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Full-Text Articles in Law

Mandated Training: Program Proposed For Local Decision-Makers, John R. Nolon, Jessica A. Bacher Dec 2005

Mandated Training: Program Proposed For Local Decision-Makers, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Local land use boards, made up of volunteers from the community, decide a majority of the land use issues in New York’s municipalities, as well as most other states. In the past, these decision makers were not required to obtain formal training. Now, several states and municipalities are recognize the substantial impact of land use board decisions, and as a consequence, are providing innovative training for their board members. Land use law becomes more complicated with each passing hour, and through proper training, land use board members can become informed decision makers who maximize the potential of their communities.


Public Health And The Law: Responding To Terrorism And Other Public Health Emergencies In New York, Mark R. Shulman Nov 2005

Public Health And The Law: Responding To Terrorism And Other Public Health Emergencies In New York, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie Nov 2005

The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

Part I of this article outlines the historical context and addresses the child's right to legal representation. Part II discusses the child's legal status by defining the specific legal interests, her procedural rights as a party to the litigation, the right to choose counsel, and the child's right to be involved as a participant. The penultimate Part analyzes the role of the child's counsel, including an outline of the relevant statutes, the diametrically opposed positions of state legislatures and the organized bar, and the hopelessly conflicting contemporary case law. The final Part addresses the fundamental deficiencies ...


Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher Oct 2005

Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The 2005 Supreme Court decision in Kelo v. City of New London has galvanized much unwarranted controversy over governmental authority to condemn private property. A legislative reaction throughout the country has focused on limiting governmental condemnation authority in order to encourage economic development. This article discusses some of the specific pros and cons of reactionary legislation by both the federal and New York legislature.


New York Case Law Reaches Maturity, John R. Nolon, Jessica A. Bacher Sep 2005

New York Case Law Reaches Maturity, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Through a review of recent case history, this article examines the role of courts in land use decisions. The consensus of the holdings is that a court should not substitute it’s discretion for that of a local land use board so long as the board’s decision was based on substantial evidence on the record. The rational for this standard of deference is based on the idea that local land use boards are legislative bodies that understand the needs of the communities they serve. This article highlights several instances where appeals courts reign in the power of trial courts ...


Court Of Appeals Again Restrains Lower Courts, John R. Nolon, Jessica A. Bacher Aug 2005

Court Of Appeals Again Restrains Lower Courts, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Through a review of recent case history, this article examines the role of courts in land use decisions. The consensus of the holdings is that a court should not substitute its discretion for that of a local land use board so long as the board’s decision was based on substantial evidence on the record. The rational for this standard of deference is based on the idea that local land use boards are legislative bodies that understand the needs of the communities they serve. This article highlights several instances where appeals courts reign in the power of trial courts that ...


Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher Jun 2005

Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The United States Supreme Court’s decision in Kelo v. City of New London, has spurred national debate, as many people portray the court’s decision as a damaging blow to private property rights. In Kelo, the court confirmed local government’s ability to condemn property in an area designated as blighted by the state, in order to encourage economic development. This article highlights several positive examples of this sort of condemnation in New York case law, where the public interest was served by economic redevelopment. The article goes further, to distinguish several legal decisions from Kelo, where courts invalidated ...


'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher Jun 2005

'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The United States Supreme Court holding in Lingle v. Chevron U.S.A., Inc. clarified years of takings jurisprudence and overturned a controversial decision in the case of Agins v. City of Tiburon. This article discusses how the Lingle court denounced the “substantially advances” test created in Agins, as a due process inquiry rather than a proper takings test. The Lingle court instead opted to create a clear four-category paradigm for takings cases, which focuses on the burden the government places on private property rights in order to distinguish takings categories.


Zoning Exemptions: Granting Immunity To Private Wireless Providers, John R. Nolon, Jessica A. Bacher Apr 2005

Zoning Exemptions: Granting Immunity To Private Wireless Providers, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Contrary to the Telecommunications Act of 1996, the New York Court of Appeals in the Matter of Crown Communication New York, Inc. v. Department of Transportation of the State of New York, City of New Rochelle et al., held that, both private companies who contract with local governments to build towers on public land, and the private companies who build attached antennae to these towers, are immune from local zoning regulations. The court’s decision is due to the public nature and importance of the mass communication these structures will provide. Of particular importance, was public good to be served ...


Connecticut Nitrogen Credit Exchange Program, Ann Powers Apr 2005

Connecticut Nitrogen Credit Exchange Program, Ann Powers

Elisabeth Haub School of Law Faculty Publications

Long Island Sound is a cherished national natural resource, surrounded by some of the most densely populated land in the country. It has long provided sustenance, economic opportunities and comfort to the spirit for those who inhabit or visit its shores and waters. Like many of our Nation's water bodies, it drains a substantial and diverse watershed, and suffers a broad range of environmental insults. The problem of most concern is the severe shortage of oxygen in the deep waters of the western part of the Sound during summer months. This hypoxia is attributable to excess nitrogen that fuels ...


Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher Feb 2005

Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Exactions occur when applications to develop parcels of land require governmental permission, and that permission is conditioned upon dedicating part of the land to public use. Exactions have long been challenged as regulatory takings, and both federal and state courts look at these types of regulations with a heightened level of scrutiny due to the nature of exactions to remove a crucial element from the bundle of property rights associated with ownership of real property: the right to exclude. This column discusses a recent example of exactions jurisprudence applied in New York and goes on to compare that decision in ...


Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher Jan 2005

Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an ...


Juvenile Execution, Terrorist Extradition, And Supreme Court Discretion To Consider International Death Penalty Jurisprudence, Elizabeth Burleson Jan 2005

Juvenile Execution, Terrorist Extradition, And Supreme Court Discretion To Consider International Death Penalty Jurisprudence, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki Jan 2005

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.


Iucn As Catalyst For A Law Of The Biosphere: Acting Globally And Locally, Nicholas A. Robinson Jan 2005

Iucn As Catalyst For A Law Of The Biosphere: Acting Globally And Locally, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Unique among international organizations, the International Union for the Conservation of Nature and Natural Resources (IUCN) operates at the global, regional, and national levels to build governmental capacity to protect the environment. With a membership of over 75 sovereign states and 800 nongovernmental organizations, IUCN functions as an intergovernmental organization at the transnational level while operationally embodying the maxim "think globally, act locally." IUCN acts as a consortium of environmental scientists and professionals, including environmental lawyers who have proposed and secured adoption of significant environmental treaties such as the Convention on the International Trade in Endangered Species (CITES) and their ...


The Surge In Immigration Appeals And Its Impact On The Second Circuit Court Of Appeals, Michael B. Mushlin Jan 2005

The Surge In Immigration Appeals And Its Impact On The Second Circuit Court Of Appeals, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In this report we (1) describe the BIA procedural reforms; (2) quantify the resulting increase in appeals from the BIA to the circuit courts of appeals with particular emphasis on the Second Circuit; (3) review the constitutional challenges to the BIA reforms, which have been uniformly rejected; (4) describe the administrative response of the Second Circuit to the BIA appeal surge; (5) assess the impact of the surge on the Second Circuit, and its other ramifications; and (6) offer our recommendations on how to deal with the surge going forward.


Not The Evil Twen: How Online Course Management Software Supports Non-Linear Learning In Law Schools, Marie Stefanini Newman Jan 2005

Not The Evil Twen: How Online Course Management Software Supports Non-Linear Learning In Law Schools, Marie Stefanini Newman

Elisabeth Haub School of Law Faculty Publications

In this article, I will discuss both how today's law students learn through technology, and also theories of personality types and learning styles. I will first review the few existing empirical studies on the subject. Next, I will discuss course Web sites and how they can support, not replace, what happens in the traditional law school classroom. Then, I will discuss how my law school implemented TWEN course Web pages, and discuss the results of a survey of TWEN usage by faculty members at Pace University School of Law. The survey indicates that although TWEN course Web sites have ...


Tenure: Endangered Or Evolutionary Species, James J. Fishman Jan 2005

Tenure: Endangered Or Evolutionary Species, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This article will review some of the challenges to the system of academic tenure: the efforts to reform, curtail, or eliminate it. It will discuss exogenous factors undermining the institution and then suggest some areas where tenure should evolve, particularly focusing upon academic tenure in legal education. The author argues that the hierarchical structure of traditionally tenured faculty and other faculty, clinicians, and legal writing professors, employed on short or long-term contracts, has undermined academic freedom and tenure.


Charity Scandals As A Catalyst Of Legal Change And Literary Imagination In Nineteenth Century England, James J. Fishman Jan 2005

Charity Scandals As A Catalyst Of Legal Change And Literary Imagination In Nineteenth Century England, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

Nineteenth century England, often called the age of reform, was a period of enormous political, social, and economic change. In the first two decades came an increase in the rate of transformation of the economy, the polity and society and a greater stir and movement in all spheres of public activity caused by more “rational and purposeful” control based upon measuring, counting and observing. Political, economic and governmental institutions developed modern structures and approaches. Charitable regulation reflected these trends. As part of a broader movement of inquiry, supervision and statutory reform, and in an effort to remedy the social evils ...


Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman Jan 2005

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This article describes the myriad ways in which misconduct by jurors can contaminate a trial and verdict and the ability of courts to remedy such misconduct. Part II examines the case law in which criminal defendants have challenged their convictions on the basis of juror misconduct. Defendants have claimed that jurors were influenced by external contacts with third parties, exposed to extraneous, non-evidentiary information, engaged in contrived experiments and improper reenactments in the jury room, made dishonest and misleading statements during jury selection, engaged in conduct demonstrating bias and prejudgment, suffered from physical and mental impairments, engaged in pre-deliberation discussions ...


Of Zombie Permits And Greenwash Renewal Strategies: Ten Years Of New York's So-Called "Environmental Benefit Permitting Strategy", Karl S. Coplan Jan 2005

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 ...


Doing Water Quality Credit Trading Right, Alexandra Dapolito Dunn Jan 2005

Doing Water Quality Credit Trading Right, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


Comparative Land Use Law: Patterns Of Sustainability, John R. Nolon Jan 2005

Comparative Land Use Law: Patterns Of Sustainability, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Land use scholars and practitioners in the United States trace the development of domestic land use law to 1916, when the City of New York adopted the nation's first comprehensive zoning law, and then on to 1926 when the U.S. Supreme Court declared zoning constitutional in Euclid v. Ambler Realty. Some have studied European influences stemming from late nineteenth century regulations and the urban design principles imported from the great cities of the era. Others know about the catastrophic London fire of 1666 and how it transformed society's understanding of why individual property rights, to some degree ...


Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part Two: Statutory Preclusions On Epa Enforcement, Jeffrey G. Miller Jan 2005

Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part Two: Statutory Preclusions On Epa Enforcement, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This is the second half of a two-part Article focusing on preclusions against successive enforcement of the environmental statutes. Part One of the Article, printed in Volume 28 of this Journal, examined preclusions against citizen suits and argued that because of the theme-and-variations nature of the preclusion language, that language should be read in accordance with its plain meaning. Part Two, published in this issue, studies the restrictions on enforcement actions by the EPA and reaches the same conclusion.


Charitable Accountability And Reform In Nineteenth Century England: The Case Of The Charity Commission, James J. Fishman Jan 2005

Charitable Accountability And Reform In Nineteenth Century England: The Case Of The Charity Commission, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

Why is it so difficult to carry out effective institutional change? Why did the principle of charitable accountability, a nearly unanimously supported ideal, ring so hollow in practice? This Article offers hypotheses about the difficulties of administrative reform, through the prism of the nineteenth century, which may apply to contemporary issues of charitable accountability.


Energy-Efficiency: The Best Option For A Secure, Clean, Healthy Future, Richard L. Ottinger Jan 2005

Energy-Efficiency: The Best Option For A Secure, Clean, Healthy Future, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

The risks of dependence on traditional fuels have never been greater or more obvious. Modern civilization and the world economy are facing imminent and clear threats of worldwide terrorism. The oil producing countries of the Middle East are increasingly unstable, confronting the world with potentially calamitous energy and economic disruptions. Domestically, our limited refining capacity creates shortages when demand is high and increases prices even when petroleum supplies are plentiful. Yet most of the world is in a state of denial, happy to bask in the illusory security of temporary Saudi oil production increases. Moreover, these new dangers sit on ...


Is Voting Necessary? Organization Standing And Non-Voting Members Of Environmental Advocacy Organizations, Karl S. Coplan Jan 2005

Is Voting Necessary? Organization Standing And Non-Voting Members Of Environmental Advocacy Organizations, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This article will examine the law of standing, and specifically, the conflicting decisions concerning the importance of voting rights in order to establish organizational standing. The article concludes that voting rights should not be essential to the assertion of representational standing. Nevertheless, the article will also consider alternate forms of organization that will improve an organization's chances of establishing representational standing, while addressing the concerns that lead organizations to avoid a voting membership in the first place.


Defining The Limits Of Supplemental Jurisdiction Under 28 U.S.C. § 1367: A Hearty Welcome To Permissive Counterclaims, Michelle S. Simon Jan 2005

Defining The Limits Of Supplemental Jurisdiction Under 28 U.S.C. § 1367: A Hearty Welcome To Permissive Counterclaims, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In 1990, Congress passed 28 U.S.C. § 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, “supplemental jurisdiction.” Supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the “same case or controversy under Article III of the United States Constitution.” This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and after the codification of § 1367, by looking at the meaning of “same case or controversy.” It then examines two Circuit Court opinions that have held permissive counterclaims may ...


The Profits And Penalties Of Kinship: Conflicting Meanings Of Family In Estate Tax Law, Bridget J. Crawford Jan 2005

The Profits And Penalties Of Kinship: Conflicting Meanings Of Family In Estate Tax Law, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This article critically examines the conflicting estate tax definitions of family in I.R.C. Sections 2036, 2032A and 6166. The sections use terms such as family and related in ways that conflict with each other and with lay understanding of the terms. From an historical perspective, the multiple estate tax definitions reflect the Code sections' distinct purposes. From a theoretical perspective, they acknowledge the personal and economic interconnectedness within families as well as diversity in the structure of family arrangements. The existing definitions of family fall short, however, in that they fail to recognize the full range of associational ...


The Supreme Court's Water Pollution Jurisprudence: Is The Court All Wet?, Jeffrey G. Miller Jan 2005

The Supreme Court's Water Pollution Jurisprudence: Is The Court All Wet?, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Part I of this article sets the stage with a brief survey of federal water pollution control, focusing on the CWA. Part II examines statistical conclusions and inferences from a cursory review of the Court's CWA opinions. Part III examines some of the opinions in a more qualitative manner to determine whether the statistical conclusions withstand analysis and whether the Court understands the CWA. The latter determination requires examining the nature and severity of the Court's misinterpretations of the statute. Part IV examines the Court's decisions with anti-environmental results to determine whether they reflect an anti-environmental bias ...