Catalog: Digital Commons at Pace - New Repository Articles
Copyright scholar Ann Bartow proposes a Restatement of her field of expertise, an area dominated by one federal statute, the Copyright Act. One might have thought that the traditional Restatement attention to state rather than federal law and common law rather than statutes would disqualify copyright from restateability. But as other contributions to this Symposium observe, federal statutory law has long lain in the sights of restaters, and as Bartow shows, copyright is plenty “complicated,” disputed, and refashioned in the courts. Moreover, as Bartow argues, the place that Restatement of Copyright could occupy is now held by a for-profit treatise manifesting influences that, as we have seen above, the American Law Institute eschews. This article states a claim for the ALI that is consistent with, but also expansive of, the Institute’s mission.
Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development of Clean Water Law
One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.
But the revolutionary effect of the newly minted citizen suit was not limited to full enforcement of environmental norms. By allowing environmental interests to bypass the agency regulatory process and proceed directly to court to enforce statutory standards, the citizen suit allowed citizens to play a primary role in the development of environmental jurisprudence, bypassing the administrative rulemaking process and resulting judicial deference to agency interpretations. In a radical shift from the classic administrative law model, where the responsible agency answered questions of first impression and review of its answers was highly deferential, the citizen suit provided nongovernmental organizations to opportunity to develop their own interpretations of the environmental norms and test these interpretations in enforcement actions in the courts as a matter of first impression. Citizen enforcers thus necessarily took on the role of citizen regulators as well, developing interpretations of statutory standards and enforcing these citizen-generated interpretations directly against violators before judges untainted by regulatory accommodations negotiated in a prior rulemaking process.
This article examines the role of citizen enforcement litigation in the development of the Clean Water Act law and implementation of the Clean Water Act regulatory scheme. The essay will focus on four examples where citizen enforcement litigation under the Clean Water Act had the effect of initiating the regulatory process, drawing responses from both EPA and the Congress. These case studies will include enforcement litigation brought against underenforced Clean Water Act regulation of pesticide application, water transfers, land application of CAFO wastes, and sport shooting ranges.
This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.
Until the New Deal, the Supreme Court incorporated this theory into its jurisprudence through the nondelegation doctrine, which limited the discretionary authority of administrative agencies. The Court displaced this limitation in the late 1930's and early 1940's with a series of decisions approving massive delegations of authority to the executive branch.
Contemporary separation of powers analysts dispute the meaning of the Court's repudiation of the nondelegation doctrine. Separation of powers “purists” insist on maintaining strict boundaries among the legislative, executive, and judicial functions, while “partialists” emphasize the balance of power among institutionally independent branches.
Part II presents an alternative, two-tiered theory. According to this theory, the nondelegation doctrine's demise was accompanied by the birth of a “consolidation principle” requiring concentration of the government's operational power within administrative agencies. Such consolidation must be sufficient to permit activist regulation. At the same time, the traditional principle of separation of powers remains vital, though limited in scope. The “separation principle” provides the theory's second tier: The ultimate power of control over agencies must be divided among the original three branches.
Part III explains the Burger Supreme Court's two landmark separation of powers decisions as motivated by this two-tiered approach. The Court's rejection of the legislative veto illustrates the consolidation principle. The veto was an attempt by Congress to interfere with the ability of administrative agencies to pursue interventionist agenda. In contrast, the Court demonstrated the continued force of the separation principle by invalidating the Gramm-Rudman-Hollings budget balancing law. Gramm-Rudman-Hollings represented a congressional attempt to exclude the President from participation in ultimate control over the agencies.
Part IV, applying the two-tiered framework elaborated in earlier Parts to an issue of current importance, argues that portions of the Competition in Contracting Act4 (CICA) are unconstitutional. Like the legislative veto, CICA disrupts the consolidation of operational power within administrative agencies.
Finally, Part V offers some normative justifications for a two-tiered theory.
Until now, the revisionists have based their argument entirely on claims about the intentions of those who framed and ratified the Second Amendment. Revisionists have heretofore conceded that the courts have rejected their approach; indeed, the basic structure of the revisionist argument has been: The Founders intended an individual right to firearm possession; the courts (abetted by the academy) have all but nullified the Amendment by treating it as a mere safeguard for militia; the courts should recognize their error and strike down gun control laws.
With his latest contribution, David Kopel seeks to open a second front in the conflict over the Second Amendment by arguing that the Supreme Court has in fact been quite sympathetic to the individual rights approach advocated by the revisionists. To this end, he has collected all 35 of the Supreme Court cases mentioning the Second Amendment or the “right to keep and bear arms.”
Reviewing these cases is certainly instructive, but I do not agree with Professor Kopel about their meaning - at least not with the strong version of his argument. Kopel's main claim is that it is “well-settled” that the Second Amendment confers “an individual right.” Supreme Court case law simply cannot support that claim. Rather, the few well-known cases, chiefly Miller, that deal with the Second Amendment at some length tell us that the Second Amendment is not an “individual right” (as Professor Kopel is using that term), and the rest of the cases canvassed by Professor Kopel tell us nothing at all about the Second Amendment.
I will suggest some of those implications below, but first I want to explain my disagreement with Professor Kopel. I dispute his conclusion about the case law for two reasons. First, his presentation of the question to be addressed - does the Second Amendment confer an “individual” right or a “collective” right? - is confused. Second, I challenge his treatment of the individual cases mentioning the Second Amendment.
To understand the Second Amendment and what the Founders who wrote it were trying to do, you have to understand the conceptual framework that they were working in. And that conceptual framework is based on two concepts regarding the military: the concept of the army and the concept of the militia.
The Second Amendment is about how the military power of the United States should be organized. It grew out of one of the most pretentious issues faced by the Philadelphia Convention, which was: what military power should they give this new Federal Government? They're sitting down to write the Constitution, and one of the three or four most important, most contentious issues they face is, should the Federal Government have an army?
Under the Articles of Confederation, there was no Federal Army. If the congress wanted to field armed forces under the Articles, they had to call on the states for requisitions. That was a model that some delegates to the Philadelphia Convention wanted to keep. They didn't want a Federal Army. Why? It starts with, as I say, the concept of army and militia. To the founders, these were two very different things.
Part I will begin the story with the Founders' understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders' plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states' various speech regimes.
When the Civil War dramatically reshaped the federal-state relationship, the structural purpose of the Bill of Rights changed in response. Part II will describe this change. No longer were the Constitution's protections of individual rights aimed exclusively at the national government. Indeed, over the seventy years following the Civil War, imposing restrictions on state governments became a central constitutional concern. But this concern found expression not through the Free Speech Clause of the First Amendment but through the property-focused guarantees of the Fifth and Fourteenth Amendments. Free speech was relegated to the periphery. This period, from the Civil War to the New Deal, was the nadir of the First Amendment.
Part III will show how the New Deal brought free speech to the center of constitutional jurisprudence. This shift, too, was the product of a broad-gauged reconfiguration. The legitimation of activist government rendered previous constitutional understandings unworkable. No longer could liberty be guaranteed--as in the Federalist era--by protecting the independent authority of the states, or--as in the Civil War era--by preserving common law rights to property and contract. Instead, the Supreme Court has interpreted the constitutional guarantee of liberty as protecting the processes of democracy and electoral accountability. In the New Deal era, the Court has extended to political affairs the libertarianism it earlier applied to economic affairs: The First Amendment prohibits the government from rearranging private distributions of political resources. The impetus for this interpretation comes from the highly undemocratic and unaccountable nature of the administrative state. Because the New Deal era government is so powerful, the liberty principle embedded in the First Amendment requires the Court to ensure the state's subjection to popular control.
Having identified the three eras of free speech jurisprudence in Parts I, II, and III, Part IV will elaborate the scholarly method and the premises about constitutional theory that underlie this recounting. This method is holistic, structural, and historical. It understands each constitutional component in relation to other provisions; it focuses on the concrete institutional endowments effected by constitutional lawmakers rather than the general principles those lawmakers arguably endorsed; and it is sensitive to the development of constitutional structure over time. Part IV will conclude by examining the normative implications of the history of the First Amendment. Contemporary free speech doctrine suffers from many of the same defects that eventually forced the abandonment of earlier eras' liberty jurisprudence. Understanding the origins of the modern orthodoxy will suggest directions for future change.
Mr. Yassky delivered these remarks on February 18, 2013, at the symposium Process, Powers, and Lessons for the Future: 25 Years of New York City Charter Revisions, sponsored by the Center for New York City Law and the New York Law School Law Review and held at New York Law School. Mr. Yassky’s remarks were given as part of the panel titled The Balance of Powers Under the New York City Charter and are followed by a dialogue between Mr. Yassky and the other members of that panel: John Avlon, Senior Political Columnist, Newsweek; Elizabeth Fine, General Counsel, New York City Council; Anthony W. Crowell, currently Dean and President of New York Law School, and previously Special Counsel to Mayor Michael R. Bloomberg from 2002 to 2006 and Counselor to Mayor Bloomberg from 2006 to 2012; and Dick Dadey, Executive Director, Citizens Union.
Part I of the Article engages the revisionists squarely on the turf they have staked out: the intent of those who framed and ratified the Second Amendment. Here I credit the revisionists with some important insights. Their research reminds us how greatly the world in which the Second Amendment was adopted differed from our own. This perspective helps us understand how the Founders could have placed the right to bear arms on par with the right to free speech--a decision that baffles many modern Americans. Yet while the revisionists correctly perceive that the right to keep and bear arms was crucial to the Founders, they misunderstand precisely why the right was so important. I will argue that the Founders' overriding concern was to ensure that the new nation's military force would be composed of state militias instead of, or at least in addition to, a federal standing army. To the Founders, a standing army posed a threat of both tyranny and ruinous military adventurism. To counter this threat, the Constitution meticulously allocated military power between the federal army and the state militias. The purpose of the Second Amendment was to protect this allocation.
Part II is analytic. My goal is to clarify the debate by identifying the argument at the core of the revisionists' attack on the courts. First, in light of the history recounted in Part I, I hope to discredit a libertarian version of the revisionist approach, which sees activities like hunting and recreational shooting as interests protected by the Second Amendment. This position, while it may be widespread among lay Second Amendment enthusiasts, cannot be supported by the historical record. An alternate version of the revisionist argument, however, is more plausible. According to this theory, the Amendment protects the rights of individual Americans to arm themselves so they can serve as the “unorganized militia” of the several states. This “Unorganized Militia Approach” is a fair reading of the Founders' intent; were we living in the early Nineteenth Century, it would provide the basis for any judicial implementation of the Second Amendment.
In Part III, I seek to explain this repudiation as a consequence of the Fourteenth Amendment. The Civil War destroyed the Founders' carefully wrought design; by initiating a federal draft, Lincoln replaced the Founders' decentralized military structure with a national army. I will argue that the Fourteenth Amendment made Lincoln's innovations a permanent part of the constitutional framework. One of that Amendment's many ramifications was to legitimize a federal military draft, and concomitantly undermine the role of the states' militia. With the militia rendered constitutionally obsolete, the purpose of the Second Amendment evaporated.
In Part IV, I consider a new strand of the revisionist argument, which understands the impact of the Fourteenth Amendment to be precisely the opposite of what I am suggesting. This argument, made most persuasively by Akhil Amar, claims that the Fourteenth Amendment was intended to reaffirm and expand--“incorporate,” in modern parlance--the Bill of Rights. As the Second Amendment is part of the Bill, Amar argues, we should understand the Fourteenth Amendment to have strengthened, not weakened, its protections. I will argue, however, that Amar's argument is seriously flawed because it ignores the particular historical circumstances in which contemporary incorporation doctrine developed. For Amar, incorporation should be understood as simply putting into effect the intentions of the framers of the Fourteenth Amendment. In fact, the Supreme Court formulated the incorporation doctrine only after the New Deal rendered unusable earlier interpretations of the Fourteenth Amendment; accordingly, a full understanding of the Fourteenth Amendment's effect on the Bill of Rights--including the Second Amendment--must explain why the incorporation doctrine emerged only after the New Deal, and not before.
I then provide a brief start toward such an explanation by contrasting the rebirth of the First Amendment after the New Deal with the dormancy of the Second. I conclude by suggesting the need for further work by courts and scholars to give the Second Amendment meaning in the context of the post-New Deal Constitution.
Insuring Island States: The Role of Insurance for Small Island States in Responding to the Adverse Effects of Sea Level Rise
Small island states are likely to suffer the greatest impact of sea level rise. They are also generally low emitters of greenhouse gas emissions (GHGs), meaning they have contributed little to the problem of human-induced climate change. For an array of reasons, including their reduced economic and political power relative to the international power of other states, these smaller islands and states have come together, forming the Alliance of Small Island States (AOSIS). Jointly, they have been battling to gain the attention of the international community in their search for solutions. However, they are still left with many unanswered questions and no clear path on how to deal with their issues.
Will there be a future for them? Is anyone responsible for the damages and losses they will suffer? What will happen to their population and their resources? Do other countries have responsibility in light of their possible contributions to these circumstances? This article will discuss risks, present trends and theories, as well as possible ways to start answering some of these questions. It will then address how insurance companies playa part, considering the uncertainties of the consequences of climate change and the insurability of the risks associated with it.
This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy of law existing separately at international and national levels. This paper explores how the concepts of environmental sustainability permeate how human society is responding to the many changes humans have made affecting the Earth. Since 1992, concepts of sustainability or sustainable development have been tested as ways to adapt to the new conditions. However, successfully adapting to today's global environmental conditions entails reassessing the assumptions with which society has governed itself since 1945. What principles should guide socio-ecological relations in coming years?
No Entry to the Public Lands: Towards A Theory of A Public Trust Servitude for A Way over Abutting Private Land
This article explores the problem of inadequate access and why owners of private property abutting public lands cannot fence out the public if their sole or primary purpose is to deny access to public land. The reasons why such landowners should not be allowed to put up fences, even on their own land, if the effect is to hinder the public's access to public land are several. First, it is opportunistic and unjustly interferes with citizens' ability to enjoy the interest they hold in public lands. Second, it denies citizens access rights rooted in the common law. Third, and perhaps most compelling, because of general notions of property ownership and the evolving public trust doctrine, the right to exclude the public to the extent of access to public lands never inhered in the adjoining private land title.
This article begins with a general discussion of what it means to own land privately in our property regime. The second section discusses the United States' landholdings in the country, the differences in ownership rights from that of private ownership, and the obligations imposed upon the federal government as sovereign and as proprietor of public lands. After that discussion, the article examines the historical causes for the lack of access, along with the federal government's responses. This leads into a discussion of some of the legal theories available for assuring access. Finally, the argument presented is that, notwithstanding the Supreme Court's attempt to close the door to implied easements in favor of the government, the expanded concept of public trust may still provide a path through.
This study attempted to explore whether attachment to God influences the nature of the relationship between one's attachment to primary caregiver and one's attachment to romantic partner. It was hypothesized, that for individuals with higher levels of attachment avoidance and/or attachment anxiety to the primary caregiver, who then developed a relationship to God with lower levels of attachment avoidance and attachment anxiety (compensatory attachment) they will also have romantic relationships that are lower in attachment anxiety and attachment avoidance. The Experience in Close Relationships-Relationship Structures was used to gather pertinent data. There were several statistically significant differences in regards to race, education, religious identification and marital status with attachment avoidance and attachment anxiety to the three target relationships (primary caregiver, romantic partner and God). However, statistically significant results were not found to support the main hypothesis.^
Research has shown that multicultural competence (MCC), ethnic identity (EI) and colorblind racial attitudes (CoBRA) are related. Specifically, MCC has been positively correlated with level of EI development and negatively correlated with CoBRA. The American Psychological Association (APA; 2002) published the "Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists," specifying the importance of "commitment to cultural awareness and knowledge of self and others." This study examined these correlations, as well as whether these constructs moderate level of MCC. In addition, differences in MCC, EI, and CoBRA based on race and training were examined among psychologists and psychologists-in-training. The sample consisted of 163 participants; 58.9% were graduate psychology students and 41.1% were psychology supervisors. An online survey which included a demographic questionnaire, the Ethnic Identity Scale (Umafia-Taylor, Yazedjian, & Bamaca-Gomez, 2004), the Color-Blind Racial Attitudes Scale (Neville, Lilly, Duran, Lee, & Browne, 2000), and the Multicultural Awareness, Knowledge, and Skills Survey—Counselor Edition—REVISED (Kim, Cartwright, Asay, & D'Andrea, 2003). Ethnic identity was assessed in terms of three continuous variables (affirmation, exploration, and resolution), while the total scores for CoBRA and MCC were used in the analyses. Results supported previous findings on the correlations between the variables, but did not find moderation effects. In terms of race, it was found that non-Caucasian participants reported lower CoBRA, higher EI (exploration and resolution), and higher MCC than Caucasian participants. More experienced psychologists reported higher levels of MCC. Lastly, the type of training received was found to be a significant variable when assessing MCC, EI, and CoBRA. Formal academic courses were found to be correlated to El and CoBRA, while additional/continuing education activities were correlated to MCC, CoBRA, and EI. One important implication of this study is that current models of MCC training may not be adequate for developing MCC. These findings suggest that psychologists-in-training would benefit from participating in additional multicultural educational activities that are more active in nature (self-exploration versus lectures) and take into account personal attributes, such as race. These results also speak to the need for more culturally diverse individuals in the profession. ^
Seeking Justice in the Empire State: Court of Appeals Broadens the Reach of Long Arm Jurisdiction and Clarifies the Statutory Guidelines for Application of CPLR Section 302(A)(1)
This article will discuss developments in long-arm jurisdiction under CPLR section 302(a)(1)1 and analyze the recent New York State Court of Appeals‘s thoughtful and instructive decision in Licci ex rel. Licci v. Lebanese Canadian Bank, SAL. Licci decided the question of whether a non-domiciliary‘s maintenance of a bank account in New York constituted a “transaction of business” out of which the plaintiff‘s claims arose under the state‘s long-arm statute. The Licci plaintiffs had alleged that the defendant funded a terrorist organization responsible for the injuries and deaths of certain plaintiffs and decedents they represented. The Licci opinion did not decide if New York had jurisdiction over the defendant but analyzed a certified question from the United States Court of Appeals for the Second Circuit regarding whether there was a statutory basis for personal jurisdiction over the defendant.
In Licci, the Empire State‘s highest court answered the Second Circuit‘s question in the affirmative, expansively defining the “transaction of business” clause under CPLR section 302(a)(1) and extending the jurisdictional reach of the long-arm statute‘s arising out of‖ provision. The Licci opinion is a broad and pragmatic statutory interpretation of CPLR section 302(a)(1) by the Court of Appeals. It signals the court‘s willingness to apply the state‘s long-arm statute as its drafters intended, clarifies prior jurisprudential entanglement of statutory and constitutional issues, and is welcome news for the plaintiff‘s bar.
This article and the underlying factual information were first presented at Pace University School of Law on April 15, 2010 as the Sixteenth Annual Lloyd K. Garrison Lecture on Environmental Law.
Mr. Butzel tells the story of the Storm King case, and gives his impression of where environmental litigation stands up today measured against the promise of the Storm King decision.
Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House
This essay is an expanded version of remarks delivered on March 12, 2013, as the Lloyd K. Garrison Lecture on Environmental Law at Pace Law School.
This essay discusses the relationship between the Environmental Protection Agency and the White House. It focuses specifically on the role that the Office of Information and Regulatory Affairs, within the Office of Management and Budget, plays in reviewing the EPA’s regulatory output.
Focusing on the EU’s alternative proposal of an emissions tax, this article analyzes the possibility for the imposition by an EU Member State of a targeted environmental tax to reduce maritime emissions. It considers how such a tax can be imposed in a manner that will not be detrimental to commercial interests and can instigate the desired impact. Importantly, it focuses upon providing a greater incentive for the maritime industry to invest in the most efficient shipping fleet to reduce emissions. It concludes by comparing whether such a perceived maritime emissions tax could be more advantageous than including maritime emissions in the EU ETS.
This article is organized as follows: following the introduction in Part I, Part II focuses on the role of liability rules in compensation for environmental harm, then Part III focuses on insurance, and Part IV discusses the specific case of marine oil pollution. For each topic, we will first describe theoretical possibilities for providing compensation, and then examine the role these mechanisms play in practice. Part V offers a few concluding remarks, and provides an economic analysis and policy recommendations.
The United States Supreme Court plays a unique and important role in resolving environmental controversies that arise among the several states states and in enforcing environmental compacts formed by states with the assent of Congress.
The powers of Congress and the states to unilaterally resolve environmental controversies between states are constitutionally limited. But there are two plenary constitutional mechanisms for resolving environmental controversies among the states: (1) litigation under the original jurisdiction of the Supreme Court over controversies between two or more states; and (2) negotiation of compacts between states with Congressional assent that are enforceable against states by Acts of Congress and by states through suits filed in the Supreme Court.
The Supreme Court’s resolution of environmental controversies and enforcement of environmental compacts falls into two categories. First, the Court apportions natural resources among states through federal common law suits and by enforcing resource apportionment compacts. Second, the Court protects state natural resources from inequitable disruption by other states through federal common law suits and by enforcing resource protection compacts. The Court has to date asserted its jurisdiction to apportion territory, water, and fish and to protect navigation, land use, and water. The Court has not yet asserted its jurisdiction to protect air from pollution, but this Article argues that air pollution suits are open to downwind states because the Clean Air Act only displaces actions against emissions from individual sources, not entire states.
The process of obtaining effective implementation of environmental laws is a process of “environmental governance.” Law, including environmental law and other fields of law related to environmental law, is essential to frame, facilitate, and foster the major parties to correctly play their roles.
This thesis has been articulated through a Model of Interactions of Parties in the Process of Environmental Protection (IPPEP Model), which has been developed by Professor Wang Xi of Shanghai Jiao Tong University, in the context of the People’s Republic of China. The IPPEP Model is a tool for observing and accessing environmental governance at work. It is being tested by regional studies in various locations, such as the United States, the State of New York, and in this IPPEP case study of New York’s Hudson River Valley. The IPPEP model being examined, however, has universal applicability. Use of this model can predict that environmental standards will fail to be observed when necessary “Third Parties” are weak or absent. A nation with a commitment to the “rule of law” will enact and apply necessary legal procedures to ensure that each party can take part in the system and perform their role effectively.
Part I of this paper describes the IPPEP Model. Part II is a brief introduction to the history of Hudson River Valley. Part III introduces the major parties or players in the process of protecting Hudson River Valley. Part IV consists of five case studies applying the IPPEP Model in cases of Hudson River Valley conservation. Part V concludes the paper.