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Preface to Protecting the Environment Through Land Use Law: Standing Ground

Wed, 11/19/2014 - 15:46

Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes the critical importance of law in protecting the environment and promoting sustainable development.

Categories: Books

Threats and Bullying by Prosecutors

Mon, 11/03/2014 - 15:41

Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and threats to charge corporations unless they refuse to pay the legal fees of employees. Then, Part II examines the legitimacy and illegitimacy of threats, provides a framework for analyzing the legitimacy of threats, and uses this framework to determine whether a prosecutor’s threats have crossed the line.

Categories: Books

In Memoriam: David Sive (1922-2014) and Joseph Sax (1936-2014)

Mon, 11/03/2014 - 15:35

In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.1 Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.

Categories: Books

International Criminal Law for Retributivists

Mon, 11/03/2014 - 15:31

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing mention.

This Article counters the anti-retributive strain by arguing that retributivism can indeed provide a meaningful framework for understanding ICL. First, I argue that in most respects retributive theory is no less plausible in the international setting than it is in the domestic setting. Understanding what claims retributive thinking might have upon ICL requires one to distinguish claims regarding the general justification required to defend punishment as a social practice--the core concern of retributive theory--from the more specific questions of institutional design--such as whether and when to create an international criminal tribunal, and how to set enforcement priorities--that are most pertinent to ICL scholars. I argue that, once these distinctions are sorted out, the anti-retributivist strain in ICL scholarship does little to engage retributivism's core claim that desert is necessary to morally justified punishment and provides an inherently good (if not exclusive) reason to punish irrespective of potential social benefits.

I also argue that retributivism is more compatible than commonly supposed with current thinking about international criminal justice. The theory permits various models for engaging the compromises of real world institutions. It provides a powerful lens for understanding the design of ICL institutions such as the International Criminal Court (“ICC”), and it is also compatible with dominant approaches to institutional decisions such as case selection and sentencing. Perhaps counter-intuitively, retributivism can also supply a framework for sometimes favoring alternatives to the traditional criminal prosecutions pursued by international courts, or even for opposing ICL altogether.

Finally, I argue that choice of punishment philosophy has less practical significance for ICL than theorists often assume. In particular, I argue that the choice between retributivism and other competing theories does little to resolve important policy dilemmas dividing theorists of ICL, including whether prosecution should sometimes be abandoned for amnesty or other alternatives. This point supports a broader argument that ICL is simultaneously overdetermined and underdetermined by traditional punishment theory: While the core of ICL is consistent with multiple theories of punishment, these theories provide only limited practical guidance on the most divisive questions.

Categories: Books

Highest Court in New York Affirms Local Power to Regulate Hydrofracking

Mon, 11/03/2014 - 15:27

In one of the most anxiously awaited New York land use decisions in recent memory, the State’s highest court held that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the Towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their borders. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the operations of the oil and gas industry, not matters normally associated with land use regulation.

Categories: Books