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Elisabeth Haub School of Law Faculty Publications

2005

Articles 31 - 41 of 41

Full-Text Articles in Law

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.

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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.

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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.

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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 …

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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.

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How Juries Get It Wrong - Anatomy Of The Detroit Terror Case, Bennett L. Gershman Jan 2005

How Juries Get It Wrong - Anatomy Of The Detroit Terror Case, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article describes the background and trial of the four defendants in the so-called Detroit “Sleeper Cell” terrorist prosecution. It examines the evidence relied on by the jury to reach its verdict, particularly the testimony of a key turncoat witness who accused the defendants of participation in a terrorist conspiracy. Part III examines how the jury's search for truth was corrupted by false, misleading, and incomplete proof. It identifies several extrinsic sources of jury error including suppressed evidence, dishonest and unreliable testimony, partisan experts, coaching, obstructed cross-examination, and inflammatory arguments. Finally, with the Detroit terrorist trial as the model, Part …

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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, must be subject …

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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 …

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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 of the strict …

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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 public participation requirements, as well …

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Paradigms Of Positive Change: Reordering The Nation's Land Use System, John R. Nolon Jan 2005

Paradigms Of Positive Change: Reordering The Nation's Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article begins with a brief look at the system’s familiar dysfunctions, continues with a lengthier examination of positive examples of reform, emphasizes the importance of coalition building in the reform process, and ends with the observation that reform efforts should be organized by the task of creating essential connections among the governments involved.

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