Article Title

Case Notes



zoning, first amendment, freedom of speech, Rivers and Harbors Appropriations Act, Refuse Act, qui tam, Federal Water Pollution Control Act, warranty of habitability, seventh amendment


Constitutional Law- Freedom of Speech- Dismissal of Public School Teacher for Symbolic Expression of Political Opinion in the Classroom Held Unconstitutional. This case note discusses the first amendment issue in James v. Board of Education, 461 F.2d 566 (2d Cir. 1972), and the extent to which schools may limit a teacher's freedom of expression in the classroom. The note reviews the various tests used to analyze freedom of expression in general and then analyzes case law in the school context to infer that a court may permit state or local governments to control classroom expression when a teacher uses his or her captive audience, an unbalanced presentation of information, or the threat of sanctions to teach his or her political views to the students. Environmental Law- Rivers and Harbors Appropriations Act- Private Persons May Not Sue Qui Tam Without Explicit Legislative Grant of Permission For Citizen Suits. This case note explores the attempts to use qui tam actions as a private right of action to enforce compliance with anti-pollution laws such as the Refuse Act by evaluating Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972), and other related cases. It then analyzes the impact of the amendments to the Federal Water Pollution Control Act on the availability of private rights of action and the Refuse Act of 1899 and suggests a need for further legislative reform to ensure adherence to environmental standards and involve citizens in the process. Landlord-Tenant Law- Summary Proceedings to Oust- Tenant Has No Seventh Amendment Right to Jury Trial When Counter-claiming for Breach of Implied Warranty of Habitability. This case note evaluates Pernell v. Southall Realty, 294 A.2d 490 (D.C. Ct. App. 1972), denying the right to a jury trial for breach of warranty of habitability actions. The Plaintiff argued, inter alia, that the action was the common law action for ejectment and should therefore afford the right to a jury. This note reviews the history of the seventh amendment right to a jury trial for common law actions and its evolution from English common law, arguing that viewing United States common law as the English common law of 1791 is contrary to the purpose of the seventh amendment despite the court's justification for excluding the warranty of habitability under the theory of waiver. Welfare Law- Retroactivity of Benefits- Federal Court-Ordered State Retroactive Payments of Federally-Supported Public Assistance Funds (AABD and AFDC) Precluded by Economic Realities of Welfare Program Goals and Eleventh Amendment. This case note analyzes the Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), case challenging the New York Social Services Law providing for welfare payments to New York City recipients at a higher rate than set for residents of other New York counties. Recognizing the Supreme Court's nonaction in the area of retroactive welfare payments, the court denyed retroactive welfare payments on the basis of public policy and eleventh amendment concerns. Zoning Law- Growth Restrictions- Town Ordinance Conditioning Approval of Residential Subdivision Plan on the Availability of Necessary Municipal Services Held Valid. This case note analyzes Golden v. Planning Board, 30 N.Y.2d 359 (1972), upholding the town of Ramapo's amendment to its zoning policy. The note discusses the methods of zoning available in New York of district zoning and submission and approval of town plats to a town planning board before permits allowing subdivision development will be approved in conjunction with relevant case law regarding zoning ordinances. It also addresses the impact of zoning ordinances on communities and open questions remaining after the Golden case.

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