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Showing papers in "Albany law review in 2001"


Journal Article
Eskridge1, N William
TL;DR: In 2000, Vermont's governor signed legislation recognizing civil unions between same-sex couples as mentioned in this paper, which was a legislative response to Baker v. State, a state supreme court decision interpreting the state constitution as requiring the state to equalize the benefits and obligations required for same sex couples and different-sex married couples, and the court's decision explicitly contemplated the possibility that the legislature could remedy the discrimination either by extending civil marriage to samesex couples, or by creating a new institution entailing the same state-sanctioned benefits (such as the right to bring a lawsuit for the
Abstract: THE 2000 EDWARD C. SOBOTA MEMORIAL LECTURE(*) On April 26, 2000, Vermont's governor signed legislation recognizing civil unions between same-sex couples.(1) Under the new law, same-sex couples entering into civil unions will enjoy the same benefits and obligations that Vermont law provides for different-sex couples who enter into civil marriages. The law was a legislative response to Baker v. State,(2) a state supreme court decision interpreting the state constitution as requiring the state to equalize the benefits and obligations afforded same-sex couples and different-sex married couples.(3) The court's decision explicitly contemplated the possibility that the legislature could remedy the discrimination either by extending civil marriage to same-sex couples, or by creating a new institution entailing the same state-sanctioned benefits (such as the right to bring a lawsuit for the wrongful death of a spouse) or obligations (such as the duty of support and maintenance) for same-sex couples that are afforded to different-sex married couples. Six European countries had created such new institutions, called registered partnerships. Most of the criticism of Baker, and the ensuing civil union law, came from traditionalists who assailed these moves as compromising the institution of marriage, or promoting homosexuality. Some of the criticism, however, came from liberals who assailed these moves as falling short of full legal equality for lesbian, gay, and bisexual people--in essence creating a "separate but equal" regime for gays. In important respects, the civil union law is inconsistent with the premises of the liberal state as applied to same-sex couples: it treats them differently from different-sex couples, and for reasons that are hard to justify without resort to arguments grounded in status denigration or even prejudices. Justice Denise Johnson dissented from Baker's reluctance to require the state to issue marriage licenses to same-sex couples. The majority's concern with "disruptive and unforeseen consequences," she argued, was the same kind of concern raised by segregationist states opposing judicial remediation of apartheid in the 1950s and 1960s. "The Supreme Court's `compelling answer' to that contention was `that constitutional rights may not be denied simply because of hostility to their assertion or exercise.'"(4) In the legislature, Representative Steve Hingtgen opposed any compromise on the ground that it "validates the bigotry" against lesbians, gay men, and bisexuals.(5) Representative Hingtgen expressed his opposition, saying "[i]t does more than validate it. It institutionalizes the bigotry and affirmatively creates an apartheid system of family recognition in Vermont."(6) Although I think the analogy of civil unions and Baker to racial apartheid and Plessy v. Ferguson is inapt, Justice Johnson and Representative Hingtgen raise pertinent issues. The legislation is a compromise of liberal principles--but a small and perhaps temporary one that both contributes to liberal projects and reveals some limitations in the liberal ideal for our polity. I. CIVIL UNIONS AS A SACRIFICE OF LIBERAL PRINCIPLES Liberal theories maintain that the state exists to provide a context within which its members can flourish. The state properly creates public goods (like roads), prevents people from hurting one another or unnecessarily interfering in one another's affairs, and (by some accounts) inculcates civic virtues of toleration and cooperation in the citizenry.(7) On the whole, the state is supposed to be neutral as to its citizens' moral virtue.(8) Thus, the liberal state is not permitted to hurt people or treat them differently because they are unpopular or even objectionable, so long as they are not positively harming other people or depriving them of their recognized liberties.(9) The liberal state can arrest and otherwise penalize a person for coercing another person to have penile-vaginal sex with him, but not for engaging in oral intercourse with a consenting adult. …

25 citations


Journal Article
TL;DR: In the family law arena, adoption and custody of children remain concerns of conservative legal writers, and one conservative law professor has recently argued that "homosexual parenting" is dangerous to children as mentioned in this paper.
Abstract: I. INTRODUCTION Much of the conservative right's rhetoric in the realm of minority sexualities has focused on children.(1) Drawing on themes of disease and seduction, Christian fundamentalists have portrayed gay men and lesbians as predators who target children, hoping to "seduce them into a life of depravity and disease."(2) As Jeffrey Weeks noted many years ago, it was no accident that Anita Bryant called her anti-homosexual campaign "Save Our Children, Inc."(3) The United States Supreme Court implicitly considered the issue of whether gay men should have contact with children with its recent decision in a case involving the Boy Scouts of America.(4) In the family law arena, adoption and custody of children remain concerns of conservative legal writers, and one conservative law professor has recently argued that "homosexual parenting" is dangerous to children.(5) In composing their anti-gay rhetoric in terms of child protection, conservatives have inaccurately grouped children into a monolithic category, often excluding the real interests of two specific classes of children: children of sexual minority parents and minors who are themselves lesbian, gay, transgendered, or bisexual.(6) First, the conservative right's rhetoric has monolithically constructed the children of sexual minority parents as victims in need of rescue.(7) These children are presumably akin to abused children who will suffer more from contact with their parents than from a deprivation of their parents; any love such children have for their parents is presumptively overwhelmed by the assumed disapproval such children would have of their parents' sexuality.(8) Second, the conservative right's rhetoric has excluded minors who are themselves sexual minorities, even while conservatives fear that children will become sexual minorities by exposure to gay, lesbian, bisexual, or transgendered adults.(9) Regardless of what causes people to become sexual minorities, the conservatives' tactic of hostility towards such people harms children and adolescents who are--or who may become--sexual minorities. At its most basic level, my argument is that we--those of us who are members of a sexual minority--must continue to take responsibility for our children. Part II of this article considers the children to whom we are biologically related, the children we would adopt, and the children with whom we live.(10) Part III of this article addresses the minors who are presently sexual minorities or who may be in the future.(11) In both cases, we must ensure that our children are not damaged by the law. II. THE BEST INTEREST OF OUR CHILDREN Depriving a child of the continued care of his or her sexual minority parent, based on parental sexuality, harms children, despite any court's findings that such a deprivation is in the "best interest of the child." The established standard in custody disputes between parents, the "best interest of the child" test,(12) has devolved into several different approaches regarding parental sexuality.(13) Spanning the continuum, a court may decide that a parent's sexual minority status is a per se disqualification of custody or that parental sexuality is irrelevant.(14) Between these two poles is the nexus approach, which requires the court to find a relationship between parental sexuality and harm to the child.(15) Under the "true" nexus approach, the burden of persuasion is allocated so that there must be proof that parental sexuality will have an adverse impact on the child.(16) Nonetheless, some courts presume adverse impact, demanding that the sexual minority parent prove an absence of harm to the children.(17) In all of these approaches, except for the irrelevance approach, the courts construe the sexual minority parent as a potential cause of harm to the child.(18) In fact, much greater harm is caused by judicial decisions that deprive a child of the care and companionship of his or her parent. …

16 citations


Journal Article
TL;DR: In fact, despite the religious right's insistence on the existence of "the traditional family," from which far too many Americans have deviated, family meanings and structures are far from stable over time, and change in significant ways with each generation.
Abstract: Among this remarkable gathering of scholars, I'd like to talk to you as a legal strategist and family advocate. And, I'd like to voice my continued belief that the best course for family advocates to pursue is that which recognizes the caring and committed relationships of all families--not just those who wish to marry and not just those that include lesbian and gay couples. Not so long ago, the term "gay or lesbian family" was an oxymoron--a legally impossible and functionally undesirable notion. Lesbians and gay men did not fit into the world's understanding of family. At the same time, the idea of "family" had not yet been claimed by lesbians and gay men. Standing here now, it's difficult for most of us to even remember those times given the virtual revolution that has occurred in re-thinking and re-configuring the basis for recognizing, or not, certain kinds of families. It is important to remind ourselves, particularly in a law school forum like this, that social change doesn't just happen. It is a dynamic process involving theory, strategy, advocacy, and the story of human lives. It is the dynamic process of history in which we know that nothing ever stays the same--even the role, function, and definition of family. Despite the religious right's insistence on the existence of "the traditional family," from which far too many Americans have deviated, family meanings and structures are far from stable over time, and change in significant ways with each generation. In the past fifty years alone, family structure and meaning have changed remarkably as a result of several distinct and intertwined social justice movements. The civil rights movement challenged proscriptions against interracial marriages between whites and people of color.(1) The feminist movement has influenced major systems affecting women and family structures, including the legal and social rules of marriage, workplace policies that reinforced women's private role as mother, criminal abortion laws restricting women's personal decision-making, and codes of sexual conduct. A poverty-focused social justice movement carved out a stronger government obligation to provide support to poor people and constructed single women with children (and without men) as families, not deviants. The sexual liberation movement that was a part of both feminism and the early gay rights movement pushed past the spoken code of "sex is for reproduction" to the unspoken reality, "sex is also pleasurable," thus reframing the role of sex in our culture. And, of course, the lesbian, gay, bisexual, and transgender movement has further challenged not only male/female gender roles but also the normative rules that reinforce the "you need a man and a woman to make a family" rule. The LGBT movement also has played a most significant role in questioning the role of marriage as the sole source of benefits to families. Each piece of this broad history, and much more, has contributed concretely to important policy and legal shifts in defining family as a group of people who love, care for, and support one another, regardless of their gender, race, sexual orientation, marital status, or economic class. Families do indeed co-exist outside of marital structures. Functional parent-child relationships do indeed co-exist with biological relationships. In fact, the norm seems to be the diversity of family form, not the one-size-fits-all structure of marriage and biology. It is this perspective that has most shaped the lesbian and gay community's approach to family recognition. And, it is this perspective I'd like to address today. Some historical background, solely from my personal vantage point as a legal advocate who has had the good fortune to play a role in the development of some of the key principles of lesbian and gay family law over the last many years, illustrates, I believe, our community's investment in shedding the one-size-fits-all approach to family definition. …

13 citations


Journal Article
TL;DR: In this paper, the issue of whether there is a private right of action for violations of EPA regulations is an unresolved issue, and no one has ever been able to prove discriminatory intent in the environmental justice context of a litigation.
Abstract: Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. (1) The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents." (2) This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning I would like to say a couple of words about what environmental justice is, on what is the over-arching law on the subject at the federal level, and then to speculate a little bit--we're still at such an early stage that only speculation is warranted--as to how it will affect SEQRA [State Environmental Quality Review Act] and related processes. The basic idea underlying environmental justice is that minority and low income individuals and communities should not be disproportionately exposed to environmental hazards and should be able to participate meaningfully in the decisions that affect their exposure to those hazards. Environmental justice first became a major issue in 1987 with the publication of a report called Toxic Wastes and Race in the United States, (3) published by the Commission of Racial Justice of the United Church of Christ, concluding that the racial characteristics of a community were the most important single indicator of proximity to hazardous waste sites. A lot of methodological issues have been raised about that study, but it had a tremendous impact. The first fundamental legal basis for environmental justice law is the Equal Protection Clause of the United States Constitution. However, plaintiffs seeking to use the Equal Protection Clause to bring complaints on environmental justice grounds have uniformly failed because the courts require a showing of discriminatory intent before allowing an equal protection claim, and no one has ever been able to prove discriminatory intent in the environmental justice context of a litigation. The Civil Rights Act of 1964 contained a very important provision, Title VI, (4) which has also become of great importance in environmental justice. Title VI says that "[n]o person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject[] to discrimination [involving] any program or activity receiving federal financial assistance." (5) So Title VI aims at recipients of federal financial assistance. Every state environment agency including the DEC [Department of Environmental Conservation] is a recipient of federal financial assistance and therefore is subject to Title VI. It doesn't matter whether the money goes to the particular program at issue; DEC is subject to Title VI. Title VI itself has been interpreted also to require a showing of discriminatory intent before it can be forced in court. However, Title VI allowed federal agencies to adopt implementing regulations. The Title VI regulations adopted by EPA [Environmental Protection Agency] as well of those of a number of other federal agencies don't require intent. Discriminatory effect is enough. The question then arises: Can you go to court to challenge a recipient of an EPA grant, such as the DEC, if there is a finding of discriminatory effect? The issue of whether there is a private right of action for violations of EPA regulations is an unresolved issue. Three years ago, the U.S. Court of Appeals for the Third Circuit ruled that there was such a right in the Chester case. (6) The U.S. Supreme Court agreed to hear the case; but then the plant that was the subject of the controversy in the Chester case--a proposed soil remediation plant--was cancelled and the Supreme Court vacated the decision as moot. …

9 citations


Journal Article
TL;DR: In this article, it is argued that salvaging shipwrecks "disturb[s] the final resting places of those who lost their lives in a shipwreck disaster".
Abstract: "The cultural heritage of the western world, the colonial appetite of the Spanish Empire, nearly three centuries of man's timeless quest for wealth and adventure, and the distribution of authority in the American Federalist legal system are all substantially intertwined [in this Article]." (1) INTRODUCTION The law of shipwrecks, treasure, and artifacts is an evolving area of the law (2) with significant social, scientific, cultural, and monetary implications. (3) Moreover, after centuries of international development and application, (4) it remains an unsettled and disputed area of the law. (5) There are countless historic shipwrecks containing valuable treasure and artifacts to which the law must be applied, (6) especially in light of the sophisticated search and salvage technologies now available. (7) In fact, technology is so advanced today that "it [is now] possible to find, visit and remove artifacts from shipwrecks long beyond our power to reach." (8) For example, after resting 12,500 feet below the surface of the North Atlantic from the time of its sinking in 1912, the Titanic was discovered in 1985 nearly 400 miles off the coast of Newfoundland. (9) With the advent and aggressive use of new technologies, (10) the debate has intensified over whether commercial salvage should be permitted with respect to historic shipwrecks. (11) For instance, many archaeologists consider certain historic shipwrecks to be underwater "museums" containing cultural heritage, (12) while others consider certain shipwrecks, particularly naval wrecks, to be underwater cemeteries that should be protected from salvage or recovery. (13) Salvors, (14) however, dismiss such arguments and contend that archaeologists and other non-profit entities (generally referred to herein as "archaeologists") simply want the opportunity to salvage, recover, or preserve historic shipwrecks themselves. (15) Moreover, salvors allege that if they are precluded from salvaging historic shipwrecks, such shipwrecks will be lost forever because archaeologists lack the requisite funding to perform salvage, recovery, or preservation operations in a meaningful quantity. (16) In Part I, this Article considers (1) whether historic shipwrecks should be afforded absolute protection as underwater cemeteries, (17) (2) the monetary value placed on historic shipwrecks by salvors, (18) and (3) the struggle between salvors and archaeologists over the proper treatment of historic shipwrecks. (19) Part II discusses the laws of finds and salvage as applied to historic shipwrecks, particularly in light of recent judicial trends, certain federal and state laws, and existing and proposed international treaties. (20) Part III proposes that admiralty courts expand upon the judicially created Archaeological Duty of Care (ADC) as an alternative to the approach now being considered by the United Nations for the management of historic shipwrecks. (21) The ADC imposes certain requirements upon salvors with respect to salvaging historic shipwrecks so as to protect their historical, archaeological, and monetary value. (22) In this last Part, it is also argued that the ADC will preserve the traditional laws of admiralty, the jurisdiction of admiralty courts, and the financial incentives that lead to the discovery of new historic shipwrecks by salvors--all of which the United Nations, among others, is now seeking to abrogate. I. HIGH STAKES FOR CONTROL OF HISTORIC SHIPWRECKS AND TREASURE A. Shipwrecks as Protected Cemeteries Neither history nor the law treats shipwrecks, historic or otherwise, as protected underwater cemeteries. (23) It is argued, however, that salvaging shipwrecks "disturb[s] the final resting places of those who lost their lives in a shipwreck disaster." (24) The historic, social, scientific, and monetary value of historic shipwrecks, however, dictates that they should not be treated as underwater cemeteries protected from salvage or recovery. …

8 citations


Journal Article
TL;DR: In this article, the authors argue that comparative proportionality review is constitutionally unwarranted, methodologically unsound, and theoretically incoherent, and, therefore, should be abolished and replaced by more traditional proportionality reviews of capital cases.
Abstract: I INTRODUCTION Comparative proportionality review is an appellate proceeding peculiar to capital cases(1) It is provided for, primarily by statute, in twenty (out of thirty-eight) death penalty states(2) Comparative proportionality review could result in the reversal of a death sentence on grounds of failure to impose the same sentence on other similarly situated defendants To the most dogmatic opponents of capital punishment, comparative review is a presumptively valid weapon in the holy war(3) Even to the less doctrinaire, it offers at least a surface plausibility: after all, like cases should be treated alike If only one out of 100 similar cases results in a death sentence, that sentence certainly seems, on the face of it, arbitrary, irrational, and (in the hyperbole common to death penalty discourse) capricious(4) The contention of this article is that, contrary to conventional wisdom, comparative proportionality review is constitutionally unwarranted, methodologically unsound, and theoretically incoherent, and, therefore, should be abolished This is demonstrated in three sections, each of which focuses on a different flaw After an examination of the nature of proportionality review, Part Two will discuss the erosion of constitutional support for the process The United States Supreme Court began the modern capital jurisprudence era with a profound error, an error that provided the impetus for proportionality review Furman v Georgia(5) strongly suggested that the Eighth Amendment embodies a principle of prosecutorial evenhandedness, ie, that singling out death for some, but not all, blameworthy defendants, is cruel and unusual punishment(6) This implied that some sort of review was constitutionally required to ensure evenhandedness in the administration of the death penalty Gregg v Georgia(7) reinforced this conclusion by endorsing Georgia's proportionality review statute(8) Eight years later, however, the Court reversed course; Pulley v Harris(9) acknowledged that comparative review has no Eighth Amendment foundation Pulley created an apparent contradiction On the one hand, in a line of cases starting with Coker v Georgia,(10) the Supreme Court took the position that, at least for capital cases, the Cruel and Unusual Punishments Clause requires proportionate punishment(11) On the other hand, as Pulley made abundantly clear, comparative review is not required Part Two of this Article suggests the solution Comparative review, deconstitutionalized by Pulley, should be abolished and replaced by more traditional proportionality review of capital cases, what I will call "inherent" or "retributive" proportionality review Such review may properly be used as a check on the legislature should it be tempted to authorize the death penalty for categories of crimes or classes of defendants that, by contemporary standards of decency, do not deserve such harsh punishment To take a controversial example, a court might hold that death for certain non-homicidal crimes, such as the rape of young children, is disproportionate(12) Unlike comparative review, however, inherent proportionality review is a test of retribution, not of evenhandedness(13) It does not demand--nor does the Constitution--that courts engage in the hopeless task of determining whether equally deserving criminals were treated alike The difficulties of administering comparative review are demonstrated in Part Three Here we focus on the New Jersey Supreme Court, a tribunal dedicated to equalizing the treatment of capital murderers Under the tutelage of Professor David Baldus, the New Jersey court committed itself to the most quantitative proportionality review in the United States An elaborate, time-consuming, and costly methodology was developed--with little to show for the effort All of the state's death penalty cases, and even hundreds of cases deemed "death-eligible" (though not capitally charged by prosecutors) were collected, scrutinized, coded, and statistically compared …

5 citations



Journal Article
TL;DR: New York State Environmental Quality Review Act (SEQRA) as discussed by the authors is a state environmental protection law that requires state and local government agencies to consider the environmental impacts of their decisions and to consider alternatives and mitigation measures to reduce those impacts.
Abstract: I. INTRODUCTION With twenty-five years of experience with the State Environmental Quality Review Act (SEQRA) (1) in New York, environmental law practitioners and state and local government decision-makers now routinely expect that SEQRA will play a significant role in their work. When SEQRA went into effect in New York in 1976, (2) it represented a revolutionary change in how government agencies arrived at their decisions. (3) Prior to SEQRA, buildings were built, shopping centers were erected, and zoning laws were adopted without a requirement that the agencies that approved these projects and laws consider the resulting environmental impacts. With the passage of SEQRA, however, state and local government agencies must consider the environmental impacts of their decisions, and when those impacts may be significant consider alternatives and mitigation measures to reduce those impacts. (4) SEQRA was enacted in the shadow of its older sibling, the National Environmental Policy Act (NEPA). (5) Like SEQRA, NEPA required federal agencies to consider the environmental impacts of their decisions. (6) There are four key differences between SEQRA and NEPA, however, three of which New York can proudly trumpet as offering more protection for the environment. (7) With respect to the fourth difference, it can barely utter a squeak because this difference severely restricts litigants' access to the courts. (8) The first positive difference is that the definition of environment under SEQRA is broader than the definition under NEPA, thereby capturing more decisions and projects within its net. (9) The second apparent difference is that NEPA's language directs government agencies to prepare environmental impact statements (EISs) for projects significantly affecting the environment, (10) This is a lower standard than SEQRA's requirement that government agencies prepare an EIS when a project may have a significant effect on the environment. (11) The third difference is that, unlike SEQRA, NEPA does not require project sponsors to mitigate adverse impacts. (12) In contrast to these three seemingly positive differences for New York's statute, (13) a fourth difference between SEQRA and NEPA regarding the requirements for standing to sue to enforce the statute's provisions does not provide New York with any reason to celebrate. (14) This article will demonstrate that in large part plaintiffs must meet more stringent and preclusive standing requirements to maintain a claim under SEQRA than they must to maintain a claim under NEPA. Part II of this article discusses the 1991 New York Court of Appeals decision, The Society of the Plastics Industry, Inc. v. County of Suffolk, (15) which established today's restrictive standing requirement under SEQRA. (16) Part III discusses standing for plaintiffs raising NEPA claims and examines standing in other contexts of federal law. (17) Part IV examines the standing requirements of other states that have "little NEPA's." (18) Through a discussion of New York cases decided since 1991, Part V illustrates the harm wrought by the decision in Society of Plastics. (19) Finally, Part VI provides a conclusion and offers a recommendation for reform of the special harm standing requirement in New York. (20) II. THE SOCIETY OF THE PLASTICS INDUSTRY, INC. V. COUNTY OF SUFFOLK The Society of Plastics case centered on the efforts of the New York State and Suffolk County Legislatures to protect Long Island's drinking water supply. (21) In 1983, the New York State Legislature adopted special landfill restrictions for Nassau and Suffolk Counties. (22) Potable drinking water on Long Island is primarily obtained from "a sole source aquifer," (23) referred to by the legislature as a "deep flow recharge area." (24) In enacting these landfill restrictions, the Legislature recognized that pollutants from landfills could jeopardize Long Island's crucial drinking water supply. …

3 citations


Journal Article
TL;DR: In this paper, the authors argue that it is important for the United States Supreme Court to examine international human rights norms when it considers domestic civil rights issues, and discuss two recent Supreme Court cases to assess what impact, if any, this new approach might have on civil rights decisions rendered by United States courts.
Abstract: THE KATE STONEMAN PROFESSORSHIP LECTURE For a number of years, international law scholars like Harold Koh and activists like Dorothy Thomas have admonished domestic civil rights lawyers to "bring international law home."(1) Domestic activism is needed, according to Thomas, because the United States government has systematically tried to "shield itself from international accountability" by encouraging "a kind of learned insularity" of civil rights groups.(2) As a result, civil rights groups that are adamant in calling for domestic reforms to address race and gender discrimination and other civil rights issues have rarely framed those demands within the international context of human rights, and have seldom linked arms with groups outside the United States in pressing those claims. In large part, the approach of civil rights groups has been pragmatic. Civil rights lawyers have limited budgets, limited human resources, and must make hard decisions on how to focus their work. Until relatively recently, groups like the ACLU, the NAACP Legal Defense and Education Fund, and NOW Legal Defense and Education Fund, as well as other public interest legal groups, looked almost exclusively to litigation as the driving force of their work to expand and protect civil rights in this country.(3) Legislative and media efforts have expanded in the past few years (and those efforts are more likely to have international components), but litigation is still at the core of civil rights legal work.(4) Like other litigators, civil rights groups advocates look at judges, and assess what they will find persuasive. International law has not fit that criteria. Indeed, some litigators have been concerned that citations to international law would signal an essential weakness in their case under domestic law. That status quo is rapidly changing, however, and that is what I want to explore with you today. First, I want to bring you up to date on the Supreme Court's rather sparse record of looking to international human rights law in ruling on domestic civil rights issues. Second, I will explain why it is important that the Supreme Court begin routine and regular examination of international and comparative law norms when it considers domestic civil rights issues. To be clear, I am not arguing that courts should cite international law as controlling authority, though that may sometimes be appropriate, but simply as persuasive authority. It seems to be a small step, but surprisingly it is one that the courts have yet to embrace. To support this argument, I will describe several analogous situations where United States courts have changed their approaches to decision-making in response to changes in society. Finally, I will discuss two recent Supreme Court cases to assess what impact, if any, this new approach might have on civil rights decisions rendered by United States courts. INTERNATIONAL AND FOREIGN LAW IN UNITED STATES COURTS The cases themselves tell the story. The Supreme Court famously ruled in The Paquete Habana that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction,"(5) but that principle has been very selectively applied. In a few areas, courts regularly look abroad. For example, the United States law on political asylum and refugee status specifically incorporates international norms, which federal courts construe and apply on a daily basis.(6) Similarly, both federal and state courts dealing with foreign defendants, particularly foreign sovereigns, often look to international legal doctrines and other countries' practices, as do courts examining issues involving the extent of United States' jurisdiction on the high seas.(7) In contrast, international human rights norms are cited much more rarely. Amicus briefs addressing international human rights law--like that filed in 1982 in Bob Jones University v. …

2 citations



Journal Article
TL;DR: More than 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") between its enactment in 1975 and the end of 2000 as mentioned in this paper, and almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000.
Abstract: INTRODUCTION Nearly 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") (1) between its enactment in 1975 and the end of 2000 (2) Almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000 (3) These numbers are large enough to serve as a basis for a statistically valid review of case outcomes This article is divided into five parts Part I presents statistics on the SEQRA cases Part II reviews the history of how the Court of Appeals has decided SEQRA cases Part III lists some of the issues that have been litigated over the years and breaks them down into the resolved issues, the open issues yet to be resolved, and the persistently gnawing issues that are not likely to be resolved Part IV identifies the legal nemeses of the various participants in the SEQRA process Part V attempts to distill the caselaw under SEQRA into one sentence I STATISTICS ON SEQRA CASES Table I herein presents an analysis of the court decisions issued under SEQRA from January 1990 through December 2000--a period of eleven years There were 697 decisions during this period (4) These are all the cases known to the author; they include all reported decisions, and many unreported decisions There may well be other unreported decisions not included in this enumeration Several conclusions are apparent from these numbers The number of decisions per year is remarkably constant The average is sixty-three decisions per year, and it has never varied by more than plus or minus thirteen decisions (5) The number of final environmental impact statements ("EISs") dropped after 1993, (6) while the number of cases challenging EISs did not (7) This means that the percentage of EISs that led to court decisions increased significantly, from about 7% during the first half of the 1990s to about 15% during the second half of that decade Unfortunately the New York State Department of Environmental Conservation (NYSDEC) stopped counting the number of negative declarations (ie, decisions that no EIS is required for a particular action) in 1994 (8) During the first half of the 1990s, however, roughly 24% of negative declarations led to court decisions (9) The single best indicator of whether the plaintiff (usually, but not always, a project opponent) or the defendant (always at least one government agency, and often one or more project applicants) was more likely to win a particular SEQRA case was whether an EIS had been prepared in that case Plaintiffs won 11% of the cases in which an EIS had been prepared, whereas plaintiffs won 28% of the cases in which no EIS had been prepared (10) In other words, plaintiffs in SEQRA cases wherein an EIS had not been prepared won almost three times more often than plaintiffs in SEQRA cases wherein an EIS had been prepared (11) There was no great change in these percentages over the decade, nor were there any obvious trends This last observation may be useful in predicting the outcome of future SEQRA cases If an EIS has been prepared, plaintiffs apparently start out with about a one-in-ten chance of winning On the other hand, if there has been no EIS, plaintiffs tend to have closer to a one-in-three chance of winning Taking these odds into account, one can then look at the specific facts of a particular case to form a judgment about whether that case is going to have a significantly greater or smaller chance of success than these average percentages would indicate II NEW YORK COURT OF APPEALS DECISIONS Table II herein lists all the decisions issued by the Court of Appeals under SEQRA from 1981 (the year of the first such decision (12)) through 2000 (13) There are a total of forty-four cases listed below (14) Pro-environmental plaintiffs won eight of these cases; these victories were almost entirely in the 1980s …

Journal Article
TL;DR: For example, the authors argues that lesbian, gay, bisexual, and transgendered (LGBT) rights are a particular instantiation of human rights, and the connection between gay and lesbian rights and human rights is pursued within the context of a theory of political morality.
Abstract: This article argues that lesbian, gay, bisexual, and transgendered (LGBT) rights are a particular instantiation of human rights. But in order to make this argument, several things must be done first. Preliminarily, it should be noted that some transgendered issues fall under the rubric of "gay-rights," even though, strictly speaking, they center most prominently on matters of gender and not sexual orientation.(1) Still, their gender aspects are often ignored because of concerns related to sexual orientation, such as whether a transgendered female can use a woman's washroom.(2) Arguably, the reverse may also be true of gays, lesbians, and bisexuals insofar as many of society's concerns regarding this group involve their not following gender roles, even though the discrimination against them is not usually seen as sex discrimination.(3) Bearing that in mind, among the various responsibilities of this article is to define--in the broad sense--what gay and lesbian rights are.(4) This is followed by a similar set of expressions defining what human rights are and an argument for how such rights get justified.(5) Once that is done, the connection between gay and lesbian rights and human rights is pursued within the context of a theory of political morality that establishes the centrality of human rights to all moral concerns.(6) One small caveat should be noted. This article is about the ideals that constitute gay and lesbian rights generally, although it will from time to time look at specific aspects of American law. These ideals are not always clear from specific legal doctrines because the doctrines that make up this area are far from settled. Where, at least in American law, one might expect the doctrines to lead to a certain set of results given the way prior cases not involving gays or lesbians were decided, there is often that funny exception pinned somehow to the fact that one of the claimants is gay. The article is also not about the political mechanics of how to actually bring gay rights into legal existence, though to some extent mechanics are mentioned to show how institutions operate to promote, or not promote, human rights. Political pragmatism is essential to the latter task, but political pragmatism will not be sustained unless the ideals upon which it is built are firmly understood and supported. Spending time on a theory of ideals is thus a worthwhile effort even for activists and lawyers who work to achieve legal protections for LGBT people in society. Ideals are what this article will address. I. WHAT ARE GAY AND LESBIAN RIGHTS? At the outset, the reader might note that while talk about gay and lesbian rights, and human rights in general, is relatively new to the political stage (natural rights talk only dates back to the early modern period(7)), the idea of a right itself is not new. Surely, the ancient Greeks and Romans had a sense of this concept, even though they did not have a word for it, for they understood that the law could be used, for example, to force the payment of a debt.(8) That being the case, what is new about the modern rhetoric of rights is that there is now a systematic language in which to pull together talk about who holds the right, what the right is are about, and who (if anybody) has a correlative duty associated with the right. One result of that change in dialog is to make clear a distinction between two uses of the word "right," since they are often confused in the political debate, if not in academic discourse.(9) This is especially true when people think of the word "right" in the context of what it is "right to do." In those situations, people who may, for example, be sympathetic to gay-rights will not always agree with every use of those rights. The distinction is between the word "right" when used as a noun and its use as an adjective.(10) This distinction is important because the two uses are easily confused when both get applied in a single context. …

Journal Article
TL;DR: The Court of Appeals of New York has a profound impact on the most fundamental values of our community as mentioned in this paper and it is even greater now, especially given the Supreme Court's emphasis on principles of federalism in the area of civil rights and civil liberties over the last few decades.
Abstract: I. INTRODUCTION Many, perhaps most, New Yorkers are fairly unaware of the Court of Appeals and what it really does. Yet, the court's decisions have a profound impact on our lives.(1) The amount of power and influence that the Court of Appeals has had on the most fundamental values of our community has always been substantial. But it is even greater now, especially given the Supreme Court's emphasis on principles of federalism in the area of civil rights and civil liberties over the last few decades.(2) When one thinks about the kind of issues that the Court of Appeals decides, it is astounding that more New Yorkers are not aware of this institution, the kind of work it does and the impact that it has on our lives. Virtually every facet of our lives ends up sooner or later at the Court of Appeals. More than that, the Court of Appeals almost always has the last word. First, much of what the court does is purely state law--in most cases there are no federal questions raised.(3) In those cases, the Supreme Court of the United States does not even have jurisdiction to review the decisions of the Court of Appeals.(4) Second, even if federal questions could be raised, the Court of Appeals, in providing for the enforcement of rights and liberties, has historically taken an approach that is much more generous than that of the Supreme Court of the United States with regard to violations of constitutional rights and liberties.(5) The New York Court of Appeals has often been cited as one of the finest courts in the country.(6) With Benjamin Cardozo's arrival in 1914,(7) the Court of Appeals was widely viewed "as the preeminent state court in the country."(8) Among other things, the court built a tradition of protecting rights and liberties, relying on New York's Constitution regardless of the protections provided under the Federal Constitution.(9) In fact, the court, under the leadership of Chief Judges Desmond, Fuld, Breitel, and Cooke,(10) "was in the national vanguard," protecting individual rights during both the Warren Era and the post-Warren retrenchment era at the Supreme Court.(11) However, beginning in the late 1980s, during the latter years of the tenure of Chief Judge Wachtler, the court entered a period of its own "retrenchment," during which the court "reversed the course on which it had been proceeding rather consistently for the previous quarter century."(12) The court even backpedaled "in the very areas in which it gained national prominence."(13) By 1990 and 1991, the court's retreat from prior levels of protection was firmly entrenched.(14) Within a matter of a few years, the court went from being one of the most liberal tribunals in the country to being an unmistakably conservative leaning one. (15) When Chief Judge Wachtler resigned from the court,(16) the direction of the court again changed.(17) During the first few years of Chief Judge Kaye's tenure, her court began to move toward greater protection of civil rights and civil liberties.(18) The court held in favor of individuals, as opposed to government, nearly twice as often as it had during the period prior to Chief Judge Wachtler's resignation.(19) Many court watchers took this as a sign that the court, under Chief Judge Kaye, would be bold and innovative in protecting civil rights and liberties.(20) However, five years ago, when Governor Pataki first took office, the Court of Appeals became a subject of intense criticism at the highest levels of state government and in the popular media.(21) The court was accused of virtually everything, from being the most liberal tribunal in the country to being an "ideological dog and pony show."(22) Soon, it appeared that the Kaye Court reversed track and began to resemble the last few years of the Wachtler Court.(23) Rulings in favor of individuals, as opposed to government, dropped to nearly the rate of the Wachtler Court.(24) The shift was particularly dramatic in the area of criminal law, the subject of the "courtbashing. …

Journal Article
TL;DR: The Sobota Lecture as discussed by the authors was the first lecture in memory of the late civil rights leader to address economic justice in the United States, and was presented by Peter Edelman, who has worked in all three branches of the federal government as well as in state government.
Abstract: 2001 EDWARD C. SOBOTA MEMORIAL LECTURE(*) Introduction by Martha Davis(***) It is a great privilege to introduce Peter Edelman as the Sobota lecturer today. I have known Peter personally for a number of years through our work on economic justice and I've certainly known him by reputation for much longer than that. I don't want to go into detail about the impressive particulars of his career--they're set out in your program--but I do want to point out that Peter is unusual in that he has worked in all three branches of the federal government, as well as in state government. Here in Albany, he was the Director of the New York State Division for Youth in the late 1970s, so he has a connection to this town. Since 1982, he has been a professor at Georgetown University Law Center in Washington, D.C., with the exception of a stint in the federal government, when he worked for the U.S. Department of Health and Human Services during the Clinton administration. As you read Peter's bio in the program, it's striking how many times he has been in interesting places when things of significance are happening. I used to think, "What a lucky guy, he's always at the right place at the right time." And then a light bulb went off and I realized that that doesn't just happen. Nobody is just lucky like that. In fact, Peter is somebody who's making things happen. He's in these places when things are happening because he's the catalyst for thing the rest of us read about in the papers. The entire nation had a chance to learn more about Peter's character when in 1996, he resigned from his position at the U.S. Department of Health and Human Services, rather than work on implementation of a welfare reform law signed by President Clinton, which Peter believed would deprive poor children and families of a safety net. Professor Edelman has received deserved recognition for taking this brave stand, along with his colleagues, Mary Jo Bane and Wendell Primus, who also resigned at that time. What is perhaps more important is what he has done since then. The public interest in his resignation gave him a chance to really speak out about this issue. He has taken that opportunity in a very energetic and committed way, that is extremely impressive to those of us in the activist community. Yes, Peter is back at Georgetown, but he is using his own bully pulpit to put forward a more humane vision of government's role in promoting economic justice. He is writing and speaking, and interacting with students, activists, and poor families themsevles. His latest contribution is the book which is mentioned in the program, Searching for America's Heart: RFK and the Renewal of Hope. I had the chance to look at it and it is an excellent account of the issues in economic justice, how they span the decades, and what we as a society should be thinking about as we try to formulate our goals for economic justice. This is incredibly important work that Peter is engaged in. It is a privilege to have him here and so please help me welcome him. Peter Edelman Thank you so much, Martha. I'm glad to be here. I am honored to deliver a lecture in memory of Edward Sobota, especially because such distinguished speakers have preceded me. Our question here is: does compassionate conservatism have a heart? Almost five years have passed since the 1996 welfare law was enacted. So, we might ask, where are we and where are we going, and even more to the point, what are the prospects for better policy and outcomes on poverty generally? One American child in six is still poor, and the number of families in economic difficulty is much larger than that. That is the context in which we have a new president and a new administration. Let me start with a little history, both about the welfare law and what has happened since it was enacted. We did need to reform this thing that we call welfare--cash assistance for families with children, what used to be called Aid to Families with Dependent Children, and is now Temporary Assistance for Needy Families, or TANF. …

Journal Article
TL;DR: Maine's attempt to provide its citizens with affordable medications and prescription drugs is explored, and the impetus for this legislation is focused on the incredible burden that the elderly bear in attempting to pay for their prescription drugs.
Abstract: INTRODUCTION In the face of skyrocketing prescription drug costs, ensuring the availability of affordable medications, or at least finding a way to contain these costs, has become a national concern. (1) In response to this increasingly bitter national debate, the federal government has proposed remedial alternatives, but has failed to pass any meaningful legislation to alleviate the problem. (2) Although Vermont has proposed legislation, to date Maine is the only state to pass a law that encourages manufacturers to lower prescription drug prices for people who do not have a prescription drug insurance plan. (3) Pharmaceutical Research and Manufacturers of America, (PhRMA), (4) is attacking the Maine legislation for allegedly violating the Commerce Clause of the United States Constitution. (5) In fact, the United States District Court for the District of Maine issued an order entitling PhRMA to a preliminary injunction preventing the enforcement of certain provisions of the Maine statute. (6) Maine appealed this decision. (7) The Court of Appeals for the First Circuit reversed, (8) allowing Maine to proceed with the program as enacted by the state legislature. The appeals process will likely continue to the U.S. Supreme Court, for, as stated by the First Circuit, "[t]his is a close case." (9) This article will explore Maine's attempt to provide its citizens with affordable medications and prescription drugs. Part II focuses on the impetus for this legislation, and on the incredible burden that the elderly bear in attempting to pay for their prescription drugs. (10) Part III examines the Maine statute. (11) Part IV looks at the problems associated with the act. (12) Finally, Part V analyzes the constitutionality of the act under the Commerce Clause. (13) II. WHY PRESCRIPTION DRUGS ARE SO COSTLY TO THE ELDERLY IN THE UNITED STATES A. High Costs and Expenditures Rising prescription drug costs are alarming because prescription drugs have become "a larger factor in total national health expenditures." (14) While actual prescription prices only increased 3.2% in 1999, pharmaceutical expenditures rose 15.7%. (15) This trend is expected to worsen, as it has been reported that total drug expenditures between 1999 and 2004 will double. (16) The increase in pharmaceutical expenditures can be attributed to three significant factors. First, drugs are being used today more than ever before. (17) Drug utilization has increased because there are "newer, innovative and sometimes more costly medicines" on the market. (18) In addition, science has discovered the effectiveness of taking multiple drugs to treat particular conditions. (19) Further, more drugs have been created to treat conditions that were not treatable in the past, which has had the effect of increasing drug expenditures but, coincidently, of lowering the costs of surgery and hospitalization. (20) Second, the use of direct-to-consumer advertising has increased over the past ten years, resulting in higher prescription drug expenses. (21)Third, increased drug prices contribute to the prescription drug crisis. While PhRMA reports that price inflation was only 4.2% in 1999, (22) other studies show that "the 50 prescription drugs most frequently used by the elderly rose more than four times the rate of inflation ... [in] 1998." (23) Other reports have also indicated that prescription drug price inflation is higher than the general rate of inflation. (24) In addition, the newer drugs being used increase expenses because newer drugs, on average, cost twice as much as previously existing medications. (25) B. Those Affected Those uninsured needing medication and those senior citizens without a prescription drug plan, most significantly senior citizens on Medicare, are charged twice as much for drugs as are those covered under a prescription plan. (26) This situation exists because health maintenance organizations and large insurance companies are able to buy drugs at discounted prices, resulting in higher costs for the uninsured in order to compensate for the discounts afforded to the insured. …

Journal Article
TL;DR: State judicial federalism has passed through several phases, revealing its remarkable pliancy and adaptability as discussed by the authors, with a renewed emphasis on civil rights and civil liberties, in many respects paralleling the course followed at the national level during the preceding Warren Court era.
Abstract: I. AN INTRODUCTORY NOTE Contemporary judicial federalism has passed through several phases, revealing its remarkable pliancy and adaptability. In a few states, developments during the 1970s and the early 1980s centered almost exclusively around a defense of civil rights and civil liberties, in many respects paralleling the course followed at the national level during the preceding Warren Court era.(1) A resort to independent state grounds(2) prepared the way for a stage of state judicial ascendancy--one predicated on achievements beyond the confines of a cautious Burger Court.(3) State judges, in such "pioneering" states as California, New Jersey, New York, and Oregon, seemed intent upon taking steps to counter the moderate conservatism that the United States Supreme Court had embraced.(4) Increasingly, too, the revival of activism focused upon an expanded egalitarianism as well as upon old-style libertarian values.(5) Initially, state courts were encouraged to turn haltingly inward and eventually they began to espouse a newfound provincialism that insulated their findings from the inquiries of federal judges.(6) The range of activism remained narrow at first, restricted largely to liberal causes and a few selective issues; however, a conscious effort appeared to have been made to stress not only a claimed flexibility but also a willingness to adapt to new motifs.(7) Lost in the excitement over the rediscovery of legal doctrines, so ardently depicted and so boldly enlarged, was the tractability that, at least in part, characterized the transitional years. Subsequently, there was cause for concern that rigidity was setting in and that untoward artifices might control and confound the revitalization process.(8) Less attractive in their appeal and even given to what may appear to be a type of ennui in their coverage are cases relating to the traditional functions and goals of state government.(9) A turn to these areas, often neglected and not often linked to the "new" judicial federalism, may profitably be essayed. It is fatuous to assume that the customary concerns of state government have taken on an unimaginative mien, shorn of vitality and almost torpid in their effects.(10) Indeed, the spirit of the new judicial federalism, if not its explicit embodiment, is evident in recent cases, coupled with glimmers of a soundness and depth sometimes missing in the glamorous products of the 1970s and 1980s. If state courts have come to exhibit less of the assertiveness previously found, the opinions in traditional cases have displayed a maturity of purpose and, at times, a more carefully reasoned format than earlier judgments. No longer does the notion persist that activist state courts must premise the crafting of novel precedents on actual or contrived federal-state clashes to ensure the primacy of state charters. Less in evidence is an exaggerated dedication to provincial pride, at times accompanied by an unremitting chauvinism.(11) Nonetheless, state constitutionalism has displayed no signs of a reversion to the passivity of the first half of the twentieth century.(12) Instead, state courts, in their treatment of traditional subjects, have drawn upon an abundance of models and have shown a sense of mutual interdependence and circumspection.(13) Significant parallels abound as a confrontational jurisprudence continues to recede into the outer reaches of what, on occasion, has been an unmistakably adversarial recent past.(14) II. TOWARD A NEWFOUND ACTIVISM: A SELECTIVE REVIEW OF "CONVENTIONAL" CASES A. The Preamble Imbroglio From beginnings in the Declaration of Independence and early state charters to the Preamble to the United States Constitution,(15) the Founders sought to promote a basic philosophy of government and of living by language included in the several texts.(16) The theory of popular sovereignty was generally recognized, abetted by implementing principles to assure its preservation and advancement. …

Journal Article
TL;DR: The case of Santa Fe Independent School District v. Doe as discussed by the authors established a map by which student-led, student-initiated prayer may be allowed in public schools and argued that the Supreme Court's decision does not inhibit school prayer, but actually creates a roadmap for students and school districts to appropriately accommodate religious beliefs and facilitate religious activities.
Abstract: I. INTRODUCTION This note will discuss how, in Santa Fe Independent School District v. Doe, (1) the Supreme Court, in deciding that a school district's policy of permitting state-endorsed student prayer violated the Establishment Clause of the First Amendment, established a map by which student-led, student-initiated prayer may be allowed in public schools. Part II outlines the facts of the case, the particulars of the school district's policy, and the procedural history of the case in federal court. (2) Part III discusses the evolution of Establishment Clause jurisprudence and its relationship to the three tests used to determine whether a constitutional violation has occurred. (3) Part IV explores the distinction between prayer as private speech and prayer as government speech, and analyzes the application of the three tests to the school district's policy. (4) Part V notes criticisms of Santa Fe and argues that the Supreme Court's decision does not inhibit school prayer, but actually creates a roadmap for students and school districts to appropriately accommodate religious beliefs and facilitate religious activities. (5) Part VI analyzes decisions construing Santa Fe and demonstrates how its holding has not been used as a vehicle to eliminate religious beliefs and activities from the public schools. (6) Part VII concludes that the Santa Fe decision will not be used to eliminate prayer from public schools, but, instead, has reaffirmed the Court's support for constitutionally permissible, student-led student-initiated prayer in public schools. (7) Finally, Appendix B presents a case study implementing the Santa Fe Independent School District's policy in five hypothetical school districts, determining the policy's constitutionality in each district, and comparing each outcome with the decision in Santa Fe. (8) II. PROCEDURAL HISTORY OF SANTA FE The Supreme Court's decision in Santa Fe came about following a series of policies regarding student prayer at graduation ceremonies and sporting events, implemented by the Santa Fe Independent School District (SFISD). Prior to the events that gave rise to the litigation, (9) no written school policy addressed prayers at graduation ceremonies or football games. (10) Nonetheless, SFISD permitted student council officers to maintain an elective office of "student council `chaplain,'" and allowed students to deliver prayers at home football games, graduation ceremonies, and other school events. (11) In June 1993, SFISD drafted--for the first time--a written policy prohibiting school officials from "direct[ing] the performance of a formal religious exercise at [graduation] ceremonies." (12) After, and in response to, the June 1994 graduation ceremony--which included an overtly Christian invocation, benediction, and salutatory address (13)--SFISD amended its policy to permit the election of students "to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies." (14) In April 1995, a Mormon family and a Catholic family (hereinafter "the Does"), (15) both of whose children attended SFISD, filed suit in the District Court for the Southern District of Texas, contending that SFISD's policy regarding student prayer violated the Establishment Clause of the First Amendment. (16) (The Does also sued several employees, administrators, board members, and trustees of SFISD in their individual capacities.) (17) The Does accumulated evidence of a wide variety of "disturbing incidents," including a teacher's disparaging remarks regarding Mormonism and the distribution of Baptist literature by teachers. (18) In May 1995, as an "`emergency' response" to the district court's granting of a preliminary injunction while the action was still pending in court, SFISD changed its policy and permitted, but did not require, student prayer to be delivered at football games. (19) After another review of the policy in July 1995, SFISD amended it again, this time in anticipatory response to future court orders enjoining their policy. …

Journal Article
TL;DR: In this paper, the authors focus on the scope of the federal government's power to protect endangered species, including the power to preempt local land use decision-making and limit development of private property.
Abstract: "[E]xamination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." (1) INTRODUCTION The federalization of land use controls (2) is largely a product of the environmental movement that accelerated in the 1970s and that resulted in many federal environmental laws effectively limiting the scope of local police powers. (3) One example of this is the Endangered Species Act (ESA). (4) Prior to the 1973 Act, protection for endangered species initially focused on federal agencies and federal lands, but when this proved insufficient the law was expanded to prohibit the taking of all endangered species by any person. (5) Presently, the prohibition on the taking of endangered species implicates local land use planning and development because the definition of taking now includes "`significant habitat modification or degradation that actually kills or injures wildlife.'" (6) While Congress has a limited ability to regulate the conduct of the states directly, (7) a valid act of Congress is the supreme law of the land and preempts state and local laws and regulations that conflict. (8) Consequently, the courts have regularly rejected legal challenges seeking to invalidate federal laws or regulations that, in effect, preempt local land use controls. (9) For example, in 1981 the Supreme Court announced that the fact that many federal environmental regulations may happen to "pre-empt particular exercises of state police power," including the power to control land use, was simply irrelevant. (10) Despite this history of deference to Congress, however, the Supreme Court is currently taking a hard look at whether the federal law in question is within Congress's constitutionally delegated authority. (11) Yet in the midst of this states' rights movement, one should remember that there is a need for a national policy in key areas beyond national defense. For instance, federal authority is needed for issues that require a centralized solution due to their national significance. Environmental regulation is one such area. The centralization of environmental laws has numerous benefits, including uniformity and an increase in the pool of resources available to resolve the problem. (12) Similarly, federal laws are needed to provide minimum standards because states may face strong disincentives to enact or enforce environmental laws. (13) For example, states may focus on the monetary benefits from the added taxes and jobs gained from allowing development while ignoring the less obvious environmental effects such as cumulative impacts. (14) In turn, this may result in a "race to the bottom," where each local jurisdiction chooses short-term economic gain over the long-term health of the nation and the planet. (15) This comment focuses on the scope of the federal government's power to protect endangered species, including the power to preempt local land use decision-making and limit development of private property. Part I introduces the key parts of the Endangered Species Act that apply to private land and provides an early example of how the Endangered Species Act and its requirement for a habitat conservation plan was applied to a particular private development. (16) The relationship between the historically local nature of land use planning and regulation under the Endangered Species Act is also introduced. (17) Part II considers the constitutional limits of the federal government to regulate under the Commerce Clause generally, and also applies the Commerce Clause analysis to the regulation of endangered species. (18) Part III addresses the treaty power and its potential for providing national power to affect local land use, and briefly discusses federal authority under the Property Clause and preemption analysis. (19) Part IV considers other potential constitutional limits on the federalization of land use control including the Tenth Amendment and the takings clause. …

Journal Article
TL;DR: The idea of judges as idea entrepreneurs was explored in this article, where the authors focused on selecting two United States Supreme Court Justices, Louis Brandeis for his broad privacy jurisprudence and Sandra Day O'Connor for her more narrow pursuit of the "guarantee clause" as a potential new weapon in the states' rights arsenal.
Abstract: Several years ago, we embarked on a study of judges as idea entrepreneurs--as individuals who assume the risks of aggressively pursuing concepts of particular interest in the legal marketplace.(1) In order to explore this premise in depth, we limited ourselves to a mere four case studies out of a universe of thousands of jurists. In the end, we selected two United States Supreme Court Justices, Louis Brandeis for his broad privacy jurisprudence, and Sandra Day O'Connor for her more narrow pursuit of the "guarantee clause" as a potential new weapon in the states' rights arsenal. We selected as well, the late United States Circuit Judge Jerome Frank for, among other things, his marketing of a then new "right to publicity." The choices were difficult, for any of dozens (perhaps hundreds) of federal jurists could have told the tale. So, too, it might be assumed, would our selection of a state jurist be tough. Not only is there the obvious fact that state jurists far outnumber those who have served on the federal bench, but state judges are presented with a far fuller array of subject matter and generally larger dockets. In the face of such a demanding load, a rare jurist indeed it would be who could doggedly pursue conceptual interests. Well, to make a long story very short, we found just such a judge and, thereafter, it was no contest: Justice Hans Linde was to be our state judicial entrepreneur. As a Justice on Oregon's highest court, Linde quickly became a bona fide star, acknowledged in the legal community as one of the nation's foremost authorities on constitutional law. His focus, though, was not on the United States Constitution. Instead, Linde's gaze was fixed on state constitutions, and his mission was to reinvigorate interest in and to reanimate development of law under the state charters, particularly in the realm of individual rights and liberties. Lest we not leave the impression that Justice Linde was a unidimensional legal figure, it is clear that he had other fish to fry as well. Although far less well recognized outside the parochial Oregon legal establishment, Linde worked with indefatigable zeal to alter the style and substance of his court's contributions to the common law of torts. STATE CONSTITUTIONS FIRST, PLEASE As more seasoned legal observers will remember, by the mid-twentieth century, state constitutions, even state bills of rights, had been converted into legal swamplands (necessary perhaps, but no reason to visit them) in the wake of the Warren Court's due process revolution. Indeed, by the 1970s lawyers and judges alike saw the federal constitution as the first line of defense in cases where individual rights and liberties were at issue. Although their language was similar, sometimes identical, state constitutions offered almost no comfort in that environment because almost nobody thought to invoke them. Occasionally someone might throw a state provision into the mix, but judicial opinions replete with lengthy discussions of Fourteenth Amendment case law invariably would respond with only a brief mention of parallel state law, accompanied by little or no analysis. The law schools, too, were captivated by the Supreme Court's sweeping decisions and, in effect, nationalized the civil rights and liberties curriculum. Uninvoked and unstudied, state constitutional law was all but forgotten. Linde set out to change things, to reinvert that part of the legal world to what he believed to be its proper and logical order. In a 1970 Oregon Law Review article, Professor Linde sketched his image of law's Holy Grail--state law primacy--and challenged his audience to join the quest. He also denounced the common practice of reading state Bill of Rights provisions to be identical to those found in the federal constitution, thus having their meaning determined by United States Supreme Court precedent. As a result, he was critical of the Oregon Supreme Court for relegating the state's constitution to obscurity. …