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Climate Change And Sustainable Development: The Quest For Green Communities, Part Ii, John R. Nolon Nov 2009

Climate Change And Sustainable Development: The Quest For Green Communities, Part Ii, John R. Nolon

Pace Law Faculty Publications

This is the second part of Professor John R. Nolon’s two-part series on climate change mitigation through sustainable development law. Part I ran in October 2009 http://digitalcommons.pace.edu/lawfaculty/646/. In Part I, I argued that local governments should be partners with federal and state governments in managing climate change. This may sound incongruous to the ears of those listening to the debates over cap-and-trade legislation. In that context, state and local programs that cap, auction, tax, regulate, track, or otherwise attempt to manage greenhouse gas emissions are criticized on a number of grounds. The same can ...


Exclusionary Housing Vs. Fair Housing: The Need For State Legislation, John R. Nolon, Jessica A. Bacher Oct 2009

Exclusionary Housing Vs. Fair Housing: The Need For State Legislation, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

On September 23rd, Westchester County settled a lawsuit with U.S. Department of Housing and Urban Development and the Anti-Discrimination Center of Metro New York under which it agreed to develop and carry out an implementation plan to construct 750 affordable housing units in Westchester communities with low percentages of African American and Hispanic households. Under this agreement, the County will provide over $50 million to create housing in these communities; if needed, the County agreed to withhold benefits from the communities or to bring litigation against them if the 750 units are not constructed. The County will be supervised ...


Settlement Raises Questions About Housing Obligations, John R. Nolon, Jessica A. Bacher Oct 2009

Settlement Raises Questions About Housing Obligations, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

It is well established that zoning regulations which operate in an exclusionary capacity are unconstitutional. However, a bright line has yet to be drawn by either the New York legislature or the New York courts as to what constitutes an exclusionary zoning provision. This article examines several restricted holdings of the New York courts and compares the limited New York legislation, such as the 2008 Long Island Workforce Housing Act, to more powerful state legislation from surrounding states, which have had more success abolishing exclusionary zoning.


Climate Change And Sustainable Development: The Quest For Green Communities, Part I, John R. Nolon Oct 2009

Climate Change And Sustainable Development: The Quest For Green Communities, Part I, John R. Nolon

Pace Law Faculty Publications

This is the first of two commentaries that explore the role of local governments in mitigating and adapting to climate change through sustainable development strategies. They focus on the significant authority to regulate land use and building construction that is delegated to local governments by their states, and how that authority can be coordinated with the roles and responsibilities of state and federal governments to manage climate change and achieve sustainable development.


Finding The Silver Lining: The Recession And The Legal Employment Market, Rachel J. Littman Sep 2009

Finding The Silver Lining: The Recession And The Legal Employment Market, Rachel J. Littman

Pace Law Faculty Publications

No abstract provided.


Maybe Mom And Dad Were Right: Musings On The Economic Downturn, Gary A. Munneke Sep 2009

Maybe Mom And Dad Were Right: Musings On The Economic Downturn, Gary A. Munneke

Pace Law Faculty Publications

This issue of the Journal takes a look at the legal profession as it confronts the most serious economic downturn since the Great Depression, but the focus is not on what went wrong, or why. The articles in this issue examine how lawyers and law firms can survive, and thrive again when the economy improves.


Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon Aug 2009

Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon

Pace Law Faculty Publications

The United States Supreme Court has granted certiorari in Walton County v. Stop the Beach Renourishment, Inc., where novel questions arose concerning sea level rise and constitutional property rights of beachfront landowners. In Florida, the state government owns in trust, all beach property below the mean high tide water line, while beachfront landowners own the rights to any land above the mean high tide water line. The line shifts along with beachfront as the beach expands and contracts. In this Florida case, landowners challenge a state statute, which precludes the ocean property line from shifting in favor of the private ...


China's Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman Aug 2009

China's Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman

Pace Law Faculty Publications

This article examines implementation of the international sales law by arbitral tribunals in China. The leading Chinese arbitral tribunal -- CIETAC -- has recently released the full-text decisions issued in over 300 disputes involving international trade. Upon a careful examination of this decisions involving non-conformity of goods, the authors conclude that the decisions generally convey objective, non-biased jurisprudence (notwithstanding some caveats about the completeness of the available record). They go on to conclude that the ability to rely on a fairly predictable tribunal has been good for the development not only of China's trade-based economy but also for its more general ...


Local Governments Weigh Green Building Standards, John R. Nolon, Jennie C. Nolon Apr 2009

Local Governments Weigh Green Building Standards, John R. Nolon, Jennie C. Nolon

Pace Law Faculty Publications

Through New York state legislation, localities are afforded broad authority adopt green building standards that reach beyond those imposed by state law. As localities begin to undertake the challenge of implementing green building initiatives, many legal questions arise. This article examines several instances of green local action and provides examples of successful local projects, as well as local mistakes. The municipalities mentioned include a broad spectrum of communities, from small municipalities such as Mount Kisko, to some of the larger cities in the state such as New York City and Syracuse.


Rebuilding Yonkers: How Open Government Laws Are Helping Level The Playing Field In The City Of Hills, Debra S. Cohen Apr 2009

Rebuilding Yonkers: How Open Government Laws Are Helping Level The Playing Field In The City Of Hills, Debra S. Cohen

Pace Law Faculty Publications

This article will explore some examples of how people in Yonkers have used FOIL and the Open Meetings Law as effective tools to level the playing field in the"city of hills" and, in doing so, help the city move in a more positive direction.


Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle Apr 2009

Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle

Pace Law Faculty Publications

This article will discuss recent developments in long-arm jurisdiction under CPLR section 302 and two related New York Court of Appeals decisions. Specifically, the article will address Fischbarg v. Doucet, which presents the court's expansive view of long-arm jurisdiction in light of recent technological developments, and Ehrenfeld v. Mahfouz, in which the court's decision to limit long-arm jurisdiction was rejected by subsequent legislation, signaling a more expansive application of CPLR 302 in the future.


Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman Apr 2009

Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman

Pace Law Faculty Publications

In People v. Rawlins and People v. Meekins, the New York Court of Appeals addressed, for the first time, the admissibility of scientific reports prepared by non-testifying forensic experts for use by the prosecution in a criminal trial under the Sixth Amendment's Confrontation Clause. Rawlins involved a fingerprint comparison report prepared by a police forensic expert, and Meekins involved a DNA profile prepared by a technician in a private laboratory. The constitutional issue in both cases was whether these reports were “testimonial” statements within the meaning of the Confrontation Clause, as interpreted by the Supreme Court in Crawford v ...


Petition Clause Interests And Standing For Judicial Review Of Administrative Lawmaking, Karl S. Coplan Apr 2009

Petition Clause Interests And Standing For Judicial Review Of Administrative Lawmaking, Karl S. Coplan

Pace Law Faculty Publications

One of the primary roles of agencies in the modern administrative state is the promulgation of rules and regulations governing primary conduct. Separation of powers and non-delegation concerns have evolved into very weak limits on the scope of agency lawmaking authority. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. Particularly in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations--so called “regulatory objects”-- enjoy presumed standing to challenge the scope of agency regulations. Groups of ...


The Land Use Stabilization Wedge Strategy: Shifting Ground To Mitigate Climate Change, John R. Nolon Jan 2009

The Land Use Stabilization Wedge Strategy: Shifting Ground To Mitigate Climate Change, John R. Nolon

Pace Law Faculty Publications

This article describes how local governments, through the clever application of existing land use techniques, can mitigate climate change. This strategic path follows one developed by Princeton professor Robert Socolow, who identified and described fifteen categories for organizing society’s climate change mitigation efforts. Five of Socolow’s strategic categories fall within the reach of local land use authority: reduced use of vehicles, energy efficient buildings, vegetative carbon sequestration, wind power, and solar power. Through the aggregation of these local land use techniques, significant energy savings and carbon dioxide (CO2) reduction can be achieved. After making some background points, this ...


A River Beckons Home, Alexandra Dapolito Dunn Jan 2009

A River Beckons Home, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


In The Name Of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (And Other Countries Don't), Linda C. Fentiman Jan 2009

In The Name Of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (And Other Countries Don't), Linda C. Fentiman

Pace Law Faculty Publications

For more than three decades, American prosecutors have been bringing criminal prosecutions against pregnant women based on their use of drugs while pregnant, with charges ranging from child abuse or neglect to murder. Almost all of these women are poor, and the vast majority are also women of color--many with histories of childhood sexual or physical abuse and mental disability. In all but three states-Alabama, Kentucky, and South Carolina--such prosecutions have been declared unconstitutional or the resulting convictions have been overturned. Nonetheless, prosecutions continue to be brought, in what can only be described as a crusade against pregnant women in ...


Getting Real About Race And Prisoner Rights, Michael B. Mushlin Jan 2009

Getting Real About Race And Prisoner Rights, Michael B. Mushlin

Pace Law Faculty Publications

This Article explores the nexus of two stories central to contemporary American jurisprudence and--for tens of millions of citizens--central to the American experience: the rise of the “carceral state” through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning ...


Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman Jan 2009

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Pace Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, where physicians ...


Shifting Paradigms Of Lawyer Honesty, John A. Humbach Jan 2009

Shifting Paradigms Of Lawyer Honesty, John A. Humbach

Pace Law Faculty Publications

The Model Rules currently contain at least four distinct conceptions of what it means for a lawyer to be honest. Moreover, the levels of honesty that the ethical rules demand have changed markedly in recent times. This article explores why, for the lawyers of today, being “honest” seems to be so complicated.

The exploration begins by reviewing recent changes in the honesty concepts embodied in the Model Rules, particularly the new duty to reveal confidential information that lawyers have under Rule 4.1. Attention then turns to what it means to be “honest” in the context of our modern exaggerated ...


Energy Security, Green Job Creation, And Youth Innovation, Elizabeth Burleson Jan 2009

Energy Security, Green Job Creation, And Youth Innovation, Elizabeth Burleson

Pace Law Faculty Publications

No abstract provided.


Owning What You Eat: The Discourse Of Food, David N. Cassuto Jan 2009

Owning What You Eat: The Discourse Of Food, David N. Cassuto

Pace Law Faculty Publications

This essay examines the role of communication in the formation of law and social norms and the implications of that role for animal law and ethics. Part III contextualizes animal law within contemporary risk society. Part IV looks at how efficiency has transformed from an economic concept into a normative guideline and discusses how that transformation has affected animals and agriculture. It tracks the rise of industrial agriculture and ties it to this fundamental misunderstanding of the concept of efficiency. The essay concludes with some thoughts on how to reformulate contemporary notions of efficiency and ethics to account for the ...


Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa Jan 2009

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Pace Law Faculty Publications

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the ...


Correcting Injustice: Studying How The United Kingdom And The United States Review Claims Of Innocence, Lissa Griffin Jan 2009

Correcting Injustice: Studying How The United Kingdom And The United States Review Claims Of Innocence, Lissa Griffin

Pace Law Faculty Publications

This article examines the U.K. and U.S. systems to determine what lessons, if any, the United States can learn from the United Kingdom's experience. Part I provides a background of the CCRC and the U.K. Court of Appeal, and describes how these two entities work in tandem with broad powers to investigate and correct miscarriages of justice in the United Kingdom. Part II takes an in-depth look at the Court of Appeal's decisions of CCRC referred cases and identifies five categories into which these decisions fall-- categories that exemplify the institutional mechanisms that facilitate review ...


Who Says "I Do"?, Noa Ben-Asher Jan 2009

Who Says "I Do"?, Noa Ben-Asher

Pace Law Faculty Publications

This Book Review offers an analogy between two forms of resistance to legal discrimination by marginalized minorities: singing the national anthem in Spanish on the streets of Los Angeles in the spring of 2006 by undocumented immigrants, and possible future public marriage ceremonies by LGBT people and other marriage outlaws. Based on the conceptual grounds laid by Judith Butler and Gayatri Spivak, and earlier by Hannah Arendt, the Review uses an analogy to the public singing of the anthem in Spanish in order to argue that the performance of public marriage ceremonies by LGBT people and other marriage outlaws may ...


Legal Holes, Noa Ben-Asher Jan 2009

Legal Holes, Noa Ben-Asher

Pace Law Faculty Publications

By explaining the legal holes debate via the lens of science and theology, the essay offers two main insights. First, the essay argues that although the legal holes debate is often understood as simply being about executive measures in emergencies, the debate should also be seen as implicating a broader jurisprudential dispute about the very nature of the legal system. Second, the essay shows that the two approaches bear several surprising similarities--their skepticism of judges, their skepticism of legislators, and, most notably, their use of law-preserving violence.


International Human Rights Law, Co-Parent Adoption, And The Recognition Of Gay And Lesbian Families, Elizabeth Burleson Jan 2009

International Human Rights Law, Co-Parent Adoption, And The Recognition Of Gay And Lesbian Families, Elizabeth Burleson

Pace Law Faculty Publications

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the legal recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This Article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.


Hall Street Blues: The Uncertain Future Of Manifest Disregard, Jill I. Gross Jan 2009

Hall Street Blues: The Uncertain Future Of Manifest Disregard, Jill I. Gross

Pace Law Faculty Publications

In 2008, in Hall Street Assocs. v. Mattel, Inc., the Supreme Court resolved a then-existing split in the federal circuits and held that parties cannot contractually expand the grounds for judicial review of an arbitration award when invoking the Federal Arbitration Act's vacatur provisions, elevating the finality of arbitration over the parties’ freedom of contract. The Hall Street decision necessarily impacted subsequent jurisprudence regarding parties’ motions to vacate arbitration awards. While the opinion clearly and explicitly barred further contractual expansion of grounds for review, it also avoided and thus left unresolved the issue of whether it would endorse or ...


Energy Policy, Intellectual Property, And Technology Transfer To Address Climate Change, Elizabeth Burleson Jan 2009

Energy Policy, Intellectual Property, And Technology Transfer To Address Climate Change, Elizabeth Burleson

Pace Law Faculty Publications

No abstract provided.


National Security Courts: Star Chamber Or Specialized Justice?, Mark R. Shulman Jan 2009

National Security Courts: Star Chamber Or Specialized Justice?, Mark R. Shulman

Pace Law Faculty Publications

In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by five lawyers with significant academic and practical experience in the field: Richard Zabel, a litigation partner at Akin Gump Strauss Hauer & Feld LLP, a former Assistant U.S. Attorney and co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, an Associate Professor of Law at the United States Coast Guard Academy and author of the forthcoming book, The National Security Court System: A Natural Evolution of Justice in an Age of Terror; Hina Shamsi, a Staff Attorney in the ACLU's ...


Women And The Law: How Far We’Ve Come And Where We Need To Go, Michelle S. Simon Jan 2009

Women And The Law: How Far We’Ve Come And Where We Need To Go, Michelle S. Simon

Pace Law Faculty Publications

Introduction to the program on “Women and the Law: How Far We've Come and Where We Need to Go” held at Pace Law School, October 24, 2008.