Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York's “Certificates of Relief”

Despite burgeoning interest in prisoner re‐entry and the “collateral consequences” of criminal convictions, we know little about the practical operation of policies governing the rights and privileges of people with criminal convictions. This study examines New York's Certificates of Relief from Civil Disabilities to explore the workings of the US carceral state at the intersection of criminal and civil law. These certificates remove some legal restrictions accompanying convictions, particularly licensure barriers, and are easier to achieve than pardons; other states have used New York's policy as a model. Interviews with judges and probation officers reveal deep variations in how they understand and award certificates. In some cases, differences stem from informal local agreements, particularly concerning firearms in rural communities; in others, from discretionary judgments in a context of legal ambiguity. These practices demonstrate how specific legal, organizational, and cultural factors contribute to complexity and variation in the US carceral state.     

Surrogacy,Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

In this article I will focus on two important aspects of children's rights which are impacted by artificial reproductive technology (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on the Rights of the Child acknowledges the importance of a child's right to identity, to be protected from discrimination on the basis of the status or beliefs of the child's parents, legal guardians or family members. For many children born through surrogacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental responsibility orders but this falls well short of providing children with the benefits and protections that legal parentage does. The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circumstances of their birth and being able to access biological and genetic information including medical information. From a child's perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be done to ensure that identifying information about children born as a result of artificial reproductive technology is properly stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care being provided by their parents cannot be justified when considered from a children's rights perspective.     

论代孕的合理使用与法律调控

随着现代医学的发展,不育家庭对代孕有着强烈的需求。由于代孕涉及到对代母部分身体功能的使用,而且代孕子女的法律地位也难以确定,因此一出现便遭到社会的普遍反对。但代孕不应该也不可能一禁了之,允许合理使用代孕,并尽快出台专门的法律法规对其作出明确规范,防止代孕被滥用,减少代孕纠纷,是现实社会的客观要求。     

ALMOST,BUT NOT QUITE: THE FAILURE OF NEW YORK'S GET STATUTE

The quandary of Jewish women unable to remarry because of their husbands’ refusal to grant them religious divorces is a real problem affecting real people. Husbands are wielding this lopsided power to “extort” money from their wives, obtain favorable child custody settlements, property settlements, and child support payments. The burgeoning divorce rate is certain to exacerbate this problem. Already, this situation has garnered international attention. In the wake of New York's legislative attempt to remedy this problem, countries, including the United Kingdom and Australia, have promulgated legislative solutions to this dilemma. New York is the only state in the United States to pass such a statute. Unfortunately, New York's statute is flawed because it is of limited applicability and still allows for situations in which the Jewish wife is civilly divorced but religiously married. This Note proposes amending New York's statute to make it applicable to any and all divorce proceedings and to any barrier to remarriage. This Note will further recommend that the proposed amended statute should be adopted worldwide.     

New York's Landmark October 2003 Brownfields Legislation and Environmental Claims Exposures

New York's new 107-page brownfields law encourages the redevelopment of contaminated properties in order to increase tax revenues, revitalize communities, create jobs, protect the environment, and preserve open space. The legislation contains significant financial incentives to volunteers and municipalities to investigate, remediate, and redevelop brownfields to promote the reuse of such properties. While the law provides certain liability protection for claims by the State, it retains the “polluter pays” philosophy and contains scary re-opener provisions. This article will provide a brief overview of New York's recently enacted environmental law and explain why the legislation encourages the procurement of environmental insurance to mitigate the risks inherent with brownfield redevelopment projects.     

An appraisal of Ireland’s current legislative proposals for regulating domestic surrogacy arrangements

This article critiques the complex hybrid model that has been proposed for regulating domestic surrogacy arrangements in Ireland, and the reasons why this model came about. It proposes an alternative model for regulating surrogacy, one that is in operation elsewhere and achieves a better balance between the rights of the surrogate, the intending parents and, most importantly, the surrogate-born child. The proposed establishment of the National Surrogacy Register, its interaction with the Register of Births and the issuing of ‘surrogacy certificates’ is also analysed, and a far less complex means of respecting the surrogate-born child’s right to knowledge of its identity is proposed. The article concludes that Ireland’s current legislative proposals for regulating surrogacy need to be substantially revised before ever being placed on the statute book. In their present form, they are so restrictive that, rather than facilitating domestic surrogacy arrangements, they are far more likely to discourage them.     

The History and Future Trends of ART Medicine and Law

The Assisted Reproductive Technologies (“ART”) have resulted in over eight million births to date, heralding remarkable advances in reproductive medicine with a transformational impact on both medicine and law. The effects have been acutely felt on the modern family, as well as on a myriad of areas of legal practice—including Family Law, Estate Planning, Contract, Health, Constitutional, Criminal, Discrimination, Tort Law and, for international arrangements, Immigration and Citizenship laws. This article examines the historical context, present impact, and future trends of ART and the Law. Its purpose is to help better understand these unique developments in order to help law and policy makers harness and craft the policies and frameworks that will be needed to monitor, shape and guide these remarkable possibilities for participants, professionals, law and society.     

Once more with ‘sympathy’ but no resolution for intended mothers: the EU,Ireland and the surrogacy dilemma

This article examines the decision of the Court of Justice of the European Union (CJEU) in Z v A Government Department and the Board of Management of a Community School and the court’s interpretation of existing EU legislation on whether commissioning or intended mothers are entitled to paid leave equivalent to maternity benefit. It highlights the failure of the CJEU in this case to call for specific EU legislation on the issue of surrogacy. The Irish Courts have been more proactive in this regard. The Supreme Court has acknowledged that ‘pending the introduction … of legislation dealing with this field, it is … not for the courts to attempt to resolve the complex questions that need to be addressed’. This article compares recent decisions of the Irish Courts to that of the CJEU as they struggle to keep abreast with modern society in the absence of legislation at national and EU level.     

CHILD SUPPORT GUIDELINES:

Since 1984, all U.S. jurisdictions have established child support guidelines. Using computerized worksheets, we compared the guidelines of New York, New Jersey, and Connecticut (which use the “Income Shares” model also employed by 30 other jurisdictions). We calculated how child care, alimony to a prior spouse, and subsequent children change the support obligation. We found that, generally, Connecticut requires the most child support, New York is second, and New Jersey third. However, if children require child care, New York requires the most support. In Connecticut, child care costs have virtually no impact. When a noncustodial parent is paying alimony to a prior spouse, support is dramatically greater in Connecticut than in New Jersey, with New York in between. Only New Jersey reduces the support paid by the noncustodial parent who has subsequent children. New York's and Connecticut's mathematical guidelines do not consider subsequent children.     

International Law Concerning ART

The article seeks to set out the current international legal landscape concerning international surrogacy arrangements and how domestic law and conventions might impact on international surrogacy arrangements.     

Keeping the Family Together: Why New York Must Amend Evidence Rules to Protect a Parent's Right to be a Parent

In New York, hearsay statements made by children may be admissible in a child protective proceeding. Under Article 10 of the Family Court Act, an out‐of‐court statement only requires corroboration to support the statement's reliability. The Family Court has the choice to determine what evidence will be sufficient for corroboration. In comparison to other statutes from different states, New York's statute is very broad. This Note proposes amending the current evidence statute under Article 10 of the Family Court Act to strengthen the standard for admitting hearsay statements in child protective proceedings.     

Assisted reproductive technologies: professional and legal restrictions in Australian clinics

The professional and legal regulation of assisted reproductive technologies (ART) in Australia is a vast maze of intersecting laws and guidelines which place restrictions on the provision of services such as infertility treatment, surrogacy, sex selection for social reasons, donor insemination, pre-implantation diagnosis and human embryo research. This study investigated the application of these restrictions on clinical practice in New South Wales, a relatively unregulated State, and Victoria, a relatively highly regulated State. The results of the survey indicate that the range of ART services in Victorian clinics was far more limited than in New South Wales clinics. The Victorian clinics uniformly restricted access of single and lesbian women and did not offer social sex selection procedures. The New South Wales clinics adopted different polices regarding these services. It was found that restrictive laws governing "social" issues have a significant impact on the availability of ART services and some respondents seemed unclear about the nature of restrictions and laws relevant to their work. It was also found that "reproductive tourism" is prevalent and restrictions were circumnavigated by patients with assistance from clinics. It was concluded that more evidence is required to evaluate regulation in this field of medicine.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

Surrogacy litigation in China and beyond

Chinese law neither generally prohibits nor expressly permits surrogacy. As there has been a massive underground surrogacy market in the country, surrogacy lawsuits have occurred from time to time. Chinese courts are called to decide a number of disputed issues regarding validity of surrogacy contract, parenthood of the surrogate child, and sole care and control of the surrogate child. This article examines the judicial solutions to these disputes through a case study, and analyses whether Chinese courts have adopted appropriate approaches in applying the existing law to surrogacy lawsuits. The article further discusses the inadequacies of Chinese law in solving surrogacy disputes and regulating surrogacy, and recommends a set of suggestions for improvement so that Chinese law may better adapt to the social demand of surrogacy.     

Creatures of the State: A Hard Look at the Supersession of Municipal Power in New York's Mineral Resources Law

The controversial method of gas extraction known as hydraulic fracturing has revealed a critical issue within New York's Mineral Resources Law: Can a local government prohibit the practice through its zoning power? This piece analyzes supersession clauses found in other New York statutes, as well as the statutes of other jurisdictions. It criticizes the construction of the law by two lower courts in the recent decisions concerning the towns of Dryden and Middlefield, and applies recognized principles of statutory construction to determine that towns may not effect a prohibition of gas mining through local zoning ordinances.     

HOFSTRA'S FAMILY LAW WITH SKILLS COURSE: IMPLEMENTING FLER (THE FAMILY LAW EDUCATION REFORM PROJECT)

The Family Law Education Reform Project (FLER) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system's effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER's curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the basic course in Hofstra's revised curriculum and is designed to integrate doctrinal teaching with professional skills development. In addition to studying legal doctrine, students are required to engage in structured field observation of family court proceedings; interviewing, counseling, negotiation, and mediation representation exercises in a divorce dispute; direct and cross examination of a social worker in a child protection dispute; and drafting of a surrogacy agreement. The article describes each exercise and discusses its rationale, student reaction to the course, and lessons learned.     

Finding a Safer Harbor: Mandating Health Care Clinics to Intervene in Child Sex Trafficking by Amending the Safe Harbor Act

When it comes to child sex trafficking, health care clinics have become spaces of duality. While these facilities provide medical care to child victims, many argue that this facilitates traffickers in concealing evidence of child sex trafficking. This Note proposes an amendment to New York's Safe Harbor Act and various sections of the Social Services Law to cure legislative ambiguity with respect to health care clinics. The amendment will mandate that all state‐run health care clinics implement a uniform process, utilizing mental health professionals and a standardized interview process, to identify and report instances of potential child sex trafficking.     

The Process Model of Closure and Nonprofits: The Exit of Exit Art

Experts think of arts nonprofits as fragile organizations, prone to closure. Despite these predictions, little research has been completed on the process of closure within these organizations. I leverage a comprehensive organizational database and seventeen in-depth interviews with staff and board members to understand the process of closing New York's Exit Art. I explore the value of Sutton's (1987) process model, and its application to nonprofits by Duckles et al. (2014), to analyze the case. This study offers novel insights into management practices that may benefit nonprofits in the future, and interest scholars who study management transitions and organizational closure.     

The Past and Future State of De Facto Parents in New York

Over the past two decades, the definition of “family” has expanded drastically. To address these changing family dynamics, many states have adopted de facto parent laws, which recognize a nonbiological or adoptive parent's right to petition for custody or visitation in strict circumstances. These laws differ drastically from state to state, leaving no common understanding of the requirements to be a de facto parent. Until recently, New York law refused to recognize de facto parents within the Domestic Relations Law, leaving New York as one of the only states without this important distinction. However, this year the Court of Appeals crafted a narrow exception to the rule and allowed for a de facto parent to petition for custody or visitation in extremely limited circumstances. This article proposes that the Court of Appeals’ decision was too restrictive and that New York should adopt a legal framework that reflects this new type of parent, while still recognizing public policy concerns.     

Transit Industry Gears Up and Responds to Climate Change Challenges

The transit industry in the United States is preparing for growth as the world deals with climate change and it is applying various methods to measure and monitor its impact on the environment. Working with local, state, and federal governments, transit agencies have adapted many commonsense solutions. Now the American Public Transportation Association is putting together standards and best practices to encourage the industry and inform the public about the benefits of public transportation to the environment, helping our nation join the rest of the world. It is also developing and applying new transit strategies that will attract more riders and reduce greenhouse gas emissions. Portland, Oregon's Tri-Met, New York's Metropolitan Transportation Authority, and the Utah Transit Authority are leading the industry. Portland, Oregon's Tri-Met General Manager, who chairs the industry's Sustainability Committee for the American Public Transit Association has been leading by example with an Environmental Management System that addresses greenhouse gas, pollution, waste, inefficiency, and congestion. New York and Utah are recording greenhouse gases with the Climate Registry. Many agencies are developing new strategies that are attracting more riders and experiencing an intermodal shift to buses and trains. Meanwhile, developing countries are able to increase service and pay for it by selling carbon credits.