Law Commons^™

Shifting Paradigms Of Lawyer Honesty, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The Model Rules currently contain at least four distinct conceptions of what it means for a lawyer to be honest. Moreover, the levels of honesty that the ethical rules demand have changed markedly in recent times. This article explores why, for the lawyers of today, being “honest” seems to be so complicated.

The exploration begins by reviewing recent changes in the honesty concepts embodied in the Model Rules, particularly the new duty to reveal confidential information that lawyers have under Rule 4.1. Attention then turns to what it means to be “honest” in the context of our modern exaggerated version …

The Ideology Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article questions whether consistency in legal interpretation is truly a manifestation of the influence of law or instead a means to a preferred policy end. Part I of this Article discusses the legal interpretive tools of originalism and legislative history and how they might influence outcomes in cases. Part II discusses judicial decision-making in the U.S. Courts of Appeals and justifies their use in the analysis. Parts III and IV offer information on our data and methodology, as well as a discussion of the results. Finally, in Part V, we find that the use of legal interpretive strategies are …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

The "War On Terror" Is Over--Now What? Restoring The Four Freedoms As A Foundation For Peace And Security, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

This article observes that the "Global War on Terror" as an organizing concept has been abandoned and proposes that the Obama Administration restore FDR's Four Freedoms in its place.

Rising Tides-Changing Title: Walton County V. Stop The Beach Renourishment, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article first discusses the facts of the Walton County case and how the statute affects title to coastal parcels and then turns to an analysis of the fee simple absolute title to coastal properties in Florida, how deeds are drawn, and how title is insured under title company practices. This is followed by a further exploration of the regulatory taking issue and then the judicial taking claim. We then explore the tension that the judicial takings issue raises regarding the jurisdiction of federal and state courts. The article then takes a look at the property interests--the sticks in the …

Review Of Law And The Long War By Benjamin Wittes And Assessing Damage, Urging Action By The Eminent Jurists Panel On Terrorism, Counter-Terrorism, And Human Rights, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Eyewitness Conundrum: How Courts, Police And Attorneys Can Reduce Mistakes By Eyewitnesses, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Reducing the incidence of wrongful convictions based on eyewitness mistakes poses a difficult challenge to the criminal justice system. There is near-unanimity among courts and commentators that eyewitness mistakes account for more erroneous convictions than any other type of proof. It is therefore incumbent on every key participant in the criminal justice system - judge, prosecutor, police, and defense counsel - to use every available tool to protect an accused from being mistakenly identified by an eyewitness. For the judge, protecting the accused requires a willingness to give the jury special instructions on eyewitness identification and a willingness to allow …

Feminizing Capital: A Corporate Imperative, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article argues that Norway’s Corporate Board Quota Law (“CBQ”) fosters a productive symbiosis between the public and private spheres. Recent studies indicate that higher numbers of women in executive positions result in stronger rates of corporate return on equity (“ROE”). Countries with higher levels of women's political representation also tend to have higher levels of economic growth. Increasing women's workforce participation outside the home can drive overall economic growth. These factors prompted the CBQ's proponents to argue for the economic imperative of women's corporate leadership. The CBQ will not only ameliorate gender inequality, but will bring new life to …

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

Getting Real About Race And Prisoner Rights, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article explores the nexus of two stories central to contemporary American jurisprudence and--for tens of millions of citizens--central to the American experience: the rise of the “carceral state” through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning …

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, …

The Case For A Criminal Law Theory Of Intentional Infliction Of Emotional Distress, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Words hurt! Recent news stories about cyber bulling make clear that a word can cause as much pain as a punch. Unfortunately, the law redresses those who suffer injury from harmful speech through a series of seemingly innocuous remedies, including financial remuneration or retribution through minimal criminal penalties. The law stops, however, at imposing the same type of criminal punishment on those who intend to cause emotional harm through words, as it does those who intend to cause physical harm. In other words, legislatures and courts have been unwilling to elevate an actor’s intentional use of harmful words to the …

The Curing Law: On The Evolution Of Baby-Making Markets, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between 'full surrogacy" (where a surrogate is …

The Land Use Stabilization Wedge Strategy: Shifting Ground To Mitigate Climate Change, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes how local governments, through the clever application of existing land use techniques, can mitigate climate change. This strategic path follows one developed by Princeton professor Robert Socolow, who identified and described fifteen categories for organizing society’s climate change mitigation efforts. Five of Socolow’s strategic categories fall within the reach of local land use authority: reduced use of vehicles, energy efficient buildings, vegetative carbon sequestration, wind power, and solar power. Through the aggregation of these local land use techniques, significant energy savings and carbon dioxide (CO2) reduction can be achieved. After making some background points, this article describes …

A Suggested Solution To The Problem Of Intestate Succession In Nontraditional Family Arrangements: Taking The "Adoption" (And The Inequity) Out Of The Doctrine Of "Equitable Adoption", Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

Part I of this Article examines the doctrine of equitable adoption, focusing on its deficiencies in addressing some of the issues of the modern family. Part II considers the specific issue of intestate succession, the way that the equitable adoption doctrine falls short in providing a consistent rational result of heirship in the modern family, and the reasons for expanding inheritance rights to “family members” claiming an intestate share despite the fact that they were not born into or legally adopted into the family arrangement. Part III proposes answers to these difficult problems, suggesting a statutory provision defining “child,” for …

Owning What You Eat: The Discourse Of Food, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This essay examines the role of communication in the formation of law and social norms and the implications of that role for animal law and ethics. Part III contextualizes animal law within contemporary risk society. Part IV looks at how efficiency has transformed from an economic concept into a normative guideline and discusses how that transformation has affected animals and agriculture. It tracks the rise of industrial agriculture and ties it to this fundamental misunderstanding of the concept of efficiency. The essay concludes with some thoughts on how to reformulate contemporary notions of efficiency and ethics to account for the …

Wind Power, National Security, And Sound Energy Policy, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Wind-generated electricity in the United States has grown by more than 400 percent since 2000. According to the Department of Energy, 6 percent of US land could supply more than one and a half times the current electricity consumption of the country. Yet, challenges remain in matching demand for electricity with supply of wind as well as achieving grid parity. Careful wind turbine and transmission line siting can occur through cooperation between federal, state, tribal, and civil society participation in decision-making. Tribal wind initiatives have shown that developing wind power can also benefit rural communities. Congress should pass a national …

"Criminal Minded?": Mixtape Djs, The Piracy Paradox, And Lessons For The Recording Industry, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

For at least the past three years, leading American fashion designers have lobbied for passage of copyright-like protection for the design aspects of their apparel creations. For at least as long, the recorded music industry has been engaged in an aggressive campaign to enforce its copyrights in recorded music against a number of technology-enabled and/or culturally sympathetic alleged infringers, including "twelve year-olds" and "grandmothers." Although the record labels already have protection under the copyright law while the fashion houses seek it, they have at least one thing in common: some portion of the piracy that they seek to eradicate is …

National Security Courts: Star Chamber Or Specialized Justice?, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by five lawyers with significant academic and practical experience in the field: Richard Zabel, a litigation partner at Akin Gump Strauss Hauer & Feld LLP, a former Assistant U.S. Attorney and co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, an Associate Professor of Law at the United States Coast Guard Academy and author of the forthcoming book, The National …

A River Beckons Home, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Correcting Injustice: Studying How The United Kingdom And The United States Review Claims Of Innocence, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article examines the U.K. and U.S. systems to determine what lessons, if any, the United States can learn from the United Kingdom's experience. Part I provides a background of the CCRC and the U.K. Court of Appeal, and describes how these two entities work in tandem with broad powers to investigate and correct miscarriages of justice in the United Kingdom. Part II takes an in-depth look at the Court of Appeal's decisions of CCRC referred cases and identifies five categories into which these decisions fall-- categories that exemplify the institutional mechanisms that facilitate review of miscarriages of justice. These …

International Human Rights Law, Co-Parent Adoption, And The Recognition Of Gay And Lesbian Families, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the legal recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This Article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.

Energy Policy, Intellectual Property, And Technology Transfer To Address Climate Change, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Hall Street Blues: The Uncertain Future Of Manifest Disregard, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In 2008, in Hall Street Assocs. v. Mattel, Inc., the Supreme Court resolved a then-existing split in the federal circuits and held that parties cannot contractually expand the grounds for judicial review of an arbitration award when invoking the Federal Arbitration Act's vacatur provisions, elevating the finality of arbitration over the parties’ freedom of contract. The Hall Street decision necessarily impacted subsequent jurisprudence regarding parties’ motions to vacate arbitration awards. While the opinion clearly and explicitly barred further contractual expansion of grounds for review, it also avoided and thus left unresolved the issue of whether it would endorse or reject …

Foreword: Energy And The Environment: Empowering Consumers, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The conference Energy and the Environment: Empowering Consumers brought together legal scholars, attorneys, scientists, philosophers, journalists, sociologists, elected representatives, and agency experts. This symposium issue of the Hofstra Law Review presents a selection of papers from conference participants that, together, illustrate some of the opportunities, challenges, and diverse questions that arise in the effort to deploy energy and environmental law and policy to embrace individual consumers and combat climate change.