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Full-Text Articles in Law

Courts Have Decided A Wide Range Of Issues, John R. Nolon, Jessica A. Bacher Dec 2006

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

Pace 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 Nov 2006

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

Pace 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 Oct 2006

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

Pace 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 Oct 2006

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

Pace 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 ...


Affordable Housing: A Case For State Legislative Action, John R. Nolon, Jessica A. Bacher Sep 2006

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

Pace 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 Sep 2006

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

Pace 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 ...


Exile Or Opportunity? The Benefits Of Mastering U.S. Law, Mark R. Shulman Sep 2006

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

Pace Law Faculty Publications

No abstract provided.


Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum Aug 2006

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Pace 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 ...


Inclusionary Zoning: The Effect Of Market Forces On Local Housing Law, John R. Nolon Jun 2006

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

Pace 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 Apr 2006

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

Pace 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 Apr 2006

Moot Court Diplomacy, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.


A Strategy For Developing Stationary Biodiesel Generation, Karl R. Rábago Jan 2006

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

Pace 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.


Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon Jan 2006

Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon

Pace 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 ...


Reflections On Brady V. Maryland, Bennett L. Gershman Jan 2006

Reflections On Brady V. Maryland, Bennett L. Gershman

Pace Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most ...


Katrina's Lament: Reconstructing Federalism, John R. Nolon Jan 2006

Katrina's Lament: Reconstructing Federalism, John R. Nolon

Pace Law Faculty Publications

The subject of stormwater management raises threshold questions about the federal system. Is the regulation of stormwater runoff and the environmental pollution it causes within the federal government's legal jurisdiction? Is it a matter reserved to the states under the Tenth Amendment? Or is it a joint responsibility and, if so, precisely how is federal and state authority shared? How does the delegation of power by states to local governments to regulate the use of privately owned land affect the federal-state division of power? What limits should there be on local control of land uses that cause “nonpoint source ...


Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto Jan 2006

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

Pace 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 ...


The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson Jan 2006

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

Pace 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 ...


Crimes Against Nature, Robert F. Kennedy, Jr. Jan 2006

Crimes Against Nature, Robert F. Kennedy, Jr.

Pace Law Faculty Publications

It is a pleasure for me to be here at St. Thomas and to see so many great legal heroes ensconced in this university, including the president and so many others. As I was signing some copies of my book Crimes Against Nature, it occurred to me that the word “environment” does not appear in the book. I thought I would talk about that today. To me, the environment is the most critical battle because it is the most critical issue in our democracy. Democracy, really all government, is about how we distribute the goods of the land. The best ...


Revisiting The Tense Relationship Between The U.S. Supreme Court, Administrative Procedure, And The National Environmental Policy Act, Jason J. Czarnezki Jan 2006

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

Pace 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 ...


Shifting Science, Considered Costs, And Static Statutes: The Interpretation Of Expansive Environmental Legislation, Jason J. Czarnezki Jan 2006

Shifting Science, Considered Costs, And Static Statutes: The Interpretation Of Expansive Environmental Legislation, Jason J. Czarnezki

Pace Law Faculty Publications

Congress often passes expansive legislation, frequently environmental and public health regulatory statutes, where both the definition of those items being regulated and the mandate have significant breadth. How should these provisions be construed? While it is difficult to establish a model which determines whether to broadly or narrowly construe an expansive statutory provision, factors that impact this choice include the existence of express limitations on the mandate, understandings of congressional intent, the need to avoid regulation that might do more harm than good, the nature of the regulated item, and intervening circumstances such as new understandings in law, policy, or ...


The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki Jan 2006

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

Pace 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 ...


The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher Jan 2006

The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher

Pace Law Faculty Publications

This Article is composed of four Parts. The first Part explores two legal struggles for intersex and transsex goals. The main litigation propositions and structures of the two movements are contrasted, especially the meanings that the two movements offer for the terms “medical necessity,” “cosmetic surgery,” and “medical experimentation.” While Part I takes a critical approach to some of the strategies discussed, the main purpose is to describe the mirroring aspects of the two advocacy movements. The second Part locates these contemporary legal narratives regarding sex change in the broader history of sex change in the twentieth-century United States, emphasizing ...


The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman Jan 2006

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

Pace 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 ...


Energy Efficiency: The Best Immediate Option For A Secure, Clean, Healthy Future, Richard L. Ottinger Jan 2006

Energy Efficiency: The Best Immediate Option For A Secure, Clean, Healthy Future, Richard L. Ottinger

Pace Law Faculty Publications

The imperatives for reducing the world’s dependence on fossil and nuclear fuels have multiplied manifold in recent years with the advent of worldwide terrorism. These new dangers come in addition to the imperatives of addressing the dire consequences of global warming and devastating pollution that accompany the use of these fossil fuels. Reducing dependence on these unsafe and unreliable energy resources should be a top global priority. Implementation of proven energy efficiency technologies offers the world the fastest, safest, most economic and most environmentally benign way to alleviate these threats. This article outlines available efficiency measures, their economic advantages ...


Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle Jan 2006

Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle

Pace Law Faculty Publications

During the 2005 survey year, federal courts in the Second Circuit decided a number of important res judicata matters. Several district courts applied the doctrines of claim preclusion and issue preclusion to administrative and arbitral determinations. Several courts also expanded the “actually litigated” requirement for collateral estoppel and liberally applied the doctrine of defensive claim preclusion for counterclaims. Finally, the United States Court of Appeals for the Second Circuit issued seven res judicata decisions. In one, Vargas v. City of New York, the Second Circuit refined the standards for applying the Rooker-Feldman doctrine. This survey article will review some of ...


The Modern Age Of Informed Consent, Barbara L. Atwell Jan 2006

The Modern Age Of Informed Consent, Barbara L. Atwell

Pace Law Faculty Publications

This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that ...


La Catástrofe De Los Delitos De Riesgo Catastrófico, Luis E. Chiesa Jan 2006

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

Pace Law Faculty Publications

No abstract provided.


The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann Jan 2006

The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann

Pace Law Faculty Publications

No abstract provided.


Middle Eastern And North African Hydropolitics: From Eddies Of Indecision To Emerging International Law, Elizabeth Burleson Jan 2006

Middle Eastern And North African Hydropolitics: From Eddies Of Indecision To Emerging International Law, Elizabeth Burleson

Pace Law Faculty Publications

No abstract provided.


Training Manual On International Environmental Law, Nicholas A. Robinson Jan 2006

Training Manual On International Environmental Law, Nicholas A. Robinson

Pace 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 ...