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2003

Pace University

Articles 1 - 30 of 42

Full-Text Articles in Law

Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher Dec 2003

Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

In the past, courts generally deferred to legislatures when determining whether a law constitutes a regulatory taking. However, not all regulations are treated equal, and different tests apply to different types of regulations. Types of land use actions with a lower threshold of constitutionally include exactions, and regulations that apply fixed fee schedules to private landowners. This article combs both federal and New York law to come to the clear determination that universal standards exist for each type of regulation.

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'Saddle Rock': Preemption Of Local Land Use Prerogatives, John R. Nolon, Jessica A. Bacher Oct 2003

'Saddle Rock': Preemption Of Local Land Use Prerogatives, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Local municipalities have broad authority to regulate land use as provided in state legislation. Like all higher forms of legislation, state law occasionally preempts local legislatures from enacting laws. Generally preemption is appropriate when the area to be regulated by the local laws is comprehensively regulated by state law, the uniformity of the state law will benefit the localities, and inconsistencies in local law are harmful to land owners and municipalities. This article discusses the pros and cons of state preemption on various types of land use regulation.

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Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher Aug 2003

Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many local officials have the misguided belief that their utilization of land use regulation is greatly impeded by private rights to develop. However, land use regulations have a strong assumption of validity, with courts unlikely to overturn the regulations unless they are clearly erroneous or unreasonable or have no connection to a valid public interest. In addition to explaining development rights, this article provides the reader with insightful information on how local legislatures enact regulations while avoiding regulatory takings challenges.

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Local Authority: Communities Have Means Of Influencing Land Use, John R. Nolon Jun 2003

Local Authority: Communities Have Means Of Influencing Land Use, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This case analysis examines several court decisions, including the results of three New York Court of Appeals cases where litigants challenged the constitutionality of municipal land use decisions. In each case, the court afforded the municipality deference and found that their objectives were rationally related to the decisions, mostly decisions to deny development. However, this presumption of validity given to local legislatures and quasi-judicial agencies presents a problem when land use decisions affect outside municipalities. Thankfully, through the use of training programs, municipalities are learning to work together to resolve intermunicipal land use issues.

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Honorary Degree Citation, Sonia Sotomayor, Doctor Of Laws, May 18, 2003, Pace University School Of Law May 2003

Honorary Degree Citation, Sonia Sotomayor, Doctor Of Laws, May 18, 2003, Pace University School Of Law

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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What Else Can You Do With A Law Degree?, Gary A. Munneke May 2003

What Else Can You Do With A Law Degree?, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Excerpt from Nonlegal Careers for Lawyers, the latest book in the ABA Career Series.

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Local Land Use: Decision Expands Federal Government's Role, John R. Nolon Apr 2003

Local Land Use: Decision Expands Federal Government's Role, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The United States Environmental Protection Agency (EPA), pursuant to its authority under the Clean Water Act, has promulgated regulations creating the Storm Water Management Program. Contrary to the overall Clean Water Act scheme, which focuses on reducing pollution from point sources, the program has the objective of reducing non-point source water pollution. However, this program is not without controversy as heavy burdens are placed upon local governments, who themselves lack the financial resources, manpower, or technology to implement a complex federal system without federal or state assistance.

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Judges' Bench Memorandum: Fifteenth Annual Pace National Environmental Moot Court Competition, Megan Brillault Apr 2003

Judges' Bench Memorandum: Fifteenth Annual Pace National Environmental Moot Court Competition, Megan Brillault

Pace Environmental Law Review

No abstract provided.

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Brief For The Appellant, United States: Fifteenth Annual Pace National Environmental Moot Court Competition, Della Au Belatti, Summer Kupau, Stanton K. Oishi Apr 2003

Brief For The Appellant, United States: Fifteenth Annual Pace National Environmental Moot Court Competition, Della Au Belatti, Summer Kupau, Stanton K. Oishi

Pace Environmental Law Review

No abstract provided.

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Brief For The Appellant/Appellee, State Of New Union: Fifteenth Annual Pace National Environmental Moot Court Competition, Jill Brown, Melanie Kleiss, David Zoll Apr 2003

Brief For The Appellant/Appellee, State Of New Union: Fifteenth Annual Pace National Environmental Moot Court Competition, Jill Brown, Melanie Kleiss, David Zoll

Pace Environmental Law Review

No abstract provided.

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Brief For The Appellee, Goldthumb Mining Co., Inc.: Fifteenth Annual Pace National Environmental Moot Court Competition, Deborah Dunn, Karolyn Klohe, Shawn Aaron Young Apr 2003

Brief For The Appellee, Goldthumb Mining Co., Inc.: Fifteenth Annual Pace National Environmental Moot Court Competition, Deborah Dunn, Karolyn Klohe, Shawn Aaron Young

Pace Environmental Law Review

No abstract provided.

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Open Meetings: Land Use Mediation And The Public's Right To Know, John R. Nolon Feb 2003

Open Meetings: Land Use Mediation And The Public's Right To Know, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Great uncertainty surrounds the New York Open Meetings Law (OML), a law that permits the public to attend meetings of public bodies. Obviously, the OML becomes especially crucial in the area of land use where public governmental meetings are the norm, and conflicts usually involve several interested parties. This article delves into OML issues such as, what constitutes a public meeting, and the importance of having meetings open to the public.

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Overlooked Danger: The Security And Rights Implications Of Hindu Nationalism In India, Smita Narula Jan 2003

Overlooked Danger: The Security And Rights Implications Of Hindu Nationalism In India, Smita Narula

Elisabeth Haub School of Law Faculty Publications

This Article will examine the rise of Hindu nationalism in India and provide an overview of its already devastating consequences. In February and March 2002, over 2000 people were killed in state-supported violence against Muslims in the western state of Gujarat, led by the Hindu nationalist BJP that also heads a coalition government at the center. The attacks were carried out with impunity by members of the BJP, the Rashtriya Swayamsevak Sangh (“RSS,” National Volunteer Corps), the Vishwa Hindu Parishad (“VHP,” World Hindu Council), and the Bajrang Dal (the militant youth wing of the VHP). Collectively, these groups are known …

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Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson Jan 2003

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental norms are observed because they are norms about how people respect each other and the natural systems that sustain human communities. Environmental norms are basic to human well-being. They arise out of the human condition, not unlike human rights laws. Environmental norms emerge from the fact that humans exist within ecosystems, and human society is embedded in the natural systems in which they have evolved; environmental norms are grounded in an objective reality, and scientists can measure the consequences of observing--or failing to observe--those norms. The provisions of environmental norms, therefore, exist not merely as pronouncements of governments, applied …

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Specific Relief For Ancient Deprivations Of Property, Shelby D. Green Jan 2003

Specific Relief For Ancient Deprivations Of Property, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

I consider in this paper the extent to which courts rationally and on a principled basis can deny to aboriginal claimants, despite the ancientness of their claims, the specific relief of being restored to possession of their aboriginal lands where the case for such specific relief is otherwise made. The paper begins with a brief discussion of the foundations of property in the Western conception, then goes on to discuss the Europeans' asserted title to indigenous lands and the various theories of aboriginal title that have emerged. It then explores the past and existing legal obstacles to the judicial resolution …

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A Response To Russell Engler By Gretchen Flint, Gretchen M. Flint Jan 2003

A Response To Russell Engler By Gretchen Flint, Gretchen M. Flint

Elisabeth Haub School of Law Faculty Publications

I am always happy to go back and look at the MacCrate report, and those of you who have been in my clinic know that that's where we start and that's where we end when we talk about the experience of learning. But, as I read Russell's paper, I think the piece that's missing is an acknowledgment of how hard it is for a small group of people who are on the margin to effect change and that institutions have very strong reasons to stay either the way they are or institute very small, incremental changes.

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Back To The Future: Does Apprendi Bar A Legislature's Power To Shift The Burden Of Proof Away From The Prosecution By Labeling An Element Of A Traditional Crime As An Affirmative Defense?, Leslie Yalof Garfield Jan 2003

Back To The Future: Does Apprendi Bar A Legislature's Power To Shift The Burden Of Proof Away From The Prosecution By Labeling An Element Of A Traditional Crime As An Affirmative Defense?, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This Article considers whether it would be sound to extend the Apprendi rule to affirmative defenses. Part II of this Article considers the historical foundation of the Due Process Clause and the evolution of the assignment of the burden of proof for affirmative defenses and sentencing factors. Part II also reviews Mullaney and its progeny through the most current case, Apprendi. Part III discusses the Court's model for determining which categories of statutory language constitute elements requiring proof beyond a reasonable doubt and which are "nonessential element[s] of an offense." Part IV evaluates whether it is appropriate to assign the …

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Land Preservation, John R. Nolon Jan 2003

Land Preservation, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This exploration of local preservation law and practice recognizes the critical influences of federal, state, and regional governments. Local governments are instruments of state governments; municipalities derive their authority from state statutes. Extensive control over land use has been given to localities, but important powers have been retained. State governments are the partners of federal agencies that are charged with protecting environmental resources that are subject to federal jurisdiction. The land use system that has evolved over the last century in this country is intensely intergovernmental and interdependent. While this system was not designed as a whole and is often …

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Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki Jan 2003

Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article examines criminal cases decided by the Wisconsin Supreme Court over a fifteen-year period in an effort to discern whether judicial elections undercut judicial independence by affecting the ways justices vote. Wisconsin was chosen for this study because the state's mix of appointed and elected judges allows a researcher to control for different judicial selection systems. Specifically, this Article questions whether voting patterns may be affected by a justice's proximity to judicial elections, election margins, and whether a justice was appointed or elected in the initial term, since the governor may appoint a justice to fill a vacancy on …

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[Sjd Dissertation On Public Participation In South And North Korean Environmental Laws], Byungchun So Jan 2003

[Sjd Dissertation On Public Participation In South And North Korean Environmental Laws], Byungchun So

Dissertations & Theses

The primary aim of this thesis is to explore public participation in the environmental decision-making process for potential benefits in developing Korean environmental laws. Public participation contributes to sustainable development through effective environmental management; in addition, it improves accountability and transparency in the decision-making processes of governmental agencies as a complementary measure of direct and participatory democracy. Therefore, public participation is crucial not only to environmental protection but also to the development of democracy—two major concerns of Korea in the new Millennium.

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Economic Suicide: The Collision Of Ethics And Risk In Securities Law, Barbara Black, Jill I. Gross Jan 2003

Economic Suicide: The Collision Of Ethics And Risk In Securities Law, Barbara Black, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The first part of this article looks at whether there are any legal principles derived from regulation or the case law to support an “economic suicide” claim. The second part of the article reviews arbitrators' awards to determine whether arbitrators do, in fact, decide favorably on economic suicide claims. The article also looks at some arbitrators' awards that appear to recognize an economic suicide claim to identify any factors that may lead arbitrators to award damages to the claimant. Finally, in the third part, we address whether policy considerations support an extension of recognized brokers' duties to include a duty …

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Sample Forms, In Estate Planning Law And Taxation, 4th Ed., Bridget J. Crawford Jan 2003

Sample Forms, In Estate Planning Law And Taxation, 4th Ed., Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sample estate planning forms.

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Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman Jan 2003

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

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Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon Jan 2003

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an …

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The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers Jan 2003

The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers

Elisabeth Haub School of Law Faculty Publications

The article first summarizes CWA requirements relevant to TMDLs and outlines elements of an effective trading program. It then examines the program recently established by the State of Connecticut to allow trading of nitrogen credits among sewage treatment plants on Long Island Sound to achieve an established TMDL, and the CWA issues presented. Finally, it gives a brief comparison to the program being designed for the Chesapeake Bay, for which no TMDL has been established. Current brief descriptive summaries of several often cited programs are appended.

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The Debate Over War Powers, Mark R. Shulman Jan 2003

The Debate Over War Powers, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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A Response To Thomas Steele, Gary A. Munneke Jan 2003

A Response To Thomas Steele, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

The problem with adjunct professors teaching a course in law practice management is that they really are not in a position to think and write about the big issues, the way that full-time faculty members are; they generally have full-time responsibilities in a law firm. The law practice management field loses something valuable when so many of its teachers are part time. Although these professors bring practical experience to the classroom, they do not contribute in a larger way to the law school curriculum as a whole, or to the literature of the legal profession.

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Opening Remarks, Gary A. Munneke Jan 2003

Opening Remarks, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Interestingly, there is hardly any scholarship, and very little discussion, about the MacCrate Report outside of the clinical and skills programs in the traditional segments of legal education. I am not a clinician, although in the past I have taught courses in interviewing and counseling, and negotiations. I teach Law Practice Management and Professional Responsibility, which address professional skills and values; but I teach Torts as well, and my Torts colleagues, like teachers in other traditional subjects, really do not focus on these issues very much. So, one of the things I wanted to do with this symposium was to …

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Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller Jan 2003

Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Congress sought to attain full compliance with environmental statutes. It reasoned that multiple enforcers would provide more comprehensive and effective enforcement than one enforcer. Congress therefore empowered the Environmental Protection Agency (EPA), the states and private citizens as enforcers of the statutes. However, Congress worried that successive actions by multiple enforcers could bring disruption and conflict to enforcement litigation and remedies. It therefore included in the citizen suit provision of each statute a limited, three-element notice, delay, and bar preclusion device to manage successive citizens' enforcement against the violations already subject to government enforcement. The device generally bars citizens from …

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Improving Charitable Accountability, James J. Fishman Jan 2003

Improving Charitable Accountability, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This Article focuses upon a persistent problem of the nonprofit sector--its lack of accountability to the public. Director, officer, and organizational responsibilities will be analyzed. Past and current approaches to secure accountability of charitable assets will be discussed, and a proposal for improving charitable accountability will be suggested through the creation of public-private charity commissions at the state level under the aegis of the attorney general.

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