Law Commons^™

Surrogacy Law Reformed: Bringing New York Into The Twenty-First Century, Natalie Burke

Pace Law Review

No abstract provided.

The Road To Affordable Housing: How To Replace Highways With Homes In New York City, Chad Hughes

Pace Law Review

Urban highways cause significant air, water, and soil pollution that disproportionately harm low-income and nonwhite residents. Many urban highways are reaching the end of their useful life and would be extremely expensive to repair or replace. Cities around the world have removed urban highways to improve environmental outcomes and to avoid wasteful spending.

While these teardowns have improved local and regional environmental quality and local traffic congestion, they have also led to increased land values near the retired rights of way. Without anti-displacement efforts, there is a risk that the very people who have been most harmed by urban highways …

The Concrete Jungle: Where Dreams Are Made Of . . . And Now Where Children Are Protected, Samantha A. Mumola

Pace Law Review

The tragic and unsettling story of Kalief Browder has notably emerged as a prominent illustration of our criminal justice system’s historical failure to protect our youth. Kalief’s story gained massive media attention with the help of a TIME documentary series featured on Netflix and famous A-listers such as music artist Jay-Z and TV host Rosie O’Donnell. It is hard to ignore the fact that Kalief Browder was cheated by the system; he chose suicide to escape his demons, which developed after undeserved time spent at Riker’s – a place he would have never experienced had he initially been tried as …

Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel

Pace Law Review

Currently, the appellate division must decide an enormous number of appeals every year.7 In light of this caseload crisis, New York must reevaluate its generous approach to interlocutory appeals.8 This Comment discusses how the appellate division can deal most efficiently with interlocutory appeals. Part II describes the history of interlocutory appeals in New York, since the creation of the appellate division. Part III explains how other jurisdictions treat interlocutory appeals. Part IV presents the current caseload crisis in the appellate division. Part V describes the controversy over unlimited interlocutory appealability. Part VI evaluates how New York can streamline its approach …

The Unconstitutionality Of Consolidated Planning Boards: Interlocal Planning Under New York Law, Albert J. Pirro Jr.

Pace Law Review

This Article will examine the nature and constitutionality of consolidated planning boards in light of the broad powers actually granted them. The issues surrounding the constitutionality of consolidated planning boards begs, yet again, Chief Justice Marshall's question respecting the extent of the power granted to the state governments. The question is whether a municipality may abdicate its power to regulate land within its own boundaries by delegating it to a separate planning entity.

Armageddon: The Inevitable Death Of Nuclear Power And Whether New York State Has The Legal Authority To Keep It On Life Support, David Solimeno

Pace Environmental Law Review

This Note seeks to make the argument for New York’s ZEC program as a legitimate exercise of state power. Part I provides context—the history of nuclear power, the rise and fall in the incidence of nuclear power projects, and why such investments are failing. Part II then provides an overview of the CES and the ZEC program contained therein. In Part III, the legal challenges filed in response to Tier 3 are discussed, as well as the Illinois case which parallels the conventional generator challenge in New York. Part III will also discuss relevant legal precedent the cases concern, namely …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part IV discusses the …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section

Pace Law Review

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Updating New York’S Constitutional Environmental Rights, Nicholas A. Robinson

Pace Law Review

The stakes are high as New York State considers whether to amend the constitution. The electorate contemplates the gathering crises of sea level rise, disruption of weather patterns, intensified summer heat waves, and other climate change impacts. New York also faces escalating environmental problems, which the newly perceived climate impacts in turn exacerbate. It is timely to debate whether or not New York should recognize the right to the environment to its constitution. In 2016, the House of Delegates of the New York State Bar Association adopted the report of its committee on the constitution, regarding the environmental conservation article …

Subnational Environmental Constitutionalism And Reform In New York State, James R. May

Pace Law Review

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s constitution, with the next such opportunity on November 7, 2017. This article explores how subnational constitutionalism from around the world informs discussions about whether and how …

Home Rule In New York: The Need For A Change, Michael A. Cardozo, Zachary W. Klinger

Pace Law Review

This article is intended to provide a practical lens into how Home Rule issues unfold in complex matters involving the City, and to suggest how a much-needed Home Rule constitutional amendment could re-shape or, at the very least, clarify Home Rule standards. Section II will provide some historical and legal background on Home Rule; Section III will analyze some of the more well-known Home Rule cases that the Law Department litigated during the Bloomberg Administration; and Section IV will discuss insights gleaned with respect to, and will offer several recommendations for, the future of Home Rule in New York.

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court merger.

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …

Unusual “Politics As Usual”: The 2017 Ballot Proposition Calling For A Constitutional Convention In New York, Peter J. Galie

Pace Law Review

The first task of constitutional reformers is to make the people of the state aware that they live under a constitution that, for better or worse, affects their everyday lives whether they live on in remotes sections of the Adirondacks routes in villages or a teeming megalopolis. Until this is done, the people are not likely to demand or even accept the more thoroughgoing revision so badly needed in New York.

The Amending Clause In The New York Constitution And Conventionphobia, Gerald Benjamin

Pace Law Review

The amending clause is the nineteenth of the New York State Constitution’s twenty articles. Followed only by the enacting clause, for all intents and purposes this is the document’s final word. Well, maybe not the final word. An alternative is to think of this amending clause as a part of an ongoing several-centuries-long conversation. The clause is a message from one past group of designers and drafters of New York’s governing system, the 1846 Constitutional Convention majority, to all of us who gave them the charge to “secure [for us] the blessings of freedom,” that is to “we the people” …

Hope Vs. Fear: The Debate Over A State Constitutional Convention, Henry M. Greenberg

Pace Law Review

On November 7, 2017, New Yorkers will go to their polling places and receive ballots containing a thirteen-word referendum question: “Shall there be a convention to revise the constitution and amend the same?” That question appears on the ballot because the New York State Constitution commands that at least once every twenty years voters are asked whether or not to call a constitutional convention. The mandatory referendum reflects Thomas Jefferson’s belief that every generation the people should be given a chance to revise their basic law.

Labor Leading On Climate: A Policy Platform To Address Rising Inequality And Rising Sea Levels In New York State, J. Mijin Cha

Pace Environmental Law Review

With the renewed need for state action, this paper presents a case study of a labor-led initiative in New York State that seeks to address both economic inequality and the climate crisis. It discusses how organized labor, which has historically represented fossil fuel workers and has not been seen as a traditional climate ally, put forth a comprehensive climate jobs plan that could meaningfully reduce carbon emissions while also creating good, family-sustaining jobs to reduce income inequality. As the need for a broader coalition to advocate for sensible climate policy increases, this case study provides a road map for states …

Upholding Citizens’ Privacy In The Use Of Stingray Technology: Is New York Behind?, Samantha Hazen

Pace Law Review

This Comment will argue that New York should follow the federal agencies’ and states’ leads by imposing a warrant requirement supported by probable cause on local and state agencies that wish to use Stingray technology in their investigations. The first section will explore Stingray technology and how it works. The second section will frame the issue and describe New York’s current standard. The third section will discuss the judicial response to the issue and how New York courts seem to place the burden of upholding privacy on the citizen, instead of the government. The third section will also discuss a …

Mommy Dearest: Determining Parental Rights And Enforceability Of Surrogacy Agreements, William J. Giacomo, Angela Dibiasi

Pace Law Review

The governing law in this area is new and evolving and, as such, the allocation of the legal rights and responsibilities depend on which state has jurisdiction over the matter. This article will discuss the basic types of surrogacy agreements and examine the legal distinctions of their enforceability under New York and California law.

Unequal Access To Justice: Solla V. Berlin And The Unprincipled Evisceration Of New York’S Eaja, Armen H. Merjian

Pace Law Review

Solla is noteworthy not merely in light of the baleful effects of its ruling, but because of its reasoning: it is categorically wrong. The decision wholly elides a cornerstone and settled principle of New York welfare law, namely, that in the administration of public assistance, the municipalities act as the agents of the State, while blatantly violating the most fundamental of agency principles, namely, that a principal is vicariously liable for the actions of its agent acting within the scope of its authority. Indeed, this principal/agent relationship is established both by statute and by decades of uniform state and federal …

Riio To Rev: What U.S. Power Reform Should Learn From The U.K., Heather Payne

Pace Law Review

After discussing the recent history of and need for regulatory reform in the U.K., this article will summarize the RIIO framework and analyze the three parts best suited for import into the regulatory frameworks of American states. Specifically, the article will evaluate how a performance-based framework with (1) longer rate cases, (2) proportionate assessment, and (3) a focus on total expenditures limiting regulatory asset value, should positively influence the U.S. regulatory landscape. While RIIO is only used for transmission and distribution in the U.K., there is a potential for its performance-based approach to be used in generation as well as …

A Sitting Duck: Local Government Regulation Of Hunting And Weapons Discharge In The State Of New York, Gary E. Kalbaugh

Pace Environmental Law Review

On March 31, 2014, the New York State Legislature significantly modified New York's Environmental Conservation Law. The Environmental Conservation Law imposes limitations on the discharge of longbows. A longbow is defined by New York's Department of Environmental Conservation as “a longbow, recurve bow or compound bow which is designed to be used by holding the bow at arm's length, with arrow on the string, and which is drawn, pulled and released by hand or with the aid of a hand-held trigger device attached to the bowstring.”

Before the 2014 amendment, longbows could not be discharged in such a way that …

Alternative Funding For An Equitable Park System In New York City And State, Christopher Rizzo

Pace Environmental Law Review

Private efforts have successfully transformed a select few parks, which has created allegations of park inequity at a time when many neighborhood parks are overgrown and understaffed. Public-private partnerships reflect a national debate about the proper role of the private sector in maintaining parks, highways, bridges, and other essential civic infrastructure. But for most neighborhood parks the debate is irrelevant. They completely lack access to either adequate public funding or private revenue. One-time infusions of public capital dollars into the neediest parks cannot solve the ongoing operation and maintenance problem.

This paper identifies an array of alternative revenue strategies to …

The Tyranny Of Plastics: How Society Of Plastics, Inc. V. County Of Suffolk Prevents New Yorkers From Protecting Their Environment And How They Could Be Liberated From Its Unreasonable Standing Requirements, Albert K. Butzel, Ned Thimmayya

Pace Environmental Law Review

Ever since the Court of Appeals of New York issued its holding in the landmark case Society of Plastics Industry, Inc. v. County of Suffolk, citizen oversight of government-approved and government projects with environmental implications has suffered curtailment inconsistent with the objectives of the State Environmental Quality Review Act (SEQRA). At the center of the conflict between SEQRA and citizen enforcement are the restrictive standing requirements formulated by Society of Plastics, which include the demand that a petitioner demonstrate harm distinct from injury to the general public. Not only does such a prerequisite for consideration of a case's merits ignore …

When Are The People Ready? The Interplay Between Facial Sufficiency And Readiness Under Cpl Section 30.30, John H. Wilson

Pace Law Review

In this article, we will explore the intersecting concepts of conversion, facial sufficiency, and readiness. As we shall see, readiness for trial does not necessarily follow from the conversion of a complaint and dismissal on CPL section 30.30 grounds does not necessarily follow from a finding of facial insufficiency.

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

A Dangerous Situation – The Knowing Transmission Of Hiv In An Out-Of-Body Form And Whether New York Should Criminally Punish Those Who Commit Such An Act, Griffin C. Kenyon

Pace Law Review

In June 2013 the New York State Court of Appeals held that the saliva of a defendant afflicted with the Human Immunodeficiency Virus ("HIV”) does not constitute a dangerous instrument so as to support a conviction for aggravated assault. Despite this holding, the question remains whether the administration of HIV in an out-of-body form to another individual qualifies for dangerous instrument treatment so as to subject greater criminal liability under the New York State Penal Law (“Penal Law”). Another question remains – should New York punish those who knowingly transmit HIV to another individual? If so, should the punishment be …

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

Pace Environmental Law Review

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 me 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 today …