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Elisabeth Haub School of Law Faculty Publications

2001

Articles 1 - 29 of 29

Full-Text Articles in Law

Our Town: Local Governments Play Larger Role In Environmental Policy, John R. Nolon Dec 2001

Our Town: Local Governments Play Larger Role In Environmental Policy, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

People normally perceive environmental law to be a piecemeal of federal laws mostly concerned with terminating pollution from point sources, such as smoke stacks or water pipes. Land use law on the other hand, is normally a local undertaking, often ignoring national or even regional issues. Today’s new breed of environmental problems, such as sprawl, require that different levels of government work together to create a comprehensively planned land use strategy in order to mitigate long-term environmental degradation. Through the use of financial incentives and other tools, larger bodies of government help encourage local governments to take the necessary steps …

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Local Protection: Raising A Matter Of 'Sovereign Concern', John R. Nolon Oct 2001

Local Protection: Raising A Matter Of 'Sovereign Concern', John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Challenges to the expansion of local initiatives aimed at local environmental protection question the powers delegated to municipal governments from the state. New York case precedent suggests that express and implied police power authority conferred from the state to municipalities is a broad concept and includes the power to protect natural resources, scenic views, and other environmental concerns. Through the use of this power, localities are better able to meet the environmental challenges they are faced with by using innovative grass-roots initiatives

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Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman Oct 2001

Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of …

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Kosovo Myths: Karadzic, Njegos, And The Transformation Of Serb Memory, Alexander K.A. Greenawalt Oct 2001

Kosovo Myths: Karadzic, Njegos, And The Transformation Of Serb Memory, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This brief sketch of the Kosovo myth and its legacy allows one to see how the legend has played such a central role in the popular imagination of the Balkans. In its broader implications, the myth has figured in the debate concerning the origins of national identity. Observing that "the Kosovo battle became an ineradicable part of Serbian history immediately after 1389” and "inspired the greatest cycle of Serbian epic poetry, which was full of hope for the final victory and deliverance,” Aleksa Djilas has thereby argued that "the nineteenth century only revolutionized national identities already formed by language, culture, …

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Battle For The Ages: Defining Federal Power To Affect Local Land Use, John R. Nolon Aug 2001

Battle For The Ages: Defining Federal Power To Affect Local Land Use, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Under the 10th Amendment, the United States Constitution allows states to control land use within their jurisdiction. The federal government therefore, in its efforts to mitigate environmental damages caused by sprawl and over development, is limited to federal statutes carried about by federal agencies such as the Environmental Protection Agency managed Clean Water Act. Although these federal programs are helpful at reducing pollution from point sources, they are precluded from regulating non-point sources, such as the increased storm water run-off caused by expanding development. Through federally backed programs, states could support regional land use planning that would encourage stronger environmental …

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Supreme Court Takes A Look At Takings, John R. Nolon Jul 2001

Supreme Court Takes A Look At Takings, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In the case of Pazzalo v. Rhode Island the United States Supreme Court reversed a determination by the Rhode Island Supreme Court which held that land owners had no right to sue for a regulatory taking if the land owners purchased title to land on which a preexisting restriction existed. Before this case, the rule in New York also precluded landowners from challenging land use regulations that existed at the time they purchased land. After holding that a regulatory takings challenge existed, the Supreme Court remanded the case back to Rhode Island to decide whether the preexisting regulations affected the …

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In Our Backyards: Analyzing Local Authority To Adopt Environmental Laws, John R. Nolon Jun 2001

In Our Backyards: Analyzing Local Authority To Adopt Environmental Laws, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

While the authority of municipalities to partake in land use decisions is a well-established concept, a question often arises concerning local legislative authority to adopt environmental laws. This article discusses some of the arguments advocating local environmental authority by highlighting the correlation between land use law and environmental law. Also discussed in this article, is the authority granted to local governments by the state legislature and court decisions to mitigate adverse environmental impacts.

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Grantor Trusts And Income Tax Reporting Requirements: A Primer, Bridget J. Crawford May 2001

Grantor Trusts And Income Tax Reporting Requirements: A Primer, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In the last decade, grantor trusts have become a cornerstone of many sophisticated estate plans. Although clients and their advisors employ grantor trusts with great frequency and success, few taxpayers and not all estate planning professionals are fully conversant with the income tax reporting requirements for grantor trusts. Some erroneously assume that because grantor trusts are "ignored" for purposes of calculating taxable income, they are also ignored for purposes of reporting taxable income. this is not always the case, however. This article explains the complex rules with which taxpayers and their advisors must comply for reporting income of grantor trusts. …

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Smart Growth: The Duty To Supply Water To Developing Regions, John R. Nolon Apr 2001

Smart Growth: The Duty To Supply Water To Developing Regions, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

As land development increases across the United States, concerns grow about sustaining an adequate fresh water supply. In fact, states such as Connecticut, an east coast state, where water is thought to be prevalent in comparison to many western states, are already facing water shortages as evidenced by interruptions in stream flow and other factors. Through the use comprehensive governmental action, including smart growth techniques, federal, state, and local governments have an opportunity to mitigate water shortages in states like Connecticut by integrating governmental processes and increases in scientific research.

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Of Rants And Money, Jack Mcneill Mar 2001

Of Rants And Money, Jack Mcneill

Elisabeth Haub School of Law Faculty Publications

We should create and maintain a bright line between professionals and nonprofessionals in law libraries. If we fail to acknowledge any difference between professionals and non-professionals, why should our employers? The least we should ask of people seeking to enter the profession is to make a commitment to the profession by earning a degree. Rather than act as individuals within a profession, we must act as professional individuals, continually aware of how our individual actions will influence our field. Perhaps then we can stop ranting and begin enjoying the fruits of our professional labor.

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Our Town: What Is The Role Of Local Government In Environmental Law?, John R. Nolon Feb 2001

Our Town: What Is The Role Of Local Government In Environmental Law?, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The scope of environmental law extends beyond the federal statutes most people associate with protecting the natural world. At both the state and local level, governments have broad authority to protect the environmental integrity within their jurisdiction. State legislation such as New York’s State Environmental Quality Review Act (SEQRA) affect all government actions that may have a negative environmental impact. Furthermore, local governments, using tools originally created to enhance the value and safety of property are now using this authority, and other more novel methods, to mitigate negative environmental impacts. This article gives a brief synopsis on the background of …

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Just Being A Lawyer: Reflections On The Legal Ethics Of A President Under Impeachment, John A. Humbach Jan 2001

Just Being A Lawyer: Reflections On The Legal Ethics Of A President Under Impeachment, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The core vice that Posner finds in Clinton’s efforts to contain the truth of the Lewinsky affair is very similar to a fault the public perceives in the behavior of lawyers generally. Namely, lawyers often try to obscure or distract from factual truth order to prevent the law from applying as intended. Most of this avoidance behavior is technically lawful because, for pragmatic reasons, allowances for such avoidance have been deliberately built into the criminal laws against perjury, obstruction of justice and the like. These allowances are a compromise that the law makes with morals so its criminal prohibitions will …

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Deja Vu All Over Again, Gary A. Munneke Jan 2001

Deja Vu All Over Again, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Why talk about the future at all? As a professor I am a student of change. But do forecasts about the future matter to the average practitioner. My answer is a resounding YES! To understand my attitude, it's important to look at the work of the Futurist Committee of the ABA Law Practice Management Section.

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Criminal Prosecution For Hmo Treatment Denial, John A. Humbach Jan 2001

Criminal Prosecution For Hmo Treatment Denial, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This article will first provide a brief examination of the economic pressures that market forces bring to bear on HMOs and their decision-making personnel. The objective is to show how the natural effect of normal market forces is to exert a constant pressure towards treatment delays and denials, particularly in the cases of elderly and chronically ill patients. Part III will provide an overview of the existing criminal law as it applies to situations in which death results because someone has violated a legal duty to provide medical treatment. In Part IV, the question of the requisite mental culpability will …

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Recent Case: United States V. Hayes, 227 F.3d 578 (6th Cir. 2000), Emily Gold Waldman Jan 2001

Recent Case: United States V. Hayes, 227 F.3d 578 (6th Cir. 2000), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In 1996, the Supreme Court recognized the existence of a federal psychotherapist-patient privilege in Jaffee v. Redmond. The Court did not explain, however, how this evidentiary privilege should coexist with a psychotherapist's so-called Tarasoff duty to breach confidentiality when necessary to protect third parties against whom a patient has articulated serious threats. Jaffee included a footnote indicating that the privilege was not intended to invalidate this duty, but left unclear whether the privilege continues once disclosure of the patient's threats has breached confidentiality. Indeed, the two circuits that have considered this issue since Jaffee have adopted divergent approaches. The Tenth …

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The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman Jan 2001

The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court held in Widmar v. Vincent that state universities could not constitutionally deny religious groups access to facilities generally available to student groups, a number of school districts authored access policies that were designed to create “limited public forums.” These policies delineated the categories of activities for which school property could be used, and indicated that religious activities were not among them. In Lamb's Chapel v. Center Moriches Union Free School District, however, the Supreme Court struck a blow to the notion that school districts could employ the limited public forum approach to exclude religious activities from …

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Legal Skills For A Transforming Profession, Gary A. Munneke Jan 2001

Legal Skills For A Transforming Profession, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

The legal profession is undergoing dramatic changes that will drive a reformation in legal education. Legal educators must anticipate these changes to effectively prepare students for the practice of law in the twenty-first century. In order to be proficient practitioners, these students will require an expanded set of professional skills. Although the current legal skills paradigm was articulated by the American Bar Association MacCrate Task Force in 1991, it is time to reexamine legal skills with an eye toward preparing students to practice law in the new millennium. In Section II, this article examines trends in modern society and the …

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Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson Jan 2001

Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Without a better global effort to prevent and cope with forest fires, the remaining wild forests' resources of the world are at risk. Quite apart from the present loss of commercial timber and species habitat, and the present problems of flooding and erosion in the aftermath of fires, the loss of these wooded lands will reduce the capacity of regions to absorb carbon dioxide through photosynthesis, thereby making the challenge of managing emissions of greenhouse gases all the more problematic. Forests sequester carbon in their woody tissue as a result of photosynthesis, and are often termed the “lungs” of the …

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Practicing Law Across Geographic And Professional Borders: What Does The Future Hold?, Gary A. Munneke Jan 2001

Practicing Law Across Geographic And Professional Borders: What Does The Future Hold?, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

A new global business reality is transforming the practice of law. Nowhere is this transformation more apparent than in the areas of multijurisdictional and multidisciplinary practice. These two trends, towards practice across jurisdictional boundaries on the one hand and across professional boundaries on the other, are engaging the attention of lawyers at the American Bar Association, the Canadian Bar Association: the American Corporate Counsel Association, the International Bar Association, as well as numerous other state and local, international, and specialty bar associations. This article describes that new business reality, those trends, and some of the ethical constraints presented by current …

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David Ross Brower And Nature's Laws, Nicholas A. Robinson Jan 2001

David Ross Brower And Nature's Laws, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

“We're not blindly opposed to progress. We're opposed to blind progress.” These words summed up the style and power of David R. Brower. Indelibly, he chiseled toe hold after toe hold on an arduous climb across the rock face of the commercial forces driven to seek short-term gain from natural resources and oblivious to the longer-term costs to the Earth that the ecological sciences would chronicle but that economists would disregard as mere “externalities” in their classical market models. As Brower campaigned to protect the wilderness of North America and the Earth, through his sheer conviction and abundant eloquence, he …

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The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin Jan 2001

The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.

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The Academic Support Student In The Year 2010, Leslie Yalof Garfield Jan 2001

The Academic Support Student In The Year 2010, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Academic support professionals have long recognized the benefits of imparting a greater knowledge of learning skills to law students as a way to enhance their ability to learn the law. Consequently, the science and pedagogy of academic support have become a staple of legal education. However, while the need for academic support remains a constant, the identification of those in need of academic support programs continues to be in flux. Growing social awareness of an expanded definition of diversity, recent decisions such as Hopwood v. Texas and the proliferation of academic support programs have expanded the definition of the academic …

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Still Not Behaving Like Gentlemen, Ann Bartow Jan 2001

Still Not Behaving Like Gentlemen, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Child Witnesses And Procedural Fairness, Bennett L. Gershman Jan 2001

Child Witnesses And Procedural Fairness, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman's Article notes that courts and lawmakers have changed procedural and evidentiary rules to protect child witnesses in child sexual abuse cases. Gershman discusses how courts apply the changed rules with careful scrutiny in an effort to ensure that the interests of the child witness and the accused defendant are appropriately balanced.

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The Prosecutor's Duty To Truth, Bennett L. Gershman Jan 2001

The Prosecutor's Duty To Truth, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also …

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The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein Jan 2001

The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

The premise of this essay is not to espouse that the Southern ideological and constitutional theorists were correct. I propose, however, that an understanding of the historical basis of constitutional law, and a recognition of evolving doctrinal issues of Federalism, will enhance law school curriculum. Presentation of these topics dictates the introduction of the Confederate Constitution into the curriculum of required courses and electives. This effort, I propose, would be a prudent step, to be amply repaid in terms of higher understanding and scholarly benefit.

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Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan Jan 2001

Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State's interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members' interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over “cases and controversies” to the federal courts, …

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Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle Jan 2001

Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This Survey Article will review some of the district and circuit courts' significant decisions, and comment on future trends for application of the law of personal jurisdiction in the Second Circuit. The Article concludes with a recommendation that district court judges should not grant or deny personal jurisdiction defenses until at least limited jurisdictional discovery has been granted and is completed.

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Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson Jan 2001

Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Decisionmakers disregard scientific findings regarding environmental conditions, despite recommendations of the 1992 "Earth Summit" in Agenda 21 that science should provide a foundation for sustainable development. Although environmental degradation trends continue to exacerbate, decisionmakers address only selected issues. This Article examines an analytic paradigm for evaluating when decisionmakers are ready to address a problem and describes the catalytic role that scientific information can serve in prompting remedial action. Unless systematic procedures require evaluation of environmental scientific findings in the normal course of decisionmaking, science will continue to be ignored. One hallmark of Environmental Law has been to fashion such procedures, …

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