Law Commons^™

Caging The Bored Ape: How The Ftc's Expanded Anti-Monopoly Authority Can Tame "Nfts" For Web 3.0, J. Scott Colesanti

Hofstra Law Faculty Scholarship

Non-Fungible Tokens, or "NFTs," ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters--and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency--the technology enabling the life of an NFT--remains beset with, at best, theoretical models for effective regulation a full generation after its emergence. To propose a rational start …

The Modern Way To Write A Statute Is To Tell A Story, Richard K. Neumann Jr.

Hofstra Law Faculty Scholarship

Except for the United States, the English-speaking world has been moving toward writing statutes as stories with characters and plot tensions. British statutes are the most advanced in this respect.

To illustrate the British method, the key statutes in the Mar-a-Lago Indictment are redrafted in this article to resemble the form they would take if recently enacted by Parliament. l compare the statutes and the redrafts side-by-side. And I do the same thing with two sections of the Electoral Count Act, which governs what Congress does on every January 6 following a presidential election year.

The article explains how the …

Intersectionality Matters In Food And Drug Law, Colleen Campbell

Hofstra Law Faculty Scholarship

Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain.

This Article uses the regulation of skin-lightening cosmetics products to illustrate why and how intersectionality matters in food and drug law. While the …

The Repeal Of Religious Accommodations – A Constitutional Analysis, Ronald J. Colombo

Hofstra Law Faculty Scholarship

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from or accommodations to such laws for the benefit of religious adherents. Such exemptions and accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise …

Virtual Gaming, Actual Damage: Video Game Design That Intentionally And Successfully Addicts Users Constitutes Civil Battery, Allison Caffarone

Hofstra Law Faculty Scholarship

In recent years, there has been increased academic interest in both the neurological effects of compulsive gaming and the potential tort liability of game developers who scientifically engineer games in order to addict users. Scholars from various disciplines are currently debating the scope and potential solutions to the problems associated with Gaming Disorder, now a globally recognized illness. This article contributes to this discussion by offering a multidisciplinary analysis of the scope of video game addiction, its neurological bases, and its relation to the legal rights and responsibilities of victims and game developers. In addition, this article explores the practical …

Duties Regarding Duties, Ronald J. Colombo

Hofstra Law Faculty Scholarship

No abstract provided.

Beyond The Toolbox: Values-Based Models Of Mediation Practice, Robert A. Baruch Bush

Hofstra Law Faculty Scholarship

This Article argues that mediators are following distinct models of practice that are significantly different from each other, and that each model is itself internally coherent and integrated. In other words, within each model the mediator’s purpose, practices, and premises are all consistent and congruent; and when comparing each model to the others, these three levels are not only different but incompatible. Yet, although these models and their differences are recognized in the literature and identifiable in practice, many mediators and policymakers do not clearly acknowledge them; even more, they are often discounted and ignored. For example, proposals have been …

Built For Business: The Commercial Need For Aggregate Litigation, Jack Zarin-Rosenfeld

Hofstra Law Faculty Scholarship

Commercial actors long have argued that class actions are bad for business. But for even longer, business groups have supported other types of aggregate litigation that closely resemble class actions, such as expansive federal bankruptcy. While critics have successfully limited national aggregation via class actions, they have not even attempted to criticize aggregation via bankruptcy.

Why have business groups attacked aggregate litigation in some cases and supported it in others? This Article provides an answer by examining aggregation's origins and development, and what emerges, it turns out, is very much the opposite of what aggregation's pro-business critics would have us …

Adopting Nationality, Irina D. Manta, Cassandra Burke Robertson

Hofstra Law Faculty Scholarship

Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it does not cover everyone. Tens of thousands of adoptees still live under the assumption that they are American citizens when, in fact, they …

Orienting Toward Party Choice: A Simple Self-Determination Tool For Mediators, Robert A. Baruch Bush, Dan Berstein

Hofstra Law Faculty Scholarship

This paper introduces a new method and tool for mediators to use as a way of keeping party self-determination foremost in their practice. The tool is based on the "checklist" model used to ensure best practices for healthcare professionals in hospitals, and also on discourse analysis methods to identify key markers of party actions to exercise self-determination in mediation sessions. The self-determination checklist is a simple way for mediators to orient their interventions so as to support the parties' own deliberation and decision-making efforts.

From Smallpox To Covid-19: Social And Legal Responses To Vaccinations And Vaccine Mandates, Janet L. Dolgin

Hofstra Law Faculty Scholarship

No abstract provided.

Religious Freedom And The Business Corporation, Ronald J. Colombo

Hofstra Law Faculty Scholarship

This book chapter examines the issue of corporate religious liberty in four parts. Part 1 provides a brief overview of the history of the business corporation in the United States, with a focus on conceptualisations of its nature. Part 2 discusses religious liberty jurisprudence in the United States in general, and Part 3 discusses corporate assertions of religious liberty in particular. Part 4 points out the cognitive dissonance of a society that simultaneously embraces a robust understanding of corporate social responsibility yet an enervated appreciation of corporate religious liberty rights.

Water Bankruptcy Through The Bankruptcy Code, Jack Zarin-Rosenfeld

Hofstra Law Faculty Scholarship

Water scarcity due to climate change is forcing the state and local government agencies that regulate water use to prioritize certain water uses and users above others. Water agencies could just stand pat and enforce existing priorities, even if doing so would cut off valuable collective uses of water that are lower in priority than uses by narrow private interests. Alternatively, the agencies could try to adapt water priorities to climate change by reducing water obligations owed to certain groups of users in order to free up water supplies for other groups of users, even if doing so would trigger …

Expanded Criminal Defense Lawyering, Ronald Wright, Jenny Roberts

Hofstra Law Faculty Scholarship

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney's work have expanded to …

Considering The Consequences Of An Unchecked Presidential Recognition Power For U.S. Taiwan Policy, Julian G. Ku

Hofstra Law Faculty Scholarship

This Article will begin by discussing the not entirely but still surprising rise of an unchecked presidential recognition power. As the Zivotofsky dissents noted, the Court had to reject various historical precedents supporting a meaningful role for Congress in the determination of state recognition. Such a role for Congress was wholly rejected in Zivotofsky.

The Article will then review the implications of this unchecked presidential power. It argues that it is possible, even likely, that this power will be used in a way that does not attempt to conform with international law and contradicts prior U.S. policy.

The Article concludes …

Can You Be A Legal Ethics Scholar And Have Guts?, Cynthia Godsoe, Abbe Smith, Ellen Yaroshefsky

Hofstra Law Faculty Scholarship

Recent efforts to hold lawyers accountable for their actions-including lawyers who sought to overturn the 2020 Presidential election based on false evidence,and New York City prosecutors who have committed serious misconduct-failed to draw a significant number of legal ethics scholars. The authors of this Essay are troubled by this. We understand why practicing lawyers might be reluctant to join such an effort; calling out other lawyers inpositions of power can be had for clients. But it is less understandable when it comes to law professors who, except for those who teach in law clinics or otherwise engage in law practice, …

Transactional Clinical Support For Mutual Aid Groups: Toward A Theory Of Transactional Movement Lawyering, Michael Haber

Hofstra Law Faculty Scholarship

In response to the global spread of the COVID-19 pandemic in the spring and summer of 2020, thousands of grassroots, participatory, and often social movement-connected community efforts to help feed and care for one another through the crisis were launched, many of which identified their projects as 'mutual aid'. This article tells the story of how the Hofstra Law School Community Economic Development ("CED") Clinic has provided legal support and information to hundreds of these COVID-19 mutual aid groups. The article briefly reviews Professor Dean Spade's 2020 book Mutual Aid: Building Solidarity During This Crisis (and the Next), contrasting it …

Wrongful Imprisonment And Coerced Moral Degradation, G. Alex Sinha, Janani Umamaheswar

Hofstra Law Faculty Scholarship

Despite the ever-growing number of exonerations in the U.S.— and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become— morally worse people. We argue that these findings speak to the fundamental question of what the …

Tax Opinion Policies And Procedures, Linda Galler

Hofstra Law Faculty Scholarship

This Article summarizes and comments on a 2021 survey by the American College of Tax Counsel (ACTC) on the policies and procedures followed by law and accounting firms in drafting tax opinions. The Article provides background on the contexts in which tax opinions are issued and considerations that are relevant to the composition of such opinions; defines and distinguishes among the levels of assurance at which tax opinions are typically provided; and presents an overview of ethical rules and related considerations, including Circular 230 and the Code's preparer penalty provisions, implicated in the process of drafting and issuing tax opinions. …

Sorry, They Were On Mute: The Sec’S “Token Proposal 2.0” As Blueprint For Regulatory Response To Cryptocurrency, J. Scott Colesanti

Hofstra Law Faculty Scholarship

In 2008, as the world dreaded economic meltdown, one or more anonymous individuals titled "Nakomoto" posted a scientific white paper on the Internet. "Bitcoin" was thus born. That name - uttered but once in the white paper- would go on to define a movement, a market, and a mountain.

By late 2010, approximately 100 bitcoin had been mined; two years later, that number approached 10 million, and a second crypto had emerged. By 2018, bitcoin traded at over $18,000 per coin; a year later, that market value had plummeted to less than $5,000. Concurrently, tales of digital asset fortunes lost …

Choosing Death, Shaping Death: Assumptions About Disabilities, Race, And Death, Janet L. Dolgin

Hofstra Law Faculty Scholarship

This article considers two legal cases and the stories that developed around them. Both the cases and their stories involved issues of significance to the larger society - death and bias. Each concern has occasioned confusion and debate in its own right. When these issues are combined, confusion and debate are intensified. This Article examines the complicated interplay between bias and decisions about death and dying in the U.S. health care system. Further, it reviews intersecting claims about the importance, respectively, of autonomy and community in resolving disputes about the topics of death and dying.

When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions To Vaccination Mandates By Private Colleges And Universities, Ronald J. Colombo

Hofstra Law Faculty Scholarship

Numerous colleges and universities have imposed COVID-19 vaccination mandates upon their students. Most of these mandates also include language purporting to recognize medical and religious exemptions. With regard to religious exemptions, some are unjustly discriminatory. Most notably, some give preference to students who are members of organized religions over students who are not. And even facially neutral exemptions can be administered in an unjustly discriminatory way by, for example, giving preference to one set of religious denominations over another, or by engaging in “religious profiling” (whereby students of a particular denomination are held completely beholden to the beliefs of that …

Voting Rights Or Voting Entitlements?, James J. Sample

Hofstra Law Faculty Scholarship

It took nearly 100 years after the United States gained its independence for African American men to secure the right to vote, and almost 150 years for African American women. A right perceived—though not de facto honored—as fundamental for all Americans today was fought for in a war less than two centuries ago, costing 620,000 lives. The country quite literally divided over the idea that African Americans should be afforded basic human rights. Today, resistance to the franchise—to what the mythology of America 'stands for'—is not remotely erased, but rather, newly emboldened, even if it masquerades under more obfuscating terminology. …

Expanding The Federal Work Product Doctrine To Unrepresented Litigants, Jennifer A. Gundlach, Zeus Smith

Hofstra Law Faculty Scholarship

Clerk' offices in federal courthouses across the country designate individuals who do not have counsel as "pro se," a term that comes from the Latin inpropria persona meaning 'for oneself " The term is ambiguous as to the reasons why individuals appear without counsel. While some may purposefully choose not to hire a lawyer, for many it is not a choice.

Access to justice in federal courts requires not just entry into the courts for all litigants, but also fair treatment during the course of litigation. Unfortunately, all unrepresented individuals face disadvantages in federal courts. They are, for the most …

The Elephant In The Room In Clinical Scholarship: Ethical Guardrails And Case Histories, Theo Liebmann, Stefan H. Krieger

Hofstra Law Faculty Scholarship

Lawyers know how to tell a good story and are expected, encouraged, and even ethically required to use that skill on behalf of their clients. More and more, lawyers and legal academics are now using their clients' stories to advance goals that go far beyond achieving a client's objectives: exposing inequities with regard to access to justice; educating the public about the functioning and limitations of the legal system; raising the quality of lawyering; and improving our system of legal education. Unfortunately, the increase in the use of case histories to achieve such laudable goals has not been paired with …

Choosing Death, Shaping Death: Assumptions About Disabilities, Race, And Death, Janet L. Dolgin

Hofstra Law Faculty Scholarship

No abstract provided.

Integral Citizenship, Cassandra Burke Robertson, Irina D. Manta

Hofstra Law Faculty Scholarship

Does the Constitution’s promise of birthright citizenship to all born “in the United States” cover the United States Territories? Residents of the Territories have regularly sought judicial recognition of their equal birthright citizenship under the Fourteenth Amendment, most recently in some prominent cases reaching federal appellate courts. When rejecting these claims, the courts have been unable or unwilling to articulate a unified theory of citizenship. Most problematically, judicial decisions have continued relying on the Insular Cases, whose reasoning over a century ago was explicitly based on a policy of racial exclusion.

We argue that the time has come for unambiguous …

Corporate Entanglement With Religion And The Suppression Of Expression, Ronald J. Colombo

Hofstra Law Faculty Scholarship

The power and ability of corporations to assert their First Amendment rights to the detriment of others remains both a controversial and unresolved issue. Adverting to relevant strands of existing jurisprudence and certain constitutionally relevant factors, this Article suggests a solution. The path turns upon the recognition that whereas some corporations are appropriately categorized as rights-bearing entities (akin to associations), others are more appropriately categorized as "entities against which the rights of individuals can be asserted." Legislation, in the form of the draft "CENSOR" Act, is provided as a means by which to implement this categorization. What hopefully emerges is …

Montgomery And "Substantive" Rights Enforceable Retroactively In State Post-Conviction Proceedings: A Brief Reply To Professor Vazquez, Eric M. Freedman

Hofstra Law Faculty Scholarship

No abstract provided.

Equal Supreme Court Access For Military Personnel: An Overdue Reform, Eugene Fidell, Brenner M. Fissell, Phillip D. Cave

Hofstra Law Faculty Scholarship

While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.

In this Article, we argue that this jurisdictional limitation is both bad policy …