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Author Archive

Giza to the Galápagos: A Critique of the Current UNESCO World Heritage System and How to Fix It

Tim Cunningham

In 1959, the Egyptian government took steps towards the construction of the Aswan Dam. The completion of this dam would result in the flooding of the Nile Valley, home to the Abu Simbel temple complex.[1] To preserve the cultural heritage of Egypt, the temples and other cultural monuments needed to be moved to safety. However, the costs of this extensive project totaled over U.S. $80,000,000.[2] Despite the enormous cost, there was general acceptance throughout the world that the history and culture was at risk if the project were to fail. With this in mind, the international community funded half of the project costs.[3] This immensely successful project was the first undertaken by the United Nations Educational, Scientific and Cultural Organization, better known as UNESCO.[4]

Matter of Glick v. Harvey: A Blight on New York City Community Gardens

Natalie Colao

After years of publicized debate, celebrity testimony, faculty disapproval, and student protests, the New York Court of Appeals ruled in favor of New York University’s (NYU) Greenwich Village expansion project (the Project).[1]  Project opponents fear this holding effectively eliminates New York’s Implied Dedication Doctrine and exposes NYC green space to illegal development in violation of New York’s Public Trust Doctrine.[2]   

A Sentence Deferred: Fair Notice—Or lack thereof— in Vermont’s Probation Conditions

Jessica Bullock

In his 2015 State of the Union address, United States President Barack Obama called for a sweeping reform of the country’s criminal justice system.[1] In response, the nation shifted its gaze to take a critical appraisal of the country’s policies around policing, sentencing, and incarceration.[2] Since 2002, the United States has maintained the highest incarceration rates in the world.[3] Currently, 1.5 million people are housed in United States prisons; a disproportionate number of those individuals are young, male, and members of racial minorities. [4] Yet, while imprisonment represents the most extreme form of carceral power—the complete removal of liberty—inmates housed in state and federal prisons make up a minority, roughly 20 percent, of individuals under correctional supervision. [5] Strikingly, the most common form of correctional supervision—affecting the lives of nearly 4 million people in the United States—is probation. [6]

Defaming Planned Parenthood: Lying, Cybersmears, and the First Amendment

Kelsey Bain 

“A lie can travel half way around the world while the truth is putting on its shoes.” -Mark Twain

In the summer and fall of 2015, the Center for Medical Progress (CMP, an anti-abortion organization, released several incriminating videos that implied Planned Parenthood was in the business of selling body parts from aborted fetuses for profit.[1] Planned Parenthood, a nonprofit organization, provides reproductive health care and sex education to people in the United States and around the globe.[2] Fetal tissue donations, like those performed by Planned Parenthood, are completely legal[3], and done with the consent of the mother.[4] Further, the fetal tissue harvested from aborted fetuses is used to study potential treatments for cancer, diabetes, and birth defects, and is used in the actual treatment of Parkinson’s disease.[5]

A Response to Robert J. Delahunty’s “Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative,” by Richard M. Pious

Professor Delahunty writes on page 89 of Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative that I get FDR exactly wrong when I claim in Franklin D. Roosevelt and the Destroyer Deal: Normalizing Prerogative Power that he relied on prerogative power to conclude the Destroyer Deal with Churchill. (Richard M. Pious, Franklin D. Roosevelt and the Destroyer Deal: Normalizing Prerogative Power, 42 Presidential Stud. Q. 190, 195–196 (2012)). 

Copyright - NavSource Naval History

Copyright – NavSource Naval History

Delahunty, using his own definition of prerogative (that it is an emergency power that the President deploys to violate law) in his article, would be correct in his criticism, had I used his narrow definition. But I use a broader definition of prerogative power, standard in the field, which is that prerogative encompasses the constitutional powers of the office of President in Article II, and such sovereign powers and concomitants of nationality that he also claims (including powers derived from treaties and international agreements, or customary international law).

Justice Robert H. Jackson

And so, even on the page Delahunty cites, I devote considerable attention to the way in which Jackson construes the two key statutes rather than claims any dispensing power. But I also point out that FDR’s directions to Jackson to read the statutory language in ways that were clearly at odds with both the plain text and legislative intent involved the presidential prerogative to “take care that the laws be faithfully executed.” (The interested reader can consult Jackson’s posthumous autobiography, That Man, for a full account.) And my argument about FDR’s turn toward prerogative is in the context of his inability to get congressional backing for either a treaty or a law, which led him to conclude an executive agreement instead. My broad interpretation of presidential prerogative (which includes, but is not limited to, emergency powers and dispensing powers) is pretty standard fare. Interested readers can consult the article I wrote on the subject for the leading reference book on the American presidency, Prerogative Power and Presidential Politics, in The Oxford Handbook of the American Presidency (George Edwards, ed., New York: Oxford University Press, 2009), which includes a bibliography dealing with various forms of prerogative. Or they could consult the response to FDR’s actions penned by many distinguished legal scholars at the time, who took for granted that FDR had exercised prerogative powers, including Edward Corwin’s letter excoriating FDR (in The New York Times, October 13, 1940, p. 72). Or they could follow the response of Wendell Willkie, then running against FDR, who warned “we must be extremely careful in these times, when the struggle in the world is between democracy and totalitarianism, not to eliminate or destroy the democratic processes while seeking to preserve democracy (Chicago Daily Tribune, September 4, 1940, p. 6) and who charged that the President’s decision to bypass Congress was “the most dictatorial and arbitrary of any President in the history of the U.S.” (Chicago Daily Tribune, September 7, 1940, p. 8). I happen to believe that FDR used a combination of statutory interpretation and prerogative powers to conclude a deal that was necessary (if not sufficient) in creating the wartime alliance with Great Britain. That I do not believe that he went off half-cocked into emergency prerogatives and the dispensing power will be clear to anyone who reads my article on the subject carefully and pays close attention to definitions and concepts.

Richard M. Pious
Adolph and Effie Ochs Professor, Barnard College
Graduate School of Arts and Sciences, Columbia University


Equality Made Real: Justice Kennedy’s Blueprint For a Just America

The debate over gay, lesbian, bisexual and transgendered (hereinafter GLBT) rights is controversial in society and in the courts. GLBT advocates are poised to change the way courts in the United States and communities view equal protection under the law. Traditional equal protection analysis defines the classification of people burdened by the law, and then applies the appropriate level of scrutiny based on the classification. Justice Anthony Kenney authored all of the Supreme Court opinions addressing the classification of sexual orientation. Critics of Justice Kenney assert that he is vague and his opinions provide little guidance for attorneys and judges. In this note I will argue that Justice Kennedy’s opinions provide clear guidance to advocates for equality and, I will propose a new test for equal protection analysis to be applied to classifications based on sexual orientation.

The Portland Pipeline Corporation and Act 250: Can State Self-regulation of Pipelines Occur Outside of the Federal Pipeline Safety Act?

Ligia Smith

In July 2010, a section of a pipeline located in Marshall, Michigan burst.[1]  Approximately one million gallons of diluted bitumen spilled into the Talmadge Creek, a tributary of the Kalamazoo River.[2]  Diluted bitumen, commonly referred to as “dilbit”, is a petroleum blend consisting of oil sands taken from Alberta, Canada and gas condensates.[3]  Responders and investigators found that the diluted bitumen did not behave as ordinary crude oil usually does in a spill, by floating to the surface of the water.[4]  Instead, the EPA noted that submerged diluted bitumen attached itself to particles and sank, coating the bottom of the river and that diluted bitumen that had been exposed to sunlight formed a sticky, impermeable coat.[5]  The Kalamazoo oil spill was arguably one of the costliest oil spills in United States history.[6]

If Not Celebration, Recognition: Windsor’s Push toward Universal Interstate Recognition of Same-Sex Marriages

Charles Becker

The summer of 2013 was momentous for Ohio residents John Arthur and James Obergefell. In early July, after more than 20 years together, the couple flew to Maryland to be married. Because a neurological condition was rapidly depriving John of his ability to move and speak on his own, the couple exchanged vows from inside the plane’s cabin. After a mere 56 minutes on the ground, the pilots flew the newlyweds back to their home in Cincinnati.[1] Just two weeks before John and James married, the Supreme Court issued its landmark decision in United States v. Windsor.[2] The decision overturned Section 3 of the federal Defense of Marriage Act and thereby paved the way for federal recognition of lawful same-sex marriages. But the ruling left untouched the legal framework that allows states to deny recognition to otherwise valid same-sex marriages. Therefore, when John and James returned to Ohio, they reclaimed their unwanted status as single under the laws of the state. The couple also faced the unsettling prospect that John would soon die.[3] Because of Ohio’s ban on recognition of same-sex marriages, the state would list John’s marital status on his death certificate as “unmarried” and would fail to name James as his surviving spouse. Determined to avoid this quiet nullification of their marriage, John and James filed a federal civil rights lawsuit against the state of Ohio.

Predictive Policing: the Constitutional Implications of Forecasting Crime

This Note examines the implications of predictive policing and seeks ways to avoid legal snares. Predictive policing is the practice of using computer algorithms that predict the time and place crimes are likely to occur. “Crime maps” and other statistical law enforcement tools are not new and are part of an overall trend towards intelligence-led policing.[1] However, recently the Los Angeles Police Department, as well as other law enforcement agencies, has spearheaded the use of software that interprets vast amounts of data and makes predictions well outside of human intuition.[2] So far studies have shown predictive policing techniques to be generally successful.[3] Some police agencies have pinpointed 500-square-foot “hot spots,” lowered crime, and saved money by distributing manpower in accordance.[4]

Making Space for a Spectrum of Community Residences: Building Sustainable and Inclusive Communities Through New York’s Padavan Law

Adam Schmelkin

Regulating group homes for marginalized groups, including developmentally disabled people, has social justice implications that extend beyond the traditional environmental, economic, and technical considerations that generally underlay land use decisions.  Group homes are community residential facilities: homes that are integrated in residential neighborhoods, but contain support professionals that do not ordinarily exist in the archetype nuclear families that have historically predominated the American residential landscape.

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