, Justin Steele

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This article is an edited transcript of an interview with Fred Rooney, currently the Director of the International Justice Center for Post-Graduate Development at Touro Law Center. As the inaugural director of the City University of New York (CUNY) School of Law’s Community Legal Resource Network (CLRN), Mr. Rooney pioneered the first law-school based legal incubator. In this interview he discusses the creation of the CLRN, the evolution and growth of legal incubators, and his experience launching the Community Legal Services Center (Centro Comunitario de Servicios Legales or CECSEL) at the Autonomous University of Santo Domingo (UASD) in the Dominican …

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

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The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

Accidental Witness To History: My Trip To South Africa, Harold I. Abramson

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No abstract provided.

How Real Is Gentrification?, Michael Lewyn

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Some commentators argue that gentrification is turning many cities into a playground for the rich. This article rejects that view, pointing out that even relatively affluent cities are still poorer than the average suburb.

Learning From Detroit, Michael Lewyn

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Reviews a recent book about Detroit's problems.

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

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This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories — from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights — the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this …

From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson

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This paper offers a new approach to the issue of transnational corporate liability for human rights violations and more generally an inquiry into the place of domestic legal experiences in theorizing about transnational law. Grounded in a study of the Holocaust restitution litigation of the 1990s, we explain corporate liability as a type of bureaucratic liability and explore in depth the relationship between the Holocaust litigation and the theory of structural reform litigation developed in the U.S. to address the bureaucratic structure of rights violations. We read the restitution litigation in light of pluralist reformulations of structural reform, in which …

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 2 Of 2), Sarah J. Adams-Schoen

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New York City, like other major cities around the world, has acknowledged the problem of climate change and begun to implement proactive policies to decrease the city’s contribution to the problem (i.e., mitigation) and to make the city less vulnerable to the effects of climate change (i.e., adaptation). The City’s initiatives have been comprehensive and progressive, especially its climate change-related data analysis and communication initiatives including NPCC, and its comprehensive reform of building and other related codes. The City’s commitment to reduce greenhouse gas emissions by 30% by 2030 and its progress toward that goal are also laudable, but the …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

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In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

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Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

How Trade Law Changed: Why It Should Change Again, John Linarelli

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No abstract provided.

How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn

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The National Environmental Policy Act (“NEPA”) requires federal officials to draft an environmental impact statement (“EIS”) describing the environmental impact of proposed federal actions that significantly affect the environment, as well as analyze the environmental impacts of alternatives to the proposed action. Almost two dozen states have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments. This article focuses on one of the strictest little NEPA statutes: New York's State Environmental Quality Review Act (“SEQRA”). While most little NEPA statutes cover only government projects,SEQRA also covers private sector projects requiring municipal permits. Furthermore, SEQRA requires the government …

Contesting A Contestation Of Testing: A Reply To Richard Delgado, Dan Subotnik

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This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to Richard Delgado’s article, Standardized Testing as Discrimination: A Reply to Dan Subotnik.

Race Indeed Above All: A Reply To Professors Andrea Curcio, Carol Chomsky, And Eileen Kaufman, Dan Subotnik

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This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to Andrea A. Curcio, Carol L. Chomsky, and Eileen Kaufman’s article, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others.

Testing, Discrimination, And Opportunity: A Reply To Professor Harvey Gilmore, Dan Subotnik

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This article was written as part of an ongoing dialog about the author’s previous article, "Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning," which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to an article written by Professor Harvey Gilmore which focuses mostly on the SAT and the LSAT.

An Assessment Of Mayor Bloomberg's Public Health Legacy, Rodger D. Citron

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This article contains Rodger D. Citron's interview with Lawrence O. Gostin, Professor of Global Health Law at Georgetown University Law Center and the Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights, regarding Gostin's article for the Hasting Center Report addressing former New York City Mayor Michael Bloomberg’s public health legacy.

It's A 'Criming Shame': Moving From Land Use Ethics To Criminalization Of Behavior Leading To Permits And Other Zoning Related Acts, Patricia E. Salkin, Bailey Ince

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In the past, land use ethics inquiries predominately involved conflicts of interest or an official holding public office while engaging in a previously held business or law practice. Now, prosecutors are looking at the underlying criminality of the unethical acts carried out in the context of land use decisions. With a wide array of criminal statutes in the hands of federal prosecutors, almost all forms of unethical conduct could in some way also violate a federal criminal statute.

Part II of this article reviews the federal statutes most often used by federal prosecutors and provides some examples of recent reported …

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

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Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

Land Use Law Update: The Court Of Appeals Issues A Victory For Home Rule In Wallach V. Town Of Dryden And Cooperstown Holstein Corp. V. Town Of Middlefield, Sarah Adams-Schoen

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In the midst of the often heated controversy swirling around the issue of hydraulic fracturing (commonly referred to as “hydrofracking” and “fracking”), New York’s Court of Appeals recently issued a straightforward ruling, which focused on long-established precedent concerning the right of municipalities to regulate mining land uses, rather than focusing on the contentious economic or environmental issues surrounding the fracking debate. This article discusses that ruling.

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 1 Of 2), Sarah J. Adams-Schoen

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New York City is a city on the waterfront. With 520 miles of coastline, New York City’s coastline is longer than the coastlines of Miami, Boston, Los Angeles and San Francisco combined. Nearly nine million New Yorkers live in areas vulnerable to flooding, storm surges and other natural disaster-related risks that are increasing as a result of climate change.

New York City didn’t wait for a devastating storm to begin comprehensively addressing the effects of climate change. The City’s extensive climate change mitigation and resiliency efforts and communications strategy have put the City in a league of its own. But, …

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

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Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …