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Touro College Jacob D. Fuchsberg Law Center

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Full-Text Articles in Law

The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine Jan 2019

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

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This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.


Fashioning An Effective Negotiation Style: Choosing Between Good Practices, Tactics, And Tricks, Harold I. Abramson Jan 2018

Fashioning An Effective Negotiation Style: Choosing Between Good Practices, Tactics, And Tricks, Harold I. Abramson

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This article addresses two long standing issues in negotiations. First, what choices should we make to be effective? This article offers a schema for classifying the choices into one of three categories and in so doing, classifies choices based on likely benefits and degree of risk when fashioning an effective negotiation style. The second question is how to distinguish between negotiation style, the subject of this article, and our natural conflict style. By highlighting the distinction between how we want to negotiate (negotiation style) and how we naturally negotiate (conflict style), this article offers a way to become the negotiator ...


Another Look At Lawyer Discretion To Assist Clients In Unlawful Conduct: A Response To Professor Tremblay, Samuel J. Levine Jan 2018

Another Look At Lawyer Discretion To Assist Clients In Unlawful Conduct: A Response To Professor Tremblay, Samuel J. Levine

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Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct that is not criminal or fraudulent. After introducing the issue through three illustrative scenarios, which he labels “lawbreaking stories,” Professor Tremblay engages in an extensive analysis of the applicable substantive law, relying primarily on ethics codes, which directly regulate the work of lawyers, with additional reference to other sources of law. Having reached the considered conclusion that the law does ...


Afterword: What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis, Steven W. Bender, Francisco Valdes, Jorge R. Roig, Jasmine Gonzalez Rose, Saru Matambanadzo, Roberto Corrada, Shelley Cavalieri, Tayyab Mahmud, Zsea Bowmani, Anthony E. Varona Jan 2018

Afterword: What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis, Steven W. Bender, Francisco Valdes, Jorge R. Roig, Jasmine Gonzalez Rose, Saru Matambanadzo, Roberto Corrada, Shelley Cavalieri, Tayyab Mahmud, Zsea Bowmani, Anthony E. Varona

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In this multi-vocal Afterword, we reflect-personally and collectively to help chart renewed agendas toward and through a third decade of LatCrit theory, community, and praxis. This personal collective exercise illustrates and reconsiders the functions, guideposts, values, and postulates for our shared programmatic work a framework for our daily work as individuals and teams through our portfolio of projects, which in turn emerged as a "reflection and projection of LatCrit theory, community and praxis." These early anchors expressly encompassed (1) a call to recognize and accept the inevitable political nature of U.S. legal scholarship; (2) a concomitant call toward anti-subordination ...


How To Build A Better Bar Exam, Eileen Kaufman, Andrea Anne Curcio, Carol L. Chomsky Jan 2018

How To Build A Better Bar Exam, Eileen Kaufman, Andrea Anne Curcio, Carol L. Chomsky

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As a licensing exam, the purpose of the bar exam is consumer protection–-ensuring that new lawyers have the minimum competencies required to practice law effectively. As critics point out, however, the exam, and particularly the multiple-choice question portion of the exam, has significant flaws because it assesses legal knowledge and analysis in an artificial and unrealistic context, and the closed-book format rewards the ability to memorize thousands of legal rules, a skill unrelated to law practice.

This essay discusses how to improve the exam by changing its multiple-choice content and format. We use two law licensing exams to illustrate ...


When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley Jan 2017

When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley

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Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal ...


Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine Jan 2017

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered ...


The Criminalization Of Walking, Michael Lewyn Jan 2017

The Criminalization Of Walking, Michael Lewyn

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The simple act of walking is sometimes criminalized in the United States. Anti-jaywalking statutes and ordinances—originally motivated by auto-industry lobbyists in the 1920s—call for fines and, sometimes, imprisonment for crossing the street. Additionally, some localities have interpreted statutes against “child neglect” to encompass a parent’s decision to let their kid walk outside alone. The result of this criminalization? Such policies have reduced pedestrian liberty, increased automobile traffic and pollution, and created a disincentive for physical activity in the midst of an obesity and diabetes epidemic. In addition to discussing these effects, this Article argues that the purported ...


Transforming Justice, Lawyers And The Practice Of Law, Marjorie A. Silver Jan 2017

Transforming Justice, Lawyers And The Practice Of Law, Marjorie A. Silver

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This is the Preface and Introduction to Transforming Justice, Lawyers and the Practice of Law, an anthology of writings by participants in the Project for Integrating Spirituality, Law and Politics (PISLAP) and others actively engaged in transforming law, legal education and social justice. It showcases the abundant ways in which lawyers, judges, law professors and others are employing more communitarian, peaceful and healing ways to resolve conflicts, plan legal relationships and achieve justice. It is written for lawyers, law professors, law students and others who share similar goals and are eager to learn new ways to practice law and create ...


The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine Jan 2017

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

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This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced ...


Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine Jan 2017

Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine

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In recent years, Jewish law has gained significant prominence in American legal scholarship, producing a substantial body of literature exploring the Jewish legal system, both on its own terms and in comparative perspective. In particular, the past few decades have seen a marked increase in the number of articles published in American law reviews addressing substantive, procedural, and conceptual aspects of Jewish law, often in the context of broader considerations of important, unsettled, and controversial issues in American legal thought.

In the past, a number of scholars have compiled bibliographies collecting and, at times, briefly annotating, lists of selected works ...


A Reply To The National Conference Of Bar Examiners: More Talk, No Answers, So Keep On Shopping, Suzanne Darrow Kleinhaus Jan 2017

A Reply To The National Conference Of Bar Examiners: More Talk, No Answers, So Keep On Shopping, Suzanne Darrow Kleinhaus

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In Let the Games Begin: Jurisdiction-Shopping for the Shopaholics (Good Luck With That) Mark Albanese defends the National Conference of Bar Examiners’ grading practices as essential to assuring reliability given the variability in grading between UBE jurisdictions. In addressing the claim that it is possible to achieve different outcomes on the same test by the same candidate if taken in different UBE jurisdictions, he describes how NCBE monitors jurisdiction variation to ensure grading consistency. Those of us concerned, however, with the possibility that the jurisdiction in which a candidate takes the Uniform Bar Examination (UBE) may make the difference between ...


Are Legal Disputes Just About The Money? Answers From Mediators On The Front Line, Harold I. Abramson, Bennett Picker, Bill Marsh, Birgit Sambeth Glasner, Jerry Weiss Jan 2017

Are Legal Disputes Just About The Money? Answers From Mediators On The Front Line, Harold I. Abramson, Bennett Picker, Bill Marsh, Birgit Sambeth Glasner, Jerry Weiss

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Are most disputes in mediation just about money? That’s an old and familiar question that many lawyers still seem to reply to with an emphatic “yes.” Mediated cases are frequently viewed as a clash of binary claims, subject only to a sorting out of financial winners and losers. This popular vision was challenged by an ABA panel of experienced commercial mediators. Together they explored the opportunities for breaking out of this confining legalmold. Years of practice have taught them that many disputes are not just about money, even when money is the presenting issue.


Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy Jan 2016

Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy

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The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly revised NFL Personal Conduct Policy as a ...


Taming The Super-Wicked Problem Of Waterfront Hazard Mitigation Planning: The Role Of Municipal Communication Strategies, Sarah Adams-Schoen Jan 2016

Taming The Super-Wicked Problem Of Waterfront Hazard Mitigation Planning: The Role Of Municipal Communication Strategies, Sarah Adams-Schoen

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In the Adaptation Report of the Fifth Assessment Report (AR5), the Inter-governmental Panel on Climate Change (IPCC) identifies floods in urban riverine and coastal areas as among the key climate-related risks for North America. Not surprisingly for residents of coastal and riverine communities devastated by recent extreme weather events, the Adaptation Report acknowledges that risks related to sea-level rise, increased frequency and duration of extreme precipitation events, and increasingly intense coastal storms are not only future risks, but are current risks that are already manifesting in property and infrastructure damage, ecosystem and social system disruption, public health impacts, and water ...


Ube-Shopping: An Unintended Consequence Of Portability?, Suzanne Darrow Kleinhaus Jan 2016

Ube-Shopping: An Unintended Consequence Of Portability?, Suzanne Darrow Kleinhaus

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Preparing for the Uniform Bar Examination (UBE) may require more than just learning the law; it also means learning in which jurisdiction you should take it. While there is not much that is new about the UBE’s individual components – the Multistate Essay Examination (MEE), the Multistate Performance Test (MPT) and the Multistate Bar Examination (MBE) – what is new is that where you take the UBE may make the difference between passing and failing. This is possible because of the convergence of bar exam test practices of “portability,” “relative grading,” and “scaling” of scores. By adopting the UBE, jurisdictions agree ...


Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson Jan 2016

Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson

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This article considers how “the greatest negotiator of the twentieth century,” Nelson Mandela, approached negotiating the unbanning of the African National Congress (ANC), the dismantling of apartheid, and his own freedom after twenty-seven years of imprisonment. He employed classically good negotiation practices in the face of intense and violent opposition while confined in prison for life. If he could be successful, why cannot lawyers succeed when facing less daunting disputes?

This article focuses on the period starting in 1985, when Mandela refused an offer to be released if he would condemn violence, until 1990, when President de Klerk gave his ...


Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green Jan 2016

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

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Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression ...


Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine Jan 2016

Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine

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Societies are governed by codes of ethics. In developed societies, parts of these codes form a set of laws, enforceable by legal authorities, with or without assistance from the populace. At times, laws are crafted for the benefit of the powerful members of the society, ensuring preservation of their positions and property, while other constituents may ignore, actively disobey, or challenge laws they believe do not support their ethics. Developing and maintaining appropriate social norms is thus particularly critical for sustaining rapidly changing heterogeneous populaces.

The Internet, devised for the purpose of interconnecting diverse computer networks of research and educational ...


A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine Jan 2015

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

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Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court ...


Getting Paid In The Naked Economy, Meredith R. Miller Jan 2015

Getting Paid In The Naked Economy, Meredith R. Miller

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“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits to employers who hire independent contractors rather than employees. There have long existed incentives for employers to characterize workers as independent. What is shifting, however, is the workers’ narrative about independence. At least for creative and highly skilled workers, the changing narrative is one of free agency: ditch the man ...


Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey Jan 2015

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

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Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.


Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris Jan 2015

Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris

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The University of Miami Law Review's 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for several days to consider the significance of the federal district courts more generally.

This article is intended to look at the career of one very well regarded judge through spectacles that offer a different vantage point on a judicial career. Those spectacles-the concept of judicial entrepreneurship-seem to be ...


A Comparison Of The New York Bar Examination And The Proposed Uniform Bar Examination, Suzanne Darrow Kleinhaus, Mary Campbell Gallagher Jan 2015

A Comparison Of The New York Bar Examination And The Proposed Uniform Bar Examination, Suzanne Darrow Kleinhaus, Mary Campbell Gallagher

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The New York Board of Law Examiners (BOLE) proposes adopting the Uniform Bar Exam (UBE), substituting it for the current New York Bar Exam (NYBE). The BOLE proposal is currently under active consideration, and it is the subject of public hearings. This article examines some of the issues the proposal raises. First, we look at the history of the proposal, and at the differences between the UBE and the NYBE as it is currently administered. Then we look in detail at the proposal for New York: a combination of the UBE plus a stand-alone one-hour multiple-choice New York test. Finally ...


The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine Jan 2015

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

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This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims ...


A Three-Legged Stool On Two Legs: Recent Federal Law Related To Local Climate Resilience Planning And Zoning, Sarah Adams-Schoen, Edward Thomas Jan 2015

A Three-Legged Stool On Two Legs: Recent Federal Law Related To Local Climate Resilience Planning And Zoning, Sarah Adams-Schoen, Edward Thomas

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Notwithstanding a critical gap between climate change related risks and preparedness in the United States, congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon. Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development. Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA ...


Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen Jan 2015

Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen

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This update summarizes New York cases related to land use and zoning that were decided in the first half of 2015.


A Response To The Ipcc Fifth Assessment, Sarah Adams-Schoen, Deepa Badrinarayana, Cinnamon Pinon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan D. Rosenbloom, Inara K. Scott, David Takacs Jan 2015

A Response To The Ipcc Fifth Assessment, Sarah Adams-Schoen, Deepa Badrinarayana, Cinnamon Pinon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan D. Rosenbloom, Inara K. Scott, David Takacs

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This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a ...


The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin Jan 2015

The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin

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This article offers advice for anyone preparing to interview for a deanship - go back to what you are passionate about to really express how you might approach serving as a law dean. In this case, the passion centers on the subject of land use planning and sustainable development law. When interviewing for the position of dean of a law school, Academics who rise through the ranks to a deanship have a background in legal scholarship that often marries theory and practice. Faculty spend countless hours, even years, developing theories and concepts to advance the law in a particular discipline. Hopefully ...