Hofstra law review最新文献

{"title":"Speech and the First Amendment","authors":"Donald Meiklejohn *","doi":"10.4324/9781315053615-7","DOIUrl":"https://doi.org/10.4324/9781315053615-7","url":null,"abstract":"","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70624923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Judge's Duty to Do Justice: Assuring the Accused's Right to the Effective Assistance of Counsel","authors":"P. Joy","doi":"10.2139/SSRN.3119971","DOIUrl":"https://doi.org/10.2139/SSRN.3119971","url":null,"abstract":"Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice. \u0000I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level. In this article, I begin by analyzing resistance to recognizing ineffective assistance of counsel at the trial level and in post-conviction proceedings. Next, I examine the crises in public defense and how case overloads and funding practices for public defense create disincentives to effective assistance of counsel. I then analyze how the rights of the accused differ when the accused has a publicly provided lawyer compared to privately retained counsel. In the next part of the article, I describe the situations that trigger a trial judge’s duty to conduct an effective assistance of counsel hearing, and I proceed to recommend both the type of hearing and the standard the judge should apply in evaluating counsel’s effectiveness. I conclude by arguing that to do justice a trial judge must ensure the accused’s right to the effective assistance of counsel.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"46 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2018-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44010415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Monroe Freedman's Influence on Legal Education","authors":"P. Joy","doi":"10.2139/SSRN.2811741","DOIUrl":"https://doi.org/10.2139/SSRN.2811741","url":null,"abstract":"Monroe Freedman’s influence on legal education was profound by any measure. He was much more than a gifted scholar and teacher, though he was all of those, as well as an accomplished lawyer. He was also the antithesis of a law professor disconnected from the practice of law who produces scholarship that has little to no relationship to the practice of law. Instead, Monroe Freedman’s scholarship was singularly focused on the difficult ethical issues lawyers face in the practice of law, and he was fully engaged with the practicing bar. Much of his scholarship was on the leading edge of what was to become the field of legal ethics and the teaching of professional responsibility in law schools. Monroe Freedman raised questions about lawyers, their role in an adversary system, and the importance of loyalty to clients. He also demonstrated that law professors could effectively teach legal ethics not only in a legal ethics course but also in other courses, using his first-year Contracts course as an example. Through his scholarship and his teaching, Freedman greatly influenced legal education in the content of Legal Ethics courses, as well as how those courses are taught. This Essay focuses on Monroe Freedman’s influence on legal education.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"44 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2016-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68343529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting the Rationality Assumption of Disclosure Laws: An Empirical Analysis","authors":"Uri Benoliel, Jenny Buchan, Tony Gutentag","doi":"10.2139/SSRN.2805844","DOIUrl":"https://doi.org/10.2139/SSRN.2805844","url":null,"abstract":"Disclosure laws are based on one central assumption: that disclosees are, by their very nature, rational actors. This article questions the validity of this theoretical assumption. The article empirically shows that franchisees, who are considered sophisticated disclosees, are unrealistically optimistic about disclosed risks. In this empirical study, franchisees (N = 205) completed an online research questionnaire, in which they compared their own chances of experiencing disclosed risks with the chances of their colleagues. It was found that franchisees were optimistically biased. Franchisees believed that the chances that their franchisor might opportunistically terminate their franchise are significantly lower than that of an average franchisee in their chain and state. The theoretical and practical implications of overconfidence in the franchise business are discussed.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"473 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2016-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68340322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Most Adequate Response to Excessive Shareholder Litigation","authors":"Lawrence A. Hamermesh","doi":"10.2139/SSRN.2739750","DOIUrl":"https://doi.org/10.2139/SSRN.2739750","url":null,"abstract":"Although Delaware statutes as recently amended prohibit charter and bylaw provisions that would shift fees to stockholders in litigation involving the corporation’s internal affairs, those statutes leave open the possibility that charter and bylaw provisions may regulate other aspects of such stockholder litigation, in addition to choice of forum. This article suggests that the enforceability of such provisions should depend on their tendency to deter or eliminate meritless litigation while not unduly deterring meritorious litigation. The article examines a bylaw under which a stockholder claim would be dismissed if a committee chosen by the largest stockholders affirmatively supported such dismissal. The article evaluates this proposal against the backdrop of previous attempts to limit stockholder litigation, namely security for expenses statutes, special litigation committees in derivative suits, the “most adequate plaintiff” provision of the Private Securities Litigation Reform Act of 1995, and a recently adopted bylaw requiring consent of 3% of the stockholders in order to initiate a stockholder class or derivative action.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"45 1","pages":"10"},"PeriodicalIF":0.0,"publicationDate":"2016-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Black Boys Matter: Developmental Equality","authors":"N. Dowd","doi":"10.2139/SSRN.2757143","DOIUrl":"https://doi.org/10.2139/SSRN.2757143","url":null,"abstract":"The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.The life course of Black boys is the basis for two groundbreaking contributions. First, the Article proposes a model, the developmental equality model, to achieve children’s equality. It takes developmental scholarship centered on analysis of the experience of children of color and other “outsider” groups of children and proposes it as a critical addition to the law’s use of development as an interpretive lens or rule of decision. Rather than imagining a child without race, gender, or class when those identities so powerfully affect development, I argue identities, and their intersectionalities, must be central to the developmental model. Most importantly, this race-conscious developmental scholarship must be fused with equality principles to address structural discrimination responsible for children’s inequalities. My developmental equality model brings this critical perspective to law, as a way to meaningfully confront state action that challenges or blocks children, and as a basis to require support for all children’s developmental opportunities.The second critical contribution of the Article is its application of the developmental equality model to the life course of Black boys from birth to age 18. The article summarizes a comprehensive interdisciplinary collection of social science literature on the development of Black boys. The developmental equality model is tested against this data; and the model suggests where policy and litigation should focus to dismantle systemic discrimination that blocks opportunity for Black boys. The data on Black boys is critical because Black boys matter. But the data is also important because it exposes inequalities that affect all children at the bottom of hierarchies among children. This example therefore serves to expose and deal with all children’s inequalities.The synergy between these two pathbreaking contributions provides the basis for the usefulness of the developmental equality model to achieve real, substantive equality. The final section of the article sketches the potential use of the model to advance litigation and policy strategies.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"45 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68294355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stop Blaming the Prosecutors: The Real Causes of Wrongful Convictions and Rightful Exonerations","authors":"Charles E. MacLean, James Berles, Adam Lamparello","doi":"10.2139/SSRN.2596072","DOIUrl":"https://doi.org/10.2139/SSRN.2596072","url":null,"abstract":"Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable. Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct is not the driving force behind wrong convictions, prosecutors can – and should – be part of a comprehensive solution that reduces the likelihood of wrongful convictions. This article proposes a number of solutions to reduce the number of wrongful convictions in our criminal justice system, and to ensure that criminal trials are conducted in a manner that is consistent with due process of law.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"44 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2015-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68217539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Trials","authors":"H. Kritzer, N. Vidmar","doi":"10.2139/SSRN.2579102","DOIUrl":"https://doi.org/10.2139/SSRN.2579102","url":null,"abstract":"In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"44 1","pages":"375"},"PeriodicalIF":0.0,"publicationDate":"2015-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Are Judges Tied to the Past? Evidence from Jurisdiction Cases","authors":"Shay Lavie","doi":"10.2139/ssrn.1884658","DOIUrl":"https://doi.org/10.2139/ssrn.1884658","url":null,"abstract":"Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case the larger the resources the trial judge invested.To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this study finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdiction determination. This correlation is statistically significant and non-trivial in size.This Article then discusses the normative implications of this phenomenon. The major one is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"8 9 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2015-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67771185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ABA Guidelines: A Historical Perspective","authors":"Russell Stetler, Aurelie Tabuteau","doi":"10.2139/SSRN.2603487","DOIUrl":"https://doi.org/10.2139/SSRN.2603487","url":null,"abstract":"This paper explains how the standards of practice in the development of mitigating evidence -- a core component of capital defense practice -- evolved from the reinstatement of the U.S. death penalty in the 1970s to the publication of the original edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in 1989.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"43 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68219357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}