• Property Without Possession: Defining Private Instream Rights in Western Water Law

      Johnson, Nicole (2007-01-11)
      Since the early 1970s most western states have made a concerted effort to either maintain or augment the quantities of water flowing in their rivers and streams. Environmental interest groups, recreation industries, and those with aesthetic or other interests in increasing the amount of water in these natural channels have provided widespread support for these efforts, yet there has been little success in impacting instream flows in any material way. A promising solution is the privatization of rights to instream flows, such that private entities or individuals could purchase and enforce instream water rights; and instream uses of water could compete in the market for water against traditional consumptive uses. However, attempts by states to implement privately held instream rights have also been unsuccessful thus far. In this paper, I propose that the definition of water rights established by the early western settlers in the mid-nineteenth century is a primary reason for the present day inefficiency and inability to accommodate private ownership of non-consumptive uses of water.
    • University Policy and Procedural Responses to Students at Risk of Suicide

      Wei, Marlynn (2007-03-02)
      Colleges and universities have recently faced several lawsuits brought by parents of students who have committed suicide or made suicide attempts. The lawsuits are based on varying claims, including negligence, breach of contact, and discrimination. In crafting policies to respond to these lawsuits, universities should not simply seek limiting institutional liability but should balance the private interest of their students, the relationship of the school to parents of the students, requirements of due process, and their commitment to antidiscrimination principles. This paper focuses on the current procedural protections in university policies handling students at risk of suicide. I argue that suicidal ideation or attempt should not be treated as if the student has committed a disciplinary infraction, but should be treated as a mental health issue that should therefore not trigger a disciplinary proceeding. However, institutions should not be so quick to dismiss using disciplinary proceedings as a last resort since such a process affords students protections of minimal due process. I propose that the objectives of procedural due process, fairness, preserving the student-institutional relationship, and fact-finding in this situation should include an intermediate mediation step before resorting to disciplinary hearings or involuntary medical withdrawal.
    • Bush v. Gore as Precedent

      Flanders, Chad (2007-03-04)
      My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part of my essay looks at the question of precedent from a more theoretical angle. What does it mean for an opinion to have precedential value, as opposed to being good only for a single case? Finally, in the third part, I examine in detail how the issue of Bush v. Gore as precedent has played out in two recent cases, one in the 9th circuit and one the 6th circuit.
    • Deliberative Dilemmas: A Critique of Deliberation Day from the Perspective of Election Law

      Flanders, Chad (2007-03-04)
      My Essay tries to show the ways in which deliberative democrats and election law theorists need each other. I do so by examining in detail one proposed reform of American democracy along deliberative lines, offered by Bruce Ackerman and James Fishkin in their book Deliberation Day. The focus here is partial, but not, I think unwarranted. Ackerman and Fishkin’s book represents a bold and rigorously formulated effort to make voting more reflective, and citizens more engaged in voting. However, in the course of their proposals, they miss how key elements of the structure of American election law threaten to make “deliberation day” into less of an arena for wide-ranging democratic deliberation than it could be and to introduce deliberation into areas where we might prefer that it not be.
    • When Legal System Collide: The Judicial Review of Freezing Measures In The Fight Against International Terrorism

      Winkler, Matteo (2007-04-11)
      Since 1999, the U.N. Security Council enacted several resolutions, requiring member states to freeze the assets of suspected terrorists. Unlike the U.N. system, that lacks a mechanism of judicial review, the European Convention on Human Rights provides the judicial review of measures restraining individual property rights. The principle of prevalence under article 103 of the U.N. Charter makes the Council resolutions to prevail over the regional instruments of human rights protection. This note tries to challenge this perspective, by criticizing in detail a decision of the European Court of First Instance of 2005 that affirms the principle of prevalence.
    • Contracting for Financial Privacy: The Rights of Banks and Customers Under the Reauthorized Patriot Act

      Prabhu, Aditi (2007-04-18)
      The 2001 Patriot Act chipped away financial privacy protections by allowing law enforcement authorities easier access to bank customer records. Under the Patriot Act, federal authorities may access customer records by issuing formal subpoena-like requests under the Foreign Intelligence Surveillance Act (FISA) or informal national security letters (NSLs) to banks while prohibiting notice to any affected customers. However, the 2006 revisions to the Patriot Act permit banks to challenge FISA requests and NSLs in federal court before releasing customer records. While the Act does not require banks to make these challenges on behalf of their customers, this Paper will argue that the contracts banks sign with their customers – interpreted in light of the banking tradition of confidentiality and the current regime of federal and state privacy protections – obligate banks to review government requests for customer records and file challenges when appropriate. Furthermore, I will argue that banks and customers should be able to enter into contracts explicitly obligating banks to challenge FISA requests and NSLs, and that such contracts would be enforceable and financially feasible.
    • Making Sense of “Moral Rights”: Artists’ European-style Intellectual Property Protections Within the American System

      Lee, Brian (2007-04-22)
      American intellectual property law, the conventional story tells us, essentially springs from economic concerns about encouraging the production and dissemination of valuable non-tangible goods. The United States Constitution’s explicit grant of power to Congress to regulate intellectual property is couched in those very terms: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
    • Half-Truths, Whole Lies, & the Duty of Disclosure in Insurance Law

      Schaerer, Enrique (2007-04-24)
      A half-truth need not be a whole lie for insurance purposes; insurance law must distinguish between concealment and misrepresentation for equity and efficiency reasons. Reasonable disclosure should be the goal of underwriting, though what is “reasonable” should depend upon the insured’s degree of sophistication. This Comment argues that, whereas it may be equitable and efficient to relax the disclosure duty for the average person, it makes sense to raise this duty for the commercial insured. This argument is normative—asking what the duty ought to be, rather than what it is—though it finds empirical support in the case law.
    • No Place To Park: The Uneasy Relationship Between a City and its Cars

      Chen-Josephson, YiLing (2007-05-01)
      In 1951, Richard C. Lee, a man who was soon to become one of the most famous mayors in America, addressed “one of the major problems of [his] community” at a meeting of New Haven, Connecticut’s Democratic Town Committee: I cannot state too strongly that I consider this situation to be extremely serious…. [It] is sapping the lifeblood of our midtown business area and it takes little imagination to see how this, in a vicious progression, will gradually work against the well-being of all the other segments of our integrated community life.…New Haven is not alone in its disease. Nearly all large American cities have been afflicted….A situation which is hurting our downtown business life should and must be corrected; this is a basic essential to civic betterment, and all citizens will share in that betterment.[1] Lee was not talking about crime, unemployment, inflation, racial tensions, or the slums he would become known for razing and “redeveloping.” Instead, he was talking about parking. [1] Richard Lee, Remarks at the Democratic Town Committee Meeting (Aug. 16, 1951) (transcript available in the Yale University Library).
    • Racial Residential Integration in Greater New Haven in the Post-Civil Rights Era

      Terry, Tianna (2007-05-01)
      Equal housing opportunity for all people regardless of race has been the law in the United Statesfor almost forty years. Nevertheless, racial residential segregation persists. This paper examines the extent to which fair housing laws and institutions have met their goal of promoting racial residential integration in Greater New Haven, Connecticut. For the purposes of this paper, Greater New Haven is defined as the fifteen towns and cities that comprise the South Central Connecticut Regional Council of Governments,[1] which includes Bethany, Branford, East Haven, Guilford, Hamden, Madison, Meriden, Milford, New Haven, North Branford, North Haven, Orange, Wallingford, West Haven, and Woodbridge.[2] Part II examines racial demographic change in Greater New Haven from 1970 to 2000. In this section, I highlight the region’s population growth and increased racial diversity during this period, and analyze the extent of neighborhood racial integration in the area. I also present the results of a block-level analysis of the racially integrated neighborhoods inNew Haven,West Haven,Hamden, andMeridento determine the extent of racial mixing at a micro level. Finally, I evaluate the stability of racially integrated neighborhoods over the course of the thirty-year period. [1] The South Central Connecticut Council of Regional Governments (SCRCOG) is a consortium of local governments that convenes to coordinate land use and transportation development. South Central Connecticut Council of Regional Governments, Website Homepage, http://www.scrcog.org/index.htm. [2] See infra Appendix, Map 1.
    • Interdistrict School Choice: Clustering in Action?

      Siracusa, Benjamin (2007-05-01)
      Recent years have seen the rise of new public school options in many of America’s metropolitan areas.[1] Privately run charter schools, magnet schools that draw their attendees not only from different municipalities but also different neighborhoods, and open enrollment plans that allow children to attend school in another public school district entirely are changing the face of public education in America. The neighborhood public school, which long defined both the primary and secondary educational experience for most Americans, has become only one of many options available. [1] See Heritage Foundation, School Choice: Greater Opportunities in Education, http://www.heritage.org/research/education/schoolchoice/schoolchoice.cfm (last visited May 8, 2007) (discussing current status of school choice in each state); Heritage Foundation, School Choice: Types of School Choice, http://www.heritage.org/research/education/schoolchoice/typesofschoolchoice.cfm (last visited May 8, 2007) (detailing various forms of school choice).
    • The Case for Tax Credits

      Jenn, Brian (2007-05-03)
      Despite perennial calls from politicians, policy analysts, and populists for a major individual income tax overhaul that would cleanse the tax system by eliminating its eclectic collection of tax incentives and preferences, the ideal of tax base purity has yet to be realized and seems unlikely to find its way to fruition in the foreseeable future. Middle-class Americans appear to be simply too fond of their tax preferences for expenses such as home mortgage interest, health insurance, and charitable contributions to let go, as evidenced by the reluctance of savvy politicians to put forward a serious reform package that eliminates those tax benefits. For the 2007 fiscal year, the largest 25 tax expenditures reported in the President’s Budget were expected to have a total value of over $750 billion in terms of foregone revenue. By comparison, the entire amount of revenue raised by the federal individual income tax during the same period was only $1.096 trillion, meaning that total revenue would be over 70 percent higher without these tax preferences if current tax rates were unchanged.
    • Racial Residential Integration in Greater New Haven in the Post-Civil Rights Era

      Terry, Tianna (2007-05-11)
      Equal housing opportunity for all people regardless of race has been the law in the United States for almost forty years. Nevertheless, racial residential segregation persists. This paper examines the extent to which fair housing laws and institutions have met their goal of promoting racial residential integration in Greater New Haven, Connecticut. For the purposes of this paper, Greater New Haven is defined as the fifteen towns and cities that comprise the South Central Connecticut Regional Council of Governments, which includes Bethany, Branford, East Haven, Guilford, Hamden, Madison, Meriden, Milford, New Haven, North Branford, North Haven, Orange, Wallingford, West Haven, and Woodbridge. Part II examines racial demographic change in Greater New Haven from 1970 to 2000. In this section, I highlight the region’s population growth and increased racial diversity during this period, and analyze the extent of neighborhood racial integration in the area. I also present the results of a block-level analysis of the racially integrated neighborhoods in New Haven, West Haven, Hamden, and Meriden to determine the extent of racial mixing at a micro level. Finally, I evaluate the stability of racially integrated neighborhoods over the course of the thirty-year period.
    • Interdistrict School Choice: Clustering in Action?

      Siracusa, Benjamin (2007-05-11)
      Recent years have seen the rise of new public school options in many of America’s metropolitan areas. Privately run charter schools, magnet schools that draw their attendees not only from different municipalities but also different neighborhoods, and open enrollment plans that allow children to attend school in another public school district entirely are changing the face of public education in America. The neighborhood public school, which long defined both the primary and secondary educational experience for most Americans, has become only one of many options available. Reforms in the urban public education system have come in response to dismay about the decline in urban public school quality, as well as the legal and social pressure generated by the increasing segregation of low-income, minority students in city public schools. Policy attacks on segregation have focused on two main fronts: on school segregation itself, with attacks on the system of neighborhood-based schools as perpetuating racial separation, and on the underlying problem of residential segregation that creates segregated schools through neighborhood-based assignments.
    • POLITICAL GERRYMANDERING AND ELECTORAL ACCOUNTABILITY

      Khoo, Michael (2007-05-22)
      Standard theories borrowed from political science and economics shed new light on the perceived harms of political gerrymandering and cast doubt on whether self-interested district line-drawing can systematically distort the will of the voters. A detailed theory of voting and representation indicates that elections provide a robust system of accountability. Moreover, the internal logic of this system appears to be immune to political gerrymandering. A brief, initial foray into data on elections and representation from the 91st to the 109th Congresses provides tentative support for this hypothesis, although the analysis is admittedly inconclusive. The results are tantalizing enough, however, to motivate further and more sophisticated efforts to test the theory.
    • When 'Extraordinary' Means Illegal: International law and the European Reactions to the United States Rendition Program

      Winkler, Matteo (2007-06-28)
      The article deals with the legality of the so-called “Extraordinary Rendition Program” (ERP). The ERP consists of the systematic kidnapping of people suspected of having acted or being involved in terrorist plans. According to the U.S. Secretary of State, Condoleezza Rice, ERP actions “save lives” and are justified under international law. Moreover, come scholars and officers of the Bush Administration have argued so far that ERP is legal, because its actions are carried out with the assistance and consent of the States concerned. Such a kidnapping is called “abduction” under international law, and entails violations of sovereignty, human rights and international criminal law. Moreover, since the ERP results in a transfer of the kidnapped person to a country in which he is tortured, a violation of the international law norms concerning torture occurs. I breafly face the legal framework and justifications for the expansions of CIA powers, that is a preliminary issue with regard to the ERP itself. In this article, I argue that the ERP is patently illegal. I take two points of view. In the first part of the article (especially par. 3), I deepen the issues concerning the ban on torture, progressively criticizing the ERP supporters’ claims that ERP could entail room for legality, even when, in the prospect of a quick expulsion of dangerous individuals, the expelling State is facing conflicting obligations under international law. In the second part, I take the point that the European reactions to the ERP – namely: the judicial ascertainments of CIA agents’ criminal responsibilities; the national parliamentary commissions of inquiry; the European Parliament Committee report and the Council of Europe Parliamentary Assembly efforts to declare that ERP violates international law, human rights and jus cogens – could undermine the relations between European countries who participate in the ERP and the United States. Is actually the price paid for kidnapping innocent people worthy for fighting efficiently and effectively against terrorism? In dealing with this question, I basically argue that the ERP negatively affects overseas relations.
    • Coercion, Immigration and the Grounds of Distributive Justice

      Lindsay, Ira (2007-07-01)
      A recent argument for restricting the scope of distributive justice to arrangements within national boundaries suggests that coercive enforcement of entitlements through the private law is what gives rise to duties of distributive justice. This argument has been advanced in the most detail by Michael Blake and has also been endorsed by Mathias Risse. I will argue that this argument is mistaken. Duties of distributive justice are grounded in something else: perhaps in the imposition of a basic structure that fixes the terms of cooperation or perhaps in norms of reciprocity arising from cooperation. In either case, I believe that the grounds of distributive justice strongly suggest that considerations of distributive justice apply at both the national and international level. I conclude by suggesting a different way to explain why certain redistributive schemes are required on the national but not international level without denying that increased transnational cooperation makes global distributive justice an increasingly salient issue.