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New York Law School Magazine, Vol. 41, No. 1
No full texthttps://digitalcommons.nyls.edu/alum_mag/1026/thumbnail.jp
Against Neutrality
No full textNeutrality law is a musty and obsolete body of international law that nevertheless rears its creaky head now and again in dangerous ways, most recently in the Russia-Ukraine conflict. The law of neutrality is a study in contradictions. It is obsolete yet remains on the books in treaties and military manuals. It purports to keep the peace and protect non-warring states yet today is invoked to expand conflict and protect aggressors. The legal benefits of neutrality have been entirely overtaken by other regimes. And yet neutrality law has not lost its luster despite losing its value. Instead of letting it fade into respectable oblivion, states, scholars, and practitioners continue to resurrect neutrality law as pretext for inaction and as justification for the unjustifiable. In the process, they muddy the legal waters, making escalation to war more rather than less likely. This Article seeks to put an end to this menace of neutrality law once and for all
New York State Div. of Hous. & Community Renewal v. Zara Realty Holding Corp.
No full textThe New York State Division of Housing and Community Renewal (DHCR) and the New York State Attorney General (AG) sued Zara Realty Holding Corp. and related entities for violating rent stabilization laws, harassing tenants, and illegally collecting broker fees. The court denied the defendants\u27 motion to compel discovery from the DHCR and AG, and granted the plaintiffs\u27 cross-motion to compel discovery from the defendants. The court held that the DHCR and AG were not required to produce documents or witnesses for deposition, as they were acting in a law enforcement capacity. The court also determined that the defendants\u27 discovery requests were overly broad and not sufficiently tied to the specific allegations in the complaint
How to Get the Property Out of Privacy Law
No full textFor the last ten years, American rhetoric and state lawmaking has attempted to provide consumers with greater and stickier property interest in their personal information. But the impracticalities of the sticky property model are becoming evident, and will be impossible to ignore as AI becomes more prevalent and useful. This Article critiques the property framework in privacy law, and explains how a risk-based approach can be modernized and implemented instead. An enduring system of privacy laws will manage risks rather than bestowing rights to control and delete information. To do this, data practices should be categorized into safe harbor practices (which can be done irrespective of consent), per se violations (which cannot be done even if the data subject has consented), and a middle ground where the data subject’s expectations and consent are appropriate, relevant, and practicable. This approach aligns better with American legal traditions, technological reality, and the First Amendment
Maximizing Disability: The Road to Extractive Federalism
No full textOf the many alarmist commentaries on U.S. disability benefits in recent memory, few have explored state and local governments’ efforts to channel needy residents toward disability-based income support programs—and to thereby shift the cost of care onto the federal government. This Essay documents the rich history of such efforts, going back to the 1980s. This Essay also emphasizes an inflection point in this history: Starting in the early 1990s, private, for-profit consulting companies began securing contracts from states for the “shifting” work that legal aid organizations had been doing. Simultaneously, these companies marketed their “revenue maximization” services, encouraging state officials to see federal health and welfare programs as a resource to be mined. This Essay connects this extractive mindset to today’s “extractive federalism,” which scholars have documented in both the foster care and nursing home contexts. From the state and local perspective, extractive federalism may be rational: In a context of real or perceived resource scarcity, it secures funds for public purposes. But these tactics have come at the expense of vulnerable people. Those whose needs make the federal spigots turn do not necessarily benefit from the resulting federal dollars. Meanwhile, these tactics obscure from the public the true nature of federal spending
Restorative Justice Project
No full textThe Restorative Justice Project trains law students in the philosophy and practice of restorative justice so that they become better lawyers. Restorative justice strives to create harmony after a time of discord.https://repository.law.uic.edu/homepage-carousel/1002/thumbnail.jp
Reciprocal Legal Narrative: Climate Change, Judicial Authority, and the National Apocalyptic in Juliana v. United States
No full textHow can lawyers convince courts to “do the right thing” in the face of unfavorable law? That is, how can they persuade courts to take some judicial action that a judge explicitly acknowledges is ethically required yet prohibited by governing doctrine? In Juliana v. United States, a landmark climate change case, a 2-1 Ninth Circuit decision held that a number of youth plaintiffs had failed to establish Article III standing. The appellate panel found that the harms asserted— governmental policies amounting to violations of the plaintiffs’ constitutional right to a functional climate system—were not redressable, even assuming the as-yet unrecognized right existed. Yet the majority opinion is marked by a sense of unease and regret. The court repeatedly lamented that while there is a clear ethical obligation to help the plaintiffs, the judiciary has neither the authority nor the ability to meet that obligation.
This Article proposes a model of legal argument called reciprocal legal narrative. It argues that the model can be useful for situations like that in Juliana, where courts recognize a moral obligation to intervene, but insist that the law bars them from doing so. Reciprocal legal narrative can provide a platform for judges to engage in dialogue-based, collaborative, norm-driven narrative reasoning. It is structured around a creative partnership between the lawyer and the court. The judge, in her written opinion, “co-authors” a legal narrative that revises and expands on the lawyer’s “first draft” of the story based argument that appears across briefs and oral arguments. Reciprocal legal narrative is a subspecies of narrative persuasion, and this Article provides a theoretical framework for the concept that builds on Applied Legal Storytelling scholarship and narrative theory in general.
A close reading of the majority and dissenting opinions in Juliana demonstrates reciprocal legal narrative in action. To support her finding that the plaintiffs established redressability, Judge Josephine Staton crafts a dissent that builds on the plaintiffs’ nascent legal narrative (what I call the “American Environmental Apocalypse”) and fashions it into her own more persuasive, legally sound narrative (the “National Apocalypse”). The dissent’s reciprocal legal narrative exposes the shortcomings of the majority’s formalist approach; it exhibits an egalitarian, cooperative view of judge-made law; and most importantly, it converts a moral obligation to act on climate change into a judicial duty to do so. Although Judge Staton was in the minority in this decision, her example of reciprocal legal narrative provides a blueprint for future litigants facing similar circumstances. By employing reciprocal legal narrative, advocates can persuade courts to use creative, narrative reasoning as a means of reconciling existing law with core social values—without overstepping the bounds of judicial authority
Illinois Tort Law
No full textThis treatise offers a comprehensive examination of tort law as it applies within the state of Illinois. The book delves into the principles and case law governing negligence, intentional torts, strict liability, and various defenses. It provides a clear framework for understanding how tort law functions in practice, with illustrative examples and detailed discussions of significant legal precedents. Aimed at law students and practitioners alike, this text serves as an essential resource for navigating the complexities of tort law in Illinois.https://repository.law.uic.edu/facbooks/1035/thumbnail.jp
