Law Commons^™

Learning Intentionally And The Metacognitive Task, Patti Alleva, Jennifer A. Gundlach

Hofstra Law Faculty Scholarship

This article serves both to frame The Pedagogy of Procedure symposium it introduces and to itself explore the importance of metacognition and learning about learning to legal education and lawyering. The authors begin by suggesting why Civil Procedure doctrine is so challenging to teach and learn, noting how the symposium pieces help to tackle those challenges. They then join the growing number of law professors who advocate that learning how to learn deserves greater attention in the law school curriculum, suggesting that law schools should do more to demonstrate respect for the process of learning as an end in itself. …

The Significance Of China’S Views On The Jus Cogens Exception To Foreign Government Official Immunity, Julian G. Ku

Hofstra Law Faculty Scholarship

No abstract provided.

Introductory Note To Obligation To Negotiate Access To The Pacific Ocean (Bolivia V. Chile): Preliminary Objection (I.C.J.), Julian G. Ku

Hofstra Law Faculty Scholarship

No abstract provided.

The Need For Annotated Corpora From Legal Documents, And For (Human) Protocols For Creating Them: The Attribution Problem, Vern R. Walker

Hofstra Law Faculty Scholarship

This paper argues that in order to make progress today in automating argumentation mining from legal documents, we have a critical need for two things. First, we need a sufficient supply of manually annotated corpora, as well as theoretical and experimental evidence that those annotated data are accurate. Second, we need protocols for effectively training people to perform the tasks and sub-tasks required to create those annotations. Such protocols are necessary not only for a team approach to annotation and for quality assurance of the finished annotations, but also for developing and testing software to assist humans in the process …

Legislation's Culture, Richard K. Neumann Jr.

Hofstra Law Faculty Scholarship

American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valéry) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative.

Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per …

"Ev'ry American Experiment Sets A Precedent": Why One Florida State Court's Bitcoin Opinion Is Everyone's Business, Allison Caffarone, Meg Holzer

Hofstra Law Faculty Scholarship

July 22, 2016. A Florida state court dismisses a three-count information against a sole defendant in "a Miami money-laundering case that is being closely watched around the world." The defendant, a dealer of the virtual currency bitcoin, is free to go. He is also free to continue engaging in the sale of bitcoin. This "victory for bitcoin users" was the first state court case to address Bitcoin in the context of the money services business and anti-money laundering statutes. And on every front, the court got it wrong — while the world was watching. Federal and state prosecutors, defense attorneys, …

Transactional Planning And Advice, Linda Galler, Michael B. Lang

Hofstra Law Faculty Scholarship

No abstract provided.

Zika Funding And Partisan Politics, Janet L. Dolgin

Hofstra Law Faculty Scholarship

No abstract provided.

One Person, One Weighted Vote, Ashira Pelman Ostrow

Hofstra Law Faculty Scholarship

This Article argues that weighted voting should be used to comply with the constitutional one-person, one-vote requirement while preserving representation for political units on the legislative body. First, this Article demonstrates that weighted voting satisfies the quantitative one-person, one-vote requirement by equalizing the mathematic weight of each vote. Second, this Article demonstrates that weighted voting has the potential to remedy several negative consequences of equal-population districts. Specifically, this Article argues that by preserving local political boundaries, weighted voting eliminates the decennial redistricting process that gives rise to claims of partisan gerrymandering, enables local governments to function both as administrative arms …

Habeas Corpus In Three Dimensions: Dimension Iii: Habeas Corpus As An Instrument Of Checks And Balances, Eric M. Freedman

Hofstra Law Faculty Scholarship

No abstract provided.

Distributed Energy Resources: Back To The Future And More, James E. Hickey Jr.

Hofstra Law Faculty Scholarship

No abstract provided.

Modern Critiques Of Judicial Empathy: A Revised Intellectual History, Brenner M. Fissell

Hofstra Law Faculty Scholarship

The role of "empathy" haunts recent debates about how judges make decisions. Remarkably, however, the intellectual origins of scholarly resistance to empathic judging remain poorly understood. This Article fills that gap. Through historical and theoretical study, it reveals the ways in which the modern anti-emphatic consensus can be seen as a mutated descendent of late-nineteenth century formalism. This Article also marks an irony with significant implications for the empathy debate: Although the anti-empathic view was born offormalism, it has drifted from its source such that it would almost certainly be condemned by the very formalist scholars from whom it is …

Prosecutorial Accountability 2.0, Ellen Yaroshefsky, Bruce A. Green

Hofstra Law Faculty Scholarship

No abstract provided.

New Models For Prosecutorial Accountability, Ellen Yaroshefsky

Hofstra Law Faculty Scholarship

No abstract provided.

Secret Jurisdiction, Irina D. Manta, Cassandra Burke Robertson

Hofstra Law Faculty Scholarship

So-called "confidentiality creep" after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The Executive Branch's procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call "secret jurisdiction," in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Roger P. Alford, Julian G. Ku, Bai Xiao

Hofstra Law Faculty Scholarship

No abstract provided.

Why Ratification Of The U.N. Convention Of The Law Of The Sea May Violate Article Iii Of The U.S. Constitution, Julian G. Ku

Hofstra Law Faculty Scholarship

No abstract provided.

Person, State, Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

Hofstra Law Faculty Scholarship

Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the constitutional text: none. Instead, we should be debating which rights of citizens against governmental agencies should also …

Training For Bargaining, Jenny Roberts, Ronald F. Wright

Hofstra Law Faculty Scholarship

While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys' training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they will use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase field study examines the negotiation techniques that attorneys use during plea bargaining as well as their preparation and training for negotiation. This Article explores the data on the training aspects of …

Branded, Irina D. Manta

Hofstra Law Faculty Scholarship

Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and …