Law Commons^™

Accessing Law: An Empirical Study Exploring The Influence Of Legal Research Medium, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium.

This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed …

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

The Professor And The Judge: Introducing First Year Students To The Law In Context, Michael B. Mushlin, Lisa Margaret Smith

Elisabeth Haub School of Law Faculty Publications

For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of …

To Abbreviate Or Not To Abbreviate: A Perspective On Administrative Agency Bluebook Citations, Taryn L. Rucinski

Elisabeth Haub School of Law Faculty Publications

For students and practitioners, one of the most confusing issues posed today by The Bluebook lies in when and how to abbreviate federal and state administrative agency names. Or to put it another way: Do I use: EPA, E.P.A., Envtl. Protection Agency, or U.S. Envtl. Protection Agency?

Seeking Justice In The Empire State: Court Of Appeals Broadens The Reach Of Long Arm Jurisdiction And Clarifies The Statutory Guidelines For Application Of Cplr Section 302(A)(1), Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss developments in long-arm jurisdiction under CPLR section 302(a)(1)1 and analyze the recent New York State Court of Appeals‘s thoughtful and instructive decision in Licci ex rel. Licci v. Lebanese Canadian Bank, SAL. Licci decided the question of whether a non-domiciliary‘s maintenance of a bank account in New York constituted a “transaction of business” out of which the plaintiff‘s claims arose under the state‘s long-arm statute. The Licci plaintiffs had alleged that the defendant funded a terrorist organization responsible for the injuries and deaths of certain plaintiffs and decedents they represented. The Licci opinion did not decide …

A Restatement Of Copyright Law As More Independent And Stable Treatise, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Copyright scholar Ann Bartow proposes a Restatement of her field of expertise, an area dominated by one federal statute, the Copyright Act. One might have thought that the traditional Restatement attention to state rather than federal law and common law rather than statutes would disqualify copyright from restateability. But as other contributions to this Symposium observe, federal statutory law has long lain in the sights of restaters, and as Bartow shows, copyright is plenty “complicated,” disputed, and refashioned in the courts. Moreover, as Bartow argues, the place that Restatement of Copyright could occupy is now held by a for-profit treatise …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to …

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

Fundamental Principles Of Law For The Anthropocene?, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A wide array of questions arises from global change to confront environmental law. The IPCC has examined social decisions affecting the climate in the design of human settlements, transport systems, industrialisation, agriculture and silviculture, waste management, provisions for energy, and virtually all other socio-economic dimensions of human life. The AR-5, too, cannot avoid raising issues of human ethics and values at local and regional scales. Such issues reach environmental policy and law directly. The IPCC’s AR-5 report furthers widespread public debate about the human dimensions of climate change, and how social theory relates to environmental change. Already, climate change has …

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …

In Memoriam: David Sive (1922-2014) And Joseph Sax (1936-2014), Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.1 Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.

Threats And Bullying By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and …

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article hopes to make evident two trends seemingly in conflict. The first trend is toward raising the standards of probity and veridicality in contractual relations toward greater accountability and liability on market actors operating outside traditional bounds. The first is expressed by new rules that: require good faith and fair dealing between parties; ensure sellers are obligated to disclose material facts about a property otherwise unavailable to buyers; and make wrongdoing parties liable to non-parties who foreseeably relied on the wrongdoers' contractual undertakings. This trend promises to avert injury, achieve efficiency, and seems to accord with society's evolving notions …

The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Keynote: Sustaining Society In The Anthropocene Epoch, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy …

Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development Of Clean Water Law, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.

But the revolutionary effect of the newly minted citizen suit was not limited to …

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

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

What Went Wrong: Prudent Management Of Endowment Funds And Imprudent Endowment Investing Policies, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

Most colleges and universities of all sizes have an endowment, a fund that provides a stream of income and maintains the corpus of the fund in perpetuity. Organizations with large endowments, such as colleges, universities, and private foundations, all finance a significant part of their operations through the return received from the investment of this capital. This article examines the legal framework for endowment investing, endowment investing policies, their evolution to more sophisticated and riskier strategies, and the consequences evinced during the financial crisis of 2008 and beyond. It traces the approaches to endowment investing and chronicles the rise and, …

Preface To Protecting The Environment Through Land Use Law: Standing Ground, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes …