Law Commons^™

Land Use Cases Highlight Lessons, Evolving Patterns: The Year In Review, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

New York courts busily decided a multitude of land use cases in 2008 due to the increased growth in magnitude and complexity of land use issues. This year, as in the past, the authors summarize some of the most important cases. This year’s cases include the following topics: judicial deference to land use board decisions, zoning boards of appeals discretion, standard local practice, the New York State Environmental Quality Review Act, statute of limitations, affordable housing, and eminent domain.

The Case For Collaborative Tools, Lucie Olejnikova

Elisabeth Haub School of Law Faculty Publications

This article shares our experiences and outlines how we used free online collaborative tools to make the long distance seem short. This article also discusses the advantages and disadvantages of long-distance collaboration and how to apply the same tools and principles to a variety of work settings, such as law firms, firm libraries, court libraries, public libraries, and academic libraries. In addition, we mention the psycho-sociological aspects of a long-distance, Web-based communication, as well as its impact on project administration and budget.

Bill Would Encourage Effective Dispute Resolution, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many of the processes involved in traditional local land use review procedures involve two or more adversarial parties arguing their position with little to no consideration for the other party’s interest, and no regard for mutually beneficial outcome. This article describes a proposed New York law that would promote the use of mediation to supplement the traditional process. The article discusses studies geared towards testing the effectiveness of mediation, gives a review of out of state mediation legislation, as discusses corresponding court decisions. Finally, the article concludes with a review of the traditional roles of lawyers in the process, and …

Electronically Manufactured Law, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article seeks to strengthen the case for the academy and the legal profession to pay heed to the consequences of the shift to electronic research, primarily by employing cognitive psychology to guide predictions about the impacts of the shift and, thereby, address a perceived credibility gap. This credibility gap arises from the difficulty and imprecision in postulating how changes in the research process translate into changes in researcher behavior and research outcomes. Applying principles of cognitive psychology to compare the print and electronic research processes provides an analytical basis for connecting changes in the research process with changes in …

Solar Energy: New York City Sets Pace In Adopting Sound Policies, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Through state legislation and local land use powers, municipalities in New York have authority to facilitate solar energy usage and reduce carbon emissions. This article analyzes several specific New York and municipal legislative provisions enabling New York’s municipalities to encourage or discourage solar energy. Interestingly, many of the tools discussed in this article are variations of pre-existing traditional land use tools such as, variances, subdivision design requirements, or fee exemptions.

How Low Can You Go? Some Consequences Of Substituting A Lower Afr Note For A Higher Afr Note, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Instead of paying off a high-interest-rate note to a family member with cash or with non-cash assets that might result in the recognition of gain, it appears possible for a borrower to issue a new note at the lower current AFR and substitute it for the old note, without adverse tax consequences. Intrafamilial arrangements labeled as loans have long invited special scrutiny from the IRS. In some cases, the Service has successfully established that the arrangement was not a loan but another type of transfer, such as a gift. In the wake of several IRS victories in cases where somewhat …

Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates these five wedges and further organizes strategic energies. This builds on Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” I assert that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world.” The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the country.

Practitioners Need Broader Expertise: Real Estate Law Is Undergoing Profound Changes, John R. Nolon, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article discusses the sweeping modifications to real estate law practice as legislators, courts, and lawyers attempt to accommodate a number of real world challenges. The authors’ discussion analyzes several of these transitioning influences, such as an increase in environmental concerns, shifts in environmental legislation, the subprime mortgage crisis, the effect Kelo v. New London has on the lawyers’ role in facilitating redevelopment, as well as the influence of new E-sign laws has on drafting real estate documents.

Personal Management Skills: Getting The Most Out Of Every Day, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

What are the personal management skills that lawyers need to possess (or develop, as the case may be), here is a short list: organization, time management, financial management, facility with technology, people skills, an ability to communicate, personal marketing skills and career skills. Although future columns will add flesh to the bones of these personal management skills, a skeletal overview may help to understand what this article is talking about.

Postmortem Rights Of Publicity: The Federal Estate Tax Consequences Of New State-Law Property Rights, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent's named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality's image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent's gross estate for federal estate tax purposes. Second, the estate tax value of rights …

Architects? We Don't Need No Stinkin' Architects, Jack Mcneill

Elisabeth Haub School of Law Faculty Publications

The author chronicles the participation of the Library staff in the renovation of Pace Law Library.

The Externalities Of Nuclear Power: First, Assume We Have A Can Opener . . ., Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The nuclear power industry has latched on to global warming as an argument for its renaissance. Although even industry proponents acknowledge that the problem of disposing of spent nuclear fuel remains unsolved, the industry routinely assumes this problem will be solved in the future. Unfortunately, this is the same assumption made by nuclear energy proponents at the beginning of the nuclear industry fifty years ago. We haven’t solved the nuclear waste problem in the past half century, and there is no reason to think we will be more likely to do so in the next one. Like the shipwrecked economist …

The Political Use Of Private Benevolence: The Statute Of Charitable Uses, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This article examines the circumstances that led to the passage of the Statute of Charitable Uses of 1601, whose preamble unintentionally created a definition charity that resonates in the law today. The Statute was part of a legislative package of poor laws passed by Parliament to deal with an economic and political crisis that threatened the Tudor regime. The Statute’s primary purpose was to provide a mechanism to make trustees accountable for the appropriate administration of charitable assets, which in turn would encourage increased private charity for the relief of poverty, lessoning the tax burden of poor relief. Certain charitable …

Vested Rights: Do Land Developers Need More Protection?, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The general doctrine of vested rights protects developers from changes in zoning after they have received a valid building permit. This article explains the two varieties of vested rights laws New York: statutory, and common law. Also discussed, is a new proposal for vested rights legislation that would increase protection for developers over the existing laws. The article closes by citing of some of the concerns with vested rights such as the single integrated project theory, losing vested rights by abandonment, and the equitable estoppel rule.

Why Is It A Crime To Stomp On A Goldfish? Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Wind Power: An Exploration Of Regulations And Litigation, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Wind power presents an opportunity to harness a sustainable renewable energy source without the use of fossil fuels, which creates a great opportunity to mitigate climate change. However, the large turbines necessary to harness wind energy present several land use issues. This article, in addition to giving an introduction into the benefits of wind power, discusses several of these issues including comprehensive planning, moratoriums on development, and various options and land use tools local governments may use to legally implement wind power within their jurisdictions.

Perceptions Of Fairness In Securities Arbitration: An Empirical Study, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Report to the Securities Industry Conference on Arbitration (SICA) documents the results of the authors’ empirical study, through a one-time mailed survey, of survey participants’ perceptions of fairness of securities Self-Regulatory Organization (SRO) arbitrations involving customers. The survey was designed to assess participants’ perceptions of the: (1) fairness of the SRO arbitration process; (2) competence of arbitrators to resolve investors’ disputes with their broker-dealers; (3) fairness of SRO arbitration as compared to their perceptions of fairness in securities litigation in similar disputes; and (4) fairness of the outcome of arbitrations.

Tortious Interference With Expectancy Of Inheritance Or Gift--Suggestions For Resort To The Tort, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines the various factual circumstances in which a tort recovery for interference with the expectancy of inheritance or gift might be available, either as the only possible remedy for the disappointed expectant person or as an alternative to a remedy at equity or at probate, and determines, in regard to each circumstance, whether a cause of action in tort should be available. This tort has received recent attention, especially in light of the substantial awards, both compensatory and punitive, in a California Bankruptcy Court, 253 B.R. 550 (Bankr. C.D. Cal 2000), and, on appeal, in the U,S. District …

The Protection Of The Marine Environment From Land-Based Pollution And Activities: Gauging The Tides Of Global And Regional Governance, Ann Powers

Elisabeth Haub School of Law Faculty Publications

After providing an introductory overview of the major land-based threats to the marine environment, this article focuses upon the specific global and regional efforts to address land-based marine pollution and activities through a four-part survey. The main international initiative is first described, namely, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA). Progress in GPA implementation is next assessed with an emphasis on the documentation and results from the Second Intergovernmental Review Meeting on Implementation of the GPA held in October 2006. Major challenges constraining GPA implementation are then summarized, including limited national …

The Future Of Our Land: Presidential Leadership, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Open letter to the President.

The Role Of Lawyers In Resolving Environmental Interest Disputes, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the role of lawyers and the tools they can use in the resolution of environmental interest disputes. We draw on the decades-long work of ADR professionals in this area as well as the professional experience of attorneys and the skills they have honed in the context of “rights based” and “rights to process” disputes. By “environmental interest disputes” we include both emerging conflicts and current disputes among multiple parties over the use and abuse of land, air, water, surface, and subsurface resources whose resolution is unlikely to occur in traditional adjudicatory tribunals such as courts and administrative …

Child Pornography's Forgotten Victims, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims. It will then trace factors that may have contributed to the perception that possession of child pornography is a victimless offense. The first factor is the dual nature of the child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears attenuated because the possessor is not involved in the acts of sexual abuse inherent in producing …

Fulfilling Lucy's Legacy: Recognizing Implicit Good-Faith Obligations Within Explicit Job Duties, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Wood v. Lucy, Lady Duff-Gordon is often cited for the principle that every contract contains an implied covenant of good faith and fair dealing. Yet the very source of that decision--the New York Court of Appeals--has been emphatically unwilling to recognize an implied good-faith covenant in the context of employment relationships, given the judicial presumption of employment at will. This essay criticizes the New York Court of Appeals' conclusion that the implied covenant of good faith and fair dealing must yield to the presumption of employment at will, and advocates a more balanced approach.

When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …

Disaster Planning: What We Have (And Haven't) Learned, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Basic disaster planning is not only cost-effective but relatively easy to integrate with other planning activities. By looking at the experiences of lawyers and law firms that have survived disasters in recent years, it is possible to gain insights that will help us overcome such adversity. Transactional business lawyers, whose clients are frequently the victims of the same forces that harm lawyers, have a special obligation to serve these clients in times of crisis in order to restore these businesses to functionality and commerce to the community at large.

Remedying Our Fragmented Governmental Structures To Deal With Our Nation-On-Edge Problems, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The argument against crafting federal regulations for problems stemming from development in disaster-prone areas (nation-on-edge problems) assumes that these types of problems are essentially local problems requiring unique local solutions. In this Article, Jeffrey G. Miller challenges this assumption, reasoning that a flexible framework of federal regulations would indeed be effective at remedying these problems. He suggests that such a framework could be modeled after the Clean Water Act's (CWA's) point source pollution control regime. A permitting system similar to that set out in the CWA would promote best management practices while still allowing local entities the freedom to determine …

Water Is Security, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Albert Kritzer: Pioneer Of Open Access To International Private Law, Marie Stefanini Newman

Elisabeth Haub School of Law Faculty Publications

This essay explores the enormous contributions that Professor Albert H. Kritzer has made to the field of international commercial law through the creation of a unique and powerful database that explicates the United Nations Convention on Contracts for the International Sale of Goods (ClSG).

Working Class Judges, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Part I of this article provides our reanalysis of Scott Baker's data that examines the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the …