Law Commons^™

Courts Have Decided A Wide Range Of Issues, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

In 2006, as in most years, the New York courts have decided a broad range of land use issues. This article summarizes the impacts of several of these important decisions. Specifically, this article covers the following land use topics: affordable housing, statute of limitations, res judicata, standing to sue, enforcement of injunctions, takings law, vested rights, property annexation, religious land uses, New York’s State Environmental Quality Review Act (SEQRA), and judicial review of local board actions.

Affordable Housing In The New York Courts: A Case For Legislative Action, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article reviews the position of the New York courts on the obligation of local governments to zone for affordable housing and concludes that it is time for legislative action at the state level. Although municipalities are beginning to adopt inclusionary zoning ordinances, most are doing little to eliminate barriers to housing or stimulate needed production. Additional encouragement, guidance, and resources are needed to create an adequate supply of affordable housing. After a review of the affordable housing cases, this article reviews what other state legislatures have done in recent years, and proposes the adoption of a Local Housing Planning …

Court Prods Municipality: Other States Offer Large Number Of Models To Consider, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The state legislature’s decision to leave the creation of affordable housing to New York’s local governments has resulted in a segmented, slowly evolving, and insufficient resolution to a statewide problem. For example, the Orange County Supreme Court, in Land Master v. Montgomery, struck down a zoning law that eliminated all as-of-right multifamily development, in a municipality where affordable housing was in urgent need. This article reviews comprehensive initiatives from other states, and suggests that through the adoption of a state legislation and planning, the affordable housing problem is rectifiable

Tax Practice In A Circular Revolution: A Review Of Pli's Circular 230 Deskbook, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This short review essay evaluates the Practicing Law Institute's Circular 230 Deskbook by Jonathan G. Blattmachr, Mitchell M. Gans and Damien Rios. For attorneys, accountants and others who "practice" before the IRS, the Circular 230 Deskbook is a masterful analysis and an important guide to the Internal Revenue Service's labyrinthine rules and regulations governing tax penalties, reportable transactions and the conduct of tax practitioners.

Most tax attorneys and accountants have reacted to the recent changes to Circular 230 by appending banner notices to all written communications. Without fully understanding the underlying rules, however, a practitioner cannot be sure that a …

Affordable Housing: A Case For State Legislative Action, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Efforts by municipalities to promote affordable housing have proven to be insufficient as evidenced by the skyrocketing real estate prices in the New York metropolitan area. Historically, New York courts have struggled with the affordable housing issue, often issuing inconsistent decisions on what types of local laws are unconstitutionally exclusionary. By utilizing other states’ initiatives as a guide, New York can create a comprehensive affordable housing bill that will effectively provide for affordable housing and relieve some of the pressures on the judiciary caused by past ambiguous legislation.

Historical Overview Of The American Land Use System: A Diagnostic Approach To Evaluating Governmental Land Use Control, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes how the American land use system has evolved to address recent environmental and economic development problems. It begins by tracing the history of the legal system used in the United States to control private sector land development and demonstrates how it achieved the flexibility needed to respond to modern challenges. The American land use system has paid a price for this flexibility: it is not a coherent whole, but rather a fragmented mosaic of legal influences. Impressive examples of cohesion are cited that suggest a strategic approach to reforming the system so that it can become an …

Sustainable Energy Law In Latin America, Victor M. Tafur

Dissertations & Theses

This dissertation addresses legal issues at the intersection of energy and environmental law in Latin America. It is intended for legal and non–legal researchers, scholars and decision-makers in the Latin American region and worldwide, as a contribution to understanding the complexities and particularities involved at the nexus of energy and environmental law in the Latin American context. To achieve these goals, the study analyses the legal principles behind energy and environmental regulation in the region, compares specific energy and environmental laws in various countries of Latin America, and advances several theses as a result of the analysis.

Exile Or Opportunity? The Benefits Of Mastering U.S. Law, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

Inclusionary Zoning: The Effect Of Market Forces On Local Housing Law, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

As the price of housing continues to rise in the New York metropolitan area, municipalities have begun creating inclusionary housing ordinances to ensure working families have a place to call home. This article analyzes the effects of inclusionary zoning ordinances on the economics of affordable housing and suggests several potential methods that local, state, and federal government may utilize to ease the financial burden on developers willing to construct affordable housing projects.

Local Housing Efforts: The Maturation Of Laws Promoting Affordability, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

A shortage of workforce housing, especially in the New York metropolitan area where real estate prices are rapidly increasing, has long been a critical land use issue. Since amendments to New York state law that explicitly stated municipalities’ implied power to incentivize affordable housing, municipalities have begun to create innovative laws to promote affordable housing. This review describes some of the basic concepts behind the affordable housing movement, and the considerations of local legislatures in defining, and providing for affordable housing.

Moot Court Diplomacy, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …

The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will expand upon the feminist critique by focusing on children's health as well as the health and liberty interests of their mothers. In the first part of this article, I examine the legal and cultural underpinnings of “fetal protection” and explore its current manifestations. In the second part, I place “fetal protection” in a broader context, documenting the ways in which American law currently promotes fetal life, while simultaneously neglecting the lives and health of born children. The third part of the article offers concrete recommendations about how government, both state and federal, can actually achieve the goal …

The Nonprofit Sector: Myths And Realities, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

Transcript from Who Profits from Nonprofits? A Symposium on Nonprofit Organizations. I have followed the development of CUNY Law School from its founding, and I really have to salute you. I do not know exactly where legal education is going, but I think CUNY is going to get there before other law schools, including my own. Today, I am going to explore some of the myths and realities of the nonprofit sector.

Training Manual On International Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Without analyzing each of the hundreds of agreements and instruments in the field, this Training Manual seeks to provide a comprehensive overview of the current body of environmental law. It is aimed at legal stakeholders from all backgrounds including government representatives, judges, university professors and students from both developed and developing countries, to enable them to more effectively participate in the global, regional and national efforts to preserve our Earth for future generations. Specific topics are first presented at the international level and then followed by extracts of national legislation showcasing real life examples of how national law today reflects …

Revisiting The Tense Relationship Between The U.S. Supreme Court, Administrative Procedure, And The National Environmental Policy Act, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article addresses the possibility, under the prevailing understanding of NEPA, that an agency might draft a comprehensive report containing information about potential environmental effects and alternate approaches to a proposed plan--and then wholly disregard all of this information in making its final decision. Although an agency may contend that it has “considered” the environmental consequences of alternative courses of action, what if these factors have no actual impact on its final decision? Hypothetically, an agency could simply “steamroll” toward its preferred decision, hurdling NEPA's procedural obstacles without genuinely considering potential environmental harms or the means to avoid them.

This …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

A Strategy For Developing Stationary Biodiesel Generation, Karl R. Rábago

Elisabeth Haub School of Law Faculty Publications

This paper discusses the drivers of change in the electricity system and the opportunities presented for biodiesel electric generation in this context. This paper also introduces the primary issues facing increased utilization of biodiesel—both those that challenge increased use of the fuel and those that support this use. Finally, the paper presents key elements of a strategy for realizing the potential of an electric generation infrastructure that incorporates more distributed biodiesel generation in the near term and even more distributed energy resources over the longer term.

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.

The Proliferation Security Initiative And The Evolution Of The Law On The Use Of Force, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict.

This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

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 …

Parity/Disparity: Electoral Gender Inequality On The Tightrope Of Liberal Constitutional Traditions, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Part I of this article examines Parity's strangeness to United States observers. United States sex discrimination law ignores political representation issues. United States voting rights law contains no provisions for gender inequality. Most importantly, leading United States thinkers of all stripes roundly reject quotas. Part II details the Parity debate and its relationship to French democracy. The democracies of the United States and of France share Eighteenth Century Enlightenment origins. They also share some form of universalism (labeled “neutrality” in the United States by Cass Sunstein) establishing the equality of all citizens before the law. Parity serves as a good …

The Explained Award Of Damocles: Protection Or Peril In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

NASD's proposed rule change requiring arbitrators to provide written explanations in arbitration awards upon the customers' request (the “explained award proposal”), which was published for public comment in July 2005, is the clearest example of NASD's proposing a rule change in response to investors' complaints. “We have found that investors want to know more about how a panel reaches its decision,” stated NASD Chairman and Chief Executive Officer Robert R. Glauber in announcing the explained award proposal. “By giving investors the option of requiring a written explanation of an arbitration panel's decision, we will increase investor confidence in the fairness …

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

Legal Standing For Animals And Advocates, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

For animal advocates, one of the most significant barriers to the courtroom is standing. In order to litigate on behalf of an animal's interests in federal court, the advocate must first establish standing by meeting three requirements: (1) the plaintiff must have suffered an injury in fact, (2) the injury must be causally connected to the act about which the plaintiff is complaining, and (3) the court must be able to redress the injury. When it comes to non-human animals, how does an advocate demonstrate an injury to establish standing? In this panel, experts in animal litigation discuss the concept …

La Catástrofe De Los Delitos De Riesgo Catastrófico, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Securities Mediation: Dispute Resolution For The Individual Investor, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Part I of this article will provide a brief history of ADR in the securities industry (primarily arbitration), and then will describe the emergence of mediation as an alternative to arbitration. Part II will explore the state and federal statutory regulations that arguably govern the securities mediation process, and their impact on procedural and substantive justice. In particular, this section will review the applicability to and impact on securities mediation of the Securities Exchange Act of 1934 (1934 Act), the Federal Arbitration Act (FAA), and state mediation statutes, including the Uniform Mediation Act. In this section, I will argue that …

The Right To Food: Holding Global Actors Accountable Under International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Economic globalization represents both an unmet opportunity and a significant challenge for the fulfillment of social and economic rights, including the right to food. While corporate sector accountability and the responsibility of international financial institutions (IFIs) to ensure social and economic rights are now at the forefront of the globalization discourse, greater attention must be paid to how these actors can be held accountable under international law. The existing human rights legal framework is ill-equipped to deal with violations committed by non-state actors, such as transnational corporations (TNCs), and multi-state actors, such as IFIs. Using the right to food as …