Nestor Davidson | Fordham University (original) (raw)
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Papers by Nestor Davidson
Duke Journal of Constitutional Law Public Policy, 2011
J Affordable Hous Cmty Dev L, 2005
Recent efforts to combat homelessness have increasingly focused on the chronically homeless and, ... more Recent efforts to combat homelessness have increasingly focused on the chronically homeless and, in particular, on people grappling wtih mental illness, substance abuse, or other conditions who have often proven most resistant to traditional models of service. With the federal government encouraging local governments to adopt Ten-Year Plans to End Chronic Homelessness,' one novel strategy-the "Housing First" approach-is gaining a central place in many local efforts. 2 Housing First, as its name suggests, offers homeless individuals the chance to move directly from the streets to independent housing. This approach reverses the long-standing paradigm of combining shelter with services predicated on individuals' readiness for housing. Traditionally, providers have required that individuals be stabilized through a gradual process of acculturation, with each step in a ladder of greater independence conditioned on meeting service requirements such as following a regime of medication or maintaining sobriety. In place of this approach, Housing First provides shelter without any predicate requirement of treatment or recovery, with intensive services available but not mandatory. The early evidence suggests that long-time homeless individuals with dual or multiple diagnoses find housing more rapidly and remain off the streets longer under this approach. Housing First also appears to reduce costs when compared to the the informal system of shelters, hospitals, mental hospitals, and incarceration that marks the cycle of life on the streets for many of the chronically homeless.
... 102, No. 1 1 Articles THE PROBLEM OF EQUALITY IN TAKINGS Nestor M. Davidson* ... So, too, is ... more ... 102, No. 1 1 Articles THE PROBLEM OF EQUALITY IN TAKINGS Nestor M. Davidson* ... So, too, is the character of the governmental action. Id. These factorstwo as Justice Brennan described them, but articulated now as threeare well recognized as the Penn Central test. ...
Columbia law review, 1996
International Encyclopedia of Housing and Home, 2012
Michigan Law Review, 2010
... Nestor M. Davidson* ... Thus, for example, the fact that Massachusetts and entities under its... more ... Nestor M. Davidson* ... Thus, for example, the fact that Massachusetts and entities under its purview control Logan Airport, the To-bin Memorial Bridge, the tunnels that connect the city to its east end, and much other important property creates a gaping hole in Boston's land-use ...
Scholars have developed a significant body of literature exploring the work of deal lawyers with ... more Scholars have developed a significant body of literature exploring the work of deal lawyers with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting—that from the deal lawyer's perspective, the government is a factor only to the extent that the state will enforce private agreements. Second, scholars have assumed that private parties uniformly view public policy as a constraint in the realm of compliance—that from the deal lawyer's perspective, clients are indifferent, if not hostile, to regulatory goals. The first assumption is the subject of recent scholarship convincingly arguing that regulatory arbitrage should be added to the picture of deal lawyers as transaction-cost engineers. The second assumption, however, has gone unchallenged and is the focus of this Article. Although the value-creation literature envisions a monolithic orientation toward the state, in practice, partnerships that engage the private sector in advancing a variety of public goals represent both a significant sector of the economy and one of the central contemporary approaches to policy by federal, state, and local governments. Deal lawyers are thus increasingly called upon not only to reduce transaction costs and leverage regulatory constraints, but also to manage a complex alignment of interests between private means and public ends. In short, lawyers in public–private transactions perform what this Article calls regulatory translation—transmogrifying the often abstract goals of public policy into the concrete mechanisms of private ordering. This Article makes two primary contributions to the literature. First, it identifies an increasingly important transactional context largely ignored by scholars investigating the work of deal lawyers. Second, the Article gives a normative, theoretical grounding for that work, providing a framework that has the potential to enhance the advantages and mute the problems associated with public–private partnerships. Ultimately, lawyers in this context can create value in the broadest sense of the word, and there are lessons in this for deal lawyers in all transactions.
In the discourse of local government law, the idea that a mobile populace can "vote with its feet... more In the discourse of local government law, the idea that a mobile populace can "vote with its feet" has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout's seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.
Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate i... more Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish to entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support, and entitlement advocacy remains circumscribed by the reality of severely limited resources at all levels of government.
There are significant domains of legality within the administrative state that are mostly immune ... more There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. Although administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal in nature but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into a case study-the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review. We then suggest how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch.
Duke Journal of Constitutional Law Public Policy, 2011
J Affordable Hous Cmty Dev L, 2005
Recent efforts to combat homelessness have increasingly focused on the chronically homeless and, ... more Recent efforts to combat homelessness have increasingly focused on the chronically homeless and, in particular, on people grappling wtih mental illness, substance abuse, or other conditions who have often proven most resistant to traditional models of service. With the federal government encouraging local governments to adopt Ten-Year Plans to End Chronic Homelessness,' one novel strategy-the "Housing First" approach-is gaining a central place in many local efforts. 2 Housing First, as its name suggests, offers homeless individuals the chance to move directly from the streets to independent housing. This approach reverses the long-standing paradigm of combining shelter with services predicated on individuals' readiness for housing. Traditionally, providers have required that individuals be stabilized through a gradual process of acculturation, with each step in a ladder of greater independence conditioned on meeting service requirements such as following a regime of medication or maintaining sobriety. In place of this approach, Housing First provides shelter without any predicate requirement of treatment or recovery, with intensive services available but not mandatory. The early evidence suggests that long-time homeless individuals with dual or multiple diagnoses find housing more rapidly and remain off the streets longer under this approach. Housing First also appears to reduce costs when compared to the the informal system of shelters, hospitals, mental hospitals, and incarceration that marks the cycle of life on the streets for many of the chronically homeless.
... 102, No. 1 1 Articles THE PROBLEM OF EQUALITY IN TAKINGS Nestor M. Davidson* ... So, too, is ... more ... 102, No. 1 1 Articles THE PROBLEM OF EQUALITY IN TAKINGS Nestor M. Davidson* ... So, too, is the character of the governmental action. Id. These factorstwo as Justice Brennan described them, but articulated now as threeare well recognized as the Penn Central test. ...
Columbia law review, 1996
International Encyclopedia of Housing and Home, 2012
Michigan Law Review, 2010
... Nestor M. Davidson* ... Thus, for example, the fact that Massachusetts and entities under its... more ... Nestor M. Davidson* ... Thus, for example, the fact that Massachusetts and entities under its purview control Logan Airport, the To-bin Memorial Bridge, the tunnels that connect the city to its east end, and much other important property creates a gaping hole in Boston's land-use ...
Scholars have developed a significant body of literature exploring the work of deal lawyers with ... more Scholars have developed a significant body of literature exploring the work of deal lawyers with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting—that from the deal lawyer's perspective, the government is a factor only to the extent that the state will enforce private agreements. Second, scholars have assumed that private parties uniformly view public policy as a constraint in the realm of compliance—that from the deal lawyer's perspective, clients are indifferent, if not hostile, to regulatory goals. The first assumption is the subject of recent scholarship convincingly arguing that regulatory arbitrage should be added to the picture of deal lawyers as transaction-cost engineers. The second assumption, however, has gone unchallenged and is the focus of this Article. Although the value-creation literature envisions a monolithic orientation toward the state, in practice, partnerships that engage the private sector in advancing a variety of public goals represent both a significant sector of the economy and one of the central contemporary approaches to policy by federal, state, and local governments. Deal lawyers are thus increasingly called upon not only to reduce transaction costs and leverage regulatory constraints, but also to manage a complex alignment of interests between private means and public ends. In short, lawyers in public–private transactions perform what this Article calls regulatory translation—transmogrifying the often abstract goals of public policy into the concrete mechanisms of private ordering. This Article makes two primary contributions to the literature. First, it identifies an increasingly important transactional context largely ignored by scholars investigating the work of deal lawyers. Second, the Article gives a normative, theoretical grounding for that work, providing a framework that has the potential to enhance the advantages and mute the problems associated with public–private partnerships. Ultimately, lawyers in this context can create value in the broadest sense of the word, and there are lessons in this for deal lawyers in all transactions.
In the discourse of local government law, the idea that a mobile populace can "vote with its feet... more In the discourse of local government law, the idea that a mobile populace can "vote with its feet" has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout's seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.
Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate i... more Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish to entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support, and entitlement advocacy remains circumscribed by the reality of severely limited resources at all levels of government.
There are significant domains of legality within the administrative state that are mostly immune ... more There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. Although administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal in nature but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into a case study-the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review. We then suggest how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch.