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Ending the Tyranny of the Status Quo: Building 21st Century Environmental Law
Get PDFOver the past few years, the Environmental Law Institute (ELI or the Institute) has worked to assess the notable successes and current challenges of United States environmental law to inform a new agenda for the twenty-first century. Founded in 1969, at the beginning of modern environmental law, the Institute has been both participant and analyst of an impressive record of major accomplishments in pollution reduction, greater protection of public health, and more intelligent conservation and management of natural resources, in both the public and the private sector. Like the majority of environmental lawyers and policy professionals examining today\u27s challenges, we also see that the United States confronts even more complex environmental and natural resource impacts today. These include climate change, growth in human consumption and population, the consequences of these changes for water supplies, food security, and preservation of biodiversity, and the general sustainability of economic and social development supported by a diminished and inequitably distributed base of natural resources. To undertake this assessment, we began by surveying the many reports and articles written on reform of environmental protection over the past twenty-five years and by conducting interviews of many of the early leaders in environmental law, environmental futurists, and current law students to obtain their insight and ideas for improvement. We then outlined a potential program (1) to envision what America\u27s environmental future should look like in 2050 and (2) to consider what ethical norms, objectives, implementation strategies, and public- and private-sector roles and responsibilities might form a sturdy platform to advance toward the objectives. This article offers a summary of our findings and a proposal for future dialogue
The Curious Untidiness of Property & Ecosystem Services: A Hybrid Method of Measuring Place
Get PDFTheoretically, this paper builds on ideas of ecosystem services (ES) in landscapes, property theories of plurality and marginality, and the legal geography of localized place. Methodologically, we will explore three divergent ways of measuring ES in a propertied landscape. Substantively, combining property theory and spatial methods in this way will allow for future consideration of property arrangements that might be more optimal and representative of contextualized place.
Part II presents the qualitative method--a narrative description of the flow of resources and services across a transect from the mountains to the sea. Narrative is effective in describing the aesthetics and indelibly human values of landscapes. This sense of place is itself an ES, a cultural service. Part III turns to the state-of-the-art spatial modeling technique, Geographic Information Systems (GIS). GIS is Cartesian, rational, defensible, and replicable. It is useful for configuring and implementing all forms of property measurement and transaction--whether zoning, planning, purchasing, owning, managing, or subdividing. In its layers upon layers of detail, it captures the multiple dimensions and scales, in time and space, of ecosystems, landscapes, and property.
Part IV discusses property plurality, a nascent theory based on an instinctive understanding of property in land outside the mainstream private ownership model. We use plurality as our third method. It draws on diverse sources: different concepts of mapping property, the potential of property marginality to explain the truth of our relationships with land, and the simplistically appealing idea that property is because it is performed, constantly and ceaselessly. Part V addresses three key questions that combine and compare the methods of describing the landscapes of Tekapo and Taylor\u27s. In Part VI, we ask what those combinations and comparisons mean for property and ES. Part VII concludes.
The methodological comparison reveals a curiosity: the more rational and detached the method of representation, the less recognizable the landscape. Lines dissecting landscapes tend to distort reality. They risk making somewhere appear as anywhere. In the case of ES, the inevitability of distortion may still be truthful. But in the case of property, the lines go further, so impoverishing the diversity of propertied relationships in situ that these relationships are rendered invisible. Property lines not only distort reality, they distort the truth of place. Anywhere becomes a propertied nowhere. Ironically, it is not the Tekapo Nowhere described in Part II. In the end, our criticism is not of GIS, but of an atomized, parceled, abstract view of property. Maps show gaps in property, not in maps.
This curiosity speaks to the question of untidiness of property and ES in landscapes. It suggests that the explanation for the untidiness is neither incomparability, nor under-theorization, but both. The empirics of place bell the cat. This has profound implications for property. Disparate though they may be, property and ES are two sides of the same coin. This is the paradox we wade into
Unequal Access to Justice: Solla v. Berlin and the Unprincipled Evisceration of New York’s EAJA
Get PDFSolla 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 rulings, specifically with regard to public assistance and the EAJA statute. This includes, ironically, Court of Appeals decisions directly on point, as we shall see. In the realm of public welfare law, it is difficult to overstate the enormity, and the clarity, of the court’s error.
This article provides an overview of the relevant social services law. Section II.A. discusses the established principle that municipalities act as the agents of the State of New York in the administration of public assistance benefits. Section II.B. describes the fair hearing process in New York, while Section II.C. examines the chronic failure of State officials to enforce fair hearing decisions. Section III analyzes the decision of New York’s highest court in Solla v. Berlin, providing a brief summary of the case (Section III.A.), and highlighting the court’s errors with respect to both vicarious liability (Section III.B.) and the catalyst theory (Section III.C.). A short conclusion follows in Section IV
You Have the Right to Be Confused! Understanding Miranda After 50 Years
Get PDFPart I of this article briefly explores the background and historical context that ultimately led to the Miranda decision. As the late Dr. Carl Sagan once said, “you have to know the past to understand the present.” Understanding the circumstances and cases leading up to Miranda helps in the overall application of Miranda to cases of today. Part II addresses whether a statement should be allowed into evidence and provides a practical working approach to conduct a Miranda analysis. This innovative approach provides a step-by-step process in determining the admissibility of statements pursuant to Miranda and its progeny. This process provides clarity to the world of Miranda for practitioners in the criminal justice system. Finally, Part III of the article examines what happens when the Miranda rule is not followed. The ramifications are discussed and distinguished from the Fourth Amendment
Case Law Developments Addressing the Consequences of a Liability Insurer’s Breach of Its Duty to Defend
Get PDFIn pursuit of a greater understanding of this controversial subject, this article will: (1) explore the contract principles and public policy considerations that are implicated by an insurer’s breach of its defense duty; (2) consider recent case law addressing relevant issues; and (3) recommend a comprehensive approach that accommodates competing interests. Ultimately, the author concludes that in most circumstances an insurer that wrongfully disclaims its duty to defend should be precluded from raising defenses as to coverage in an action to indemnify the insured for monies paid out by the insured
Sequential Shape Flow Facial Patterns Among 12-Month-Olds Correspondent to Maternal Dependency and Self-Criticism: A Microanalytic Application of the Kestenberg Movement Profile
No full textThe study of infant self-regulation through the microanalytic lens of self-contingency, or the predictability of a person\u27s behavior over time, during mother-infant interaction, has yielded important findings regarding the effects of maternal depression (Beebe et al., 2007, 2008; Beebe, Lachmann, Jaffe, et al., 2012; Reale, 2011). Elements of a systematic nonverbal assessment tool derived from movement language – the Kestenberg Movement Profile (KMP; Kestenberg, 1975) – were employed to expand upon these findings. Specifically, the shape flow facial patterns of 71 infants, during face-to-face interaction with their mothers when they were 12-months of age, were coded frame-by-frame. Frequency analyses identified trends between specific types of infant facial movements and maternal depressive vulnerability, as assessed by the Depressive Experiences Questionnaire (DEQ; Blatt, D\u27Afflitti, & Quinlan, 1976), while lag sequential analyses, using the Yule\u27s Q, identified relationships between infant self-contingency across sequences of facial movement and maternal DEQ scores. The findings support dyadic and dynamic systems models, underscore the significance of sequence in movement, and illustrate the sensitivity and versatility of the KMP for future research
Analyzing Impaired-User Input Scenarios for Keystroke Biometric Authentication
No full textIn a world where data security is becoming ever more important, the methods we have used to secure our systems are proving to be no longer effective. Passwords and tokens can be easily stolen by a determined hacker and allow unauthorized access to sensitive data. Biometrics has become an ideal option as access is granted to an individual based on a personal attribute as opposed to a code or item that can be obtained. Physiological biometrics, which deals with fingerprints, iris scans, and hand geometry has been widely adopted due to their high accuracy rates; however, there has been evidence suggesting that imposters can recreate a fake fingerprint or other biometric features. In contrast, behavioral biometrics authenticates users by the manner in which they perform a certain task. Some examples are gait (the manner in which we walk), speech, handwriting, and keystroke dynamics. Keystroke Biometrics has been gaining ground as a reliable method for authentication; however, adoption by industry has been sluggish when compared to other biometric systems. To help increase adoption, a more robust system must be developed which takes into account variable input scenarios that occur naturally during a user session. The study analyzes impaired-user input scenarios for keystroke biometric authentication. The study collects keystrokes from 81 students entering various arbitrary long-text responses to quiz questions. It analyzes both hands, left hand only and right hand only scenarios to determine the optimal method to authenticate users across multiple distracted or impaired input scenarios. One drawback of behavioral biometrics that is particularly evident in keystroke dynamics is user-input variability. The findings of this study will strengthen current keystroke biometric systems by allowing the development of methods for the handling of impaired or distracted users. The study also provides a novel approach to better authenticate users of a keystroke biometric authentication system under non-traditional input conditions
Land Use and Climate Change Bubbles: Resilience, Retreat, and Due Diligence
Get PDFThis Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.
Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, lack of water in residential, commercial, and agricultural areas, and concerns with mudslides in vulnerable areas. Cumulatively, these changes are causing a reverse economic bubble associated with land use that mirrors the effect of the infamous housing bubble of 2008, but is potentially much more harmful to the nation.
Much of the Article consists of local case studies demonstrating these adverse economic effects: impacts that are being accounted for in the private sector while public regulation is stunted by concerns over the per se takings doctrine established in the case of Lucas v. South Carolina Coastal Council. The Article examines the lawyer\u27s role in assisting real estate purchasers in these vulnerable places with their due diligence duties under the historical doctrine of caveat emptor. This duty includes the consideration of present as well as emerging property conditions and the risks of how they are being accounted for in the casualty insurance and mortgage industries and by real estate appraisers, all of which affect the alienability and value of properties.
As the private market adapts to climate change, new building techniques and locational preferences for new construction are emerging, evidencing strategic adaptation to increasingly evident risks associated with climate change. The conclusion reflects on how these private market realities can lead to the reform of land use and environmental regulation and helps create a positive dialogue about climate change management
Written Testimony on Correctional Oversight of the NYS DOCCS
Get PDFI 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