Law Commons^™

Clearing Rights For Entertainment Projects, Mary Lafrance

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No abstract provided.

Civil Protection Orders: Increased Access And Narrowed Enforcement, Courtney Cross

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No abstract provided.

Always Already Suspect: Revising Vulnerability Theory, Frank Rudy Cooper

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Martha Fineman proposes a post-identity "vulnerability" approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people's burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary …

Is An Apartment A Nuisance?, Michael Lewyn

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In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

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In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

A Three-Legged Stool On Two Legs: Recent Federal Law Related To Local Climate Resilience Planning And Zoning, Sarah Adams-Schoen, Edward Thomas

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Notwithstanding a critical gap between climate change related risks and preparedness in the United States, congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon. Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development. Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) …

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

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Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

Concept And Contract In The Future Of International Law, John Linarelli

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This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Against The Neighborhood Veto, Michael Lewyn

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American zoning often gives neighborhoods elective veto power over nearby real estate development. This “neighborhood veto” sometimes artificially reduces housing supply and urban density, thus making housing more expensive and making American cities more dependent on automobiles. This article criticizes the common arguments that neighborhood activists use to restrict development.

Internally Buffered Districts: A New Technique To Make Zoning Less Exclusionary, William Leaf, Michael Lewyn

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Proposes creating a new kind of zone called an "internally buffered district." Within these zones, intensive land uses like stores and apartments are allowed, so long as the latter uses are physically separated from nearby residential districts. The article suggests that developers compensate homeowners for rezoning their property to the internally buffered classification, thus allowing for both more compact development and more protection of homeowners' interests.

Defending American Religious Neutrality, Mark Goldfeder

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Scholars who write about the US Supreme Court's religious liberty jurisprudence typically lambaste the Court for its supposedly secularist or allegedly religious sympathies, or for inconsistencies in its rulings and norms. Andrew Koppelman takes a different approach in this aging but still timely book about the tradition and enduring relevance of religious "neutrality" in American constitutional law.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

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Comprehensive planning at the municipal level, although useful in a variety of ways, is neither necessary nor sufficient to promote "smart" (that is, pedestrian and transit-oriented) growth. Comprehensive plans can be used to support sprawl as easily as to support smart growth, while smart growth may be promoted effectively through zoning reform or statewide legislation as well as through local planning.

Catholic Social Thought And Human Rights, Zachary R. Calo

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As the dominant moral vocabulary of modernity, the language of human rights establishes significant points of contact between the religious and the secular. Yet, the human rights movement increasingly finds itself in a contested relationship with religious ideas and communities. Even as it draws on the inherited moral resources of religion, the human rights movement, at least in its dominant institutional and intellectual expressions, presents itself as a totalizing moral theory that challenges countervailing theological accounts of human rights. This article considers the distinctive account of human rights that has emerged within Catholic social teaching. Particular attention is given to …

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

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Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

A Quantum Congress, Jorge R. Roig

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This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

No Parking Anytime: The Legality And Wisdom Of Maximum Parking And Minimum Density Requirements, Michael Lewyn, Judd Schechtman

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This article focuses on two aspects of smart growth policy that have thus far received little attention: maximum parking and minimum density requirements. To ascertain the frequency of such regulations, we examine the zoning regulations of twenty-four mid-sized cities, defined as those with populations between 500,000 and one million residents. The article concludes that the first type of regulation is somewhat common, but is usually restricted to certain types of land uses or sections of a city. Minimum density requirements, by contrast, are quite rare and quite lenient. Because these types of regulations have received little scholarly attention and are …

Robotic Marriage And The Law, Mark Goldfeder, Yosef Razin

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The United States, and the world at large, is in the midst of a family law revolution that will fundamentally change our very conception of family. Ethical challenges to age-old ideas have prompted people to ask foundational questions, such as how and why our most important personal relationships evolved. In a world where same-sex marriage has been legalized, it is only natural to wonder who marriage may include in the future. This essay explores the question of whether a human and a robot could ever legally marry in the United States. Through a thought experiment, it examines the legal and …

Sink Or Swim: In Search Of A Model For Coastal City Climate Resilience, Sarah Adams-Schoen

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New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to decrease the city’s contribution to the problem and to make the city less vulnerable to the effects of climate change. This detailed analysis of the city’s climate change resilience initiatives concludes that, although many of the city’s initiatives provide a model for other coastal communities, the initiatives likely still fall short of what is required to sufficiently moderate harm from dangerous interference with …

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

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Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

A Comparison Of The New York Bar Examination And The Proposed Uniform Bar Examination, Suzanne Darrow-Kleinhaus, Mary Campbell Gallagher

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The New York Board of Law Examiners (BOLE) proposes adopting the Uniform Bar Exam (UBE), substituting it for the current New York Bar Exam (NYBE). The BOLE proposal is currently under active consideration, and it is the subject of public hearings. This article examines some of the issues the proposal raises. First, we look at the history of the proposal, and at the differences between the UBE and the NYBE as it is currently administered. Then we look in detail at the proposal for New York: a combination of the UBE plus a stand-alone one-hour multiple-choice New York test. Finally, …

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

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This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

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Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach …

Land Use Law Update: Reed V. Town Of Gilbert Redux, Sarah Adams-Schoen

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The Winter 2015 Land Use Law Update asked whether the Supreme Court’s decision in Reed v. Town of Gilbert would require municipalities throughout the country to rewrite their sign codes. The short answer is “yes.”

At a minimum, following the Supreme Court’s decision that the Town of Gilbert’s temporary directional sign regulations violated petitioners Good News Community Church’s and Pastor Clyde Reed’s First Amendment rights, municipalities will want to act quickly to amend their sign codes if they regulate different categories of signs differently. A code that places fewer restrictions on political or ideological signs than on directional signs likely …

Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen

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This update summarizes New York cases related to land use and zoning that were decided in the first half of 2015.

The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin

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This article offers advice for anyone preparing to interview for a deanship - go back to what you are passionate about to really express how you might approach serving as a law dean. In this case, the passion centers on the subject of land use planning and sustainable development law. When interviewing for the position of dean of a law school, Academics who rise through the ranks to a deanship have a background in legal scholarship that often marries theory and practice. Faculty spend countless hours, even years, developing theories and concepts to advance the law in a particular discipline. …

A Response To The Ipcc Fifth Assessment, Sarah Adams-Schoen, Deepa Badrinarayana, Cinnamon Pinon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan D. Rosenbloom, Inara K. Scott, David Takacs

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This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen

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The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.

Trial By Water: Reflections On Superstorm Sandy, Thomas Maligno, Benjamin R. Rajotte

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Superstorm Sandy devastated thousands of homes in some of the most densely populated areas of the country. It created extensive and diverse property losses in the Northeast, resulting in an unprecedented need for disaster recovery assistance in affected communities. As we pass the storm's two-and-a-half year anniversary, complex challenges remain for many of these households. This article documents how one law school has responded. It reflects on how we have approached our educational and public interest missions throughout the recovery process, and how these experiences have shaped our views of the future. Disasters know no boundaries, and coastal floods are …

Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris

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The University of Miami Law Review's 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for several days to consider the significance of the federal district courts more generally.

This article is intended to look at the career of one very well regarded judge through spectacles that offer a different vantage point on a judicial career. Those spectacles-the concept of judicial entrepreneurship-seem to be particularly …

Designing A Solo And Small Practice Curriculum, Meredith R. Miller

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There is a reality commonly ignored by the curriculum in most law schools: the largest segment of law graduates will eventually be solo or small firm practitioners. Even before the Great Recession, nearly two thirds of lawyers in the United States practiced in solo or small firms. Since 2008, trends show an increase in the number of recent law graduates that “hang a shingle.” According to a 2012 report of the American Bar Association, about three-quarters of lawyers in the United States work in private practice. Of those attorneys, about seventy percent are in solo or small firms. Many find …