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Articles 1 - 21 of 21
Full-Text Articles in Law
Lies, Gaslighting And Propaganda, G. Alex Sinha
Lies, Gaslighting And Propaganda, G. Alex Sinha
Hofstra Law Faculty Scholarship
It is commonplace to observe that digital technologies facilitate our access to information on a scale unimaginable in previous eras, leading many to call this the “Information Age.” The vaunted advantages of unprecedented data flow obscure a dark corollary: the more modes of engaging with data are available to a people, the more modes are available for manipulating them. Whether through social media, blogs, email, newspaper headlines, or doctored images and videos, the public is indeed bombarded by information, and much of it is misleading or outright false. Much of it, in fact, is propaganda. As the methods for manipulating …
The Decade Of Democracy’S Demise, James Sample
The Decade Of Democracy’S Demise, James Sample
Hofstra Law Faculty Scholarship
In the decade since Citizens United v. FEC, which, while consequential in its own right, is also not responsible for all the ills attributed to it by its detractors, the Supreme Court has decided a stunning number of what this Article terms to be democracy cases. Each respective case is the subject of substantial scholarship within its sphere — voting rights, contribution limits, public financing, partisan gerrymandering, federal bribery law, and sub-variations of each area — Decade of Democracy’s Demise seeks to remove that scholarship from the respective topical silos, and to develop and analyze a heretofore scarcely considered composite. …
Remaking The “Right To Die”: Give Me Liberty But Do Not Give Me Death, Janet L. Dolgin
Remaking The “Right To Die”: Give Me Liberty But Do Not Give Me Death, Janet L. Dolgin
Hofstra Law Faculty Scholarship
The article discusses the evolution of the right to die laws in the U.S. by examining the disputes that arose between clinicians and their patients or surrogates in cases like re Quinlan and Cruzan v. Director, Missouri Department of Health.
Litigating Citizenship, Cassandra Burke Robertson, Irina D. Manta
Litigating Citizenship, Cassandra Burke Robertson, Irina D. Manta
Hofstra Law Faculty Scholarship
By what standard of proof — and by what procedures — can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or …
Kaestner Fails: The Way Forward, Mitchell M. Gans
Kaestner Fails: The Way Forward, Mitchell M. Gans
Hofstra Law Faculty Scholarship
This past term, the Supreme Court applied the due process clause to prevent the states from closing down a tax strategy that employs out-of-state trusts. Many had hoped that the case would serve as a vehicle for the Court to overrule taxpayer-friendly precedents that make the strategy possible. But it failed. The question that emerges is whether the decision leaves the states with a path to address the strategy and thereby prevent it from being used to exacerbate issues of inequality. After examining the decision, this paper considers the options available to the states and then suggests a way forward.
Response To Birth Rights And Wrongs, Janet L. Dolgin
Response To Birth Rights And Wrongs, Janet L. Dolgin
Hofstra Law Faculty Scholarship
No abstract provided.
The Indignities Of Civil Litigation, Matthew A. Shapiro
The Indignities Of Civil Litigation, Matthew A. Shapiro
Hofstra Law Faculty Scholarship
Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question.
On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow …
Toward A Theory Of Intercountry Human Rights: Global Capitalism And The Rise And Fall Of Intercountry Adoption, Barbara Stark
Toward A Theory Of Intercountry Human Rights: Global Capitalism And The Rise And Fall Of Intercountry Adoption, Barbara Stark
Hofstra Law Faculty Scholarship
Human rights law, as set out in the International Bill of Rights 40 years ago, has not lived up to its drafters’ hopes. Its shortcomings are often blamed on weak enforcement. Because nation states resist restraints on their sovereignty, human rights law depends in large part on states policing themselves. On the international level, the UN and non-governmental organizations report on human rights violations, but they have no authority to sanction violators or compel remedies.
This Article proposes another mechanism for enforcement, an alternative to self-serving domestic policing and weak international bureaucracy. “Intercountry,” as opposed to “international,” human rights would …
Storytelling And Relevancy, Stefan H. Krieger, Jonathan D. Krieger
Storytelling And Relevancy, Stefan H. Krieger, Jonathan D. Krieger
Hofstra Law Faculty Scholarship
Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that …
Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?, Bruce A. Green, Ellen Yaroshefsky
Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?, Bruce A. Green, Ellen Yaroshefsky
Hofstra Law Faculty Scholarship
Criminal justice reform groups typically explore multiple avenues for improving the law and legal processes. Among the campaigns are calls for more demanding laws governing prosecutors’ conduct and more effective oversight and enforcement of prosecutors’ compliance with their legal obligations. Yet little advocacy is directed toward ethics rules governing prosecutors and encouraging courts and disciplinary bodies to adopt, interpret, and enforce professional conduct rules so as to demand more of them. This article considers the reasons for such limited focus upon ethics rules and suggests the ways in which current rules regarding prosecutors' disclosure obligations and post-conviction ones can be …
Hiding In Plain Sight: Mediation, Client-Centered Practice, And The Value Of Human Agency, Robert A. Baruch Bush, Peter F. Miller
Hiding In Plain Sight: Mediation, Client-Centered Practice, And The Value Of Human Agency, Robert A. Baruch Bush, Peter F. Miller
Hofstra Law Faculty Scholarship
Students and practitioners of transformative mediation still underemphasize the importance of client “empowerment” – the opportunity for clients to recapture the sense of agency that conflict has compromised. That is, those learning the skills of a client-centered process like transformative mediation tend to overlook and ignore the achievement of client empowerment, compared to other goals. Why does the achievement of client empowerment go unseen in this way, even when its value has been explained and emphasized in written work, training, and otherwise? Addressing this “invisibility” of client empowerment is a major challenge for those who ascribe importance to the impact …
Mindful Practices For Law Practices, Susan Greene
Mindful Practices For Law Practices, Susan Greene
Hofstra Law Faculty Scholarship
For lawyers who operate in a near-constant state of stress with high-tech, fast-paced stimuli at each turn, it could be the practice of mindfulness that is the key to settling into the practice of law. Mindfulness reaps near countless benefits. This article explores mindful practices and focuses on the ways in which mindfulness improves communication by developing the practitioner's comfort with silence, itself a powerful tool to encourage others to speak openly, by increasing the practitioner's empathy, by helping the practitioner develop a strong sense of self, and by reducing stress, one of the main roadblocks to effective communication.
The Past, Present, And Future Of Christian Adr, Ronald J. Colombo
The Past, Present, And Future Of Christian Adr, Ronald J. Colombo
Hofstra Law Faculty Scholarship
Many religious traditions recommend (if not require) that their adherents bring some if not all of their disputes with co-adherents before a religious tribunal for resolution. The Christian religious tradition is no exception. That said, the dramatic history of the Church in the West, from that of a persecuted Jewish sect, to the official state religion of Imperial Rome, to an international authority competing with that of local monarchs, to its modern status of merely tolerated, has yielded a variety of evolving perspectives on the question of intra-faith dispute resolution within Christianity. This article examines that question and the historical …
Law Students And Cell Phone Use: Results Of A Six-School Survey, Linda Galler, Robert M. Jarvis, Cindy I.T. Archer, Hugh D. Spitzer, Jodi Wilson, Mark E. Wojcik
Law Students And Cell Phone Use: Results Of A Six-School Survey, Linda Galler, Robert M. Jarvis, Cindy I.T. Archer, Hugh D. Spitzer, Jodi Wilson, Mark E. Wojcik
Hofstra Law Faculty Scholarship
The sight of a law student using his or her cell phone now is so common that law professors do not give it a second though. But what, exactly, is the student doing? Texting with friends? Shopping? Watching a movie? To try to find out, during the Fall 2019 semester we asked our six diverse law schools to take an online survey consisting of eighteen questions. To our knowledge, this is the first phone survey of law students.
This paper presents the results of the survey, exploring applications used (text, social media, email, etc.) and differences by audience (e.g., whether …
Medical Disputes And Conflicting Values: Is There A “Right To Die” Later?, Janet L. Dolgin
Medical Disputes And Conflicting Values: Is There A “Right To Die” Later?, Janet L. Dolgin
Hofstra Law Faculty Scholarship
The article compares the benefits and disadvantages that each institutional approach, that of statutory law, courts, and hospital ethics consultants, brings to medical-futility disputes. Topics discussed include social and legal responses to conflicts about dying, conflicting values central to contemporary medial ethics, and value of autonomous patient choice.
Local Offenses, Brenner M. Fissell
Local Offenses, Brenner M. Fissell
Hofstra Law Faculty Scholarship
Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, the Article concludes that local offenses routinely fail …
Through The Guardianship Looking Glass: A Personal Perspective On Conflicting Commitments, Susan Greene
Through The Guardianship Looking Glass: A Personal Perspective On Conflicting Commitments, Susan Greene
Hofstra Law Faculty Scholarship
The imposition of a guardianship exacts an extraordinary toll on both the life of the person subjected to the guardianship, curtailing fundamental freedoms and basic civil liberties, and the life of the guardian, redirecting to that guardian the overwhelming burden of taking on a decision‐making role that should ordinarily belong to another human being. This Article will examine the legal framework governing the decision-making role of a guardian and suggest that, while many guardianship statutes propose to compel a guardian to make decisions in line with the known desires of a ward, few guardianship statutes are flexible enough to account …
The Cynical Successes Of The Guantánamo Bay Military Commissions, G. Alex Sinha
The Cynical Successes Of The Guantánamo Bay Military Commissions, G. Alex Sinha
Hofstra Law Faculty Scholarship
Since they were first authorized in the weeks after the 9/11 attacks, the Guantanamo Bay Military Commissions--special military tribunals for the trial of certain terror suspects--have generated eight minor convictions at a cost of over one billion dollars. Nearly half of the convictions have been vacated on appeal. The three ongoing contested cases, including the case against those accused of complicity in the 9/11 attacks, remain mired in pretrial proceedings. The biggest storylines emanating from the commissions do not concern convictions, but rather government surveillance of the defense teams and the compelled recusal of judges for the appearance of partiality …
Psychiatry In The Courtroom: Relying On The American Psychiatric Association's Manuals To Resolve Disputes About Personal Status, Janet L. Dolgin
Psychiatry In The Courtroom: Relying On The American Psychiatric Association's Manuals To Resolve Disputes About Personal Status, Janet L. Dolgin
Hofstra Law Faculty Scholarship
The article discusses the benefits and disadvantages of the court's reliance on the American Psychiatric Association's Diagnostic and Statistical Manual (DSM) to resolve cases involving matters of personal status. Topics discussed include cases involving transgender people who sought the right to be legally identified and implicating the mental health of a parent in parental termination and development of the DSM.
When Agencies Make Criminal Law, Brenner M. Fissell
When Agencies Make Criminal Law, Brenner M. Fissell
Hofstra Law Faculty Scholarship
The nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced — even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court, and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe, and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the …
Cryptocurrency Meets Bankruptcy Law: A Call For Creditor Status For Investors In Initial Coin Offerings, Miriam R. Albert, J. Scott Colesanti
Cryptocurrency Meets Bankruptcy Law: A Call For Creditor Status For Investors In Initial Coin Offerings, Miriam R. Albert, J. Scott Colesanti
Hofstra Law Faculty Scholarship
In 1973, experts Homer Kripke and John J. Slain published a seminal study titled The Interface Between Securities Regulation and Bankruptcy--Allocating the Risk of Illegal Securities Issuance between Securityholders and the Issuer's Creditors. That lengthy analysis, contributed by, respectively, a former Securities and Exchange Commission official and a professor of law, examined the status quo and concluded that investors were receiving unfair priority vis-à-vis creditors in bankruptcy proceedings administered under the federal Bankruptcy Code. Focusing on the traditional "absolute priority rule," the study pointed out that the Securities and Exchange Commission support for the investor priority was unfounded and urged …