Fordham Law School Occasional Papers

The City As An Ecological Space: Social Capital and Urban Land Use

Sheila R. Foster — Tue, 04 Apr 2006 10:18:33 PDT

The notion that certain uses of public and private property can have negative effects beyond legally defined property boundaries is firmly embedded in land use law. We are now comfortable regulating land use to prevent and control for impacts to our natural resources, environmental quality, and nuisances to third parties. This idea is partly rooted in economic theory—i.e. the existence of negative externalities, but also in the theory of ecology—i.e. the notion that property is inextricably part of a network of social and economic relationships and that its impacts traverse legally defined property boundaries. But not all impacts, or costs, of land use are properly accounted for in land use regulation. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from a variety of disciplines recognize the importance of social capital to, and the deleterious impacts from its loss on, urban communities. Yet legal scholars have not taken seriously social capital when normatively evaluating urban land use regulation and policy. This Article argues that the failure to account seriously for the ways that land use decisions interact with social capital, particularly in the most socially vulnerable communities, underlies many contemporary disputes involving the persistent fragmentation and social inequities of urban metropolitan space. The Article concludes by suggesting that only through a rethinking of the city commons can we begin to take social capital seriously in land use policy and law. Instead of conceptualizing the city as an aggregation of private property rights, we should instead seek to identify and protect common resources and interests in the city commons through limited access rights and collaborative governance strategies that preserve and draw upon existing social networks to manage common city resources.

The Revenge of Mullaney v. Wilbur: U.S. v. Booker and The Reassertion of Judicial Limits on Legislative Power to Define Crimes

Ian Weinstein — Wed, 20 Apr 2005 08:48:37 PDT

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970’s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave it to legislators who did not seem disposed to exercise their authority too broadly. By the late 1990’s the tide had shifted and the Court turned sentencing doctrine on its head to take power over criminal law from legislative bodies inclined to push the limits of their power and transfer it back to a newly cautious judiciary. This article explores how that shift in power was informed by changing social and political conditions and was accomplished through doctrines regulating the Sixth Amendment right to trial.

THE CHECK CLEARING FOR THE 21ST CENTURY ACT - A WRONG TURN IN THE ROAD TO IMPROVEMENT OF THE U.S. PAYMENTS SYSTEM

Carl Felsenfeld et al. — Thu, 20 Jan 2005 12:58:29 PST

The Check Clearing for the 21st Century Act (the “Check 21 Act”) was introduced to Congress by the Federal Reserve System, enacted by Congress, signed by the President, and became effective on October 28, 2004.

The Check 21 Act reinforces the traditional checking system, while making some modest changes to the methods of check clearing. Mainly, the Check 21 Act introduces the concept of the “substitute check,” which could make the check clearing process somewhat faster and cheaper, assuming the Act is widely adopted by the U.S. banking system. A substitute check is a digitized image of an original paper check with a similar size and an image of the front and back of the original check. The front of a substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” The substitute check can be used as proof of payment just like the original check.

If a bank elects to operate under the procedures of the Check 21 Act, a customer must accept the new check clearing system; there is no element of customer choice involved. The substitute check will, however, diminish, and in some cases, entirely eliminate, security features, which banks and law enforcement have developed in order to detect fraudulent check activities such as variations in paper quality, original signatures and fingerprints.

The Check 21 Act leaves essentially intact the other basic laws governing payment by check - Articles 3 and 4 of the Uniform Commercial Code (UCC) as well as Federal Reserve Regulations J and CC (with the exception of some appropriate modifications to Regulation CC). The Act does not have an effect upon the many electronic payment devices in wide use, including credit and debit cards, Automated Clearing House payments and more.

Prior to enactment of the Check 21 Act, the legal system allowed banks to agree among themselves and with their customers to vary the check clearing system almost as they wished. Banks did not, however, adopt an electronic approach to the handling of paper checks because of the virtual impossibility of getting sufficient agreement.

Around 2000, for the first time since their use in commerce, the number and volume of check transactions had begun to decline in favor of electronic payment instruments. The Federal Reserve might have used its great prestige and authority to anoint the ongoing process of electronic payments and thereby speed modernization of the payment systems. On the contrary, the Federal Reserve did not take this direction but rather blessed the cumbersome, slow, expensive checking system.

The Check 21 Act could have some effect on U.S. payment systems only if it is actually put into broad use by the banks. Although the Act and its substitute check system became effective on October 28, 2004, there is little sign of the system being widely implemented. Little investment has been made in the expensive check image exchange and truncation equipment that will be required to implement the Act. Almost no education has been given by banks to their customer base to apprise them of what may be in store. As result, most bank customers have never heard of the Act or of its substitute checks.

Some bankers are not even convinced that the substitute check system will be an improvement on the existing check clearing system and point out the ambiguities and unanswered questions embedded in the Check 21 Act.

Ultimately, the Check 21 Act is a step in the wrong direction in the evolution of the U.S. payments system. The Federal Reserve should have allowed the antiquated checking system to continue to phase out of use. Additionally, the Fed should concentrate on developing an innovative electronic payments system and facilitate its use by consumers and businesses.

The Role of the Bank for International Settlements in Shaping the World Financial System

Carl Felsenfeld et al. — Thu, 01 Apr 2004 09:16:58 PST

The Bank for International Settlements (BIS)was set up in Basle, Switzerland in 1923 to handle remaining financial issues from World War II largely having to do with German reparation payments. It was the first of the semi-public international banks. Over the years its functions have changed and, largely since the late 1970s, it has served as the situs for the world’s central banks and financial regulators to pool their thinking and deal with international financial issues. A group of committees composed largely of representatives of central bankers now meet at BIS and have been issuing memoranda and drafts of regulations on a number of subjects affecting international banking. Among these are the regulation of capital, the management of international conglomerates and problems resulting from electronic banking.

Problems in world banking have sensitived observers to the absence of coordinated regulation and to the need for some form of unified control. That there is a need for one international bank regulator is increasingly acknowledged. BIS in Basle comes closer than any other organization to fulfilling this function. The International Monetary Fund comes close but is too politicized and has been too involved in attempting to meet a continuing series of crises to do any long range thinking. Only BIS has attracted the intellectual resources to analyze and resolve international problems in a thoughtful and deliberate manner. And only the BIS output is being adopted in the world’s banking centers.

BIS has been proposed as a world senior financial regulator. The article acknowledges the rationale for such a decision but argues that now is not the time for such an attempt. Banking is, of course, conducted locally even though its reach is international To anoint any body as a senior regulator with the power to impose its rules would require a massive set of compromises among national regulations in order to achieve one central set of rules. It would also essentially involve an abdication of measures of sovereignty by the constituent states. An effort of this kind would risk destroying the whole concept. Rather than start such a bold stroke at such an inopportune time, the article argues that the international banking world would fare far better assisting BIS to proceed down the track it is already on. As it continues to mature and as its edicts are increasingly accepted throughout the world it will continue to approach its rightful place as the world’s bank regulator.