Law Commons^™

Land Use Law Reform: A Judicial And Practical Imperative, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The practical lesson learned from a review of New York case law on land use planning is straightforward: judges will seldom overturn land use regulations when it is obvious, in the structure of the regulatory program, that considerable and comprehensive planning is involved. When judges sustain land use regulations, they routinely find in the regulatory scheme a valid local planning objective that saves the regulation from falling under the property owner's attack. The bases for this judicial reasoning lie in the statutory requirement that zoning provisions must be adopted "in accordance with" a "comprehensive plan" and the constitutional requirement that …

Defending The Poor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given the harsh reality that the quality of justice that people get in this country often depends on how much money they have , is our society's aspiration toward "equal justice" attainable? Probably not. A criminal defendant's poverty is not necessarily inconsistent with zealous advocacy. But whether lawyers for the poor adequately protect their clients' rights in criminal cases is the subject of ongoing debate.

Procedural Fairness And Incentive Programs: Reflections On The Environmental Choice Program, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

This paper explores the application of procedural fairness to the federal government’s Environmental Choice Program’s decision-making processes. While Canadian courts have traditionally required public bureaucrats to act “fairly” when implementing command models of regulation, they have only recently been confronted with demands that regulators implementing economic incentive programs also act in accordance with procedural fairness norms.

Reclaiming The Public Domain By Repeal Of The Mining Law Of 1872, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This paper offers an analysis of the new allocation of burdens and benefits in the use of public lands as contemplated by the proposed legislation. In Part III, I discuss the acquisition of property rights under the General Mining Law of 1872. In Part IV, the theory of property in general is explained along with the types and nature of property interests inhering in, and arising from, a mining claim. I explain the recent efforts in Congress to reform the mining law in Part V and the concept of a taking of property in general in Part VI. I discuss …

Turning Wine Into Water: Water As Privileged Signifier In The Grapes Of Wrath, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

I will argue that The Grapes of Wrath represents an indictment of the American myth of the garden and its accompanying myth of the frontier. The lever with which Steinbeck pries apart and ultimately dismantles these fictions is a critique of the agricultural practices that created the Dust Bowl and then metamorphosed into a new set of norms which continued to victimize both the land and its inhabitants. Both nineteenth-century homesteading (based on the Homestead Act of 1862) and agribusiness, its twentieth century descendant (born from the failure of the Homestead Act), relied on the (mis)use of water to accomplish …

Themes Of Injustice: Wrongful Convictions, Racial Prejudice, And Lawyer Incompetence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The U. S. criminal justice system has undergone radical changes in the past generation. Crime is more complex; prosecutors are more powerful; and courts, corrections agencies, and defense services are burdened with larger case loads and tighter budgets. It is not the best of times to talk about justice. Yet, it is a subject that needs to be constantly addressed, particularly in times of crisis. The following essay focuses on some of the problems that present themselves in the criminal justice system today, including the conviction of innocent defendants, especially in capital cases; racial prejudice; and lawyer incompetence.

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1992 Survey year, “new” legislation was enacted which fundamentally changes the procedure for commencement of some lawsuits. Effective December 31, 1992, all civil actions in supreme and county courts must be commenced by filing a summons and complaint or summons with notice. Several important amendments to the Civil Practice Law and Rules (“CPLR”) were enacted and effective January 1, 1993, new IAS and escrow check bouncing rules became effective. Additionally, there have been significant developments in the decisional law of statute of limitations, discovery, sanctions, and the legal profession. These and other areas should be of interest to …

A Tribute To Hervey M. Johnson, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Evolving Thresholds Of Nuisance And The Takings Clause, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This article reviews the historical tradition in which the common law core of nuisance has been the frequent subject of statutory additions and refinements, providing most of our modern law of land use and environmental protection. Until Lucas, the Takings Clause had not been treated as a charter establishing the courts as boards of revision to rethink and selectively veto legislative determinations in the land use field. Within the scope of “total takings,” however, Lucas has converted the Takings Clause from its original meaning and made it exactly that.

The Exclusion Of Pregnant, Pregnable, And Once-Pregnable People (A.K.A. Women) From Biomedical Research, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

The barriers to women's participation as subjects in biomedical research are currently being challenged as a matter of legislative policy, medicine, and law. This Article catalogs the ways in which women have been disadvantaged by their exclusion and recent developments to redress them, and goes on to dissect the underlying rationales for excluding women from clinical trials. The author reveals the 'fundamental misconception' behind exclusionary rationales, and argues that research sponsors in fact have more to fear in the way of potential liability from the exclusion of women, even pregnant women and women of child-bearing capacity, than from their inclusion. …

Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …

Introduction: Dedication To James A. Coon, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This issue of the Pace Law Review is dedicated to a man and an idea in which he believed. James A. Coon was land use counsel to the Department of State in New York when he died in 1992. For a quarter of a century he served as counsel to several New York State agencies, all involved in some way with providing technical assistance to those interested in the subject of land use law. For James Coon, and those who learned from him, land use law carries with it a significant set of responsibilities. It establishes the rules that dictate …

Strict Products Liability Under Restatement (Second) Of Torts § 402a: "Don't Throw Out The Baby With The Bathwater", M. Stuart Madden

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Comprehensive Land Use Planning: Learning How And Where To Grow, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article explores the origins, evolution and contemporary workings of the legal system that determines the use of land. In Part II, the development of zoning and comprehensive planning laws in the United States is traced, emphasizing the importance that zoning be “in conformance with” a comprehensive land use plan, a requirement meant to provide direction and purpose to land use regulation. This retrospect shows that, from the beginning, the framers of the nation's land use regime were indecisive. They failed to define a comprehensive plan, to detail what such a plan should contain, and to prescribe how planning should …

Organ Donation As National Service: A Proposed Federal Organ Donation Law, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

It is time to consider an alternative approach to organ procurement and allocation -- one that relies on presumed consent to organ donation, combined with incentives which recognize the communal basis of the obligation to donate one's organs after death. Such a system must provide numerous opportunities for “opting out” of donation in order to promote individual autonomy and use economic and eleemosynary incentives for persons to contribute their organs after death. Mere mention of the words “presumed consent” and “compensated donation” may raise ethical eyebrows. However, a system of presumed consent to compensated organ donation should be considered as …

After A Decade: "Theory As Practice" At The Center For Environmental Legal Studies, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A scholarly center, with an ethically premised mission to further the remedial objectives of Environmental Law: this conception inspired establishment of Pace's Center For Environmental Legal Studies in 19821 when Professor Donald W. Stever, Jr., joined me in launching this new focus through which the Pace University School of Law's Environmental Law Faculty could use their expertise to further, refine, and fashion environmental protection and the conservation of natural resources. In the Center's first decade, our Environmental Faculty managed to exceed our Center's imagined goals, and as the Center enters its march to the year 2002, we are rethinking our …

Consumer Redress Through Alternative Dispute Resolution And Small Claims Court: Theory And Practice, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

There are significant difficulties in providing consumers with redress because dispute resolution costs are high relative to the sums being sought. Consumers also manifest a reluctance to enter legal processes for other reasons. This prompted the creation of user-friendly small claims courts and encouraged the discussion and sometimes the use of non-judicial, alternative dispute resolution forums for addressing consumer redress. This paper explores the theoretical and practical distinction between these two types of dispute resolution forums. The practical differences are examined on the basis of observation of both types of forums and discussions with practitioners of alternative dispute resolution.

The …

Schneer V Commissioner: Continuing Confusion Over The Assignment Of Income Doctrine And Personal Service Income, Ronald H. Jensen

Elisabeth Haub School of Law Faculty Publications

This article will analyze the proper application of the assignment of income doctrine to personal service income. Part II will trace the historical development of the assignment of income doctrine and will analyze the doctrine's underlying rationale. The importance of distinguishing between gratuitous and nongratuitous assignments of income will be developed in this Part. Part III will present a number of hypothetical situations drawn from actual cases and rulings that involve the application of the doctrine to personal service income. This will both show the pervasiveness of the doctrine and lay the basis for further analysis. Part IV will demonstrate …

Law Firm Restructuring: The Big Picture, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

The term "restructuring" has become a buzzword for law firm efforts to improve the bottom line by altering the composition of the firm's personnel. In many instances, this is accomplished by "downsizing," a word more easily spoken than "firing." As opportunities for ownership interest in law firms evaporate, firms talk about "nonequity partners" and "rainmaking" skills. Such euphemisms are often used to sugarcoat the bitter medicine of economic reality. It may be useful to look more closely at the phenomenon of restructuring, although cynics might say lawyers should look at structuring first. In either case, taking a look at the …

The Erosion Of Home Rule Through The Emergence Of State-Interests In Land Use Control, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The conventional wisdom is that New York's failure to adopt a comprehensive state-wide land use system is due to reluctance of the state legislature to diminish local control of land use. The purpose of this article is to explore that assumption as part of a larger examination of the proper course of land law reform in New York. The case and statutory law that have developed since the experiences of the early 1970s indicate that local “home rule” authority is neither a legal nor a political barrier to effective land use legislation in the broader state interest. Part II briefly …

"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence …

A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …

The Failure To Notify Putative Fathers Of Adoption Proceedings: Balancing The Adoption Equation, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Reflections On United States V. Helmsley: Should "Impossibility" Be A Defense To Attempted Income Tax Evasion?, Ronald H. Jensen

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the appropriateness of the No-Tax-Due defense, and the circumstances in which the No-Tax-Due defense should prevail against a charge of attempted income tax evasion. Part II poses, as a basis for analysis, a set of hypothetical cases in which the defense is potentially available. Part III reviews the background of this issue, including the statutory scheme of the federal tax crimes, relevant legislative history and the judicial development of the No-Tax-Due defense. Part IV reviews the impossibility defense in the law of attempt and points out its similarity to the No-Tax-Due defense. Part V proposes a revised, …