State and Local Government Law Commons^™

Upholding Citizens’ Privacy In The Use Of Stingray Technology: Is New York Behind?, Samantha Hazen

Pace Law Review

This Comment will argue that New York should follow the federal agencies’ and states’ leads by imposing a warrant requirement supported by probable cause on local and state agencies that wish to use Stingray technology in their investigations. The first section will explore Stingray technology and how it works. The second section will frame the issue and describe New York’s current standard. The third section will discuss the judicial response to the issue and how New York courts seem to place the burden of upholding privacy on the citizen, instead of the government. The third section will also discuss a …

Transition Support Mechanisms For Communities Facing Full Or Partial Coal Power Plant Retirement In New York, Lisa Anne Hamilton, Radina Valova, Karl R. Rábago

Environmental Law Program Publications @ Haub Law

New York State is undergoing a rapid and unprecedented energy transformation, particularly in the electricity sector. As new resources and technologies emerge to meet the demands of 21st century life, regulators must balance the need for cost effective and equitable participation in wholesale power markets while maintaining reliability on the grid. Furthermore, it is critical that all New Yorkers participate fully in the promise of a revitalized and equitable energy future. Such a transformation requires that the needs of all communities are factored into the polices and regulations that move New York toward the bold goals set forth under its …

The Nypd And The Mentally Ill, Randolph M. Mclaughlin, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

Recently, a federal court judge cleared the way for a trial in the case of Mohamed Bah, a 28-year-old student killed in his home by NYPD officers after his mother, Hawa Bah, called 911 for assistance to take him to a hospital. Southern District Judge P. Kevin Castel's ruling denied New York City's motion seeking to dismiss claims of unlawful entry and excessive force against the police officers who responded to Mr. Bah's apartment, breached his door and then shot and killed him. Mr. Bah's family alleges that the final and fatal shot to Mr. Bah's head was inflicted at …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iv), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know—clearly and convincingly—why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts.

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Ii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.

New …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part I), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

2016 is the 100th anniversary of the adoption of the first citywide comprehensive zoning law. Its original purpose was to create districts that separated incompatible land uses and building types in order to protect property values and promote the health, safety, and welfare of the community. 100 years later, zoning is used to achieve an impressive number of public objectives such as permitting transit oriented development, creating green infrastructure, preserving habitat, species, and wetlands, promoting renewable energy facilities, reducing vehicle miles traveled, and preserving the sequestering landscape.

E-Mail Service In New York State, Anastazia Sienty

Pace Law Review

This article will review New York’s service statute, C.P.L.R. § 308, in light of today’s culture and communications. Part One reviews the Constitutional framework of service, the statutory demands for e-mail as a method of service with appropriate leave of court, and provides an overview of the statute. Part Two reviews the evolution of New York case law. Part Three focuses on “how to” use C.P.L.R. § 308(5) to obtain service of process by e-mail. Part Four contemplates the future of service via e-mail.

City Sustainability Reporting: An Emerging & Desirable Legal Necessity, Adam J. Sulkowski

Pace Environmental Law Review

This article will begin with a brief history of sustainability reporting, including recent developments related to its adoption by cities. The author will then review two major trends that, considered together, indicate sustainability reporting should be viewed as an emerging legal necessity for municipalities in the United States. First, the exemption shielding cities from the disclosure requirements of securities laws has eroded. Second, sustainability disclosures now fit the definition of what must—as a matter of materiality, if not specific mandates—be reported to investors. This means that the cities that have collectively issued over $3.67 trillion in securities2 should all be …

What's Going On In Our Prisons?, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Additional governmental oversight is urgently needed to truly change the culture of a system that holds 53,000 inmates across 54 prisons in New York State. What goes on inside these prisons is largely hidden from view, and there is little accountability for wrongdoing. The State Legislature should follow the A.B.A.’s guidance and establish a monitoring body with unfettered access to prison facilities, staff, inmates and records in announced or unannounced visits.

Written Testimony On Correctional Oversight Of The Nys Doccs, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

I am testifying today on behalf of both myself and my co-chair Michele Deitch, who has submitted written testimony for your consideration. My comments here reflect both the key points in her testimony as well as some of my own thoughts about the importance of external oversight and comments about the critical role played by the Correctional Association of New York, the failure of the State Commission on Correction to provide meaningful regulation of New York’s prisons, and the need to improve access by the media to the public and to the state’s prisons.

Mommy Dearest: Determining Parental Rights And Enforceability Of Surrogacy Agreements, William J. Giacomo, Angela Dibiasi

Pace Law Review

The governing law in this area is new and evolving and, as such, the allocation of the legal rights and responsibilities depend on which state has jurisdiction over the matter. This article will discuss the basic types of surrogacy agreements and examine the legal distinctions of their enforceability under New York and California law.

Unequal Access To Justice: Solla V. Berlin And The Unprincipled Evisceration Of New York’S Eaja, Armen H. Merjian

Pace Law Review

Solla is noteworthy not merely in light of the baleful effects of its ruling, but because of its reasoning: it is categorically wrong. The decision wholly elides a cornerstone and settled principle of New York welfare law, namely, that in the administration of public assistance, the municipalities act as the agents of the State, while blatantly violating the most fundamental of agency principles, namely, that a principal is vicariously liable for the actions of its agent acting within the scope of its authority. Indeed, this principal/agent relationship is established both by statute and by decades of uniform state and federal …

A Sitting Duck: Local Government Regulation Of Hunting And Weapons Discharge In The State Of New York, Gary E. Kalbaugh

Pace Environmental Law Review

On March 31, 2014, the New York State Legislature significantly modified New York's Environmental Conservation Law. The Environmental Conservation Law imposes limitations on the discharge of longbows. A longbow is defined by New York's Department of Environmental Conservation as “a longbow, recurve bow or compound bow which is designed to be used by holding the bow at arm's length, with arrow on the string, and which is drawn, pulled and released by hand or with the aid of a hand-held trigger device attached to the bowstring.”

Before the 2014 amendment, longbows could not be discharged in such a way that …

Municipal Wildfire Management In California: A Local Response To Global Climate Change, Sameer Ponkshe

Pace Environmental Law Review

This Note will examine the wildfire issue in California within the context of municipal government. Part II-A will present a concise look at the current state of affairs regarding climate change, which demonstrates that because little has changed on the international level regarding emissions reductions, the responsibility of protecting people from the catastrophes associated with climate change will fall to lower levels of government. Part II-B will then discuss how wildfire activity is affected by climate change, with specific attention to how the western U.S. has been affected. Part III of this Note focuses on actions of several different municipalities …

How To Avoid Constitutional Challenges To State Based Climate Change Initiatives: A Case Study Of Rocky Mountain Farmers Union V. Corey And New York State Programs, Lauren Baron

Pace Environmental Law Review

Considering the decision in Rocky Mtn. v. Corey and the EPA's actions in accordance with the President's Plan, this comment will outline best practices states can use in creating climate initiatives based on the challenges California faced in Rocky Mtn. v. Corey. Part II of this comment will analyze the reasoning in Rocky Mtn. v. Corey. Although certiorari was denied in the case, Part II will analyze recent Supreme Court dormant Commerce Clause jurisprudence to determine which cases are relevant to consider when analyzing a dormant Commerce Clause challenge to state based climate initiatives. Part III will discuss the current …

California Climate Law---Model Or Object Lesson?, Daniel A. Farber

Pace Environmental Law Review

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes.

At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening …

Engines Of Environmental Innovation: Reflections On The Role Of States In The U.S. Regulatory System, Alexandra Dapolito Dunn, Chandos Culleen

Pace Environmental Law Review

This article focuses on the role that states play in environmental regulation. Specifically, this article offers examples of the central part in the evolution of United States environmental regulation states played in the past, continue to play today, and will play in the future. First, this article explores the history of state environmental regulation, demonstrating that despite a lack of resources, states were actively engaged in environmental regulation before the advent of the modern era of federal environmental regulation in the 1970s. This article relates not only the regulatory efforts of states, but also the practical benefits of state regulation. …

Koontz V. St. Johns River Water Management District: Can Environmental Impact Analysis Preserve Sustainable Development From The New Reach Of The Supreme Court's Exactions Jurisprudence?, Patrick F. Carroll

Pace Environmental Law Review

The United States Supreme Court has raised the legal standard for a municipality to use land use exactions for sustainable development. Land use exactions frequent local government affairs and occur when a government demands a dedication of land or money in exchange for a municipal approval, such as a permit. Koontz v. St. Johns River Water Management District found certain proposed government exactions for land use permits as “demands” on the applicant and required a “‘nexus' and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant's proposal,” regardless of whether the exaction was …

The Tyranny Of Plastics: How Society Of Plastics, Inc. V. County Of Suffolk Prevents New Yorkers From Protecting Their Environment And How They Could Be Liberated From Its Unreasonable Standing Requirements, Albert K. Butzel, Ned Thimmayya

Pace Environmental Law Review

Ever since the Court of Appeals of New York issued its holding in the landmark case Society of Plastics Industry, Inc. v. County of Suffolk, citizen oversight of government-approved and government projects with environmental implications has suffered curtailment inconsistent with the objectives of the State Environmental Quality Review Act (SEQRA). At the center of the conflict between SEQRA and citizen enforcement are the restrictive standing requirements formulated by Society of Plastics, which include the demand that a petitioner demonstrate harm distinct from injury to the general public. Not only does such a prerequisite for consideration of a case's merits ignore …

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

The Night Is Dark And Full Of . . . Family Law?: California Law And Marital Presumption In Game Of Thrones, Rebecca Rosen

Pace Intellectual Property, Sports & Entertainment Law Forum

The television show Game of Thrones has developed a tremendous following in recent years. The show takes place primarily in the fictional state of Westeros, a feudal society that mirrors many of the legal structures of medieval England. As such, many of the laws and customs of Westeros seem antithetical to the beliefs and values of modern viewers. In an attempt to posit a more just outcome following the death of Westeros’ king (the action which springboards the primary power struggle), this Article applies California law to the disposition of King Robert’s property. Shockingly, this Article finds that California’s marital …

Incorporating Ny Land Banks Into The Delinquent Property Tax Enforcement Processes, J. Justin Woods

Elisabeth Haub School of Law Student Publications

This article argues that New York municipalities should integrate land banks into the tax enforcement process to break the unhealthy cycle perpetuated by real estate and lien speculators. By transferring all tax liens and foreclosed properties to local land banks, municipalities can generate an important funding source that will help cover land banks' operations while simultaneously maximizing land banks' ability to reinvest lien proceeds and equity into redeveloping or demolishing properties with little or no value. If New York municipalities use their Land Bank Act powers fully, local and regional land bank efforts can become a vital tools for planning …

New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …

To Yoder Or Not To Yoder? How The Spending Clause Holding In National Federation Of Independent Business V. Sebelius Can Be Used To Challenge The No Child Left Behind Act, Christopher Roma

Pace Law Review

States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be …

The Right To Travel: Breaking Down The Thousand Petty Fortresses Of State Self-Deportation Laws, R. Linus Chan

Pace Law Review

Part I of this Article discusses the limitation of the pre-emption doctrine on state self-deportation laws. Part II discusses a short history of the Supreme Court’s application of the right to travel. Part III explains why the lack of federal authorization or immigrant status does not exclude people from the right to travel’s protection. Part IV discusses how the right to travel relates to citizenship and how the undocumented may exercise what has been described as a privilege or immunity of citizenship. Finally, Part V examines how the current state-based “self-deportation” immigration laws violate the right to travel.

“Standing” In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn S. Koppel

Pace Law Review

This Article provides an insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence, which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, confronting the Court with competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under …

The State Response To Climate Change: 50 State Survey, Laura Jensen, Kelly Nishikawa, Benjamin Lowenthal

Elisabeth Haub School of Law Faculty Publications

This survey accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014). It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels …

Incorporating Third Party Green Building Rating Systems Into Municipal Building And Zoning Codes, Edward Teyber

Pace Environmental Law Review

The role of green buildings in mitigating climate change has thus become a hot topic. This literature has begun to elicit change within corporations pursuing third party certification of their corporate buildings and campuses. Perhaps the success of discrete green building projects in mitigating climate change compared to the failure of international regulatory bodies to reach consensus for meaningful change is due to the publicity and, in turn, profits associated with certification by a third party green building rating system. In addition to reduced GHG emissions, reduced runoff, reduced maintenance costs, and positive publicity of green buildings for the project …

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

Pace Environmental Law Review

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck me is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment today …