Law Commons^™

Duties Regarding Duties, Ronald J. Colombo

Hofstra Law Faculty Scholarship

No abstract provided.

Guido Speaks, Jill E. Martin

Hofstra Law Faculty Scholarship

No abstract provided.

The Vitruvian Shareholder, Sergio Alberto Gramitto Ricci

Hofstra Law Faculty Scholarship

The proportions of Leonardo's Vitruvian Man allow the human figure to fit a circle and a square, which in Renaissance iconography represent respectively the secular and divine dimensions. Good canons allow for a proportionate and simultaneous coexistence of the two natures of humankind. Human shareholders have two natures, too: one as investors and one as human beings. Similar to the Vitruvian Man, a shareholder with good proportions fits a metaphorical circle and a metaphorical square: the former represents the human dimension, and the latter represents the investor. I dub retail investors who proportionately balance their interests as human beings who …

After Smith Falls: Corporate Free Exercise Lochnerism, Daniel J.H. Greenwood, Nicholas E. Tramposch

Hofstra Law Faculty Scholarship

While the Supreme Court has extended many constitutional privileges to business corporations, it has not held that they have a full constitutionally protected right to practice religion comparable to that of citizens. Employment Division v. Smith long served as a barrier to Free Exercise claims for special exceptions to neutral and generally applicable laws. But as the Court moves away from Smith, the issue of corporate Free Exercise rights must be confronted. The freedom of religion is a critically important individual right in a free country. But individual rights often conflict with collective religious practice; religious freedom is the opposite …

Navigating The "Green Shift": Should The Emerging Right To A Healthy Environment Be Balanced Against Indigenous Rights?, Alexa Sinha

Hofstra Law Faculty Scholarship

No abstract provided.

Ai And The Regulation Of Tax Return Preparers, Linda Galler, Jay A. Soled

Hofstra Law Faculty Scholarship

Tax return preparers play a pivotal role for millions of taxpayers, and

their number ranges in the hundreds of thousands. Despite preparers'

importance in the tax return submission process and their numerical size,

they are largely unregulated. Because of this lack of oversight, a significant

number of tax returnp reparersp ut their ownfinanciali nterests and

those of their clients ahead of the government's financial interests.

In the past, there have been calls for increased regulatory

oversight to keep wayward practitioners' actions in check. Therefore,

a decade and a half ago, Congress, in conjunction with the Treasury

Department, mandated that every …

Legislating Flexibility In The Post-Pandemic Workplace, Madeleine Gyory

Hofstra Law Faculty Scholarship

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (FWAs)-changes to their hours, schedule, or location-to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed "right to request" …

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Hofstra Law Faculty Scholarship

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the "warrant of commitment." Judges issued these warrants to jail defendants pending trial.

This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant-a process that currently falls far short of fulfilling its constitutional and historical function.

History supports …

Book Review On From The Great Recession To The Covid-19 Pandemic By Professor Jerry W. Markham, Ronald Filler

FIU Law Review

A review of Professor Jerry Markham's book "From the Great Recession to the COVID-19 Pandemic."

Table Of Contents

FIU Law Review

No abstract provided.

The Influence Of The Spanish Legal System And Socialist Legal Systems On Cuban Civil Law, María Elena Cobas Cobiella

FIU Law Review

The essay “The influence of the Spanish legal system and socialist legal systems on Cuban civil law” fulfills an old desire to analyze how the current Cuban civil law has been shaped. The work addresses the influence of the law of the former socialist countries and Spanish law in the configuration of current Cuban civil law.

Conscientious Objection And Abortion: The Italian Pseudo-Exceptionalism, C. Crea

FIU Law Review

Threats to abortion and reproductive rights are well-rooted in global discursive and strategic practices promoted by conservative and ‘pro-life’ movements and narratives. Starting from these premises, this essay will focus on abortion access in Italy and the barrier caused by conscientious objection among medical personnel, which appears indefensible in light of both international human rights regimes and philosophical-theoretical perspectives. The main questions explored here are the following: Is conscientious objection to abortion really based on Catholic moral teaching, which constitutes the conventional religious wisdom of the national societal fabric? How and to what extent are Catholic and conservative moral narratives …

Italian Comparative: A Trait Of The Legal System, Bianca Gardella Tedeschi

FIU Law Review

The cultural environment of Italian academia was open to suggestions that came from other legal systems and shaped an eclectic legal culture. Italy is an hybrid system that took the code from France, the legal science from Germany, and has always been receptive of foreign suggestions. This cultural background may explain why the Italian legal curriculum requires a mandatory course of comparative law and why comparative law has been an important field of Italian legal research. At the same time, comparative law was characterized by an an important mark of antiformalism, necessary to swim through the times of Fascism and …

Urban Commons In Italy, Michele Graziadei

FIU Law Review

The Italian experience with urban commons has been very rich indeed. In the last ten years or so the number of social and legal initiatives relating to urban commons in Italy has exploded. The present Italian situation shows that urban commons are here to stay. By now, they are part of the collective imagination, of political and socio-economic transformative projects, of administrative practices, and of the law. The demand for the commons in the city originates from the social movements that intend to resist the penetration of the market and of private property in every ambit of life but is …

The Spree Of Principles And The Abuses Of The Balancing Doctrine In Brazil, Ronaldo Porto Macedo

FIU Law Review

This article delves into the nuanced distinction between principles and rules in legal discourse, emphasizing their differing grammatical functions. While acknowledging the necessity of principles in legal reasoning, it cautions against their unchecked proliferation, exemplified by the Ellwanger case. The analysis underscores the importance of contextual understanding in discerning between principles and policies, advocating for a philosophical-political reflective approach. It critiques the overreliance on balancing-proportionality as a universal method, warning against its potential for dogmatic reduction and infringement on fundamental rights like freedom of expression. Ultimately, it calls for a balanced, reflective interpretation of principles to mitigate the risks inherent …

Global Antitrust From The Global South: A Comparative Law Void, Dina I. Waked

FIU Law Review

This paper discusses the attempts at creating an international antitrust regime from the perspective of the Global South. Today’s diffused competition laws, have arguably muted calls for an international antitrust regime. Given this diffusion, a global regime has indeed emerged. Within such a system, differentiated and selective antitrust enforcements are proposed as ways to achieve national public interest goals.

Filling The Gap: The Case For Driver's Licenses As A Lifeline To Opportunity For Undocumented Immigrants Where The Federal Government Fails To Act On Comprehensive Immigration Reform, David Peraza

FIU Law Review

The federal government has repeatedly failed at passing comprehensive immigration reform, which would provide basic benefits to the undocumented population in the U.S, including driver’s licenses. Various states have made attempts to provide undocumented immigrants with driver’s licenses. This work address the benefits and drawbacks of these policies and ultimately posits that holdout states should enact policies to provide driver’s licenses to undocumented immigrants in the face of the federal government’s inaction.

Table Of Contents

FIU Law Review

No abstract provided.

Editorial Board

FIU Law Review

No abstract provided.

Publisher

FIU Law Review

No abstract provided.

Introduction: From Science To Public Choice: An Overview, Mario Loyola

FIU Law Review

No abstract provided.

Volo Foundation Lecture: Science, Free Speech, And Public Choice, Bret Stephens

FIU Law Review

In an era where science, free speech, and public choice clash, the historical unity between these pillars, as envisioned by America's founding fathers, is obscured. Examining Thomas Jefferson's reverence for Bacon, Locke, and Newton, reveals a past where reason and freedom intertwined. However, contemporary challenges, epitomized by the pandemic response, illustrate a divergence. Amidst censorship and expert dominance, the vital role of public scrutiny emerges. Acknowledging the fallibility of experts and embracing free speech as essential for reasoned discourse becomes imperative. To restore the balance, humility from scientific institutions, a renewed appreciation for free speech, and public courage are necessary …

Five Considerations For Twenty-First Century Climate Policy, Matthew G. Burgess

FIU Law Review

As the twenty-first century advances, society is entering a new phase regarding climate change. Impacts of climate change are becoming more salient in the present, rather than being only far-off in the future. Progress on flattening—and in many affluent countries, reducing—greenhouse gas emissions is also becoming salient, though the progress underperforms international targets. Slowing economic growth and major technological and geopolitical disruptions are creating new challenges and uncertainties. One of these challenges is a political climate of deep divisions and rising distrust in fact-finding institutions—a climate that is ripe for demagoguery. In the United States and some other countries, the …

Against Self-Defeating Climate Policy, Michael Buschbacher

FIU Law Review

This paper contends that the narrow Overton window on climate policy is self-defeating to the goals of many climate activists and policymakers. It gives three examples of policies that do little to address carbon emissions and are likely to fail: (1) how decarbonization policies are destroying electric grid reliability; (2) how the attempt to eliminate the internal combustion engine is leading to the “Cuba-fication” of the automotive fleet; and (3) how the focus on reducing domestic carbon emissions leads to regulatory arbitrage. The paper provides three corresponding recommendations, contending (1) that states should eliminate RTOs and ISOs in favor of …

"Common But Differentiated Responsibilities” In The Paris Agreement, Henrique Schneider

FIU Law Review

The Paris Agreement, adopted in 2015, epitomizes a political approach to climate action, devoid of scientific oversight at its inception. This political nature underscores its essence, emphasizing action over guaranteed results. With a foundation in "common but differentiated responsibilities" (CBDR), nations set diverse climate goals based on unique circumstances. However, this diversity complicates policy alignment and raises challenging questions, such as the feasibility of carbon border adjustments and intellectual property dilution. Analyzing CBDR within the Paris Agreement framework unveils its evolution, shaped by political negotiations and national actions. This study delves into the intricate interplay between politics, policy, and international …

Keeping The Perpetual In Florida's Conservation Easements, Nancy A. Mclaughlin

FIU Law Review

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

FIU Law Review

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act’s force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA’s success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes …

Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo

FIU Law Review

For decades, the Office of Information and Regulatory Affairs (OIRA) has overseen the development of federal regulatory policies with a strong emphasis on benefit-cost analysis. Despite its conceptual appeal, this analytic tool consistently shortchanges environmental and public health protection, with especially negative consequences for environmental justice communities. In this article, we address some of those shortcomings, focusing in particular on the standard agency practice of arithmetically discounting regulatory costs and benefits that accrue in the future. We propose that the OIRA abandon this practice as it relates to non-market goods, such as human lives saved, and instead work toward a …

Inadequate Demonstration: Epa’S Latest Effort To Force A Clean Energy Transition On The Power Sector Rests On Technologies That Have Not Been Adequately Demonstrated, Mario Loyola

FIU Law Review

The Environmental Protection Agency's (EPA) proposed regulations of power plant carbon emissions under Section 111 of the Clean Air Act, which were proposed in May of 2023, raise a number of concerns. The proposed regulations target a transition in the U.S. power sector towards clean energy, relying heavily on Carbon Capture & Storage (CCS) and green hydrogen technologies to achieve nearly net zero carbon emissions from existing fossil fuel power plants. These technologies, however, do not seem to satisfy the Section 111 requirement that the Best System of Emissions Reduction (BSER) be adequately demonstrated at the scale and for the …

The Modern Border: The Government Can Search . . . Anything?, Abigail Nusbaum

FIU Law Review

The evolution of modern technology has introduced new obstacles in interpreting the Fourth Amendment’s application to searches of peoples’ effects. Specifically, the longstanding exception to the Fourth Amendment permitting searches at the international border in the absence of probable cause does not so neatly apply to forensic searches of cell phones. Consequently, a circuit split has emerged on two aspects of the issue: the scope of the border exception and the requisite level of suspicion within that exception. The Supreme Court should find that forensic cell phone searches at the international border implicate Fourth Amendment privacy interests, requiring the border …