Armageddon: The Inevitable Death of Nuclear Power and Whether New York State Has the Legal Authority to Keep It on Life Support

This Note seeks to make the argument for New York’s ZEC program as a legitimate exercise of state power. Part I provides context—the history of nuclear power, the rise and fall in the incidence of nuclear power projects, and why such investments are failing. Part II then provides an overview of the CES and the ZEC program contained therein. In Part III, the legal challenges filed in response to Tier 3 are discussed, as well as the Illinois case which parallels the conventional generator challenge in New York. Part III will also discuss relevant legal precedent the cases concern, namely the recent United States Supreme Court case, Hughes v. Talen Energy Marketing, LLC. Part IV analyzes federal preemption to the extent it affects the New York program. This analysis mirrors—and in some areas, expands upon—the district court’s findings regarding New York’s program. Further, it compares similar crediting mechanisms currently used across the United States and other analogs demonstrating that, although federal preemption appears to control, there is significant room for the states to regulate. This Note ultimately concludes in Part V that the ZEC program is likely a legitimate exercise of state power, despite incidental effects it may have on related federal regulation

Power of Attorney Handbook, June 2006, revised

This booklet is designed to assist those who have been appointed as an attorney-in-fact, those who are considering the need for a power of attorney, or those who have an interest in the subject. This is a general overview of the laws governing powers of attorney and, like most general overviews it will apply in most situations, but not all. Small differences and individual circumstances can be very important in resolving legal problems and the general guidance provided by this booklet cannot take such differences into account. Keep in mind that the laws continually change and information in this booklet is not designed to take the place of legal counsel

The Rise or the Fall of International Law?

This Article argues that traditional international law is healthy in the sense that there are more international agreements than ever, and States continue to serve important roles in the international system. It is falling, however, as the sole focus of international legal efforts. It is necessary to redefine international law to include actors other than States among those who make international norms and who implement and comply with them, and to include legal instruments that may not be formally binding. These developments raise three important issues: the need for the new actors to be accountable and for the new norms to be legitimate; the need for consensus about the level or location of authority, be it international, national, subnational, or non-State, at which norms should be negotiated; and the rising need for international law to reflect commonly held values to keep the increasingly fragmented international community together

Foreword: Is Reliance Still Dead?

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won\u27t. If you proclaim the existence of a scholarly consensus, this is an open invitation for academics to try to demolish such a claim

Compelling Orthodoxy: Myth and Mystique in the Marketing of Legal Education

[Excerpt] “In many ways, the story of modern legal education reads like a grim fairy tale, whose moral dénouement is no less compelling, and perhaps more consequential, than its fabulist forbearers. In this regard the marketing of legal education may aptly be illustrated by fable, such as that of The Trees and the Bramble Bush, which concerns the folly of electing a king. When some beautiful trees decide to look for a leader, they offer the throne to the olive, the fig and the vine; each in turn refuses, preferring to keep to its own fruitful role. The bramble steps in and accepts, soon making threats of what will happen to those that do not accept him. The result is perhaps the law of unintended consequences at play, but it has implications for both the quality of legal education and the treasured concept of academic freedom. Certainly, the realm of scholarship has been invaded by the image-seekers and image-makers. Legal scholarship is unique in ways that are both interesting and problematic. It has become a phenomenon of epic proportions; the bulk of what we know of such writing emanates from the 190-plus law schools approved by the American Bar Association, which collectively produce more than 680 legal journals.

ADR and Litigation Involving Social Problems

This Article addresses remarks of the Corporation Counsel of the City of New York, Michael Cardozo, regarding the use of ADR in legal disputes involving municipal government. It also highlights the special responsibilities of class counsel in the ADR context in class action litigation on behalf of vulnerable families and individuals. Specifically, the Article addresses ADR resolutions in Sheppard v. Phoenix, No. 91 Civ. 4148(RPP), 1998 WL 397846 (S.D.N.Y. July 16, 1998), Marisol v. Giuliani, 185 F.R.D. 152 (S.D.N.Y. 1992), and McCain v. Dinkins, 84 N.Y.2d 216 (1994). The Article concludes with a discussion of ADR in the context of litigation on behalf of homeless New Yorkers. ADR can simultaneously prevent harm to vulnerable populations and keep parties out of court when the government falls out of compliance with legal rights and protections. ADR should not be used to wipe away fundamental legal rights protecting homeless families

They Keep It All Hid: The Ghettoization of Mental Disability Law and Its Implications for Legal Education

The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern mental disability law case – finding that the due process clause is implicated in all decisions related to both the nature and duration of the commitment process – it expressed surprise that there were not more mental disability law cases brought to its attention. However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no mental disability law cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject separate from basic constitutional law materials and courses. Mental disability law has been ghettoized in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since all law schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in mental disability law offered only at about half of all American law schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training). This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability law is simply not a topic taken seriously as a civil rights topic (or as a constitutional law topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching mental disability law. It is hidden (nearly totally hidden) from the traditional law school curriculum. It is not in the curriculum at many law schools. It is largely invisible to students and professors alike. I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how mental disability law became a part of the law school curriculum, growing out of and largely supplanting courses in psychiatry and the law (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that mental disability law can be cabined in one 2- or 3-credit course (implying that all mental disability law can be surveyed in that period of time, in a way that law school faculty would never think all tax law or real estate law or securities law could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality ofthe students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any mental disability law course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of ordinary common sense (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence

Two Lawyers, One Client, and the Duty to Communicate: A Gap in Rules 1.2 and 1.4

[Excerpt] “There may have been a day in which most American legal matters involved one client and one lawyer, but that day has surely passed. People today travel widely, businesses sell their goods and services across the country, and activity of all sorts—both legal and illegal—can be carried out in cyberspace. In such a society the laws of multiple jurisdictions can be relevant to the broad range of client circumstances. At the same time, legal issues have become increasingly complex, forcing lawyers to make referrals to outside specialists. In addition, some transactions or litigation matters may simply be too large for one attorney or even one law firm to handle. The result of these and other forces is that it is quite common for a lawyer to represent a client in concert with lawyers from other firms. Unfortunately, the rules of ethics pay scant attention to these multiple-lawyer, multi-firm situations. Among the most basic issues facing lawyers who share a representation is the question of who is responsible for maintaining communications with the client. Much of the time, no doubt, little thought is given to the ethical requirements of communication, and the lawyers and client informally develop a group dynamic that successfully manages the flow of information. Nevertheless, in those instances in which problems arise, it may be necessary to ask which attorney has or had the responsibility to keep the client apprised of developments in the legal matter. This article will address that question.

Less Trust Means More Trusts

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé. Just as termites can enter homes through foundational cracks or wood brought from the outside, interpersonal, community or structural confidence may erode in the face of hostility, indifference or inequality. Similarly, as termites can slowly damage a home over a period of years before the harm becomes visible, the beneficial form of ownership known as a trust gradually–and then suddenly–has morphed almost beyond recognition over the last twenty-five years. Eaten away are the traditional limitations on trust duration, trust modification and the type of property that can be held in trust. In some states, irrevocable trusts can last forever, be decanted to another trust with entirely different terms, or even hold legal “title” to human embryos. These changes to centuries of trust law reveal changing attitudes about wealth, property ownership, and personal autonomy. If society truly values equal opportunity for all people, then trust–and trusts–need attention