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Cityland – Vol. 3, No. 7, Center For New York City Law

CityLand - 2006

The August 2006 issue of CityLand covers significant land use and preservation developments across New York City. The City Council approved a controversial rezoning in Pelham Parkway and Indian Village, Bronx, and finalized designations for two West Village historic districts. The School Construction Authority received approval to convert the former Brooklyn Family Court into a high school. The Planning Commission approved Silvercup Studios’ 2-million-square-foot mixed-use development in Long Island City, and certified a downzoning proposal for Douglaston/Little Neck. A private developer’s rezoning in North Tribeca was approved despite opposition. The Commission also extended the inclusionary housing program to Queens for …

Section 4: Advocacy, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon

ExpressO

Currently, a mediator is faced with a dilemma. All state ethical standards of conduct (“Standards”), whether promulgated by a governmental entity or professional organization, require mediator impartiality. Yet many Standards also require a mediator to attain a fair result, achieve other concepts of fairness, balance power struggles and promote informed decisions. Is it possible for a mediator to conform to all of these qualities?

This article provides extensive research and analysis regarding Standards that focus on mediator impartiality and fairness. The research establishes that Standards create chaos for the practicing mediator to the extent they include vague and internally inconsistent …

Two Types Of Consequentialism, Two Types Of Formalism: Reconsidering Bordenkircher In Light Of Apprendi, Michael M. O'Hear

ExpressO

While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue …

Designing Interstate Institutions: The Example Of The Ssuta, Brian D. Galle

ExpressO

This Article presents a case study in designing cooperative interstate institutions. It takes as its subject the Streamlined Sales and Use Tax Agreement (“SSUTA”), a recently-developed compact among the States now awaiting congressional ratification. The SSUTA’s primary goal is to bring uniformity to the field of state and local sales taxation, a regime in which multi-jurisdictional sellers now confront literally thousands of different sets of rules. I predict here that the SSUTA as currently designed is unlikely to accomplish that goal, and attempt to suggest possible amendments that could improve its expected performance. From these efforts I extract larger lessons …

Mediating Animal Law Matters, Kathy M. Hessler

ExpressO

Animal law matters are slowly making their way through our court system, resulting in some changes in the way we, as a society, view our relationships with non-human animals. Courts are increasingly struggling to reconcile two opposing constructs: the idea that non-human animals are property under the law, and the reality that non-human animals are different from other forms of property. Progress in resolving this tension within the courts is, and will continue to be, slow. The question then arises, what alternative exists?

Mediation is a method increasingly turned to in this country as an alternative to traditional litigation. It …

The Much Maligned 527 And Institutional Choice, Lloyd H. Mayer

ExpressO

The continuing controversy over “527” organizations has led Congress to impose extensive disclosure requirements on these political organizations and to consider imposing extensive restrictions on their funding as well. The debate about what laws should govern these entities has, however, so far almost completely ignored the fact that such laws raise a complicated institutional choice question. This Article seeks to resolve that question by developing a new institutional choice framework to guide this and similar choices. The Article first explores the context for making this determination by describing the current laws governing 527s, including both federal election laws administered by …

Re Izaak Walton Killam Health Centre And Nsgeu (P-05121), Innis Christie

Innis Christie Collection

This is a union policy grievance regarding the Employer's approach to the compensation of employees for time lost on storm days. The Employer was compensating only if the time lost was for less than two hours. The Union believed that the Employer should pay for the first two hours. The Union seeks full redress, including retroactive compensation. The Employer agreed to the requested remedy if the Grievance is successful.

The grievance fails. The Union could not prove its interpretation of the relevant clauses of the Collective Agreement.

Mind, Brain And The Law, Atahualpa Fernandez

ExpressO

No abstract provided.

Calling The United States' Bluff: How Sovereign Immunity Undermines The United States' Claim To An Effective Domestic Human Rights System, Denise L. Gilman

ExpressO

This article challenges the claims made by the United States that the civil rights system in this country adequately protects human rights, making it unnecessary for the United States to take on additional international human rights commitments. Specifically, the article uses international human rights law and comparative law to analyze the broad sovereign immunity doctrines that protect government actors in the United States from suits for damages even where constitutional violations are in play.

Sex, Trust, And Corporate Boards, Joan M. Heminway

ExpressO

This essay collects and interprets social science research on sex and trust and uses this work to shed new light on the emerging case for gender diversity on corporate boards. Specifically, the essay describes research findings that indicate (1) that men and women trust and are trustworthy on different bases and (2) the existence of a bias against women in corporate leadership positions. Based on this research and current legal scholarship on corporate governance, the essay asserts that gender diversity on corporate boards may be desirable but difficult to attain. The essay also calls for more targeted research on the …

Custom And Tradition Versus Reason In Modern Secular And Religious Moral Reasoning And In Modern Constitutional Law, Randall Kelso

ExpressO

Custom and Tradition versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law: Contemporary debates over values, the so-called “Culture Wars,” are best understood not as a debate between religious and secular ideologies, but rather a debate between traditional ideologies, whether religious or secular, which reflect customary or traditional norms, versus progressive ideology, whether religious or secular, which reflect rational deliberation about moral reasoning. Customary or traditional attitudes, both secular and religious, have supported, among other things, slavery, segregation and anti-miscegenation laws, denial of equal rights for women, anti-Semitism, rejection of the cosmology of Galileo, rejection …

Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown

ExpressO

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Evaluating The Wto's Two Step Test For Environmental Measures Under Article Xx, Nita Ghei

ExpressO

There has been considerable dissatisfaction expressed by both free trade proponents and environment activists with respect to the WTO’s exercise of authority on the impact of environmental measures on international trade. The Article first sets out a analytical framework, based on public choice theory, which examines the incentives to implement measures to achieve environmental goals which function effectively as disguised barriers to trade. This is followed by a careful examination of the WTO’s jurisprudence in the area, which suggests that the WTO’s focus on the measure being implemented is correct. Furthermore, the two step test under Article XX, as conceived …

Canons, The Plenary Power Doctrine And Immigration Law, Brian G. Slocum

ExpressO

There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction in an aggressive fashion to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role that canons have played in immigration law or have viewed canons as serving only a temporary and marginally legitimate role as substitutes for the lack of constitutional rights …

Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower

ExpressO

A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.

Courts today are deeply involved in …

Why Don’T More Public Schools Teach Sex Education? A Constitutional Explanation And Critique, Jesse R. Merriam

ExpressO

This Article questions why so many public schools do not teach any form of sex education. The answer proposed in this Article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.

To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, …

Defining Fair Use In The Digital Era, Joseph James Raffetto

ExpressO

The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …

The Clinical Divide: Overcoming Barriers To Collaboration Between Clinics And Legal Writing Programs, Sarah O. Schrup

ExpressO

Increased communication between legal research and writing (“LRW”) programs and clinical programs is desirable because it provides students with a seamless learning experience, enhances faculty teaching in both departments, and creates opportunities for collaboration that benefits a law-school community generally. But barriers presently exist that hinder collaboration. Specifically, barriers that impact collaboration and integrated learning between LRW and clinical programs stem from: (1) differences in the development of the two disciplines and the resultant differences in teaching methodologies; and (2) other practical barriers including physical separation, status issues, lack of communication, competing demands within the law school and the reality …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

Why The Court Said No, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Origin Of The Compelling State Interest Test And Strict Scrutiny, Stephen A. Siegel

ExpressO

This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny’s compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and that …

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

House Of Mouse And Beyond: Assessing The Sec's Efforts To Regulate Executive Compensation, Jennifer S. Martin

ExpressO

What can or should be done, if anything, to address complaints that corporate executives are overpaid? This article argues that the Securities and Exchange Commission is making progress in the area of disclosure of executive compensation. The SEC will not accomplish any substantial reform regarding compensation as a wider issue, however, because shareholders do not have much of a role in establishing executive compensation packages and have little ability to challenge board decisions after receiving the mandated disclosure. Analyzing the Proposed Regulations and the Delaware Supreme Court decision In re Walt Disney Co. Derivative Litigation, this article sheds light on …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Looting, Law, And Lawlessness, Stuart Green

ExpressO

As recent incidents in the wake of Hurricane Katrina and other natural and man-made disasters have illustrated, the moral content of looting spans an extraordinarily wide continuum: At one end are predatory and exploitative acts that seem deserving of even greater punishment than ordinary acts of burglary and larceny. At the other end are cases of necessity, involving otherwise law-abiding citizens who, as a result of forces beyond their control, find themselves hungry and exposed to the elements. In between these two poles lies a wide range of conduct that often involves impoverished and alienated citizens living on the edges …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

Confronting The Genericism Conundrum, Sandra L. Rierson, Deven R. Desai

ExpressO

Recent lawsuits and articles have drawn attention to a growing issue in intellectual property law, the aggressive and arguably abusive tactics of intellectual property (“IP”) rights holders. In the trademark context, some maintain and there are arguments to support the idea that trademark holders bring these actions as a means of manipulating the public through direct control of the public’s ability to use language. Nonetheless, assuming trademark holders and their counsel are acting at some level of good faith and are rational, something else in the law itself may be driving this otherwise questionable behavior. This paper argues that the …

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

ExpressO

The article focuses on the challenges for women’s rights activists attempting to provide a better legal regime for victims of domestic violence in Nigeria. It is my desire to provide a resource material on the issue of domestic violence for activists, policy makers, legislators and law reformers who are engaged in providing a better legal framework for the protection and promotion of women’s rights in a developing country like Nigeria. Having worked extensively on this issue, the article documents my experience on law reform advocacy in Nigeria.