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  • Overturning Shell Oil v. New York State Tax Commission: How the "Anti-Pass-Through Provision" Can Shift New York State Away from Its Reliance on Oil for Transportation

    Since the 1970s, the availability of oil for use as transportation fuel in the United States has been the proverbial seven hundred pound gorilla in the corner of the room. Everyone knows the problem is there, but no one wants to deal with a solution. Finding a new source of energy for transportation in a country that depends heavily on foreign oil is a difficult task. However, the history of policies and tax structures supporting gasoline in the United States is ample and well documented. Examining the policies that thrust oil into the national spotlight can provide an understanding of how to model the needed rehabilitation of the American energy system and reveal that national economic, environmental, and security interests demand that attention be paid to promoting clean and domestically available technology.

  • Reforming New York States Guardianship System: Its Time for a Change (Again)

    Ms. C is a seventy-eight-year-old woman who has lived in her Brooklyn apartment since she was ten years old. Three years ago, Ms. C was the victim of a robbery and was left for dead by the burglar. It was not until several days later that the New York Police Department found her on the floor in serious need of medical attention. After several days of observation, the doctors concluded that Ms. C was doing well, so Ms. C requested to go home. Because of her age and affliction with Parkinson’s disease, the hospital staff diagnosed her with dementia and sent her to a nursing home located a mere one and a half blocks away from her apartment. Over the next several months, Ms. C requested to go home on numerous occasions, and attempted to escape what she considered her prison. Seeking someone to make decisions on her behalf, the nursing home petitioned the Brooklyn Supreme Court to have a guardian appointed. During the hearing, Ms. C again stated that she wished to go home, but the court relied solely on the nursing home’s evaluation that she should not be able to return home without a guardian. The court denied her request and Ms. C was trapped. The nursing home became her guardian, and she was to spend the rest of her life there even though her home was less than two blocks away.

  • No Child Left Behind and the Inherent Conflict with the Individuals with Disabilities Education Act: Leaving Special Education Students Further Behind

    On January 8, 2002, Congress reauthorized and President Bush signed the Elementary and Secondary Education Act. In a shrewd political move to become the “education president,” the act was publicly renamed the No Child Left Behind Act (NCLB). The goal of this re-branded educational reform act was to “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.” While the aims of No Child Left Behind are noble goals of improving American public education, the methods of achieving these goals have created an even greater disparity in the quality of education for many students, particularly for students with disabilities. Not only have the NCLB methods of assessment widened the gap between the performance levels of regular education students and their disabled peers, but, even more significantly, NCLB directly and substantially conflicts with the Individuals With Disabilities Education Act (IDEA).

  • Assessing RLUIPAs Application to Buildng Codes and Aesthetic Land Use Regulation

    When Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, it intended to protect the religious exercise of churches and synagogues against government discrimination in zoning codes and from "the highly individualized and discretionary processes of land use regulation. Protection was intended not only for "small and unfamiliar" denominations, but for established religions as well. RLUIPA was also intended to be construed broadly to protect religious exercise "to the maximum extent permitted by the terms of this chapter and the Constitution." This broad construction is one of the basis upon which I will argue in this article that building codes and aesthetic or historic regulations should be subject to RLUIPA scrutiny. This will protect the religious exercise of religious institutions burdened by such land use regulation.

  • Defining "Appropriate Relief under the Religious Land Use and Institutionalized Persons Act: The Availability of Damages and Injunctive Relief with RLUIPA

    In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act, commonly referred to as “RLUIPA,” to level the playing field between local governments and religious entities in the context of land use and zoning, and between local and state governments and prisoners in the context of prison reform. The Religious Land Use and Institutionalized Persons Act (hereinafter referred to as “RLUIPA” or “the Act”) creates a private cause of action and its section 2(a) provides for “appropriate relief” against governments that violate the statute. RLUIPA’s provision authorizing a cause of action states: “A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” However, the Act defines “government” to include: (i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under color of State law . . . . While no court disputes that “appropriate relief” allows for injunctive and declaratory relief, there remains a question among some courts of whether the phrase encompasses a right to nominal, compensatory, and punitive damages. There should be no argument as the text, context, and legislative history of the Act all indicate that “appropriate relief” includes, among other things, relief in the form of money damages, and I opine that such a reading of the statute is in accord with Congress’s intent when it originally drafted the statute. Congress’s anticipated scope of relief includes nominal, punitive, and compensatory damages against municipalities, but also all of these damage types are recoverable against governmental officials in both their official and individual capacities.

  • Empathy and Pragmatism in the Choice of Constitutional Norms for Religious Land Use Disputes

    From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA) adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion - the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires, and how religion qua religion is affected by land use decisions). I propose that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis by determining: first, if the land use decision violates Establishment Clause norms; next, if it violates Equal Protection norms; and then, and only then, if the neutral decision nonetheless amounts to a denial of Free Exercise norms.

  • God and the Land: Thoughts About Land Use Controls and Religious Freedom in the American Legal System

    A discussion about the interface of God and law in the United States legal system is meaningful if the political and legal system is considered. From America’s rich political history emerges the First Amendment to the United States Constitution and the overarching legal principles that separate church and state, while at the same time guaranteeing religious freedom. Nurturing these twin principles prevents the emergence of one faith, and the inevitable consequence of a hereditary and oppressive monarchy.

  • RLUIPA: Linking Religion, Land Use, Ownership and the Commond Good

    Should the law offer special protection for the location, construction or expansion of houses of worship? And if so, how much? Houses of worship are symbols of religious freedom and centers of religious activity. They make possible much of what churches do: worship and ritual, transmission of faith across generations, and service to the community. They are extensions and instruments of religions exercise. But houses of worship, like other kinds of assembly uses, are intense land uses that can have significant negative impacts on surrounding properties. Permit denials seem quite appropriate when house of worship development will cause identifiable harms that cannot be mitigated, even when that means excluding a church from worshipping on a parcel it owns. Indeed, the very purpose of zoning is to control such impacts and to ensure the compatibility of various land uses in any given zone. Yet, denials may needlessly restrict religious freedom when negative externalities are either nonexistent or can be ameliorated. Thus, the general question concerning legal protections owed to houses of worship gives rise to a more specific one: when zoning codes, either by their terms or as applied, prevent houses of worship from being located, built or expanded, how closely should courts scrutinize the municipal evaluations of impacts and compatibility?

  • Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants

    The First Amendment plainly reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), establishing a general rule that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person . . . .” To RLUIPA’s supporters, the act is an important step toward protecting America’s “robust history of religious tolerance” and the promise of the First Amendment’s religious freedom clause; RLUIPA simply levels the playing field between religious and secular land users. To others, RLUIPA unjustly favors religious institutions over the valid interests of neighboring, secular, land users. Those who take this view often question both the need for and constitutionality of RLUIPA

  • The Constitutional Limitations on Congresss Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act Is Unconstitutional

    There is nothing more local than land, and state and local communities have been entitled to significant autonomy in crafting their land use priorities. This principle of deference has been stated repeatedly in Supreme Court decisions across a large swath of settled doctrine addressing takings, telecommunications, environmental law, and fair housing. In the absence of intentional discrimination, constitutionally mandated deference to local governments reaching land use determinations has been applied in cases involving any and all landowners, religious or otherwise. Without taking heed of this constitutional doctrine, in 1993 and 2000, members of Congress chose to impose federal control over local land use to benefit one category of land owners. With the Religious Freedom Restoration Act of 1993, which applied to every law in the country, and the Religious Land Use and Institutionalized Persons Act of 2000, which targeted state and local land use laws, Congress negated the constitutional rule of federal deference to local land use law and created a privileged class of landowners and developers – those that are religious. It did so by giving them the extraordinary benefit of strict scrutiny against neutral, generally applicable local and state land use laws whenever the land use applicant is religious.

  • Defining Community in a Society Based on Rights

    Tomorrow will be spent talking about the intersection of religion and land use, and a remarkable array of people who work in this vineyard will tease out chapter and verse on the topic in a host of intriguing ways. My own chosen objective flows from the fact that my invitation says I am invited to give “remarks.” This is a very different invitation, of course, than one that proposes a lecture or even a speech. “Remarks” provides more license. I would like to talk partly about law, about that intersection where the Bill of Rights and land use and religion converge, but also partly about how Americans have thought about these issues over time. Hence, my title: Defining Community in a Society Based on Rights.

  • Subduing the Ceaseless Storm: Breaking the Build-Destroy-Rebuild Cycle Following Major Catastrophes through Taxation and Responsibility

    Natural disaster management has seen its share of new ideas in the wake of Hurricane Katrina. Certainly such a major disaster warrants national attention. Better disaster management, however, is not going to be enough to prevent the damage that occurred during Katrina. It could cost $8 billion to restore all the utilities, roads and transit systems destroyed or damaged by the storm. Katrina was the costliest and is among the five deadliest hurricanes on record, making it somewhat anomalous. However, there are more common-place disasters occurring all the time. Mud slides, wildfires, and floods are other disasters that affect the coastal regions of the United States every year and are often the result of overdevelopment along America’s coasts. The immediate tragedy aside, the problem arising from these disasters is the “build-destroy-rebuild cycle” for homes and other types of development that does nothing more than cost taxpayers’ money without providing any defense through prevention. Currently, there is no national policy in place that will help to break that cycle.

  • Increased Driving Regulations for the Elderly: A Case Study In New York Calling for the Expansion of Current Regulations

    The stories are similar across the country, but the most disastrous accident involving an elderly man took place in California in 2003. George Weller made a deadly mistake when he became confused while driving in Santa Monica, California. Instead of pushing the brake, George Weller hit the accelerator, and when he “regained his composure, 10 people were dead, [and] 63 people were injured, with one body at the edge of his tires, which the prosecutor referred to as ‘a human brake.’” Not only did Mr. Weller jump a curb into a Santa Monica farmers market, but when his car finally came to a stop, he had traveled three hundred yards at the speed of forty to sixty miles per hour. Mr. Weller was later convicted of ten counts of vehicular manslaughter.

  • The Sex Offender Management and Treatment Act: New York's Attempt at Keeping Sex Offenders Off the Streets . . . Will It Work?

    Recidivism is an ever-present threat whenever a sex offender is released from prison. When the threat posed by an offender is particularly acute, civil confinement, involuntary post-prison release detention, has become an increasingly popular public safety measure. Where certain requirements are met, the Supreme Court has approved states’ civil confinement of individuals against their will. Civil confinement statutes for dangerous sex offenders have been enacted in numerous states. New York’s civil confinement statute, known as the Sex Offender Management and Treatment Act (“Act”), has thus far escaped judicial scrutiny. The few cases which have considered the legislation show that its language has led, and will continue to lead, to problems in its implementation and application.

  • Current and Future Challenges to Local Government Posed By the Housing and Cred Crisis

    The ongoing problems in the housing and credit markets, caused by a toxic combination of wholesale deregulation of financial markets by the federal government and imprudent lending and investment practices by financial institutions, pose significant challenges to local and state government officials. Some of these challenges are obvious. How will cities cope with an unprecedented number of foreclosures at the same time that state and local tax revenues are decreasing? When will access to credit ease in a municipal bond market that has constricted as a result of both general credit concerns and questions about the companies insuring those bonds? As the magnitude and seriousness of the current financial crisis becomes clearer, these obvious concerns may prove to be only the precursor to daunting new challenges. This article discusses the implications of the current financial crisis for local governments.