Law Commons^™

Treated Differently In Life But Not In Death: The Execution Of The Intellectually Disabled After Atkins V. Virginia, Penny White

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No abstract provided.

Regulation And Reform Of The Mortgage Market And The Nature Of Mortgage Loans: Lessons From Fannie Mae And Freddie Mac, Thomas E. Plank

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No abstract provided.

Concentrated Media Is Something We Can't Ignore: A Response To Speaker Pelosi, Maurice Stucke

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This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends …

Common Roots, Divergent Evolution: Insider Trading Doctrine In The United States, Japan, And Germany, Joan Macleod Heminway

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Many nations ostensibly use (or at least credit) U.S. insider trading doctrine under Rule 10b-5 as the model for their own regulation of insider trading. This phenomenon has occurred in part because of historical and political factors and in part because the United States is seen as (and has wielded regulatory power as) a market leader — an early adopter of regulation with both (a) a well established supervisory and policy-oriented regulatory and enforcement agency and (b) a well developed, disaggregated, public securities market. As a result, the laws of many countries now prohibit identified classes of persons from trading …

Oral Argument And Impression Management: Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience, Michael J. Higdon

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In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person's facial …

Soft Law As Delegation, Timothy L. Meyer

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This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Public Utilities, Eminent Domain, And Local Land Use Regulations: Has Texas Found The Proper Balance?, Michael B. Kent Jr.

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No abstract provided.

Supporting Attorney’S Personal Skills, Marjorie A. Silver

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No abstract provided.

Sprawl In Europe And America, Michael Lewyn

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Defenders of suburban sprawl assert that sprawl is inevitable in affluent societies, based on trends in Western Europe. According to supporters of this Inevitability Theory, European cities have decentralized and become more car-dependent, thus proving that even where governments are more aggressively anti-sprawl than American government, anti-sprawl policies will be futile.

This Article compares Western Europe to the United States, and criticizes the Inevitabilty Theory on the grounds that:

(1) Europe is in fact far less automobile-dependent than the United States;
(2) Europe has not, contrary to the Inevitability Theory's claims, become more car-dependent and suburbanized in recent years; and …

A Quiet Crisis In America: Meeting The Affordable Housing Needs Of The Invisible Low-Income Healthy Seniors, Patricia E. Salkin

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Part I of this article discusses population statistics in greater detail, exploring available financial demographics of seniors and showing that many seniors are likely to be in need of affordable housing today, and that many more will likely join this group in the future. Part II discusses the role of the federal and state governments in providing affordable senior housing and concludes that these programs have typically failed to yield effective results on a wide enough basis. Part III focuses on the impact that local governments can have immediately in helping to address the affordable senior housing crisis through the …

Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves

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Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …

The Effects Of Asymmetric Vs. Symmetric Probability Of Targets Following Probe And Irrelevant Stimuli In The Complex Trial Protocol For Detection Of Concealed Information With P300, J. Peter Rosenfeld, Monica Tang, John B. Meixner Jr., Michael Winograd, Elena Labkovsky

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The complex trial protocol (CTP, [J.P. Rosenfeld, E. Labkovsky, M. Winograd, M.A. Lui, C. Vandenboom & E. Chedid (2008), The complex trial protocol (CTP): a new, countermeasure-resistant, accurate P300-based method for detection of concealed information. Psychophysiology, 45, 906–919.]) is a sensitive, new, countermeasure-resistant, P300-based concealed information protocol in which a first stimulus (Probe or Irrelevant) is followed after about 1.4–1.8 s by a Target or Non-Target second stimulus within one trial. It has been previously run with a potentially confounding asymmetric conditional probability of Targets following Probes vs. Irrelevants. This present study compared asymmetric vs. symmetric conditional probability groups and …

Assigned Versus Random Countermeasure-Like Responses In The P300-Based Complex Trial Protocol For Detection Of Deception: Task Demand Effects, John B. Meixner Jr., Alexander Haynes, Michael Winograd, Jordan Brown, J. Peter Rosenfeld

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The Concealed Information Test (CIT) is a credibility assessment protocol of an entirely different nature than the traditional lie detector test. Instead of attempting to detect actual lying (the goal of the commonly used Control Question Test), the goal of the CIT is to determine whether an individual possesses knowledge of specific details of a crime or event. For example, if a murder was committed at 800 Church Avenue using a .38 caliber revolver, the CIT seeks to determine whether a suspect recognizes the address and type of weapon.

The CIT presents subjects with various stimuli, one of which is …

A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch

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This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The …

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold Abramson

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No abstract provided.

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein

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No abstract provided.

Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman

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No abstract provided.

Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine

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Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes …

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

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New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Can You Hear Me Up There? Giving Voice To Local Communities Imperative For Achieving Sustainability, Patricia E. Salkin

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Sustainable development is an international challenge that demands attention at all levels of government. The calls to action to achieve sustainability have varied over the last few decades. For example, in the 1970s and 1980s attention was focused on the need for environmental review and growth management strategies. In the 1990s the rhetoric shifted to smart growth and livable communities, and today, the issue has been reframed as advocates view sustainability through the lens of global warming and climate change. Regardless of the nomenclature, however, the end game is the same. While the United States as a whole speaks through …

2009 Ethical Considerations In Land Use, Patricia E. Salkin

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This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine

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This article is a brief introduction to The Albany Government Law Review symposium on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles contained in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, …

Modernization Of New York's Land Use Laws Continues To Meet Growing Challenges Of Sustainability, Patricia E. Salkin, Jessica A. Bacher

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There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many …

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

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Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson

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This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

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Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …

When Does Might Make Right? Using Force For Regime Change, John Linarelli

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Should states use force to bring about regime change? International law recognizes no such grounds. This paper seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is …

International Law: Practical Authority, Global Justice, John Linarelli

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No abstract provided.

Teaching Sicko, Elizabeth Weeks

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This article provides insights in how to make up cancelled law classes to ensure compliance with American Bar Association accreditation instructional hours requirements. How to cover the missed course content. How to find mutually agreeable make-up class times and locations with a group of busy, upper-level law students. Faced with the prospect of having to make up two hours each of my Health Care Financing and Regulation course and my Public Health Law seminar, I turned to the teacher's little helper: the DVD player