Law Commons^™

Can Urban University Expansion And Sustainable Development Co-Exist?: A Case Study In Progress On Columbia University, Patricia E. Salkin, Keith H. Hirokawa

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This Article employs sustainability as a framework to analyze the recent proposed physical expansion plans of Columbia University for the purpose of illustrating the complexities that arise in urban development and higher education practices, as well as the problems of trying to simultaneously implement both. Governments and courts traditionally provide a high level of deference and leniency in the application of land-use laws and regulations when it comes to siting and expansion issues for educational institutions, yet institutions of higher education, particularly those located in urban areas, create unique dilemmas for sustainability. For example, available land for expansion is often …

Abandonment, Discontinuance And Amortization Of Nonconforming Uses: Lessons For Drafters Of Zoning Regulations, Patricia E. Salkin

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Observing that a disproportionate number of reported cases highlighted inn the Law of the Land blog (www.lawoftheland.wordpress.com) are opinions addressing the subject of nonconforming uses, this column attempts to unravel some of the legal issues that stem from poor drafting of these provisions in zoning regulations, and demonstrates options for practitioners and drafters to better regulate for the eventual disappearance of nonconformities.

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

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Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Reconstructing The Individual Mandate As An Escrow Account, Gregg Polsky

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This short essay in Michigan Law Review First Impressions describes how the individual mandate could be reconstructed as an escrow account. Such a restructuring would ameliorate policy concerns regarding the mandate while still deterring the opportunistic behavior that would otherwise occur as a result of the nondiscrimination rules imposed on insurers.

What I Talk About When I Talk About Health Law, Elizabeth Weeks

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Invited contribution celebrating the 25th Anniversary of the Beazley Institute for Health Law & Policy.

A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials And Bad Taste In Copyright, David E. Shipley

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Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other …

Portraits Of Women At Nuremberg, Diane Marie Amann

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This essay reflects ongoing research that investigates women who played roles in war crimes trials at Nuremberg, Germany, and situates those women within the context of social developments during the post-World War II era. Based on an autumn 2009 presentation at the Third International Humanitarian Law Dialogs, the essay builds upon the “Women at Nuremberg” series posted at IntLawGrrls blog. The essay mentions women who were defendants, journalists, or witnesses; however, it focuses on some of the women, mostly Americans, who served as prosecutors at Nuremberg.

Help Is On The Way: Senior Legal Hotlines Respond To Elder Abuse, Eleanor Crosby Lanier

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Helplines are an important component of efforts to protect elders from abuse. This article describes the development of the senior legal hotline. After 20 years, these hotlines exist in at least half of the states and provide legal advice and other legal services at no cost to callers. Senior legal hotlines can provide information on financial scams, adult guardianship, advance directives, housing, medical care, and public benefits.

From International Law To International Conflicts Of Law: The Fragmentation Of Legitimacy, Harlan G. Cohen

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This short essay, published as part of the proceedings of the 104th Annual Meeting of the American Society of International Law, confronts the problem of fragmentation in international law. Based on a longer paper, it challenges not only fragmentation’s conventional treatment as a technical or doctrinal problem but the very notion that there is a single international law community with a single doctrine of sources. On the contrary, the paper argues, what the problem of fragmentation reveals is that a single international law community is being replaced by separate, overlapping legal communities with significantly different views on law and legitimacy.

Arbitrating Disputes Between Companies And Individuals: Lessons From Abroad, Peter B. Rutledge, Anna W. Howard

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Congress is considered changes to the Federal Arbitration Act and the central premise underlying these bills is the idea that the parties to these agreements (typically there is an individual on one side and a company on the other) tend to occupy unequal bargaining positions. The drafters of these bills conclude from this that the individual’s choice to opt into arbitration before a dispute has arisen cannot be considered free and voluntary, and thus, the arbitration agreement should be considered void and unenforceable.

Defenders of these bills claim that the United States, when compared to other nations, stands alone in …

Paying Women For Their Eggs For Use In Stem Cell Research, Pamela Foohey

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On June 11, 2009, the Empire State Stem Cell Board (“Board”), which administers the $600 million in New York State funds allotted to stem cell research, voted to allocate a portion of those funds to compensate women up to $10,000 for “donating” their eggs for use in stem cell research. The Board's decision makes New York the first state to affirmatively allow state funds to be used to compensate women for providing their eggs for use in stem cell research beyond mere reimbursement of associated medical and other expenses, and, similarly, distinguishes it from most international countries, which either prohibit …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

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Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Environmental Law, Travis M. Trimble

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In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency’s adoption of the “unitary waters” definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency’s rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh

Circuit upheld …

Decisional Sequencing, Peter B. Rutledge

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Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters …

Preserving Human Potential As Freedom: A Framework For Regulating Epigenetic Harms, Fazal Khan

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Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development and in disease causation. In a sense, epigenetics blurs the distinction between “nature” and “nurture” as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents’ generation might affect our health now, even if we have not experienced the same exposures. In the …

Countermeasure Mechanisms In A P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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The detection of deception has been the focus of much research in the past 20 years. Though much controversy has surrounded one deception detection protocol, the “Control Question Test” (NRC 2003, Ben-Shakhar 2002), an alternative test, the Guilty Knowledge Test (GKT), developed by Lykken (1959, 1960), is based on scientific principles and has been well-received in the scientific community. The GKT presents subjects with various stimuli, one of which is a guilty knowledge item (termed the probe, such as the gun used to commit a crime). The other stimuli in the test consist of control items that are of the …

A Mock Terrorism Application Of The P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives …

The Changing Face Of Money, Christopher M. Bruner

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In this essay I argue that widespread failure to comprehend the intrinsic nature of modern money loomed large in the recent crisis, and that broader comprehension of its meaning is a precondition for effective post-crisis reforms. First, I provide a brief history of money, emphasizing its gradual divergence from inherent value. I then consider the value of today’s dollar in economic, legal and psychological terms, arguing that each perspective conveys a single over-arching lesson—that better comprehending our money requires better comprehending ourselves. The introspection that this exercise demands reveals with unique clarity some of the critical lessons of the crisis …

Saving Private Ryan's Tax Refund: Poverty Relief For All Working Poor Military Families, Francine J. Lipman

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No abstract provided.

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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No abstract provided.

What Balance In Legal Education Means To Me: A Dissenting View, Lawrence Raful

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No abstract provided.

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

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This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks

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The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.

Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …

The Accidental Clinician And The Experienced Director: A Conversation On The Value Of Externships, Marjorie A. Silver, Mary Jo Eyster

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In the summer of 2010, Mary Jo Eyster and Marjorie Silver conversed, via email, about the ways in which externship programs add unique value to the student’s education, separate and apart from their cost-effectiveness as compared to the in-house clinic. The result is this paper, a dialogue between a stand-up teacher who chose to teach the externship seminar and a seasoned clinician.

Mary Jo and Marjorie agree that the well-designed, well-executed program should drive the design, teaching and administration of externships and their accompanying seminars. They share the goals that each of them privilege in the programs they have designed, …

Organizations Matter: They Are Institutions, After All, John Linarelli

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Judge Posner (2010) offers a substantial agenda for organization economics. He advises us on how organization economics can shed substantial light on some of the most pressing social problems of the day. I comment on two of the areas he selects for discussion and offer some comments on the relationship of organization economics to new institutional economics. Judge Posner surely is right to argue that organization economics can help us understand the failures of corporate governance in regulating executive pay. Moreover, with additional and more institutionally nuanced theorizing, organizational economics should further our understanding of the work of judiciaries in …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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The Supreme Court has held that when a government regulation reduces the value of property, and a property owner challenges the regulation under the Takings Clause of the Fifth Amendment, courts should consider (1) the economic impact of the regulation upon the property owner, (2) the effect of such regulation upon the property owner’s reasonable investment-backed expectations, and (3) the character of the government action. A 2005 Supreme Court decision, Lingle v. Chevron, held that courts must focus primarily on the severity of the burden that government imposes upon property owners. Many courts and commentators interpret this language to mean …

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

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No abstract provided.

Contested Meanings: Achievement And Ambition At An Elite Law School, Deborah Waire Post

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No abstract provided.

Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine

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No abstract provided.

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …