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From Deference to Indifference: Judicial Review of the Scope of Public Health Authority During the COVID-19 Pandemic
No full textFor most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic cases that presaged its decline. Part IV looks at how state and federal courts analyzed challenges to officials’ scope of authority during the pandemic. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court under the guise of the major questions doctrine, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. Part V considers the implications of this development for the government’s capacity to respond to new health threats and argues, paradoxically, that the decline of deference to agency determinations of the scope of their authority may be more dangerous to health than the denial of deference to agency fact-finding in particular cases
Balancing Preservation with Growth: How Less Judicial Deference to Decisions Made by the Landmarks Preservation Commission Can Save New York City
No full textThe New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city\u27s cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil Practice Law and Rule Article 78, this note argues that the current level of judicial deference granted to the LPC demands reconsideration. Proposing the adoption of a hard-look approach, developed in response to concerns about regulatory capture in federal agencies, this note suggests that a heightened standard is imperative to counteract the alleged capture of the LPC by influential real estate developers, prevent unnecessary landmark destruction, and mitigate the commission\u27s role in exacerbating the housing crisis and accelerating gentrification
Entertainment Law Week
No full textTheatre Law 101: How to Make It on Broadway Mythbusters: Entertainment Careers 101 From Scripts to Streams: The Lawyer\u27s Role in Digital Streaming Follow the Yellow Brick Road: Pathways to Enter Entertainment Law Resale Restrictions in the Art Market Diversity in Musichttps://larc.cardozo.yu.edu/event-invitations-2024/1010/thumbnail.jp
Humour, A Meditation
No full textBack in 1987 when Critical Legal Studies was still “hot,” I was shopping a piece that was a long review essay on Laura Kalman’s history, Legal Realism at Yale. An acquaintance who was on that faculty invited me to present the piece—which I am still quite proud of—at the workshop he was running. Owen Fiss was the first person to ask a question. He wanted to know whether the piece was “serious” work or whether it was just an elaborate joke. Surprised and bewildered by the question, I answered, “Both.” In response he asserted that unless it were one or another he could not possibly respond, and for the rest of the workshop he sat squarely in front of me with his arms crossed and a scowl on his face. At that point, I knew that there was something troubling about the use of humor in scholarship, something not captured by the phrase “academic humor.”
This odd experience happened about the time that I met Pierre Schlag in the journals. The piece was “Fish v. Zapp: The Case of the Relatively Autonomous Self.” I found it very apt, as well as quite funny in places— and wrote him to say so. I also tried to start up a friendship then, but it didn’t work—both of our lives were too clotted I suspect. Later I read “Normative and Nowhere to Go,” which was even funnier and even more on point, so I wrote again. A year or two later he invited me to a conference at Colorado and since then we have intermittently spent a lot of time talking about law schools, legal education, Critical Legal Studies, and legal scholarship
Fee Shifting, Nominal Damages, and the Public Interest
No full text(Excerpt)
Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that deprived Plaintiff Joseph Davis Farrar of a civil right.’ ”
The jury’s verdict did not specify which of Hobby’s actions were unlawful or which of Farrar’s rights were violated. Whatever the offending conduct might have been, the jury found that it had not proximately caused any damages to Farrar. The district court thus entered judgment against Hobby for nominal damages. Farrar then sought attorney’s fees under 42 U.S.C. § 1988, which entitles a civil rights plaintiff who is a “prevailing party” to recover a “reasonable” attorney’s fee from the defendant.
By enacting statutes like Section 1988, Congress has made pro-plaintiff fee shifting available in civil rights litigation and other areas in which the government relies on private enforcement to further public goals. Recognizing the role of private litigation in these statutory schemes, the Supreme Court of the United States has referred to plaintiffs in fee-shifting cases as “private attorney[s] general.” It is sometimes said that these private attorneys general fill enforcement gaps left by public actors, but in many of these areas, private lawsuits vastly outnumber government actions. Accordingly, it would be more accurate to describe government actions as the gap-filler and private enforcement as the main event
City of Las Vegas v. 180 Land Co., LLC, 140 Nev. Adv. Op. 29 (Apr. 18, 2024)
No full textThe Nevada Supreme Court reviewed the appeals by both parties in the instant matter. The City of Las Vegas (“the City”) challenged the district court’s finding that a taking occurred, the just compensation award, and the other monetary awards made to 180 Land Co., LLC (“180 Land”). 180 Land challenged the district court’s determination of prejudgment interest awarded to them. In its opinion, the Nevada Supreme Court reviewed whether the land R-PD7 residential zoning or its PR-OS land designation governed 180 Land’s ability to develop the property. The court reviewed the district court’s adoption of 180 Land’s expert witness’ determination valuation of the land’s highest and best use. Finally, the court reviewed the district court’s award of property taxes and attorney’s fees to 180 Land. The court affirmed the district court’s ruling that: (1) a taking occurred; (2) the district court was correct in its determination of the just compensation award; and (3) no error existed in the district court’s other awards
Boman v. Elkanich, 140 Nev. Adv. Op. 21 (Apr. 25, 2024)
No full textThe Nevada Supreme Court determined when a patient is on inquiry notice as to their legal injury and if the patient’s degree of diligence is diminished while undergoing treatment from the negligent physician. A patient discovers their injury when they recognize the damage suffered and understand the health care provider negligent cause their injury. It found that a patient has a reduced degree of diligence to discover the harm while under the physician’s care, particularly if the physician reassures the patient that they will improve. This left genuine, factual disputes as to when Appellant should have known of the Defendant’s negligence, which is a question for the jury or trier of fact to decide
