Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 41

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 ...


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 ...


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 ...


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 ...


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 ...


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.


Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman Jan 2005

Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.


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 ...


The Elusive Balance Between Investor Protection And Wealth Creation, Barbara Black, Jill I. Gross Jan 2005

The Elusive Balance Between Investor Protection And Wealth Creation, Barbara Black, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Pace Investor Rights Project (PIRP), launched in the fall of 20033 as an expansion of Pace Law School's ground-breaking Securities Arbitration Clinic, seeks to foster increased scholarly interest on topics related to investor justice in the regulatory, arbitral and judicial arenas. The Project thus produced the Investor Rights Symposium, which took place on the grounds of the Judicial Institute at Pace Law School on March 31 and April 1, 2005, to bring together academics, regulators, practitioners, investors' advocates and students to explore the precarious balance between investor protection and wealth creation. The scholarship that follows in this volume ...


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 ...


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 ...


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.


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.


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.


The Road From Nowhere? Punitive Damage Ratios After Bmw V. Gore And State Farm Mutual Automobile Insurance Co. V. Campbell, Andrew C. W. Lund Jan 2005

The Road From Nowhere? Punitive Damage Ratios After Bmw V. Gore And State Farm Mutual Automobile Insurance Co. V. Campbell, Andrew C. W. Lund

Elisabeth Haub School of Law Faculty Publications

This article offers a brief introduction to BMW and its immediate aftermath. After the decision was handed down in 1996, scholars found that punitive damage award ratios were still arbitrary. In Part III, one hypothesis given to explain this result--that not enough time had elapsed since BMW to allow lower courts to come to grips with its lessons--is examined and dismissed after observing how post-BMW courts continued to give shape to the guideposts well beyond 1996. Part IV offers a different hypothesis, which better explains why punitive damage awards behaved arbitrarily. The cause of ratios' weakness lay in the BMW ...


Back To Bakke: Defining The Strict Scrutiny Test For Affirmative Action Policies Aimed At Achieving Diversity In The Classroom, Leslie Yalof Garfield Jan 2005

Back To Bakke: Defining The Strict Scrutiny Test For Affirmative Action Policies Aimed At Achieving Diversity In The Classroom, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This Article will identify the new strict scrutiny test, and will consider the reason for creating a separate definition of strict scrutiny for evaluating affirmative action policies that achieve diversity in the classroom. Part II of the Article will review constitutional challenges to affirmative action policies prior to Grutter and Gratz, and will discuss the split in the circuits that resulted from the Court's failure to endorse Justice Powell's definition of a compelling governmental interest in Bakke. Part III will provide an analysis of the Grutter and Gratz decisions, with a particular focus on each Court's discussion ...


The Utility Of Non-Use Values In Natural Resource Damage Assessments, Jason J. Czarnezki Jan 2005

The Utility Of Non-Use Values In Natural Resource Damage Assessments, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Non-use values are frequently underestimated or ignored in natural resource damage assessments, despite the fact that there are significant social and economic benefits to assessing costs for lost non-use values. The regulations of the Department of the Interior, which bind some CERCLA trustees, create unusual barriers to the consideration of non-use values and are potentially vulnerable to a reasonableness challenge under Chevron v. NRDC. Trustees who are not bound by the DOI regulations should consider calculating and assessing non-use values because of the economic and social benefits of recognizing non-economic injury caused by the destruction or degradation of natural resources.


Playing Hide And Seek: How To Protect Virtual Pornographers And Actual Children On The Internet, Audrey Rogers Jan 2005

Playing Hide And Seek: How To Protect Virtual Pornographers And Actual Children On The Internet, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article considers the Supreme Court's suggestion and recommends a mechanism to regulate the virtual pornography market in a manner that balances the rights of virtual pornographers with the prosecution of actual child pornographers. Part II traces the events leading up to the Free Speech decision, commencing with the enactment of the Child Pornography Prevention Act of 1996 (CPPA). Part III discusses the Free Speech opinion and the post-Free Speech cases. Part IV examines the PROTECT Act--the legislative response to the Supreme Court's decision. Part V concludes that regulation of the virtual pornography industry is the most effective ...


Surya Prakash Sinha-In Memory Of Our Colleague, Teacher And Friend, Ralph Michael Stein Jan 2005

Surya Prakash Sinha-In Memory Of Our Colleague, Teacher And Friend, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

Retired Professor of Law Surya Prakash Sinha died in late July 2005 after a long struggle against cancer. Joining our faculty in 1979 and teaching until 1996, he was a powerful intellectual eminence at our school and a major, highly regarded scholar in the world of Public International Law.


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.