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

Law Commons

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

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.


'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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


[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.


Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman Jan 2003

Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will explore the history, implementation, and impact of state advocacy protection statutes. The article is in four major parts. The first Part provides an introduction to the concept of advocacy, both as it was understood at common law, and as it is presently interpreted by HCPs and MCOs. The article will also examine the phenomenon of HCPs' “deselection,” that is, the termination or non-renewal of their contracts with MCOs. In this context, the article will highlight the distinction between anecdote and data and emphasize the paucity of hard evidence to support either side's version of the truth ...


Multijurisdictional Practice Of Law: Recent Developments In The National Debate, Gary A. Munneke Jan 2003

Multijurisdictional Practice Of Law: Recent Developments In The National Debate, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This Article will explore the development of multijurisdictional practice in the United States and abroad. Part III will discuss the positions taken by various participants in the current debate on multijurisdictional practice. Part IV will examine the actions of the American Bar Association House of Delegates in August 2002 and the implications of those actions for lawyers. Part V will conclude that MJP reform is critical to the future of the legal profession in the United States as a fundamental tool for American business to remain competitive in the globalized marketplace for goods and services.


Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan Jan 2003

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element ...


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 ...


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 ...


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.


A Response To Russell Pearce, John A. Humbach Jan 2003

A Response To Russell Pearce, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

There is not very much to criticize in what Professor Pearce has said about the MacCrate Report. Mostly, therefore, I will just amplify some of the points that I regard as among the most important. Before that, however, I want to mention some quibbles. First, I have always been bothered a bit when people describe the lawyer's role as that of a hired gun. The term “hired gun” is (if you'll pardon the expression) loaded. It does not, moreover, correctly capture either the good or the questionable of what lawyers actually try to do when representing their clients ...


The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach Jan 2003

The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The most fundamental environmental problem is this: across our nation there are literally hundreds of millions of acres of important natural resource lands-- farms, forests, wetlands, reservoir watersheds, shore lands, endangered species habitat--lands that have relatively little commercial value in their present natural condition, but which would have much greater commercial value if their natural values were degraded or destroyed. Stated differently, private property often will yield a much greater profit to its owner if it is used in ways that will harm or obliterate important environmental assets and values. For this reason, private owners are understandably tempted to supplant ...


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 ...


Piney Run: The Permits Are Not What They Seem, Jessica Owley Lippmann Jan 2003

Piney Run: The Permits Are Not What They Seem, Jessica Owley Lippmann

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


Foreword: Annual Review Of Environmental And Natural Resources Law, Jessica Owley Lippmann Jan 2003

Foreword: Annual Review Of Environmental And Natural Resources Law, Jessica Owley Lippmann

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


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 ...


Defining The Project Purpose Under Nepa: Promoting Consideration Of Viable Eis Alternatives, Jason J. Czarnezki Jan 2003

Defining The Project Purpose Under Nepa: Promoting Consideration Of Viable Eis Alternatives, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Comment examines how courts should construe EIS project goals under NEPA. Part I provides the basic foundation for EIS alternative analysis by outlining NEPA's goals, framework, and legal development. Part II identifies and discusses two conflicting positions in current case law supporting narrow versus general goal formulations in project purpose evaluation. To resolve this conflict, Part III suggests that courts should reject the narrow formulation in evaluating a project's purpose and objectively inquire into the effect and purpose of the agency's action.


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.


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 ...


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.


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 ...