Digital Commons Network^™

Collateral Damage: Children Cannot Sue The Paramour Who Broke Up Their Parents’ Marriage, Joanna L. Grossman

Hofstra Law Faculty Scholarship

In an earlier time, there were several civil causes of action that a state might have recognized to protect broken hearts, failed marriages, and damaged reputations. “Breach of promise to marry,” for example, was a cause of action that a woman might bring against a fiancé who jilted her, often after convincing her to engage in premarital sex that might or might not have led to an out-of-wedlock pregnancy. “Criminal conversation” was a euphemism for adultery and gave the cheated-on spouse a cause of action against the paramour. “Alienation of affections” was a cause of action that could be adapted …

Tightening The Reins On Single-Sex Classes In Public Schools, Joanna L. Grossman

Hofstra Law Faculty Scholarship

The Department of Education’s Office for Civil Rights (OCR) just issued a much-needed clarification of its prior guidance on the legality of single-sex classes within public schools. A clarification of a guidance of a law may seem like the epitome of bureaucratic mumbo jumbo, but, in this case, the clarification was needed to halt a runaway train—single-sex classes being implemented in public schools around the country in clear violation of existing law and designed in ways more likely to create gender inequality than eradicate it.

Goliath Vs. 24 Davids: Federalism And Legal Marijuana, J. Herbie Difonzo, Ruth C. Stern

Hofstra Law Faculty Scholarship

In recent years popular sentiment – on issues like marriage equality and legalization of medical marijuana – has molded law and policy in its own image. On the horizon is growing support for physician aid in dying and a deeper personal stake in end of life decisions. Each of these initiatives has been cultivated at the state level, often in the face of rigid federal government rejection of favorable social and scientific evidence.

State and federal conflicts are not new, but rarely has the US government displayed more intransigence than in the arena of marijuana prohibition.

Who Gets The Black Gold? Harold Hamm Ordered To Pay $1 Billion In Divorce Settlement, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Divorces can often be ugly, acrimonious, and hard-fought. The divorce between Sue Ann and Harold Hamm was not special in that regard. She accused him of having an affair—his first marriage ended when he was accused of having an affair with Sue Ann—and filed for divorce. What made this divorce special is that the parties were fighting over billions. And with an 80-page court order ruling that Harold must pay Sue Ann one billion dollars, they have joined the ranks of the biggest divorce settlements in history. The number may be shocking, but, as I will explain in this column, …

Child Custody - Parental Rights Vs The Child’S Best Interest, J. Herbie Difonzo

Hofstra Law Faculty Scholarship

The November 2014 elections included a North Dakota voter initiative emblematic of the vigorous debate taking place nationwide about child custody.

The “Parental Rights Initiative” required courts to award “equal parenting time” to both parents after divorce or separation. The measure was defeated by a sizable margin (62% to 38%) but it represents only the latest round in a combustible campaign to change how child custody cases are decided.

Murder, Suicide, And The Fight Over An Inheritance, Joanna L. Grossman

Hofstra Law Faculty Scholarship

The seven-year marriage between Brandy and Joshua Matthews ended in tragedy. He shot and killed her before turning the gun on himself. There were no criminal charges arising out of this tragedy since the murderer died alongside the victim. But there was a civil fight over inheritance, raising the question whether Brandy’s family should inherit from Joshua’s estate. In a unanimous opinion, the Alabama Supreme Court said no -

Misnomers: The Law And Practice Of Child Naming, Joanna L. Grossman

Hofstra Law Faculty Scholarship

What standard should be applied when unwed parents disagree about whether to change a child’s surname? In a recent ruling, Connor H. v. Blake G., the Nebraska Supreme Court held that a five-year-old boy should keep his original surname, his mother’s name at the time of his birth, rather than assuming the surname she later took upon marrying another man or switching to his biological father’s surname. A surname can be changed, this court held, only if doing so is in the child’s best interests, with no special deference to the wishes of the custodial parent. A child is …

Traditional Surrogacy In Tennessee: Strange Statute Begets Strange Judicial Ruling, Joanna L. Grossman

Hofstra Law Faculty Scholarship

According to a recent article in the New York Times by Tamar Lewin, the United States has become – or is in the process of becoming – a mecca for foreign couples seeking the services of a surrogate to gestate a child for them. Theories differ as to the draw, but the lack of national policy or strict regulation is among the most likely suspects.

The Unconstitutionality Of Electing State Judges, Monroe H. Freedman

Hofstra Law Faculty Scholarship

There is reason to believe that a majority of five justices can be persuaded to hold that the practice of electing judges, and, particularly, of re-electing judges, violates the Due Process Clause of the Constitution.

In Republican Party of Minnesota v. White there are strong dicta by a majority of the Court that Due Process is violated whenever a judge who is subject to reelection decides a controversial case. The reason is that there is an appearance in such cases that the judge is not impartial. That conclusion was expressed by Ginsburg, writing for the four dissenting Justices, and by …

Double Take: The Law Of Embezzled Lives, Lawrence M. Friedman, Joanna L. Grossman

Hofstra Law Faculty Scholarship

An essay is presented on laws that govern the identity of a person. The case of Notre Dame football player Manti Te'o, who became a victim of an Internet hoax through her girlfriend, Lennay Kekua. It also outlines the laws that deal with double lives and role-playing in law and society and how the government responds to it to protect the people's identity.

Click Away: A Texas Law On “Improper Photography” Bites The Dust, Joanna L. Grossman, Lawrence M. Friedman

Hofstra Law Faculty Scholarship

Ronald Thompson was arrested in Texas and charged with 26 counts of “improper photography” in 2011. He was seen taking pictures of kids underwater at Sea World. After parents complained, he was arrested. A search of his camera revealed 73 photos of children in swimsuits, with the focus on their breasts and buttocks.

His behavior, according to the authorities, violated a provision of the Texas criminal code on “improper photography” (Tex. Penal Code, sec. 21.15). This provision outlawed photographs taken “without the other person’s consent,” and “with intent to arouse or gratify the sexual desire of any person.” Thompson’s defense: …

If She Don’T Win It’S A Shame: Female Executive Sues New York Mets For Pregnancy Discrimination, Joanna L. Grossman, Deborah L. Brake

Hofstra Law Faculty Scholarship

Leigh Castergine was the first woman to become a Senior Vice President in the Front Office of the Mets, a once-beloved, but now losing Major League Baseball team in New York. She was in charge of ticket sales and was rewarded over the years for innovations and successes to the tune of multiple $50,000 raises and a $125,000 bonus. But she met her glass ceiling when she, an unmarried woman, announced her pregnancy in 2013.

The End Of The Road: The Late Anna Nicole Smith’S Quest To Inherit Is Over, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Twenty years. Five times the length of the human relationship. Almost twenty times the length of the marriage. That’s the duration of the litigation about whether Anna Nicole Smith should share in the estate of her husband J. Howard Marshall II. The parties are long dead—J. Howard’s death at age 90 in 1995 gave rise to the estate and litigation over it; Anna Nicole died of a drug overdose at 39 in 2007; and J. Howard’s son (and Anna Nicole’s nemesis), Pierce Marshall, died at age 67 in 2006. Yet the litigation waged seven years after all the parties were …

Front Matter

ACTEC Law Journal

No abstract provided.

Saving For Education: Creating Educational Dynasty Trusts Using 529 Plans, Susan T. Bart

ACTEC Law Journal

No abstract provided.

Virtual Currency Estate Planning, Bit By Bit, Abigail J. Farmer, Cory Elizabeth Tyszka

ACTEC Law Journal

This article addresses the issues that virtual currencies, specifically bitcoins, pose for the mindful estate planner. First, it explains what bitcoins are, where they come from, and what their legal status is. Next, it identifies special problems that bitcoins pose in estate planning. Finally, it concludes by offering solutions to these problems, including recommended transfer mechanisms and gifting strategies.

Predispute Arbitration Agreements Between Trustees And Financial Services Institutions: Are Beneficiaries Bound?, Mary F. Radford

ACTEC Law Journal

No abstract provided.

Means To An End: Electively Forcing Vesting To Suit Tax Rules Against Perpetuities, James P. Spica

ACTEC Law Journal

Editor's synopsis: Exercising special powers of appointment over tax advantages trusts in a jurisdiction that has enacted perpetuities reform can be hazardous in light of the so-called "Delaware tax trap" and the "constructive additions" and trust-modification rules of the Treasury's GST-tax effective date regulations. Compliance with these federal tax rules against perpetuities may or may not be guaranteed by the applicable reform legislation. This Article examines a particular situation in which self-help is required for compliance, offers a set of forced-vested provisions to fit the bill, and indicates how those provisions can be adatpted for use in other situations in …

Beyond Donor Intent: Leveraging Cy Pres To Remedy Unintended Burdens Caused By Charitable Gifts, Katie Magallanes

ACTEC Law Journal

No abstract provided.

Mommy And Momma: Determining Parentage In The New Family, Joanna L. Grossman

Hofstra Law Faculty Scholarship

A woman has recently filed a lawsuit claiming that she gave birth to Beyonce and Jay-Z’s daughter, Blue Ivy Carter, and should be recognized as the child’s legal mother. There were rumors that Beyonce’s baby bump was fake, and that she had relied on a surrogate to carry a child, but it seems unlikely that this suit will go anywhere (or be proven to be based on true facts).

Sex Behind Bars: Lessons From A Prison Sexual Harassment Case, Joanna L. Grossman

Hofstra Law Faculty Scholarship

One might watch the Netflix original series Orange Is the New Black and think that the rampant sexual encounters in the prison—involving the warden, correctional officers, and inmates in various pairings—are trumped up to appeal to the prurient interests of viewers. But there is no shortage of real cases involving similar behavior, raising complicated questions about harassment or other forms of discrimination.

Hard Labor: New Pregnancy Discrimination Guidance From The Eeoc, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Pregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year to the Equal Employment Opportunity Commission (EEOC)—rising at a faster rate than women are joining the workforce—and increased media attention. But it has also led to extensive litigation that raises, in a variety of contexts, the question of what constitutes illegal pregnancy discrimination under federal law.

In light of these developments, the EEOC has just issued new Enforcement Guidance on pregnancy discrimination—its first in several decades—to explain its interpretation of applicable statutes. In this column, I’ll explain key …

Federal Appellate Court Rules Utah’S Ban On Marriage By Same-Sex Couples Unconstitutional, Joanna L. Grossman

Hofstra Law Faculty Scholarship

While all eyes have been on the end of the U.S. Supreme Court’s term, as it issued important rulings on, among other things, Obamacare’s contraceptive mandate, other courts have been busy as well. At the end of June, the U.S. Court of Appeals for the Tenth Circuit held that Utah’s ban on marriages by same-sex couples violates the federal Constitution’s guarantees of equal protection and due process.

The Legal Price Of Adultery Goes Down: North Carolina And West Virginia Abandon Heartbalm Actions, Joanna L. Grossman, Lawrence M. Friedman

Hofstra Law Faculty Scholarship

Angela Rothrock was an angry woman. On February 12, 2014, she filed a lawsuit in Forsyth County, North Carolina, against Sherry Cooke of Winston-Salem; she claimed that Cooke had had an “adulterous affair” with Angela’s husband, Timothy Gray Rothrock.

Historically, there were two causes of action that might allow a man to sue his wife’s lover, or a woman to sue her husband’s mistress: criminal “conversation” and alienation of affection (collectively known, along with some others, as “heartbalm” actions). Most states have long since thrown these claims into the ashbin of history, but North Carolina, along with only a small …

If Being Married Is The Goal, Beware The “Symbolic Resort” Wedding In Mexico, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Sometimes it’s all about the way you ask a question. Could the answer be anything but “no” when the court says the question posed by a marriage validity case is:

Whether the Legislature, when it enacted [New York’s marriage license statute] more than one hundred years ago, could have ever conceived of, let alone intended for, the statute being used to validate a license-less marriage supposedly solemnized in what can only be described as a ‘pseudo- Jewish’ wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet …

A Decade Of Change: The Tenth Anniversary Of Same-Sex Marriage In The United States, Joanna L. Grossman

Hofstra Law Faculty Scholarship

Ten years ago this month, marriage licenses were issued to same-sex couples for the first time in the United States. Those licenses, and the marriages that ensued, were the product of a ruling by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health in which it held that banning marriages by same-sex couples ran afoul of the guarantees of due process and equal protection in the state constitution. The ruling was issued in November 2003, but the court gave the legislature 180 days to conform state marriage laws to the ruling. The legislature did not amend its …

Federal Judge Turns Back Hunt For Gays In The Department Of Justice, Joanna L. Grossman

Hofstra Law Faculty Scholarship

“The Department of Justice is increasingly home to a bevy of leftist activists pursuing narrow ideological agendas at the expense of the public interest. And Justice officials want to keep this all a secret—as shown by the fact that we had to file a FOIA lawsuit to get basic information about the Attorney General’s collusion with homosexual activists/government employees.”

If someone told you these words were spoken in the 1950s, would you be surprised? Perhaps not, since a powerful, if understudied, aspect of McCarthyism was an active and largely successful effort to purge gays from federal civil service jobs. But …

Married Couple’S Phone Sex Did Not Force Divorce Clock To Reset, Joanna L. Grossman

Hofstra Law Faculty Scholarship

If a married couple, living apart, engages in phone sex, are they still separated? This question was crucial to Nick Bergeris’s quest for divorce because he filed on grounds of a 12-month separation (a legal ground for divorce in Maryland) that was free of in-person sex, but not free of phone sex. He was denied the divorce by the trial court, but that ruling was recently reversed on appeal. Did the court get it right?

Collateral Damage: America’S Failure To Forgive Or Forget In The War On Crime: A Roadmap To Restore Rights And Status After Arrest Or Conviction, Jerry J. Cox, Gerald B. Lefcourt, Steven D. Benjamin, Norman L. Reimer, Angelyn C. Frazer, Rick Jones, Vicki H. Young, Lawrence S. Goldman, Wlissa B. Heinrichs, Margaret Colgate Love, Penelope S. Strong, Geneva Vanderhorst, Christopher A. Wellborn, Jenny Roberts

Hofstra Law Faculty Scholarship

No abstract provided.

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malave

Hofstra Law Faculty Scholarship

Inadequate prison health care has created a health crisis for reentering prisoners and their communities--a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the "evolving standards of decency" that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …