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Full-Text Articles in Law

Year In Review: 2007'S Most Significant Land Use Cases, John R. Nolon, Jessica A. Bacher Dec 2007

Year In Review: 2007'S Most Significant Land Use Cases, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

New York courts busily decided a multitude of land use cases due to the increased growth in magnitude and complexity of land use issues. This year, as in the past, the authors provide a summary describing some of the most crucial New York land use cases. This year’s cases include the following topics: review of local board action, takings law, eminent domain, enforcement, jurisdiction, religious land uses, standing, moratoria, and New York’s State Environmental Quality Review Act (SEQRA).


Municipal Lobbying: Regulations May Affect Land Use Practitioners, John R. Nolon Oct 2007

Municipal Lobbying: Regulations May Affect Land Use Practitioners, John R. Nolon

Pace Law Faculty Publications

Land use and real estate attorneys may find their practice areas impacted by recently passed lobbying legislation in both New York state, and New York City that require burdensome requirements for lawyers whose clients are seeking legislative action. This article explores the history of New York lobbying legislation, recent amendments to the lobbying laws, and the impact that lobbying legislation has on the practice of law. Notably, this review explores Article 1-A of the Legislative Law (known as the “Lobbying Act”) and the Public Employee Ethics Reform Act, both of which expanded the definition of lobbying, and significantly changed the ...


Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman Oct 2007

Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman

Pace Law Faculty Publications

National crises such as September 11th and Hurricane Katrina resulted in an unprecedented outpouring of charitable generosity by Americans, which was encouraged by the government through tax incentives. This paper examines an earlier period of crisis, Tudor England (1485-1603), where the state encouraged philanthropy as a tool of social and political policy. Certain charitable activities were favored and others disadvantaged to spur private sector resources to resolve public problems.

The article discusses the evolution of the laws regulating the poor, which culminated in the Poor Law Legislation of 1601, a process that developed attitudes toward the poor and concepts of ...


Can You Have Your Cake And Eat It Too? Achieving Capital Gain Treatment While Keeping The Property, Ronald H. Jensen Oct 2007

Can You Have Your Cake And Eat It Too? Achieving Capital Gain Treatment While Keeping The Property, Ronald H. Jensen

Pace Law Faculty Publications

I will attempt to show in this article that the cases and rulings dispensing with the need for a sale or exchange are unjustified under the statutory scheme and prevailing capital gain jurisprudence, and further that such holdings constitute bad policy. Part II will set forth a number of examples, based largely on decided cases, where it has been held or contended that recoveries in excess of basis qualify for capital gain treatment even though the taxpayer did not sell or exchange the property. These cases will illustrate the contexts in which this issue arises and will provide a basis ...


Outsiders Looking In: The American Legal Discourse Of Exclusion, Luis E. Chiesa Oct 2007

Outsiders Looking In: The American Legal Discourse Of Exclusion, Luis E. Chiesa

Pace Law Faculty Publications

In the first part of the article it is pointed out that during the last two hundred years our government has frequently enacted measures that unfairly burden certain social groups during times of crisis. The historical analysis set forth in Part II of this article reveals that adoption of such measures is usually justified by an appeal to national security. Thus, we have been told that we need to exclude some groups from the full protection of our laws in order to guarantee the safety of the rest of the populace. The rest of the article is dedicated to explaining ...


The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield Oct 2007

The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield

Pace Law Faculty Publications

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider ...


Why Practice Management?, Gary A. Munneke Oct 2007

Why Practice Management?, Gary A. Munneke

Pace Law Faculty Publications

Today, lawyers must regard the practice of law as a business, inasmuch as they earn their livelihood from the practice of law. The marketplace for legal services is a competitive one; not only has the size of the profession more than quadrupled in the past 50 years, but other professions and businesses have also begun to perform services traditionally restricted to lawyers. For example, accounting firms have encroached on tax litigation, banks in the trusts and estates area, and financial planners in estate planning. In a series of cases, the United States Supreme Court has made it clear that lawyers ...


Advancing Environmental Law At Pace: A Personal Memoir, A Continuing Challenge, Nicholas A. Robinson Sep 2007

Advancing Environmental Law At Pace: A Personal Memoir, A Continuing Challenge, Nicholas A. Robinson

Pace Law Faculty Publications

How did an unaccredited law school, admitting its first students in 1976, become renowned as a national and international leader in environmental education in less than three decades? What did Pace have to attract some of America’s brightest and best college graduates to pursue their careers in environmental law in White Plains? Why did Yale Law School’s Dean Anthony Kronman, in 1999, call Pace’s program one to which “other law schools look with admiration and envy…one of the best in the country, indeed the world…”

Each generation of alumni intimately knows the answer to these questions ...


Disaster Mitigation Through Land Use Strategies, John R. Nolon Sep 2007

Disaster Mitigation Through Land Use Strategies, John R. Nolon

Pace Law Faculty Publications

The devastation wrought by Hurricane Katrina brought to public attention the role of land use planning in mitigating natural disasters and which level or levels of government should decide whether and how to undertake this planning. In the Upper Mississippi River Basin, 6 federal agencies, 23 state agencies in 5 states, and 233 local governments share jurisdiction over various areas of activity on the river; the complexity and disorganization of this legal framework stifles effective action. In this Article, John R. Nolon calls for cooperative federalism and a clarification of agency roles as a remedy for this complexity. Through case ...


Zoning, Transportation, And Climate Change, John R. Nolon Sep 2007

Zoning, Transportation, And Climate Change, John R. Nolon

Pace Law Faculty Publications

On February 2, 2006, the Intergovernmental Panel on Climate Change (IPCC) expressed the consensus of the scientific community that global warming is unequivocal and that its main driver is human activity. On April 7, 2007, the IPCC issued a second report detailing the likely consequences of climate change: widening droughts, more severe storm events, increased inland flooding, sea level rise, and consequent inundation of low lying lands. The Center for Climate Systems Research at Columbia University estimates that sea levels around New York City’s boroughs will increase by five inches by 2030, with some estimates predicting up to 12 ...


Estate Planning For Persons With Less Than $5 Million, Bridget J. Crawford Sep 2007

Estate Planning For Persons With Less Than $5 Million, Bridget J. Crawford

Pace Law Faculty Publications

Individuals of modest wealth may face significant estate taxes but do not have such a large base of wealth that they can 'afford' to make major lifetime gifts or other transfers to reduce estate taxes. But there are planning techniques that can help. Individuals in the ‘modest‘ wealth category face special hurdles in estate planning. This article will assume that the ‘modest‘ wealth category includes individuals whose net worth exceeds the amount of taxable gifts that may be protected by the unified credit (the equivalent of $1 million and herein referred to as the ‘gift tax exemption‘), but does not ...


Farming The Ocean, Ann Powers Sep 2007

Farming The Ocean, Ann Powers

Pace Law Faculty Publications

Was that salmon you ate for lunch caught in the wild, chill waters of the North Atlantic? What about the mussels you had last night? Did they arrive on your table through traditional capture techniques, or were they a product of the fish-farming industry? And if so, does it matter? What else in your daily life might be a result of deliberate culture of once wild species? Protein in your pet's food, gel in your toothpaste and cosmetics, thickener in your pasta sauce, the seaweed in your sushi? For the most part we pay little attention to where our ...


Clustered Zoning Approaches Reduce Congestion, John R. Nolon Aug 2007

Clustered Zoning Approaches Reduce Congestion, John R. Nolon

Pace Law Faculty Publications

The effect of local zoning on our lives usually goes unnoticed despite its profound influence on human behavior. Zoning controls where we live and work, how we get from point A to point B, and what sort of homes we live in. This article provides examples of successful transit-oriented development projects at the local level as well as how state and federal government can contribute to the clustering effort via financing and research programs as well as providing appropriate infrastructure.


Climate Change As A Global Challenge, Nicholas A. Robinson Aug 2007

Climate Change As A Global Challenge, Nicholas A. Robinson

Pace Law Faculty Publications

No abstract provided.


Transit Orientation Reduces Car Dependency, John R. Nolon, Jessica A. Bacher Jun 2007

Transit Orientation Reduces Car Dependency, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

Urban dwellers emit less greenhouse gases per capita than their suburban or rural counterparts because urban environments are conducive to less automobile travel and require less energy to heat or cool their smaller urban living quarters. This article addresses the need for a more comprehensive transit oriented land use paradigm by taking the reader through a step-by-step approach to accomplishing this goal. The suggested model exemplifies the complexity of amending community planning and the importance of incorporating several different groups of people into the planning process. These groups include municipal, state, and federal governments, research groups, developers, and regional transportation ...


Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman May 2007

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Pace Law Faculty Publications

No abstract provided.


Local Inclusionary Housing Programs: Meeting Housing Needs, John R. Nolon, Jessica A. Bacher May 2007

Local Inclusionary Housing Programs: Meeting Housing Needs, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top-down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques, or explaining relevant theories or the economics of the issue of ...


The International Human Rights Committee: The Global Influence Of The City Bar, Mark R. Shulman May 2007

The International Human Rights Committee: The Global Influence Of The City Bar, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.


Green Light For Green Infrastructure, Alexandra Dapolito Dunn May 2007

Green Light For Green Infrastructure, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


Global Warming: Zoning May Be An Antidote To Climate Change, John R. Nolon, Jessica A. Bacher Apr 2007

Global Warming: Zoning May Be An Antidote To Climate Change, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

Through the use of transit oriented development (TOD) several New York municipalities have transformed into more sustainable communities by reducing greenhouse gas emissions. Contrary to popular belief, these municipalities proved that reduction of emissions is possible while still expanding economic growth. This article highlights several success stories in a variety of community landscapes beginning with a look at urban redevelopment in Yonkers, White Plains, and New Rochelle, New York, and then transitions to suburban success stories in Orangetown, and several municipalities along the Bear Mountain Parkway.


Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield Apr 2007

Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield

Pace Law Faculty Publications

When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme ...


Moot Court In Global Language Of Trade, Mark R. Shulman Apr 2007

Moot Court In Global Language Of Trade, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.


The Mighty Myths Of Kelo, John R. Nolon Apr 2007

The Mighty Myths Of Kelo, John R. Nolon

Pace Law Faculty Publications

The press releases of property rights activists and the media’s rapid embrace of their views have perpetuated several myths about the U.S. Supreme Court’s decision in Kelo v. New London. In the immediate aftermath of this myth making, the legislatures of several states have adopted restrictions on the use of eminent domain with uncharacteristic speed. Wisely, the New York State Legislature has been more cautious in its reaction.


Didden V. Port Chester: Placing Eminent Domain Debate In Proper Perspective, John R. Nolon, Jessica A. Bacher Feb 2007

Didden V. Port Chester: Placing Eminent Domain Debate In Proper Perspective, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

Controversy often arises when landowners in blighted areas resist government driven urban-renewal condemnation of their property. Often, these urban-renewal areas, the scope of which is determined after extensive study, are condemned and transferred to a private developer who has an overall plan for the entire designated area. This article discusses the issues that arise when private property interests are overridden by public interests and how urban renewal will help revitalize the economies of troubled inner-city regions.


"Forever Wild": New York's Constitutional Mandates To Enhance The Forest Preserve, Nicholas A. Robinson Feb 2007

"Forever Wild": New York's Constitutional Mandates To Enhance The Forest Preserve, Nicholas A. Robinson

Pace Law Faculty Publications

Professor Robinson explores some of the evident, and also some of the less apparent legal implications that can be drawn from recognizing the implicit “land ethic” that resides within the “forever wild” conception of the Forest Preserve in New York’s Constitution. It is his thesis that the executive branch of State government, our Governors and most of our other State and local authorities, have observed the mandates of Article XIV most shallowly. They have ignored their stewardship duties to promote “forever wild forest lands.” Civic groups, and courts should not only concern themselves with the task of keeping government ...


Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa Jan 2007

Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa

Pace Law Faculty Publications

No abstract provided.


Normative Gaps In The Criminal Law: A Reasons Theory Of Wrongdoing, Luis E. Chiesa Jan 2007

Normative Gaps In The Criminal Law: A Reasons Theory Of Wrongdoing, Luis E. Chiesa

Pace Law Faculty Publications

In this article it is argued that in two controversial homicide cases--severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area--it is permissible to kill innocent human beings without having to establish the existence of a claim of justifcation such as self-defense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrong, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best ...


Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher Jan 2007

Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

This article explores the relationship among zoning, transportation planning, and climate change. It discusses the relationship between land use densities and transportation choices, reviews the trend toward transit oriented development in higher density communities and transportation efficient development in lower density areas, presents several case studies where land use and transportation planning are beginning to intersect, and ends with a strategic approach for communities to consider.


Regulating Municipal Separate Storm Sewer Systems, Alexandra Dapolito Dunn Jan 2007

Regulating Municipal Separate Storm Sewer Systems, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman Jan 2007

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Pace Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if ...