Showing papers in "Fordham Urban Law Journal in 1992"

It's Time To Privatize

Abstract: Schools are failing, crime is commonplace, streets are filthy, transportation is a test of endurance, drug addiction is a curse, and millions have fled the city seeking a higher quality of life. The problem? New York City government. This paper argues that to fix the myriad of problems facing New Yorkers, the only solution is a restructuring of government that would lead to a privatization, allowing New Yorkers to rely more heavily on private industry instead of government. This system would force public agencies and private firms to compete for the privilege of providing public services and thereby earning taxpayers’ money.

New York City Zoning -- 1961-1991: Turning Back The Clock -- But With An Up-To-The-Minute Social Agenda

Abstract: Since the last update over 30 years ago, there is a need to once again change our zoning laws. Over the years, societal concerns and priorities have fluctuated with the times and, as a result, exceptions have been made to the zoning regulations which reflect these changing social interests. The result is a Zoning Resolution which stands at 806 pages (and still counting). It is an ad-hoc, convoluted, chaotic non-plan for the City, held together by binders rather than a common vision. This essay examines the zoning history of New York City and concludes that a new Comprehensive Reassessment, which will guide future development in accordance with the needs and values of today’s society, is needed to unify the goals of city planning and to reinvigorate the potential effectiveness of zoning in New York City.

A Modest Proposal To End Gun Running In America

Abstract: Gun violence is a serious issue in our society. However, finding common ground between those who favor, and those who oppose, gun control can be a difficult task. Mayor David Dinkins and the Police Department propose a four prong solution that would pave a middle ground acceptable to most individuals. (1) put teeth into the existing federal regulations concerning those proscribed from purchasing a gun, (2) limit interstate shipment of firearms only to those federal firearms dealers who show that they have complied with any existing local firearms dealer requirements; (3) provide tracing capabilities for interstate shipments of weapons; and (4) create an accessible database of all firearms transactions.

Bias Crime: A Call for Alternative Responses

Abstract: The argument for enacting laws to punish and deter bias crime does not always benefit from clear and unambiguous examples of bias driven murder. A frustrating factor in some of the widely publicized reports of bias-related assault is the element of ambiguity: where a member of one race or religion injures a member of another race or religion, even perhaps articulating the difference between attacker and victim by means of an expletive or other statement, the question inevitably arises whether the attack was the product of bias alone, or did other factors, such as an intent to rob or rape, predominate. This article advocates a renewed legislative effort in the fight against bias crime. The difficulty that attaches to defining a crime of bias, and to identifying the categories to be included in the statute, is far outweighed by the urgency of the escalating problem. In addition to the present remedial scheme, varied approaches need to be fostered and accentuated including non-penal sanctions. Proposed statutes in New York take a stronger stance on identifying and punishing bias crime incidents. Even more important than a successful conviction rate is the development of effective education and community responses to intolerance and prejudice.

The Viability of the Copyright Misuse Defense

Abstract: Under the equitable doctrine of ”unclean hands,” courts will deny an otherwise meritorious claim where the claimant has acted so improperly that the need to punish the claimant’s wrongful behavior outweighs the need to punish the defendant’s allegedly unlawful conduct. The principle underlying the doctrine is that equity presumes harm when an unclean plaintiff obtains relief; consequently, one who desires justice must come into court with a “clean slate.” The theory of intellectual property misuse, which stems from the “unclean hands” doctrine, prevents a plaintiff from enforcing an intellectual property right if that plaintiff is guilty of misconduct with respect to that right. For years the courts have failed to distinguish misuse from the anti-trust law. These legal concepts are, however, clearly distinguishable from one another. The misuse defense is viable in copyright infringement actins and should prevent a copyright owner from enforcing his copyright if he has impermissibly extended it beyond the scope of the copyright grant. This Note advocates use of the scope of the grant approach to provide a workable standard for determining whether a copyright owner is guilty of copyright misuse.

Introduction: Report of the New York State Judicial Commission on Minorities

Abstract: The Report of the New York State Judicial Commission on Minorities is the culmination of a three and one-half year study begun in 1988 to advise of ways in which the court system can more effectively achieve fair and equal treatment for all in the justice system. The court system will aim to implement the recommendations made by the commission in an attempt to rectify these troubling issues.

The New York City Campaign Finance Program: A Reform That Is Working

Abstract: Campaign finance programs, such as New York City’s, limit the influence of private money on candidates and come at a relatively modest cost to taxpayers. Campaign finance reform programs, thus, increase the extent to which elections are truly competitive. During a fiscal crisis, we therefore have an even greater need for campaign finance reform and the meaningful democratic elections that reform fosters to ensure that voters generally, rather than special interests, dictate how scarce resources should be allocated. Reform is also necessary to give voters the confidence that their elected officials represent them, and not just wealthy donors, particularly in a time of crisis. This essay argues that campaign finance reform programs, like the one in New York City, can bring concrete, real benefits to our political system by diminishing the influence of special interests, making our elective process more competitive and democratic.

Making Government Work

Abstract: For a city or state government to be viable in the last decade of the 20th century, elected leaders must view modern management as a crusade. The work force must receive fair and equitable compensation, and all must be committed to constant quality improvement. Newspapers, magazines, radio and television must report the success stories and the failures. Taxpayers must understand that government services can improve, and the leaders must be held accountable. This is possible throughout the country but it will not happen unless an educated electorate demands it and the elected officials understand the stakes and urgency involved.

The Miner's Canary: Tribal Control of American Indian Education and the First Amendment

Abstract: One legacy of America’s mistreatment of its indigenous peoples has been an educational policy that has run roughshod over Native American Free Exercise rights. Today, American Indian tribes widely seek increased control over the education of their children. This position has received broad congressional and presidential support since the Nixon Administration, but more than twenty years later, Native Americans are still fighting to attain their goals. Federal statistics that rank American Indians as our least educated, most addicted, shortest-lived citizens suggest tremendous room for improvement in Indian education. Despite certain circuit court Free Exercise Clause decisions that unreasonably hold Indian First Amendment rights to a lower standard of protection than other religions, the Supreme Court has generally followed the trend of Congress and the President of fostering Indian self-determination. Likening Native Americans to the canaries once carried by miners to detect poison gas, Felix S. Cohen, “the Grandfather of Indian Law,” characterized the Indians as a litmus test for the political health of America as a whole. In light of Cohen’s apt characterization of the significance of Indian rights, our ability to preserve Native American culture has implications for the rights of all Americans. The key to Native American educational success lies with the encouragement of parental involvement, and the establishment of state-tribal compacts and tribal education departments and codes, all of which can be easily instituted for potentially tremendous gains.

Toward a Model Whistleblowing Law

Abstract: The current state and local whistleblowing laws in New York provide inadequate protection for employees against employer retaliation in the public and private sector. These laws must be reformed so that employees can enjoy sufficient protection from employer retaliation, and so that a high standard of fairness, responsibility and honesty can be promoted throughout New York State and New York City.

Of Boroughs, Boundaries and Bullwinkles: The Limitations of Single-Member Districts In A Multiracial Context

Abstract: This essay examines the 1991 New York Ciity Council districting, with particular focus on the problems inherent in districting a multiracial city and the limitations of single member districts as a method of minority empowerment. The essay examines specific New York City Council districts that contain more than one minority group and concludes that electing council members from at-large, borough-wide districts by cumulative voting is a more effective districting strategy to structure majoritarian collective decision-making bodies that ensure meaningful minority interest representation and participation. .

Promoting Fairness: A Proposal For a More Reasonable Standard of Constructive Discharge in Title VII Denial of Promotion Cases

Abstract: The constructive discharge rule states that if intolerable working conditions associated with the employer’s discrimination force the employee to resign, then the employee will be considered to have been “constructively” discharged on the date of resignation The employee will be treated as if he or she had been fired by the employer and therefore is eligible for remedies traditionally associated with wrongful termination, such as reinstatement and backpay past the date of ”discharge” If the employee has not been constructively discharged, then under the general rule the employee will only be entitled to preresignation backpay In examples similar to this one, the courts have taken the position that a discriminatory failure to promote, without more, does not amount to a constructive discharge and thus does not warrant postresignation backpay However, a few recent denial of promotion cases have begun to ease the restrictions on postresignation relief engendered by the constructive discharge rule While application of the traditional constructive discharge rule can lead to unfair results under Title VII, recent cases have begun to recognize that where opportunities for promotion and advancement have been frustrated to an intolerable degree, the constructive discharge rule should not preclude postresignation relief Instead, reasonable expectations analysis advances the statutory purposes of Title VII more readily than does the traditional constructive discharge rule and thus is the more appropriate standard

A Case Study In Fiscal Federalism: New York City And New York State

Abstract: This essay argues that under the current system of American state and local government funding schemes, there is a permanent imbalance between revenues and expenditures as a result of strain placed on local governments by other levels of government which can only be fixed with actions take by these other levels of government This essay examines the current structure of American “Fiscal Federalism”, the recent experience of America’s cities with Fiscal Federalism (particularly New York), changing relationship between city and state government, and Governor Mario Cuomo’s proposal for a phased-in takeover of Medicaid spending The author concludes that the Governor’s proposal is a step in the right direction, but insufficient to overcome the permanent imbalances in local government funding

School Vouchers: Are Urban Students Surrendering Rights For Choice?

Abstract: The introduction last spring of President Bush’s America 2000 Excellence in Education Act to underwrite state and local programs which provide vouchers to enable parents to choose public, private or religious schooling for their children, has moved “school choice” to the forefront of the national education reform agenda. Nowhere is this more prevalent than in urban centers, where the breakdown of the public education system has been the focus of considerable attention and debate. The privatization of education in New York City, using vouchers, would mean the loss of legally defined procedural and participatory rights for students and parents, as well as facilitate further racial and economic segregation. In the author’s view, the use of vouchers will have a profound and adverse impact on the social and political role of schooling in New York City and should therefore be rejected.

HIV and the need for a voluntarist approach.

Abstract: After a decade of fighting AIDS, the public health community has come to recognize that strategies to combat the infection must be premised on voluntarism and not on coercion. Attempts to combat AIDS with coercive public health strategies stem from a desire to force AIDS into an ill-fitting traditional disease-response framework, overlooking the differences between HIV and other sexually transmitted diseases, including the limitations in available treatment modalities for HIV. A return to such a cramped, narrowly-medicalized view of the AIDS epidemic has enormous social implications and a coercive strategy would frustrate efforts to stem the spread of the disease. Further, such strategies would hamper the willingness of those in need of medical care and education to benefit from existing programs. This essay explores some of the possible explanations for the apparent erosion of the voluntarist consensus and calls for a return to such a voluntarist approach through effective health care and education efforts.

Infomercials, Deceptive Advertising And the Federal Trade Commission

Abstract: Recently, there has been growing concern among consumers, broadcasters and the Federal Trade Commission that infomercials may be a form of deceptive advertising. This note applies Federal Trade Commission guidelines to the infomercial format and concludes that infomercials are precariously close to violating commonly held standards for deceptive advertising. This note advocates that the Federal Trade Commission promulgate new standards requiring infomercials to identify themselves to consumers at all times as paid advertisements, so as to reduce the risk of consumers being unfairly fooled by advertisers.

Lawyers In The Public Service And The Role Of Law Schools

Abstract: Law schools should recognize and maximize their opportunity to work in public service. Law schools have an obligation to recognize a causal link between legal education and value learned through the law school experience and the tremendous effect that this training can have on the community. This essay examines the history of the traditional law school curriculum and poses practical and philosophical suggestions for the improvement of existing course work towards the public good. Next, the essay examines the community beyond the walls of the school as a source of instruction and finally, argues that a more expansive definition of professional responsibility must be instilled in the students and rewarded by the law schools. Through this redefinition, the law school and the community at large can benefit from one another through a compact of mutual obligation and support.

State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform

Abstract: The standards for resolving putative conflicts between federal laws are not always clear, and neither for that matter is the standard for determining what constitutes a federal law capable of superseding effect. The technique of setting federal norms of professional conduct on a decentralized basis by borrowing or incorporating state norms is increasingly troublesome to the extent that the borrowed state norms are disuniform and that they are being put to multiple remedial purposes. Federal legislation preempting state law of professional conduct is conceivable but hardly likely, particularly as the norms are pressed into duty for purposes other than professional discipline. Pending other steps that might lead to national uniformity, the answer for the federal courts may be a uniform set of norms directly regulating litigation conduct in all federal courts.