Law Commons^™

Written Testimony On Correctional Oversight Of The Nys Doccs, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

I am testifying today on behalf of both myself and my co-chair Michele Deitch, who has submitted written testimony for your consideration. My comments here reflect both the key points in her testimony as well as some of my own thoughts about the importance of external oversight and comments about the critical role played by the Correctional Association of New York, the failure of the State Commission on Correction to provide meaningful regulation of New York’s prisons, and the need to improve access by the media to the public and to the state’s prisons.

Mitigating Climate Change By Zoning For Solar Energy Systems: Embracing Clean Energy Technology In Zoning’S Centennial Year, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Adopting land use regulations that encourage solar and other clean energy systems is an essential strategy for promoting clean power and one that focuses on the essential role that local governments play in mitigating climate change. This article explores efforts at the state and local level to reform zoning and land use regulations to permit, encourage, require, and incentivize rapidly-evolving clean energy systems, particularly solar, that, in the aggregate, have the ability to significantly increase power generation and decrease carbon emissions. The article illustrates how zoning, as it approaches its 100th anniversary, is encrusted with provisions that prohibit or discourage …

Arbitration Case Law Update 2015, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court and selected federal circuit and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.

Show And Tell?: Students' Personal Lives, Schools, And Parents, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Public schools learn about their students' personal lives in many ways. Some are passive: a teacher observes a student kissing someone, or overhears a conversation among friends. But schools also engage in more active information-gathering about students' personal lives, through surveys and informal conversations between students and teachers, administrators, school psychologists, counselors, coaches, and other personnel. This Article explores the competing privacy considerations that result from such encounters. Once schools have learned highly personal information about their students, does it violate those students' privacy rights to disclose that information to their parents? Or does keeping the information secret violate the …

Is America Becoming A Nation Of Ex-Cons?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Recent rates of mass incarceration have become a concern, but those rates are only part of the challenge facing (and posed by) the American criminal justice system. An estimated 25% of the U.S. adult population already has a criminal record and, with new felony convictions churning out at a rate of a million per year, America is well on its way to becoming a nation of ex-cons. Already, the ex-offender class is the nation’s biggest law-defined, legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is …

Creating Order Amidst Food Eco-Label Chaos, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Eco-labels, certifications, and seals of approval serve a variety of functions including communicating to businesses and consumers the environmental attributes of a particular product and incentivizing improvements in production. Eco-labels also provide a basis for companies to set measurable sustainability goals for sourcing, improvements, and transparency. As they gain greater traction in the marketplace, however, there has been a massive proliferation of labels, certifications, and green seals of approval. This has led to consumer confusion, inaccurate and misleading claims, and inconsistent standards. A 2009 survey identified about 600 labels that denote some definition of “environmentally friendly” worldwide, including more than …

Building Resilient Communities In The Wake Of Climate Change While Keeping Affordable Housing Safe From Sea Changes In Nature And Policy, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article will explore the twin interests of responding to climate change and preserving accessible and affordable housing. Part II will give a broad overview of the scientists' climate change predictions. Part III will discuss what these predictions portend for populations, housing, and communities. Part IV will describe the broad responses that the federal, state, and local governments are making to climate change to create communities that are thriving and resilient. Part V discusses the efficacy of these responses and their potential impact on the poor, housing, and communities. Part VI looks for parallels between the resilient cities movement and …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Navigable Waters” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its meaning, then examines how the term has been applied in the context of tributaries and wetlands, isolated waters, groundwater, and EPA’s unitary theory of navigable waters. The author then analyzes EPA and the Corps’ 2014 proposed amendments to the definition of “waters of the United States,” and concludes that those amendments may resolve much of the interpretive crisis.

Environmental Privacy, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article looks to nuisance doctrine, surveillance under environmental statutes, and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience, to date, balancing the need for environmental information with privacy. Section A analyzes common law nuisance and its relationship to individual privacy concerns and concludes that the law affords little *7 value to or protection of privacy in the context of at least one type of environmental externality -- conduct that gives rise to a common law nuisance. Recognizing that most environmentally significant individual behaviors do not constitute a …

Paradoxes, Parallels And Fictions: The Case For Landlord Tort Liability Under The Revised Uniform Residential Landlord-Tenant Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this article, I show how a coherent legal narrative must capture the revolution's radical policy by abandoning the no tort liability rule, which can be done in a number of ways: an open acknowledgement that the duty to repair creates a new property right that must be enforced by a property rule or more subtly through the use of both traditional and modern tools of jurisprudence, that is, legal fictions, equitable maxims and economic efficiency analysis. This article proceeds with a discussion of the common law landlord-tenant law, the adoption of the implied warranty of habitability, along with the …

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …

Regulating Farming: Balancing Food Safety And Environmental Protection In A Cooperative Governance Regime, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

After providing a brief overview of regulation in each area, Part I of this Article identifies three types of discordance between produce safety and environmental protection on farms. First, because of limited resources, farmers will have to choose between implementing food safety practices and implementing environmental practices. Second, indirect trade-offs between the two regulatory goals result in damaging collateral consequences for the environment. Food safety regulation may exacerbate a range of existing environmental harms. Third, there is at least one direct clash that may make compliance with food safety law incompatible with participation in certain environmental programs. Part I also …

"I Am Opposed To This Procedure": How Kafka's In The Penal Colony Illuminates The Current Debate About Solitary Confinement And Oversight Of American Prisons, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This is the 100th anniversary of Franz Kafka's In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison's operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight.

At …

Rethinking The Childhood-Adult Divide: Meeting The Mental Health Needs Of Emerging Adults, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Part I of this article describes ADHD and explores the extent of ADHD medication abuse, especially among young adults. Part II discusses the characteristics of emerging adults, who may be more likely than their older counterparts to make unwise decisions about medications and other life choices.34 While we protect minors by requiring parental consent for their medical treatments, emerging adults are effectively able to obtain any drug on the market if they convince the doctor that they have the requisite diagnosis. Part III explores HIPAA, the medical malpractice standard of care and the challenges associated with a society that is …

More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First, our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision-making, but adding women has …

Justice Scalia's Hat Trick And The Supreme Court's Flawed Understanding Of Twenty-First Century Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In this article, I report on the results of my close examination of more than two dozen opinions the Court has handed down interpreting the FAA--arising primarily from commercial, consumer, employment, or securities disputes--since the beginning of the twenty-first century only fifteen years ago.19 I focus on cases in which the Court was asked to decide a question of arbitrability--whether a claim is arbitrable or whether an agreement to arbitrate is enforceable under FAA section 2. I have concluded that these decisions are built on a narrative of an arbitration process that no longer exists, although it may have existed …

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

An Environmental Understanding Of The Local Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article is adapted from Chapter Three of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published in 2014 by ELI Press. The book updates and expands on the author’s previous work, describing in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article outlines a comprehensive framework for understanding how traditional local land use authority can be used to preserve natural resources and environmental functions at the community level.

New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …

Ratings Fetishism, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

The obsession with increasing the reputational rankings of American colleges and universities more detrimentally impacts race-based admissions policies than does Supreme Court doctrine. It is no secret that many schools inflate, misleadingly report, or falsify records in order to pander to rankings systems like U.S. News and World Report (“U.S. News”). These systems weigh a school’s mean standardized test scores (SAT and/or ACT) heavily as one of the factors for assigning a rank. Thus, the incentive among schools playing the ratings game is to admit students with the highest SAT scores. But, if one agrees with the data that underrepresented …

Portability, Marital Wealth Transfers, And The Taxable Unit, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Prior to 2011, the most efficient estate tax planning for married couples required a minimal level of asset equalization. In order to take maximum advantage of all existing wealth transfer tax exemptions and credits, each spouse needed to own, in an estate tax sense, enough assets to be able to fully utilize the estate tax credit or applicable exemption. This changed with the enactment of estate tax portability in the Economic Growth and Economic Recovery and Relief Act of 2011, which became permanent under the American Taxpayer Relief Act of 2012. “Portability” refers to the ability of a surviving spouse …

A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, designed as a resource for environmental law professors both domestically and abroad, addresses how environmental quality standards are created, implemented, and enforced in the United States. The answers to these questions are useful to those teaching U.S. environmental law and international scholars, especially in the European Union, who are faced with the challenge of creating new environmental quality standards under both national and EU directives. It must be noted that this project is complicated by the federal system within the country, and, thus, attention must be devoted to the federal-state relationship. In fact, the major relevant statutes, the …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Point Source” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition.