Digital Commons Network^™

Civil Union Equality, Elizabeth M. Glazer

Hofstra Law Faculty Scholarship

2011 was a good year for marriage equality in the United States. President Obama publicly renounced the constitutionality of the Defense of Marriage Act (DOMA) and determined that the Department of Justice would refuse to defend it in court. This determination was made despite the DOJ's “longstanding practice of defending the constitutionality of duly- enacted statutes if reasonable arguments can be made in their defense.” The DOJ concluded that there were no such reasonable arguments, making “[t]his ... the rare case where the proper course is to forgo the defense of this statute.” The President's “manifest ... conclu[sion] that the …

Reasonable Behavior At The Cfpb, Norman I. Silber

Hofstra Law Faculty Scholarship

The article focuses on deception in the marketplace and the role of the Consumer Financial Protection Bureau (CFPB). It cites the novel "The Jungle," by Upton Sinclair which portrays the truth in mortgage and purchase agreement. It states that CFPB was tasked to improve honesty and the quality of information in the marketplace.

The Problem Of Convicting Innocent Persons: How Often Does It Occur And How Can It Be Prevented?, Leon Friedman

Hofstra Law Faculty Scholarship

In order to determine the number of innocent persons convicted and the severity of the problem that exists, it is necessary to examine the statistics. As indicated below, an often-quoted figure representing the number of wrongly persons convicted is about 0.5% of all criminal cases, or 30,000, which is not an insignificant number. Some modest changes in the system, particularly furnishing defendants with more exculpatory evidence at the outset, might make a significant change in that number.

The article focuses on the rate of false conviction of innocent people in the U.S. and highlights the steps to be taken to …

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.

Deschooling The News Media - Democratizing The Civic Discourse, Akilah N. Folami

Hofstra Law Faculty Scholarship

This Article interrogates the traditional role and effect of professionals and professionalism in America's media and civic discourse landscape. It does so by considering Ivan Illich's deschooling theory within the context of broadcast journalism's historic and traditional role in facilitating civic knowledge and engagement during the so-called Golden Era of Journalism. In revisiting "network news" history through the lens of Illich's deschooling theory, this Article highlights broadcast journalism's professionalization of political discourse. Furthermore, it contends that media law reified this professionalization through early interpretations of the bona fide newscast and news interview exemptions to the equal time rule. And finally, …

Demanding Substance Or Form? The Sec's Plain English Handbook As A Basis For Securities Violations, J. Scott Colesanti

Hofstra Law Faculty Scholarship

In 1998, the United States Securities and Exchange Commission (“SEC” or “ “Commission”) released a style manual titled “The Plain English Handbook.” The culmination of a drive by its Chairman, Arthur Levitt, the Handbook drew upon the rules of grammar, best industry practice, and even the support of billionaire Warren Buffett in calling for a layman's translation of corporate disclosure documents.

To varying degrees, commentators noted the significance of the Handbook. Initial textual studies provided mixed results. The press marveled at its novelty but securities regulation experts were less sanguine, chiding Commission members for naming themselves “language czars of the …

Prosecutors And Peremptories, Alafair S. Burke

Hofstra Law Faculty Scholarship

A quarter of a century after the Court’s decision in Batson v. Kentucky, overwhelming evidence demonstrates that lawyers continue to exercise peremptory challenges in racialized ways. In light of Batson’s failure to alter a stubborn pattern of using peremptory challenges in racialized ways, scholars have repeatedly called for the abolishment of peremptory challenges, changes to the Batson framework, modifications to the rules of professional responsibility, and increased disciplinary enforcement and sanctions against those who discriminate during jury selection. The focus of much of the current Batson scholarship assumes that lawyers will inevitably consider race during jury selection and that the …

The Internationalization Of American Family Law, Barbara Stark

Hofstra Law Faculty Scholarship

Even fifty years ago, the United States was a superpower and Americans traveled for pleasure and worked abroad. Then, like now, the United States was a magnet for immigrants seeking freedom, or asylum, or opportunity. Then, like now, human relationships crossed geographical and political boundaries, challenging the limits of family law.

But globalization and the vast migrations of capital and labor that have accompanied it in recent decades have transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join …

Denying Secured Creditors The Right To Credit Bid In Chapter 11 Cases And The Risk Of Undervaluation, Alan N. Resnick

Hofstra Law Faculty Scholarship

The Bankruptcy Code has reached a delicate balance between protecting the rights of secured creditors and providing financially troubled companies with flexibility in reorganizing their businesses. One protection that has been available to secured creditors is the right to "credit bid" at any sale of collateral free of liens, which allows the creditor to buy the property by offsetting its claim against the purchase price instead of paying cash. This right is designed to assure that property is not sold free of security interests at a price that is below the collateral's true value. An inadequate sales price deprives the …

Law Schools As Knowledge Centers In The Digital Age, Vern R. Walker, A. J. Durwin, Philip H. Hwang, Keith Langlais, Mycroft Boyd

Hofstra Law Faculty Scholarship

This article first defines the general concept of a "knowledge center," and then demonstrates that research laboratories in the sciences provide a concrete example of that concept. This article then applies both the general concept of a "knowledge center" and the scientific research paradigm to legal education in the digital age. Since the information explosion, which occurred as a result of widespread access to the Internet and the World Wide Web, law schools have increasingly employed online tools to disseminate their traditional knowledge products. Being a knowledge center in the digital age, however, also involves re-conceptualizing the forms of useful …

Another Madoff Masquerade?: Questioning “Securities Fraud” In The Crime And Its Cleanup, J. Scott Colesanti

Hofstra Law Faculty Scholarship

In December 2008, broker-dealer CEO Bernard Madoff confessed to a massive Ponzi scheme. Days later, he was charged by the Securities and Exchange Commission and the United States Attorney for, among other things, securities fraud. The theory of prosecution proceeded on the premise that Madoff's illicit investment advisory activities (which stemmed from his reputation in the industry) operated wholly apart from his broker-dealer activities. Subsequently, both the SEC and FINRA (the industry's largest self-regulator) concluded studies affirming that no securities transactions took place at the broker-dealer —for years, the man with the famous investment firm and his employees had simply …

MáS Profundo En El Laberinto Del Fauno: Un AnáLisis De Las Funciones HistóRicas Y ContemporáNeas De Cuentos De Hadas, Catherine M. Brix-Trogdon

Dissertations and Theses @ UNI

When Pan's Labyrinth opened in 2006 the Mexican filmmaker Guillermo del Toro was relatively unknown among U.S. film connoisseurs and critics. Although the film opened first in Mexico and Spain, it immediately received international attention in spite of the film not being dubbed into English. In this way, the film's success is particularly noteworthy because it overcame the barriers often associated with a non-English international film. Viewers are immediately drawn to the protagonist, Ofelia, beginning with her daydreams and fairy tales before the film becomes a complicated narrative in which reality and fantasy collide. This pushes the viewer to look …

The Limits Of Corporate Rights Under International Law, Julian G. Ku

Hofstra Law Faculty Scholarship

For most commentators, the acceptance of corporate rights under international human rights law is part of a broader push to recognise corporations as subjects of international law. As subjects, corporations would not only enjoy some international legal rights, but they would also be liable for many international legal duties. In prior work, I have criticised the effort to impose international legal duties on corporations in the context of the Alien Tort Statute, arguing that there is insufficient international consensus to treat corporations as subjects of international law. In this Article, I criticise the parallel effort to treat corporations as subjects …

Toward A Nexus Of Virtue, Ronald J. Colombo

Hofstra Law Faculty Scholarship

Corporate law, like all law, should be directed toward the common good. The common good requires that corporate activity be restrained, if not actively directed, by human virtue. An analysis of the corporate enterprise suggests that those corporate actors with the greatest stake in the exercise of virtue, and best positioned to influence corporate activity via the exercise of virtuous judgment, are the corporation's officers. Thus, one of the primary objectives of corporate law should be to promote virtue among corporate officers.

Contrary to what some might assume, the promotion of virtue among corporate officers need not entail a promulgation …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

Magic Words And The Erie Doctrine, Adam N. Steinman

Faculty Scholarship

No abstract provided.

Chief Justice Roberts Is Correct: Justices Are Different From Other Judges, James J. Sample

Hofstra Law Faculty Scholarship

No abstract provided.

Ladder Safety: Disclosure Of Corporate Client Confidences, Linda Galler

Hofstra Law Faculty Scholarship

This Essay demonstrates that the theory underlying ABA Model Rule of Professional Conduct 1.13(c), granting lawyers the option to reveal certain client confidences on a discretionary basis, doesn’t work. Despite some compelling reasons for permitting disclosure of clients’ “bad” behavior, economics dictate that it should be a rare case in which a lawyer will actually disclose. The Essay utilizes the facts of a recent case involving in-house certified public accountants who revealed to state tax authorities that their employer had not been compliant with state tax laws, and were fired from their jobs. In thinking about whether similarly situated attorneys …

The Use Of Unethical And Unconstitutional Practices And Policies By Prosecutors' Offices, Monroe H. Freedman

Hofstra Law Faculty Scholarship

This article deals with three kinds of unethical and unconstitutional practices and policies of prosecutors’ offices: (1) Cases in which a prosecutor, in the heat of a trial, unintentionally acts unethically or unconstitutionally, and the prosecutor’s office then makes that conduct official policy by adopting and seeking to justify the conduct on appeal; (2) Cases in which a “rogue” prosecutor purposefully engages in unethical and/or unconstitutional tactics, like concealing Brady material, and the prosecutor’s office seeks to justify the conduct on appeal; (3) Cases in which a chief prosecutor adopts unethical and/or unconstitutional practices as office policy. In addition, a …

Adopting Law Firm Management Systems To Survive And Thrive: A Study Of The Australian Approach To Management-Based Regulation, Susan S. Fortney, Tahlia Gordon

Hofstra Law Faculty Scholarship

In Australia, amendments to the Legal Profession Act require that incorporated legal practices (ILPs) take steps to assure compliance with provisions of the Legal Profession Act 2004. Specifically, the legislation provides that the ILP must appoint a legal practitioner director to be generally responsible for the management of the ILP. The ILP must also implement and maintain “appropriate management systems" to enable the provision of legal services in accordance with the professional obligations of legal practitioners. Because the new law did not define “appropriate management systems” (AMS) the Office of Legal Services Commissioner for New South Wales worked with representatives …

Bridging The Gap: How Introducing Ethical Skills Exercises Will Enrich Learning In First Year Courses, Miriam R. Albert, Jennifer A. Gundlach

Hofstra Law Faculty Scholarship

Law schools have begun to raise the bar beyond the baseline mandates and aspirational goals of MacCrate and Carnegie, and are looking seriously at how to implement the suggested methods of Best Practices and/or other innovative models. Facing increasing pressure to prepare law students to be ethical, competent practitioners, law schools must rise to the challenge of introducing a broad range of practical skills and ethical values across the curriculum and throughout the students' three years of law school. It is no longer reasonable that a single required course in professional responsibility will somehow suffice to instill the long-lasting and …

Response: Rethinking The Direction Of The Alien Tort Statute, Julian G. Ku

Hofstra Law Faculty Scholarship

Despite the voluminous academic literature on the origins, purpose, and significance of the Alien Tort Statute (ATS), there has been very little attention paid to the policy consequences of allowing wide-ranging litigation under the statute. Alan Sykes's economic analysis of ATS litigation against corporations, therefore, fills an important gap in the ATS literature. It is the first attempt to apply a rigorous law and economics analysis to the ATS. This intervention is especially important as the Supreme Court reconsiders the role of federal courts in the management of ATS litigation.

This brief Response will consist of two Parts. First, I …

Reasonable Copyright, Irina D. Manta

Hofstra Law Faculty Scholarship

Using the lens of the cognitive bias literature, this Article examines and critiques the "reasonable man" standard, focusing on the use of the standard in an extremely fuzzy area of the law: copyright. In copyright, the test for infringement is whether a "reasonable observer" would believe that two works-often involving media that do not lend themselves to precise measurement-are substantially similar. I begin by casting doubt on the usefulness of the reasonable man standard in such a setting. Are judges and juries truly able to determine what an abstract reasonable actor would find substantially similar? What types of cognitive biases …

Sexual Reorientation, Elizabeth M. Glazer

Hofstra Law Faculty Scholarship

There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual-orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of the seven percent of the population identifying as non-heterosexual, forty percent of the men and a large majority of the women identified as …

The Community Prosecutor: Questions Of Professional Discretion, Bruce A. Green, Alafair Burke

Hofstra Law Faculty Scholarship

This Article examines community prosecuting from an ethics perspective. Our focus is not on prosecutors’ compliance with the disciplinary rules, however. The strategies that have been said to exemplify community prosecuting are almost invariably compliant with disciplinary rules and other aspects of the law governing prosecutors. Rather, we take a broader perspective. Our focus is on how prosecutors exercise discretion in the context of adopting community prosecution strategies. We examine this question from both normative and procedural perspectives. We propose that the addition of community-based defense lawyers could help mitigate concerns about prosecutorial discretion in community justice programs by broadening …

The New Illegitimacy: Tying Parentage To Marital Status For Lesbian Co-Parents, Joanna L. Grossman

Hofstra Law Faculty Scholarship

This article takes a comprehensive look at recent case law under the PDA, while offering a critical commentary on the gender ideology that lies behind these decisions and charting the stakes for women in a reinvigorated Act. The survey of PDA decisions is an important undertaking in its own right, since it is not widely appreciated just how much courts have narrowed the PDA's protections. The PDA cases are an increasingly sorry lot, including cases like the recent Fourth Circuit ruling in Young v. UPS, in which the court held that a pregnant woman could lawfully be denied a …

Facebook And Its Users: Using Grounded Theory To Understand Perceived Interactivity As A Constraint In The Rhetorical Situation, Katie Lee Retzinger Pruitt

English Theses & Dissertations

The general term interactivity has been used in a variety of disciplines to describe phenomena that occur in website interfaces; however, definitions and explanations about what constitutes interactivity and how it functions do not consider the specific ways in which interactivity can function and be perceived by users in specific rhetorical situations. In this study, I address the problems with the literature about general interactivity in writing studies and in other disciplines such as computer science, advertising, marketing, and communication studies by distinguishing between two types of interactivity—functional and perceived. I situate the different types of interactivity rhetorically, which can …

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

The Impact Of Teacher Licensure Programs On Minority Student Achievement, Rose S. Duke

Educational Leadership & Workforce Development Theses & Dissertations

This research examined the impact of teacher licensure routes, particularly those identified as either traditional or alternative on student achievement by comparing Virginia Standards of Learning (SOL) end of year scores in math and reading for minority students in grades six through eight during the period from 2005 through 2009. To compare the achievement of students taught by either traditionally or alternatively prepared teachers, the Standards of Learning (SOL) scores were calculated for students and then aggregated for types of teacher preparation. The mean values were compared for statistically significant differences as a function of subject, teacher ethnicity, teacher gender, …

Transition From High School To Associate Degree Nursing Education: A Qualitative Study, Kathy Jessee Mitchell

Educational Leadership & Workforce Development Theses & Dissertations

Nursing is facing a critical shortage and retention of nursing students is of paramount importance. Much research has been completed related to retention in nursing education and student success, but there is very little in current literature related to issues associated with the transition from high school to associate degree nursing (ADN) education. The purpose of this study was to explore this phenomenon through qualitative research involving ADN students who entered the nursing programs immediately after graduation from high school. This qualitative study involved students from a rural associate degree program. The intent was to provide a better understanding of …