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Paradoxes, Parallels and Fictions: The Case for Landlord Tort Liability Under the Revised Uniform Residential Landlord-Tenant Act
Get PDFIn this article, I show how a coherent legal narrative must capture the revolution\u27s radical policy by abandoning the no tort liability rule, which can be done in a number of ways: an open acknowledgement that the duty to repair creates a new property right that must be enforced by a property rule or more subtly through the use of both traditional and modern tools of jurisprudence, that is, legal fictions, equitable maxims and economic efficiency analysis. This article proceeds with a discussion of the common law landlord-tenant law, the adoption of the implied warranty of habitability, along with the persistence of the opposing rule of no tort liability of landlords in Part II. In Part III, I discuss the scope and coverage of the Uniform Residential Landlord Tenant Act. In Part IV, I discuss the creation of a new regime using both traditional and modern tools of judicial decision-making. In Part V, I discuss what the duty to repair, as a new property interest, requires for its fulfillment. Conclusions follow in Part VI
Justice Scalia\u27s Hat Trick and the Supreme Court\u27s Flawed Understanding of Twenty-First Century Arbitration
Get PDFIn this article, I report on the results of my close examination of more than two dozen opinions the Court has handed down interpreting the FAA--arising primarily from commercial, consumer, employment, or securities disputes--since the beginning of the twenty-first century only fifteen years ago.19 I focus on cases in which the Court was asked to decide a question of arbitrability--whether a claim is arbitrable or whether an agreement to arbitrate is enforceable under FAA section 2. I have concluded that these decisions are built on a narrative of an arbitration process that no longer exists, although it may have existed in the twentieth century when Congress passed the FAA. The Court\u27s antiquated understanding of the process threatens to undermine arbitration as a just alternative dispute resolution (ADR) mechanism.
Part I of this article describes the process of arbitration, the law that regulates the process, and how both law and process have evolved from the twentieth to the twenty-first century. Part II zeroes in on three opinions enforcing arbitration agreements challenged by consumers seeking to bring statutory claims as class actions. All three opinions were authored by Justice Scalia in 2011, 2012, and 2013--what I call Scalia\u27s “Hat Trick.” As I see it, Justice Scalia scored three times in the game of arbitration--and corporate counsel were likely cheering on the sidelines as their “goals” were achieved: to suppress consumers\u27 ability to bring individual class actions against companies based on claims arising under federal statutes. Many arbitration scholars have sharply criticized those decisions as anti-consumer or anti-employee, claim suppressing, and at odds with the fundamental right to have a dispute heard in a courtroom. Part III argues that, in the Court\u27s twenty-first-century arbitration cases, when justifying its holdings, the Court assumes without factual basis that arbitration is a one-size-fits-all process that is quick and inexpensive for all disputants who have ultimate control over the procedures. This part demonstrates that the Court\u27s oversimplified and out-of-touch decisions have crafted a legal framework that regulates an arbitration process that largely no longer exists.
The article concludes by arguing that the Court\u27s expansion of the FAA improperly rests on an outmoded understanding of the modern arbitration process and fails to recognize the many varieties of arbitration that exist today. Those decisions have led to concerns and criticisms that arbitration is no longer a fair process and have promoted a flight from arbitration. This flight necessarily decreases the range of ADR options that parties have at their disposal and ultimately hurts the values of process pluralism.
By setting the record straight, I hope to provide some insights into challenges to the Court\u27s FAA decisions that may still exist and that have the potential to lead to a reinvigoration of many types of arbitration as appealing alternatives to litigation
Reflections of the World Bank’s Report on the Treatment of the Insolvency of Natural Persons in the Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland
Get PDFIn 2011, the World Bank initiated its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons). This paper describes the two-year process that led to the publication of the World Bank’s landmark Report on the Treatment of the Insolvency of Natural Persons. After examining the key content and three major themes of the Report, three of the most recent new personal insolvency regimes are introduced with an eye to identifying the ways in which the themes of the Report are reflected in these new laws. The personal insolvency provisions in Colombian law most directly evidence the influence of the World Bank project. Its major themes are reflected distinctly in the new laws in Italy and Ireland, as well, though in very different ways, lending support to the World Bank’s predictions of convergence but continuing diversity of approach around the world in this rapidly developing area of law
A Triumphant Day in Pace Law School’s History: Justice Sonia Sotomayor’s November 12, 2012 Visit to Our Campus
Get PDF“Read through and then we can discuss. Don’t forward to anyone,” stated a March 2012 e-mail from Dean Emeritus Michelle Simon to me. The e-mail’s subject line was unremarkable – “FW: Your Pace Visit” – but its actual subject was anything but: Associate Supreme Court Justice Sonia Sotomayor had officially agreed to visit Pace Law School. It was time for intensive planning to begin. The fruition of that planning – Justice Sotomayor’s full-day visit to our campus on November 12, 2012, the first-ever visit of a Supreme Court Justice to Pace Law School – was a wonderful highlight of Michelle’s deanship
California Climate Law---Model or Object Lesson?
Get PDFIn 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 outside the purview of “federal statutes,” and that much of it involves “distinct areas of law” other than traditional environmental regulation. My focus will be on the issue of climate change, where California has been particularly active.
Not all of California\u27s efforts have been met with approval, even from observers who are highly sympathetic to the goals. Some influential environmental scholars have debated whether California might have done better to simply set a price on carbon and avoid further regulatory apparatus, either by traditional regulators or elsewhere. I will use this debate to discuss some of the costs and benefits of mainstreaming environmental law into areas outside of the traditional environmental statutes.
Part I will address California\u27s broad portfolio of climate measures. These measures certainly fit the organizer\u27s description: none of them are federal, but many are implemented by parts of the state government other than environmental agencies, and some reach forms of conduct well outside traditional environmental regulation. Part II will ask whether the breadth of this regulatory portfolio is really desirable: would we be better off to stick to a simple direct attack on carbon emissions? Using so many different tools may simply be an unnecessary complication, if not counterproductive. But a broad portfolio might also be more effective in some ways
Interpreting Enhancement of Survival in Granting Section 10 Endangered Species Act Exemptions to Animal Exhibitors
Get PDFManaging endangered species in captivity presents a unique set of problems. Despite their enormous potential to preserve species in the wild - through captive breeding programs, conservation initiatives, and environmental advocacy - many facilities are lagging behind. Part II of this note discusses the evolution of zoos from ancient Egyptian displays of wealth to modern day conservation and education centers. Focusing on the Endangered Species Act, Part III introduces various laws protecting captive animals. Part IV discusses the great potential of zoos to preserve species and the ecosystems on which they rely, while acknowledging the diverse nature of animal exhibitors and the variety in quality of animal care. In response to this inconsistency, and in the context of PETA v. U.S. Fish & Wildlife Service, Part V recommends four factors that the FWS might use to evaluate an animal exhibitor\u27s potential to enhance species survival in furtherance of the ESA
Teaching Green Chemistry Principles to Undergraduate Students
Get PDFThe environment is affected by the actions of mankind in multitudinous ways, many of which are detrimental, giving rise to pollution and toxic waste, ultimately making our planet less inhabitable. While remediation and new regulations help to prevent pollution and toxic waste, there is also a need to change the behavior of future generations of consumers and producers of new products. Future chemists and innovators are charged with the responsibility of developing new chemical processes and products that not only meet the needs of our growing population (in terms of energy, clean water and food), but also protect human health and the environment. Green Chemistry is a revolution in the design of molecules that provides new opportunities for economic development while considering the impact on health and the environment. Green Chemistry utilizes a set of guiding principles, originally provided by Anastas and Warner (Green Chemistry: Theory and Practice, 1998), aimed at decreasing/removing the use/generation of hazardous substances in the design, manufacture and application of products. To help improve the creative and innovative thinking behind Green Chemistry, it is important to expose chemistry students to these principles at the undergraduate level. While suitable Green Chemistry experiments are known, successful implementation requires running test trials and performing additional basic research. We have embarked upon the testing and further design of experiments for implementation into an undergraduate laboratory course and report our results in this endeavor
Social Justice, Social Norms and the Governance of Social Media
Get PDFThis article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies, focusing on the advantages, disadvantages and pitfalls of reliance on private parties. In Part III, the article describes, in general terms, the above-mentioned empirical study, explaining its methodology, the specific challenges to its design and implementation, and how these were met. The discussion specifically centers on a survey taken to establish the nature of social norms. Part IV presents a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V briefly discusses insights that the “real names” test case might provide for the broader questions regarding justice and fairness in social media governance. The article concludes with yet another context, the “right to be forgotten,” which might provide additional insights into the important research questions this project and others begin to address. It further notes additional extensions of the methodological design this article introduces.
An important caveat is due. While the article strives to argue a normative point as to the fair, just and proper way to govern social media, it draws on empirical findings regarding users’ actual social norms. Clearly, however, there are numerous examples of situations demonstrating descriptive social norms to which can hardly be considered a normative baseline to aspire. In fact social norms embraced by the majority might reflect prejudice, errors and the inability to adapt to social changes. In some instances, especially those pertaining to information privacy, the “crowd” might not be wise at all. For these reasons, the policy implications and recommendations to be derived from the discussion that follows are noted carefully, and must be subjected to additional considerations and scrutiny. Nevertheless, establishing whether governance methods, as applied in these innovative settings, are objectively fair and just, is extremely difficult if not impossible. Thus, reliance on imperfect proxies such as the nature of “social norms” will surely prove constructive. Therefore, examining the differences between these four subsets of governance (“code,” “contract,” “law,” and “social norms”) can provide us with insights into the “justice” of the governance administered by the platform provider and address the nuances of this intriguing reality
The Relationship between Parental Attachment and Competence and Child Psychosocial Adjustment in a Clinically Referred Child Sample
No full textThe present study examined the relationship between parent/caregiver self-appraisal of attachment and competence and pre-adolescent psychiatric symptoms and psychosocial adjustment. The study explored the independent and interactive effects of parental attachment and competence on child psychosocial outcomes within the overall clinical sample (preadolescents hospitalized for psychiatric reasons), as well as that for the subsets of parents who rated themselves at the extremes for both parental attachment and competence (Clinical Exemplar Parent Groups). Within the overall sample, there were significant relationships between poor parental attachment and nine child outcomes, strong parental attachment and two child outcomes, and poor parental competence and six child outcomes; no interactions between parental attachment and competence were identified. Results of the analyses identified significant group differences between some Clinical Exemplar Parent Groups with regards to five child outcomes and one validity index. There were various important findings from this study. First, the strongest model within the overall clinical sample was parent report of child delinquency, which thereby highlighted the strong independent relationships between poor parental attachment and competence and child delinquency. Second, it was a parent\u27s perception that his/her child was exhibiting externalizing behaviors – and not necessarily the presence of truly severe externalizing features – that closely related to poor parental attachment and competence. Third, extreme parental competence did not serve as an adequate buffer against child depression when a parent felt extremely unattached to his/her child. Fourth, parents of children with psychotic features tended to feel poorly attached to their children, but did feel competent. Fifth, the study elucidated parental reporting phenomena within a clinical child population. That is, parents of children with clinical psychiatric issues who presented overly positive images of themselves were also likely to engage in defensive reporting about their children\u27s issues. Lastly, parent report of extremely high parental attachment when the children exhibited clinical internalizing issues may have indicated the presence of intrusive parenting practices, insecure attachment, and related problems in the parent-child relationship. Keywords: attachment; competence; parenting; parenting stress; Parenting Stress Index; Personality Inventory for Children; pre-adolescents; child; inpatient; psychiatric symptom