Law Commons^™

Environmental Human Rights In New York’S Constitution, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

There is an environmental case to be made in favor of convening a Constitutional Convention. On the 200th anniversary birth of Henry David Thoreau, we can remember his admonition: “Live in each season as it passes; breathe the air, drink the drink, taste the fruit, and resign yourself to the influence of the earth.” What has this to do with the Constitution?

Transition Support Mechanisms For Communities Facing Full Or Partial Coal Power Plant Retirement In New York, Lisa Anne Hamilton, Radina Valova, Karl R. Rábago

Environmental Law Program Publications @ Haub Law

New York State is undergoing a rapid and unprecedented energy transformation, particularly in the electricity sector. As new resources and technologies emerge to meet the demands of 21st century life, regulators must balance the need for cost effective and equitable participation in wholesale power markets while maintaining reliability on the grid. Furthermore, it is critical that all New Yorkers participate fully in the promise of a revitalized and equitable energy future. Such a transformation requires that the needs of all communities are factored into the polices and regulations that move New York toward the bold goals set forth under its …

The Life And Legacy Of Chief Judge Lawrence H. Cooke: "Truly An Exemplary Life. A Life Well Lived", Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

It is an appropriate tribute to the late Chief Judge of New York, Lawrence H. Cooke, that this article be devoted to a man who many leaders of the bench, bar, and academia consider to be the greatest jurist to ever serve on New York State's highest court. Chief Judge Cooke, better known as Larry, served with honor and distinction as an associate judge of the Court of Appeals, and later as Chief Judge.

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Written Testimony On Correctional Oversight Of The Nys Doccs, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

I am testifying today on behalf of both myself and my co-chair Michele Deitch, who has submitted written testimony for your consideration. My comments here reflect both the key points in her testimony as well as some of my own thoughts about the importance of external oversight and comments about the critical role played by the Correctional Association of New York, the failure of the State Commission on Correction to provide meaningful regulation of New York’s prisons, and the need to improve access by the media to the public and to the state’s prisons.

Carbon-Tuning New York’S Electricity System: Uncovering New Opportunities For Co2 Emissions Reductions, Nick Martin

Environmental Law Program Publications @ Haub Law

Distributed energy resources (DER), including technologies and services such as behind-the-meter generation, demand response, energy management, and energy efficiency, are touted as effective ways to improve electric system efficiencies and reduce harmful air emissions. The New York State Public Service Commission’s landmark Reforming the Energy Vision (REV) proceeding aims to unleash competitive forces that will invest in DER across the state with the explicit goal of reducing customer bills and the environmental impact of electricity production.

As initiatives like New York’s REV continue, understanding the emission impacts of DER deployment becomes vital to ensure these efforts achieve the greatest environmental …

Incorporating Ny Land Banks Into The Delinquent Property Tax Enforcement Processes, J. Justin Woods

Elisabeth Haub School of Law Student Publications

This article argues that New York municipalities should integrate land banks into the tax enforcement process to break the unhealthy cycle perpetuated by real estate and lien speculators. By transferring all tax liens and foreclosed properties to local land banks, municipalities can generate an important funding source that will help cover land banks' operations while simultaneously maximizing land banks' ability to reinvest lien proceeds and equity into redeveloping or demolishing properties with little or no value. If New York municipalities use their Land Bank Act powers fully, local and regional land bank efforts can become a vital tools for planning …

Land Use Planning For Solar Energy: Resource Guide, Jessica A. Bacher, John R. Nolon, Tiffany Zezula

Environmental Law Program Publications @ Haub Law

This document was created to help New York State localities develop and adopt solar friendly policies and plans. It begins by presenting the local government’s role in land use planning and regulation and introduces common characteristics of “solar friendly” communities. The resource then describes how municipalities should begin a solar energy initiative through an official policy statement that provides support for solar energy and that authorizes a task force to shepherd the process, appropriate studies, training programs for staff and board members, inter-municipal partnerships, and outside funding sources. Next, the document explains how municipalities should engage the entire community in …

Charting The Course For Energy Efficiency In New York: Lessons From Existing Programs, John Bowie, David Gahl, Nick Martin, Sam Swanson

Environmental Law Program Publications @ Haub Law

This report examines the performance of the existing suite of energy efficiency efforts run by the New York State Energy Research and Development Authority and the state’s investor owned utilities. The latest data shows that through 2014 EEPS program administrators had achieved 79 percent of their to-date savings goals.

The report focuses on the best ways to transition from the EEPS program model to the emerging REV model. Reviewing publicly available information, this analysis takes stock of what the EEPS has achieved and calls for a REV planning and delivery program that builds upon lessons learned from decades of past …

Zoning For Solar Energy: Resource Guide, Jessica A. Bacher, John R. Nolon

Environmental Law Program Publications @ Haub Law

This document is designed to help New York State localities amend zoning and other land use regulations to permit the development of solar energy systems in their jurisdictions. While it applies to many types of solar energy systems, this resource guide focuses primarily on solar electric or photovoltaic (PV) systems. It begins by describing the local government’s role in land use planning and regulation. It then discusses the importance of defining all solar energy systems that a community wants to allow in existing zoning districts and shows how to incorporate those definitions in the zoning ordinance. Next, the guide explains …

The New York Court Of Appeals Visits (And Then Revisits) The Preclusive Impact Of Administrative Findings Of Fact In Subsequent State Court Actions, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, 3 N.E.3d 682 (N.Y. 2013), recognizes that administrative proceedings which take the form of “quasi-judicial” determinations may sometimes be given preclusive impact in subsequent judicial proceedings provided that the identity of issue and full and fair opportunity requirements of collateral estoppel or issue preclusion are satisfied. The decision also recognizes that administrative determinations made without the benefit of rules of evidence, pre-trial disclosure and motion practice should be given very limited affect in subsequent judicial proceedings. The fact that the Empire State’s highest court unanimously reversed itself …

Happy Anniversary To The Cplr: A Joint Achievement Of The Practicing Bar And The Academy, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This September, we celebrated the 50th anniversary of the Civil Practice Law and Rules of New York State. The CPLR was the handiwork of the Advisory Committee on Practice and Procedure, appointed in 1955 by the New York State Temporary Commission on the Courts. Under the leadership of the Committee's reporter, then Columbia Law School Professor Jack B. Weinstein, the Committee members, which included former New York State Bar Association presidents Jackson Dykman and S. Hazard Gillespie, spent five years overhauling, revising and reforming the Civil Practice Act of 1920. This remarkable joint venture between the practicing bar and the …

Reversing Course: A Critique Of The Court Of Appeals New Rules For Unjust Enrichment And Criminal Legal Malpractice Actions, Jay C. Carlisle Ii

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments by the New York Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder and Dombrowski v. Bulson.

’Til Death Do Us Part? What Every Legal Practitioner Should Know About Premarital Agreements: A Law Student’S Perspective, Lauren Ludvigsen

Elisabeth Haub School of Law Student Publications

It is rare that a couple will enter into a marriage expecting to divorce each other. It may be the romance or the excitement of the impending nuptials, but couples do not include an expiration date on their marriage certificate. However, not all marriages last until “death do us part.” The United States Census Bureau conducted its first survey into marriages, divorces, and widowhood in America in 2009, finding that 9.2 of every 1,000 men and 9.7 of every 1,000 women over the age of fifteen reported being divorced. Despite these rates, research suggests that only one-fourth of Americans believe …

Wildlife Management And The Forest Preserve, Jeffrey Auger

Elisabeth Haub School of Law Student Publications

The forever wild language of Article XIV of the New York State Constitution has sparked debate and controversy ever since its enactment. This paper examines how the Forest Preserves affect wildlife contained within the “wild forest lands” protected under Article XIV. Through examining the history of the article’s adoption it becomes clear that wildlife concerns were a chief motivating factor in preserving these forests. The paper then examines how wildlife is managed in New York, and discusses certain practices that may have implications on the “forever wild” designation. The economic and social benefits of hunting, fishing, and hiking for New …

A Trusting Public: How The Public Trust Doctrine Can Save The New York Forest Preserve, Katherine R. Leisch

Elisabeth Haub School of Law Student Publications

The public trust doctrine was instituted in England as a permanent limitation on the powers of the Crown. The well-established doctrine was brought to America and applied equally in the states even after the states seceded from England. The doctrine has since served as an indestructible check on the government. Article XIV of the New York State Constitution ensures protection of its wilderness in perpetuity, solidifying the forest preserve as part of the public trust. The paper traces the beginnings of the public trust doctrine and its eventual application Article XIV. The author contemplates the indestructibility of the Forest Preserve …

Concerning The Constitutionality Of Hydro-Fracking The Marcellus Shale, Sean Dillon

Elisabeth Haub School of Law Student Publications

The entire Marcellus Shale, from the Catskills of New York down to the northwestern border of West Virginia, is estimated to contain as little as 168 to as much as 516 trillion cubic feet of natural gas, resulting in major “shale play” in the region. If calculations are accurate, the Marcellus Shale may be one of the largest potential sources of any type of energy in this country. But the prospect of mining the Marcellus Shale is not without its downfalls. The extraction method to be used in these operations - a technique called hydraulic fracturing, also known as “hydro-fracking” …

Two Endangered Species In The Adirondacks In The Context Of Constitutional “Wilderness”, Michael A. Dibrizzi

Elisabeth Haub School of Law Student Publications

Our society has developed with a distinct homocentric view toward the natural world and all of its inhabitants. Wildlife has mostly been regarded as the exclusive chattel of man to dispense with at his discretion. This attitude has led to the extinction of some species and near extinction of many others. Through legislation, lawmakers have attempted to regulate management and exploitation of different species, with varying success. The goal of good environmental regulations is to break from traditional views; regulations in recognizing man’s superiority and control over the natural world will impose a responsibility on man to protect and preserve …

“Forever Wild”: Legal Aspects Of Natural Resource Extraction In And Around The New York State Forest Preserve, Michael D. Henderson

Elisabeth Haub School of Law Student Publications

Since its inception in 1894, Article XIV of the New York State Constitution has served as a baseline for environmental protection of the New York Forest Preserve. Yet today it has become apparent to those who study or simply enjoy the Adirondack and Catskill regions that our goal in preservation is much more. We preserve wilderness so we can hold on to a piece of the past, a piece of America’s history. That said the issue is what constitutes wilderness – a legally designated wilderness area, wilderness as a common term or land that embraces the “Forever Wild” aesthetic. This …

Interpreting Article Xiv Of The New York Constitution: The Legal Measures That Mandate Sustainable Economic Development And Maintenance Of Forever-Wild Forest In The Adirondacks, Chih-Yao Sun

Elisabeth Haub School of Law Student Publications

The Forever Wild clause enacted by the legislature aimed at protecting drinking water and commerce. The language of the Forever Wild clause has offered a strong and perpetual protection that serves the purpose of people of New York State. Any amendments will only weaken the article. To support the position that the Forever Wild clause should remain as is, the paper examines the long-ignored economic value provided by the Adirondacks Forest Preserve. The paper also proposes plausible sustainable developments and illustrates why state government has the duty to promote economic well-being in local communities.

History Of New York State’S “Forever Wild” Forest Preserve And The Agencies Charged With Carrying Out Article Xiv’S Mandate, Jessica B. Silver

Elisabeth Haub School of Law Student Publications

Article XIV is probably the most controversial provision of the New York State Constitution adopted in 1894. The provision declares that State-owned land in the Adirondack and Catskill State Parks shall remain “forever wild.” Yet, implementation of this mandate by the State has varied since its inception; actions are dependent on the views and policies of regulating agency. The paper traces the history of Article XIV through judicial interpretation, Attorney General’s opinions, and implementation activities by the agency charged with its enforcement. The purpose of this paper is to prepare the policy-makers who will have a voice at the next …

Article Xiv, Agriculture, And Keeping New York’S Wilderness Wild, Hilary Atkin

Elisabeth Haub School of Law Student Publications

When the constitutional convention question is put on the ballot in 2017 as required by Article XIX, Section two of the New York State Constitution, the voters of New York will again choose whether to have a convention to revise or replace their Constitution. There are many issues related to the Forest Preserves of New York State that may lead delegates to consider whether Article XIV, Section one’s “forever wild” provision should be amended or eliminated. With the increasing popularity of the local farming movement in and around the Adirondack and Catskill Parks, delegates could consider amendments that clarify the …

Legislative History And Current Bills Related To The Constitution Convention, Michael Friese

Elisabeth Haub School of Law Student Publications

The purpose of this paper is to provide a critical look at the legislative history of Article VII (now Article XIV). Specifically, it will discuss the events leading up to the 1894 Constitutional Convention (the convention was Article XIV and the “Forever Wild Provision” was adopted); the events and legislative acts between the 1894 and 1915 constitutional conventions; the 1915 Constitutional Convention; the events and legislative acts between 1915 and 1938; and the 1938 Constitutional Convention. The paper will also address the delegate election process, as well as proposed reforms to the process. It is the intention of this paper …

Historic Preservation And The Wilderness, Seth Kagan

Elisabeth Haub School of Law Student Publications

The language of Article XIV of the New York State Constitution has been the focus of a contentious debate over the years: What can be done with the lands within the Forest Preserve without violating the provision to keep the lands “forever wild”? In particular, how does Article XIV treat preservation of historic sites and archaeological resources within the Forest Preserves? The paper discusses competing interests between the “forever wild” provision and that of historic preservation through examination of the legislative history, administrative and judicial action. The paper also contemplates a constitutional convention for the purposes of amending Article XIV …

Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments in long-arm jurisdiction under CPLR section 302 and two related New York Court of Appeals decisions. Specifically, the article will address Fischbarg v. Doucet, which presents the court's expansive view of long-arm jurisdiction in light of recent technological developments, and Ehrenfeld v. Mahfouz, in which the court's decision to limit long-arm jurisdiction was rejected by subsequent legislation, signaling a more expansive application of CPLR 302 in the future.

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

Elisabeth Haub School of 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 from …

A Law Guardian By The Same Name: A Response To Professor Guggenheim's Matrimonial Commission Critique, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

I commence this article with a discussion of the statutory provisions governing the appointment and responsibilities of attorneys who represent children in New York. Part II briefly outlines the chronological implementation from initial enactment through the Matrimonial Commission Report, a period spanning forty-five years. Parts III and IV explore the specific nature of child custody representation and the relationship between the attorney and the child client during the course of a frequently lengthy proceeding. Last, the Commission's conclusions and recommendations are critiqued in Parts V and VI.

Of Zombie Permits And Greenwash Renewal Strategies: Ten Years Of New York's So-Called "Environmental Benefit Permitting Strategy", Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This article analyzes the CWA's provisions ensuring public participation in the permitting process and the history of EPA regulations implementing the public participation requirements. The article then examines the EBPS authorizing legislation, DEC's Technical Guidance concerning its implementation of the EBPS, and some instances of DEC's actual practice implementing the EBPS, and compares these procedures with the public participation requirements contemplated by both the CWA and New York State's own clean water implementing legislation, Environmental Conservation Law Article 17. The article concludes that the procedures adopted by the DEC are inconsistent with both the CWA's public participation requirements, as well …

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an …

Whatever Happened To The "Best Interests" Analysis In New York Relocation Cases? A Response, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This response to Justice Sondra Miller’s article will first discuss the competing interests and expectations of the parties to a relocation dispute, and briefly outline the national view or views. In fact, there is no national standard, or anything approaching a consensus among the states. The New York experience under the exceptional circumstances standard will then be analyzed and appraised. My conclusion is that the standard should be maintained, although I believe that the Court of Appeals should revisit the issue to clarify the factors and criteria relevant to a determination.