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Articles 1 - 30 of 43
Full-Text Articles in Law
Re-Appraising The Appraisers: Expanding Liability To Buyers And Borrowers In The Story Of The 2008 Financing Industry Crisis, Shelby D. Green
Re-Appraising The Appraisers: Expanding Liability To Buyers And Borrowers In The Story Of The 2008 Financing Industry Crisis, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
On the surface, suing in negligence seems the most promising avenue for recovery against appraisers, because liability depends on an examination of defendant's conduct alone and does not require an examination or defendant's mental state to show intent or agreement. But historically insuperable hurdles have operated to prevent recovery under this seemingly simple cause of action. One hurdle is lack of privity. The appraiser's legal relationship is with the hiring party--the lender--to assess the risks of the loan transaction and not with the purchaser, who may rely on the appraisal in making the decision to purchase. Because of the lack …
Land Use For Economic Development In Tough Financial Times, John R. Nolon
Land Use For Economic Development In Tough Financial Times, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The recession hit cities hard. Basic municipal staffs and services are being cut, debt is being restructured, capital projects delayed, and other cost cutting measures reported. The Congressional Budget Office reports that by November of last year there were 241,000 fewer municipal employees than there were three years earlier when the recession began. In its most recent report from city finance officers, the National League of Cities states that city spending cutbacks since 2009 are the largest since the survey was first taken, over twenty-five years ago. Despite this serious trend, municipalities have not defaulted in debt payment and there …
Educating Prosecutors And Supreme Court Justices About Brady V. Maryland, Bennett L. Gershman
Educating Prosecutors And Supreme Court Justices About Brady V. Maryland, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The author reviews the Supreme Court decision in Connick v. Thompson and provides a course outline, including problems, for training prosecutors on their duty to disclose materially favorable evidence to the defendant under Brady v. Maryland.
Keeping It Legal: Transboundary Management Challenges Facing Brazil And The Guarani, David N. Cassuto
Keeping It Legal: Transboundary Management Challenges Facing Brazil And The Guarani, David N. Cassuto
Elisabeth Haub School of Law Faculty Publications
This paper examines the legal and ecological problems facing the Guarani Aquifer System. Because the majority of the Guarani Aquifer System underlies Brazil, the Brazilian legal regime forms the paper’s principal focus. The importance of the region makes the need for accurate information crucial. Yet relying on such information to manage a complex resource presents risks. Too often, the role of uncertainty in regulating is underplayed. Increasing knowledge over the resource demands categorizing “hard” and “soft” uncertainties, especially those presented by climate change. In addition, regulators must acknowledge the unitary nature of the aquifer while remaining sensitive to differing national …
Making Sand Castles As The Tide Comes In: Legal Aspects Of Climate Justice, Elizabeth Burleson
Making Sand Castles As The Tide Comes In: Legal Aspects Of Climate Justice, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
Achieving climate justice and the Millennium Development Goals (“MDGs”)2 are mutually reinforcing challenges. The achievement of both is well within the capacity of the international community. Indeed, reaching carbon neutrality in an affordable, environmentally sound way requires integrating the strategies of mitigation, adaptation, sustainable development, and disaster risk management.
Arbitration Case Law Update 2011, Jill I. Gross
Arbitration Case Law Update 2011, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2010) (FAA). In this chapter, we identify recent judicial decisions in the area of arbitration law, and analyze their impact on securities arbitration practice.
Integrating Sustainable Development Planning And Climate Change Management: A Challenge To Planners And Land Use Attorneys, John R. Nolon
Integrating Sustainable Development Planning And Climate Change Management: A Challenge To Planners And Land Use Attorneys, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.
Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman
Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
This article connects the debate about addiction with the fundamental criminal law principle of deterrence. It seeks to bridge the gap between the competing medical and criminal justice approaches by exploring addiction in light of recent research about the brain, gender differences, and what works best from both a treatment and justice perspective. To sharpen the issues, the article deliberately focuses on the emotionally freighted subject of pregnant drug users. This approach will illuminate prevailing assumptions about how biological, genetic, cultural, and other environmental factors shape human behavior and challenge conventional understandings of deterrence in light of new research on …
An Equal Rights Amendment To Make Women Human, Ann Bartow
An Equal Rights Amendment To Make Women Human, Ann Bartow
Elisabeth Haub School of Law Faculty Publications
Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.
Pretrial Procedures For Innocent People: Reforming Brady, Lissa Griffin
Pretrial Procedures For Innocent People: Reforming Brady, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
In this article, the author proposes that the prosecution’s obligation to disclose exculpatory information to the defense be formalized by statute, court rule, or internal protocol in ways that would reflect the current state of our knowledge of and experience with both Brady and wrongful convictions. This would improve on the current ineffective constitutional protection—and any existing statutory or rule-based regimes—in several ways. First, such a formalized regime would require disclosure of all materials that are reasonably helpful to the defense. Second, unlike the constitutional doctrine, which provides no reliable mechanism for monitoring police disclosure to the prosecution, an accompanying …
Unsex Cedaw, Or What's Wrong With Women's Rights, Darren Rosenblum
Unsex Cedaw, Or What's Wrong With Women's Rights, Darren Rosenblum
Elisabeth Haub School of Law Faculty Publications
Part I discusses why CEDAW continues to be relevant as the primary source of international law on sex discrimination. Until the advent of the Convention on the Rights of the Child (CRC), CEDAW was the most widely-subscribed international treaty. Some of the draft language of CEDAW reflects the tension between category and identity and how "women" won the debate. Part II contrasts CEDAW with the Convention for the Elimination of Racial Discrimination (CERD). It points to the identitarian focus of CEDAW as a core reason for its failures. Had CEDAW reflected a category focus, as CERD did, it would more …
No Bitin’ Allowed: A Hip-Hop Copying Paradigm For All Of Us, Horace E. Anderson Jr.
No Bitin’ Allowed: A Hip-Hop Copying Paradigm For All Of Us, Horace E. Anderson Jr.
Elisabeth Haub School of Law Faculty Publications
It is long past time to reform the Copyright Act. The law of copyright in the United States is at one of its periodic inflection points. In the past, major technological change and major shifts in the way copyrightable works were used have rightly led to major changes in the law. The invention of the printing press prompted the first codification of copyright. The popularity of the player piano contributed to a reevaluation of how musical works should be protected. The dawn of the computer age led to an explicit expansion of copyrightable subject matter to include computer programs. These …
Innovation Cooperation: Energy Biosciences And Law, Elizabeth Burleson
Innovation Cooperation: Energy Biosciences And Law, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
This Article analyzes the development and dissemination of environmentally sound technologies that can address climate change. Climate change poses catastrophic health and security risks on a global scale. Universities, individual innovators, private firms, civil society, governments, and the United Nations can unite in the common goal to address climate change. This Article recommends means by which legal, scientific, engineering, and a host of other public and private actors can bring environmentally sound innovation into widespread use to achieve sustainable development. In particular, universities can facilitate this collaboration by fostering global innovation and diffusion networks.
Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman
Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
A prosecutor's charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA's Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …
Perspective On Economic Critiques Of Disability Law: The Multifaceted Federal Role In Balancing Equity And Efficiency, Elizabeth Burleson
Perspective On Economic Critiques Of Disability Law: The Multifaceted Federal Role In Balancing Equity And Efficiency, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
Given the recent enactment of the ADA Amendments Act, this article analyzes a Rawlsian philosophical framework with which to view society's treatment of people with disabilities. Allocation of resources remains a pervasive concern of economists and attorneys alike. Need, merit, and market compete as means by which to decide who should receive what benefits. This article concludes that while economics can play a powerful role in the initial allocation of limited resources, there remains a multifaceted federal role to confront discrimination and promote equity.
Preface To The Paperback Edition Of United States, International Law, And The Struggle Against Terrorism, Thomas Michael Mcdonnell
Preface To The Paperback Edition Of United States, International Law, And The Struggle Against Terrorism, Thomas Michael Mcdonnell
Elisabeth Haub School of Law Faculty Publications
It is remarkable that in less than two years so many significant developments have taken place that concern the United States and the struggle against transnational terrorism. Perhaps the three most significant are as follows: (1) the Obama administration’s failure to reject wholesale the Bush-Cheney administration’s counterterrorism policies and practices; (2) the popular revolts sweeping the Arab world, often referred to as the “Arab spring”; and (3) the US Navy Seals killing Osama bin Laden in Abbottabad, Pakistan.
Punishing Without Free Will, Luis E. Chiesa
Punishing Without Free Will, Luis E. Chiesa
Elisabeth Haub School of Law Faculty Publications
This Article will argue that there are good moral reasons to conclude that the scientific plausibility of determinism ought to lead us to abandon the notion of free will. Contra P. F. Strawson and Moore, this Article suggests that rejecting free will does not undermine the human experience, and doing so is plausible and attractive because it would likely lead to more humane and efficient institutions of blaming and punishing.
The Family Court—A Short History, Merril Sobie
The Family Court—A Short History, Merril Sobie
Elisabeth Haub School of Law Faculty Publications
The New York State Family Court was established in 1962. The framer's intent, which was largely achieved, was the formation of an omnibus tribunal capable of adjudicating every justiciable family related dispute. Accordingly, Family Court incorporated the former State Children's Courts, the domestic violence parts of the local criminal courts, and the paternity parts of the former Court of Special Sessions. In addition, Family Court was granted adoption and abandonment jurisdiction, concurrent child custody jurisdiction, and concurrent post-divorce modification and enforcement jurisdiction. This paper will outline the pre-Family Court history in synopsis form, and briefly describe the Court's post-1962 developments.
Genocide: A Normative Account By Larry May, Alexander K.A. Greenawalt
Genocide: A Normative Account By Larry May, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
The Future Of Food Eco-Labeling: Organic, Carbon Footprint, And Environmental Life-Cycle Analysis, Jason J. Czarnezki
The Future Of Food Eco-Labeling: Organic, Carbon Footprint, And Environmental Life-Cycle Analysis, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
This Article discusses public and private efforts to inform consumers about environmentally preferable food choices. Part II describes the environmental consequences of the modern food system. Part III describes existing public and private eco-labeling regimes, including organic labeling, carbon footprint labeling, and country of origin labeling.
Climate Policy & U.S.-China Relations, Jason J. Czarnezki
Climate Policy & U.S.-China Relations, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
The Chinese stance, that no cap on carbon emissions will ever exist no matter how high, may be a product of China's belief in a cold and hard, and potentially true, reality-that global economic power is paramount and will provide the only avenue to adapt to an inevitable climate crisis, as well as achieve the milestones of superpower status, many of which they have already achieved (e.g., Olympic Games, World Expo, United Nations Security Council). While China's policy remains problematic, as is United States' failure to lead in the international community on the issue of climate change, China's actions, while …
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most …
The Zealous Prosecutor As Minister Of Justice, Bennett L. Gershman
The Zealous Prosecutor As Minister Of Justice, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
As my contribution to this Memorial tribute to Professor Fred Zacharias, I have chosen to write about Fred's 1991 article in theVanderbilt Law Review entitled Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice? I have always seen this article as a classic, one of the finest and most important discussions of the special role of the prosecutor in the criminal justice system and of the meaning of the prosecutor's ethical duty to “do justice.” This article is cited repeatedly for numerous points: the conception of the prosecutor's duty not to win a case but to see …
Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
Following a brief history of prior versions of the relevant Standards in Part I, Part II describes the current draft of the proposed Prosecution and Defense Functions, focusing on new requirements for candor, civility, and cooperation. The article concludes that the proposed revisions represent a healthy step toward a more reliable, trustworthy, and efficient criminal justice system. The revisions explicitly recognize the central, powerful, and multidimensional role of the prosecutor and attempt to respond accurately and realistically to the needs and demands of that role. As the drafting and approval process continues, certain specific areas need greater clarification and thus …
Energy Revolution And Disaster Response In The Face Of Climate Change, Elizabeth Burleson
Energy Revolution And Disaster Response In The Face Of Climate Change, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
This article considers the means by which communities can become increasingly resilient through shared best practices across a range of climate change measures. Part II of this article will address emergency preparedness for effective disaster response. Part III will analyze how decision-makers can use adaptive management in a shared local, regional, national, and international cohesive frame- work. Part IV will recommend resilient green building strategies. This article concludes that in the midst of an unprecedented energy revolution, there are meaningful emergency preparedness measures that the international community can facilitate to build resilience in the face of natural and unnatural disasters.
From Coase To Collaborative Property Decision-Making: Green Economy Innovation, Elizabeth Burleson
From Coase To Collaborative Property Decision-Making: Green Economy Innovation, Elizabeth Burleson
Elisabeth Haub School of Law Faculty Publications
This Article considers the advantages and disadvantages of market-based program design, natural gas regulation, and enhanced international understanding. Transitioning to a green economy involves dedicating efforts towards environmentally sound energy innovation. RGGI, natural gas, and climate change represent sustainability challenges. Optimizing cooperative transboundary green innovation can facilitate inclusive decision making just as public participation by civil society can help economies transition to environmentally sound energy use. Building upon progress made in the human lights and environment fields can advance both and enhance resilience.
Food, Law & The Environment: Informational And Structural Changes For A Sustainable Food System, Jason J. Czarnezki
Food, Law & The Environment: Informational And Structural Changes For A Sustainable Food System, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
This Article considers legal, theoretical, and practical steps to a more sustainable food model. Part I discusses the underlying reasons for problems in the current food system, including those manifested in law, and the perceived benefits of creating a new agricultural paradigm. Part II discusses the major agricultural and food programs that have become more common in shaping a different food system model, specifically focusing on direct marketing (for example, farmers markets and community-supported agriculture) and the organic movement as it relates to small farmers. Part III argues that in order to change modern American food consumption, two changes must …
Water Law In The United States And Brazil--Climate Change & Two Approaches To Emerging Water Poverty, David N. Cassuto, Romulo S.R. Sampaio
Water Law In The United States And Brazil--Climate Change & Two Approaches To Emerging Water Poverty, David N. Cassuto, Romulo S.R. Sampaio
Elisabeth Haub School of Law Faculty Publications
This article examines two of the major water legal regimes in the Americas-that of Brazil and the United States. Both countries have extensive wet and dry regions and both hydro-regimes face a significant threat from global warming. Brazil, for instance, is home to between eight and fifteen percent of the world's fresh water, and its fast-growing economy and population present major challenges in management and allocation. The U.S. also faces major water allocation problems resulting from past settlement policies; unsustainable reclamation projects; and also fast-growing domestic, industrial and agricultural demand. In the United States, water has traditionally been perceived as …
When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa
When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt
The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …