Law Commons^™

Intervention Of Right In Judicial Proceedings To Review Informal Federal Rulemaking, Michael Ray Harris

Hofstra Law Review

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings –– those brought to review the …

The First Amendment Is An Information Policy, Jack M. Balkin

Hofstra Law Review

This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge andinformation.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory …

End Matter 41(1)

Hofstra Law Review

No abstract provided.

Prosecutorial Conflicts Of Interest In Post-Conviction Practice, Keith Swisher

Hofstra Law Review

Prosecutors, our ministers of justice, do not play by the same conflict of interest rules. All other attorneys should not, and cannot, attack their prior work in transactional or litigation matters; nor should other attorneys unquestionably represent clients in matters in which the attorneys themselves face disciplinary, civil, or criminal liability. When prosecutors have likely convicted an innocent person, however, prosecutors are asked to review their own prior work objectively and then to undo it. But they understandably suffer from a conflict between their duty to justice and their duty to themselves — their duty to seek the release of …

Redrawing The Electoral Map: Reforming The Electoral College With The District-Popular Plan, Craig J. Herbst

Hofstra Law Review

No abstract provided.

Just Scratching The Surface: How Epa Denied Renewable Energy Developers The Liability Protection They Need To Repower America's Contaminated Land, Jonathan J. Nasca

Hofstra Law Review

No abstract provided.

Treaty Signature, Curtis Bradley

Book Sections

No abstract provided.

"All Muslims Are Like That": How Islamophobia Is Diminishing Americans' Right To Receive Information, Tiffani B. Figueroa

Hofstra Law Review

No abstract provided.

First Department Adopts Zubulake In The Electronic Discovery Context, Justice Sallie Manzanet-Daniels

Hofstra Law Review

No abstract provided.

Embracing Out Values: Title Ix, The "Single-Sex Exemption," And Fraternities' Inclusion Of Transgender Members, Stevie V. Tran

Hofstra Law Review

No abstract provided.

Capital Gains Jabberwocky: Capital Gain, Intangible Property, And Tax, Stephen T. Black

Hofstra Law Review

In the current US tax system, capital gains are taxed at a lower rate than ordinary income. What does that mean for the sale of IP and intangible assets? Is it possible to convert ordinary income to capital gain by changing the form of the transaction?

This article will address anomalies in the tax characterization of intangible assets. Four cases will be presented, each of which, arguably, could consistently produce capital gains. As will be shown, however, the treatment of these cases (and others) is anything but consistent. At the conclusion of the four cases, it should be clear that …

End Matter 41(3)

Hofstra Law Review

No abstract provided.

Efficiency In Bello And Ad Bellum: Making The Use Of Force Too Easy?, Kenneth Anderson

Contributions to Books

This article criticizes a widely asserted claim that drones make the resort to force and violence — war — “too easy.” Attractive on the surface to many, this article says that “too easy” is not a coherent notion as applied in war. The “too easy” argument comes in two forms, a moral argument and a maximization of social welfare argument. The maximization of social welfare version (on which the article focuses) frames “too easy” as a matter of creating an “inefficient” level of disincentive to use of force on account of insufficient risks to one’s own forces in so doing …

Intellectual Property And The Incentive Fallacy, Eric E. Johnson

Faculty Articles

The enterprise of intellectual property law has long been based on the premise that external incentives – such as copyrights and patents – are necessary to get people to produce artistic works and technological innovations. This article argues that this foundational belief is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, along with empirical investigations of industry, it is now possible to construct a compelling case that the incentive theory, as a general matter, is mistaken, and that natural and intrinsic motivations will cause technology and the arts to flourish even in the absence of externally supplied …

A Proposal For Comprehensive And Specific Essential Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

Faculty Articles

This Article analyzes the initial efforts of the Federal Department of Health and Human Services to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, …

Preparatory Negligence, Robert H. Heidt

Articles by Maurer Faculty

This Essay discusses the appropriate significance in tort law of a negligent attempt to perform an injurious activity when the evidence is insufficient to show the actual performance of the activity was negligent. The author calls such a negligent attempt uncoupled with sufficient evidence of negligent performance "preparatory negligence." An example would be driving a car when one is so inebriated that the decision to drive is negligent but those injured in a subsequent accident are unable to show the inebriated driver's actual driving was negligent. The author argues that preparatory negligence alone should never warrant tort liability. Rather, those …

Money And Meaning: The Moral Economy Of Law Firm Compensation, Milton C. Regan, Lisa H. Rohrer

Georgetown Law Faculty Publications and Other Works

This article, part of an ongoing qualitative research project on law firm culture, analyzes the role of compensation in the modern law firm. At first blush, the significance of the compensation process may seem obvious: it represents an economy in which the firm distributes material rewards to its partners. From this perspective, disputes and dissatisfaction regarding compensation are simply attempts by partners to improve their financial well-being.

Our research suggests, however, that compensation serves to distribute not just money, but also respect. Compensation thus represents the operation of both a material and a moral economy within a firm. As a …

Auspicium Melioris Aevi: A Token Of A Better Age, Michael Vanauker

Santa Clara High Technology Law Journal

No abstract provided.

The Inequitable Conduct Defense In Patent Litigation: Where We Are, Where We Have Been, And Where We Should Go From Here, Brett Ira Johnson

Santa Clara High Technology Law Journal

No abstract provided.

The Unitary Progress Clause: District Of Columbia V. Heller And The Structural Interpretation Of The Progress Clause, Joshua I. Miller

Santa Clara High Technology Law Journal

No abstract provided.

Qualifying Intellectual Property Ii: A New Innovation Index For Pharmaceutical Patents & Products, Ron A. Bouchard

Santa Clara High Technology Law Journal

No abstract provided.

Special Report-Mental Health And Human Rights In Cambodia, Daniel Mclaughlin, Elisabeth Wickeri

Fordham International Law Journal

No abstract provided.

Combating Climate Change Through Investment Arbitration, Anatole Boute

Fordham International Law Journal

No abstract provided.

Perfecting And Maintaining The Perfection In Article 9 Security Interests Under The 2010 Amendments: New Sections 9-503 And 9-316, Steven Harris, Jason Kilborn, Margit Livingston

College of Law Faculty

No abstract provided.

An Edifice Of Its Own Creation: The Supreme Court's Recent Arbitration Cases, David Franklin, Steven Greenberger

College of Law Faculty

Prof. Greenberger's comments follow main article (pgs. 511-514)

Cluster Introduction: Culture, Knowledge, Law, And Community Countering New Sovereignty With Knowledge, Gil Gott, Sumi Cho

College of Law Faculty

No abstract provided.

Becoming Asian American And The Magic Of Historical Accident, Sumi Cho

College of Law Faculty

No abstract provided.

Procedures And Remedies Under Section 504 And The Ada For Public School Children With Disabilities, Mark Weber

College of Law Faculty

Much has been written about procedures and remedies under the Individuals with Disabilities Education Act, but few scholars have explored procedural rights and corresponding mechanisms of administrative and judicial relief for victims of public schools’ violations of children’s rights under section 504 of the Rehabilitation Act of 1973 and title II of the Americans with Disabilities Act. This paper will discuss the administrative procedures that must be followed in hearings regarding complaints of violations of those laws by public school districts and the relief that hearing officers and courts may provide. It will begin with an update on developments regarding …

Is Systemic Risk Prevention The New Paradigm? A Proposal To Expand Investor Protection Principles To The Hedge Fund Industry, Cary Martin Shelby

College of Law Faculty

The Dodd-Frank Act finally achieved the inevitable. It subjects hedge funds to significant regulatory oversight even though they were previously exempt from regulation. In 2006, the SEC notoriously failed at this task when the D.C. Court of Appeals held that the agency acted outside of its rulemaking authority in attempting to regulate hedge fund advisers. Through the passage of the Dodd-Frank Act, Congress finally finished what the SEC started by using the current political climate to close this regulatory loophole. The Dodd-Frank Act is a step in the right direction, but it leaves an important question largely unanswered: Should hedge …

Class Action Defendants' New Lochnerism,, Mark Moller

College of Law Faculty

In the much-watched Dukes v. Walmart, Walmart has advanced a deceptively compelling claim: Due process, Walmart says, guarantees it the right to mount a “full defense” based on “any relevant rebuttal evidence [Walmart] choose[s], including evidence that there was no discrimination against one or more members of the class.” Because Walmart cannot possibly present rebuttal evidence against each of the 1.5 million gender discrimination claims that form the Dukes class, the class action, Walmart concludes, is unconstitutional. The argument is not original to Walmart - it is a staple of the class action defense bar. What should originalists make of …