Catalog: Digital Commons at Pace - New Repository Articles

A decade following the 9/11 attacks, the objectives and motivations of Osama Bin Laden and Al-Qaeda remain largely unknown to the American public. Since the mission of Al-Qaeda is embedded in its interpretation of the history and traditions of Islam, increased analysis on the intellectual framework of Al-Qaeda provides valuable insight into this dangerous ideology that will remain a strategic threat to the United States for the foreseeable future. While more recent successes against the Al-Qaeda organization have encouraged talk of “the end of Al-Qaeda,” the broader ideology remains alive and well. The rise in support for the Islamist groups in Egypt and North Africa, increasing terrorist at-tacks in Afghanistan and Pakistan, and the escalating sectarian war in Syria all affirm the continued relevance of this topic and its interdisciplinary relationship with national security, global affairs, and international law. This thesis provides a brief primer of what the Islamist ideology stands for, its relationship to the Islamic religion, and how understanding this history can play a central role in assessing long-term American interests.

2012 Dyson Distinguished Lecture, delivered April 26, 2012 at Pace Law School. Introduction by Prof. David N. Cassuto. Video available here.

Response to comment by Jesse Glickstein.

This paper presents analysis of eight states that currently have operating solar renewable energy credit markets as part of their state’s renewable portfolio system, in order to make recommendations as to how the New York legislature should amend the pending legislation based on lessons learned from those other states. In Part II, the different SREC markets that have been implemented in different states throughout the United States are examined. In Part III, the different issues that varying SREC markets have encountered will be discussed, and several possible explanations as to the causes of these issues are presented. In Part IV, recommendations are set forth for lawmakers in New York in how to create a viable SREC market while using lessons learned from other states in order to avoid many of the issues they have encountered. Lastly, the future outlook for a viable SREC market in New York is summarized.

This article will discuss the Lloyd Moratorium as it exists today. Section two of this article discusses the geological framework, hydrogeology, pumpage, and saltwater intrusion of the Long Island Aquifer System. Section three discusses the history, development, and agency interpretation of the moratorium. Section four analyzes the likelihood of a community being granted a permit to drill a new well and explores the possibility of a particular community on Long Island with a contaminated aquifer obtaining a permit to drill into the Lloyd Aquifer. Section five concludes by proposing that the New York State Department of Environmental Conservation should promulgate regulations that provide a clear interpretation of the moratorium’s conditions.

This Article argues that the Chinese legal tradition is essentially a Confucian legal tradition, and that its Confucian attributes significantly constrain the effectiveness of the Western-style environmental laws enacted by the PRC in recent decades. Part I explores the emergence of a Confucian legal tradition in China and its impact on Chinese legal culture before the founding of the PRC. Part II highlights some of the impacts of this tradition on the Chinese legal system during the same period. Part III makes a case for the endurance of the Confucian essence of this legal tradition in the PRC itself, and highlights its implications for the effectiveness of the PRC’s Western-style environmental laws. This Article concludes with a few preliminary strategic suggestions for making the PRC’s environmental law and policy regime more effective by aligning it more closely with the Confucian essence of the Chinese legal tradition.

We attempt to engage modern legal reasoning with Gandhi’s thought. We hope to speculate on what jurisprudence would look like if it were more mindful of the concepts central to Gandhi’s thought. By using Gandhi as an intellectual anchor, we hope to take a step toward creating a more “mindful jurisprudence” that implicitly incorporates into its reasoning the needs of environmental stewardship, disempowered populations, and the poverty-stricken. Because Gandhi’s thought has been discussed at length in environmental justice campaigns, we begin this effort by examining the relationship between environmental law and Gandhi’s thought. Given Gandhi’s commentaries on exploitative and oppressive social relationships, we focus on the intersections of law, environment, and economy.

We use the recent suit, Michigan Citizens for Water Conservation v. Nestlé Waters North America, Inc. (MCWC), as a case study to which we apply themes from Gandhi’s thought.

Applying Gandhi’s thought to MCWC is useful for two reasons. First, MCWC contains several core legal doctrines that appear regularly in environmental cases (and in case law more broadly). As a result, our applications of Gandhi’s thought directly apply to other environmental cases. Second, the case involves a defendant-corporation’s encroachment onto a stream used by local plaintiff-civilians. Environmental justice campaigns often involve similar factual circumstances in which local people resist large outsider organizations. Therefore, using Gandhi’s thought, we examine the legal reasoning in MCWC to identify taken-for-granted assumptions about environment and society that favor outside parties over local residents.

The field of environmental law embodies a deep contradiction—it is a product of the state, yet the state is the primary agent of development. This contradiction infuses state-supported resource regimes (energy, forestry, agriculture, water use) that have long been agents of environmental erosion while they have remained resistant to progressive reform. It also underpins the theoretical framework for proposed reforms today, ecological modernization. The result is that environmental law extends, rather than resolves, society’s underlying environmental “problematic.” This can now be seen in institutional responses to climate change and the “green economy.” To address this situation, the authors apply a critical new approach—green legal theory (GLT)—to analyze these historical resource regimes and today’s emerging issues. GLT does so by expanding the conception of law to address the “constitutive” or “regulatory” effects of those “system dynamics” that set the larger economic, political, and cultural conditions for social/environmental relations. In this task, GLT aims to help move “legal” analysis into the pursuit of the systemic re-formations that exist beyond the liberal limits of environmental law.

China shares borders with fourteen countries and has many international rivers. In most cases, China is an upstream state. Over the past years, increasing international disputes concerning international rivers have occurred between China and other riparian states, such as China’s dam construction on the upper Mekong River and the Songhua River pollution accident. In particular, with the ongoing dam construction on the upstream of Mekong in China, its potential environmental impact on the other Mekong countries is highly profiled. At the time of writing, five dams are already completed and two are in the final stage of construction or getting formal approval. In response to environmental problems, particularly the controversial issue of Mekong mainstream dam construction, this paper will take a procedural perspective and focus on developing the mechanism of transboundary environmental impact assessment (TEIA) in the MRB. Specifically, issues like the significance of establishing TEIA and how to tailor and comprehend TEIA in the MRB context will be addressed in detail.

The Article is not intended to serve as an advocacy polemic for the cyanide-using mining industry. Rather, its objective is two-fold: (1) It seeks to expose the scientific and environmental reality of cyanide use in mining operations; and (2) It will try to draw from the case of mining-and-cyanide use some larger lessons about regulatory behavior, and the downside of over-regulation when confronting the phenomenon of risk amplification. Part II considers why cyanide is so ubiquitous in hard rock mining operations in America and in other countries, and why there is no effective substitute for it as a substance to leach out gold, copper, and other valuable hard rock minerals. Part III is an examination of the scientific and ecological reality of cyanide spills in nature. Part III reveals how, as a matter of science and chemistry, cyanide is usually, and counter-intuitively, non-toxic to environmental goods and wildlife. Part IV summarizes the true extent of the mining accidents and incidents that have released cyanide into the natural environment, and the very “human” reasons for these spills. Part IV also points out why, despite the fact that cyanide spills are preventable, and despite cyanide’s undeserved reputation as a killer-of-environmental goods, there have been flat bans and harsh regulatory limitations on its use.

During the 2004 holiday season, Pale Male, New York City’s celebrated and world-renowned red-tailed hawk, had his nest deliberately destroyed. The nest was approximately 400-pounds and was built over several years. Almost immediately, this act of destruction was met with popular uproar among his many fans throughout the world. This tragic story could easily have been avoided if the United States Fish and Wildlife Service (Service) had correctly carried out its duties under the Migratory Bird Treaty Act (MBTA). What happened to Pale Male years ago is still a possibility today because the Service’s policy remains the same. This article addresses these issues and urges the Service to comply with the MBTA by demanding that individuals receive permits to destroy any bird nest before the destruction occurs.