Hofstra law review最新文献

{"title":"The Knowledge Police","authors":"David Orozco","doi":"10.2139/SSRN.2405316","DOIUrl":"https://doi.org/10.2139/SSRN.2405316","url":null,"abstract":"This article provides an in depth analysis and critique of the Office of the Intellectual Property Enforcement Coordinator’s (IPEC’s) efforts to date. This is an important subject since the IPEC has, under the Pro-IP Act, a mandate to serve as an effective interagency coordinator and strategic advisor to the Legislature and the President in all areas related to intellectual property enforcement. Intellectual property enforcement has risen to the highest levels of policymaking, and national public discourse. As discussed in this article, the IPEC has failed to adequately coordinate the various federal agencies that have overlapping authority in this area. The main reasons for this failure are the IPEC’s lack of strategic planning, which prevent it from prioritizing resources and activities among agencies and the inability to integrate patents as a key enforcement issue. Another important issue is the confusion between the roles of the IPEC and the IPR Center, which seems to be in some cases a more effective coordination vehicle than the IPEC. Policymakers, legislators and oversight bodies may view these findings as a helpful aid to promote greater accountability and effective management within the IPEC.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"43 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2014-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184322","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":"Ensuring Effective Counsel for Parents: Extending Padilla to Termination of Parental Rights Proceedings","authors":"Sarah Freeman","doi":"10.2139/SSRN.2579225","DOIUrl":"https://doi.org/10.2139/SSRN.2579225","url":null,"abstract":"The increase in the number of incarcerated women, combined with the severe effects of ASFA's 15/22 rule, has dramatically increased the risk that a incarcerated mother face a termination of her parental rights. Currently, existing ethical and statutory protections have been insufficient to protect these parents’ rights to their children. However, after Padilla v. Kentucky, it is likely that there is a Sixth Amendment obligation on criminal defense attorneys to advise their clients about the effect of the criminal process on a TPR proceeding. This advice should not be limited to a mere suggestion that clients seek legal advice from an attorney specializing in TPR law. Instead, criminal defense attorneys are obligated to protect this unique population by providing advice and counsel throughout the criminal proceeding to their clients concerning how best to protect the family unit from TPR proceedings.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"42 1","pages":"21"},"PeriodicalIF":0.0,"publicationDate":"2013-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211640","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":"It'll Break Your Heart Every Time: Flood v. Kuhn , (Baseball) Romanticism and the Fallibility of Courts","authors":"John Tehranian","doi":"10.2139/SSRN.2299002","DOIUrl":"https://doi.org/10.2139/SSRN.2299002","url":null,"abstract":"The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology. When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"46 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2013-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68080039","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":"Marriage Equality, United States v. Windsor , and the Crisis in Equal Protection Jurisprudence","authors":"S. Pollvogt","doi":"10.2139/SSRN.2350973","DOIUrl":"https://doi.org/10.2139/SSRN.2350973","url":null,"abstract":"This essay reads United States v. Windsor as a tacit admission of the failure of the traditional doctrinal features of equal protection analysis and examines the problems that might have been raised had the Court applied those traditional doctrines to the problem of marriage equality.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"42 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68129983","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":"Faulkner’s Voting Rights Act: The Sound and Fury of Section Five","authors":"J. Heller","doi":"10.2139/SSRN.1932504","DOIUrl":"https://doi.org/10.2139/SSRN.1932504","url":null,"abstract":"In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"40 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2011-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67799883","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 Stakeholder Principle, Corporate Governance and Theory - Evidence from the Field and the Path Onward","authors":"P. Vasudev","doi":"10.2139/SSRN.1931092","DOIUrl":"https://doi.org/10.2139/SSRN.1931092","url":null,"abstract":"This article provides an overview of the development of the stakeholder idea in corporate governance, and presents the results from a survey of the American, British and Canadian corporations included in the Fortune 500 Global Corporations (2009) for their adoption of the stakeholder principle. The survey finds near-unanimous acceptance of the stakeholder vision. 97 percent of the US, UK, and Canadian companies included in the survey acknowledge the stakeholder principle in some form. The trend of adoption of the stakeholder model is unmistakable, and this has significant implications for corporate theory. The article also examines how the emerging ideas about stakeholders and the recognition of their interests in law can fit into corporate theory. For doing so, it applies the tools of a nascent school of legal theory - namely, new legal realism. The article argues for a clear articulation of the conceptual underpinning of business corporations and resolving some inconsistencies in the current framework.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"41 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2011-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67798794","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":"Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings","authors":"M. Harris","doi":"10.2139/SSRN.1927431","DOIUrl":"https://doi.org/10.2139/SSRN.1927431","url":null,"abstract":"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 legality of informal federal rulemakings pursuant to the Administrative Procedure Act (“APA” or the “Act”). The courts in these cases are placed in a difficult position in considering applications to intervene. On one hand, given the narrow scope of judicial review it is unclear how a court will benefit from the addition of defendant-intervenors seeking to uphold the administrative rule. Instead the court faces the likelihood of information overload and/or information degradation as defendant-intervenors incorporate duplicative or irrelevant arguments into the proceedings. On the other hand, when a court chooses to deny such intervention, it creates the possibility of a lengthy appeal that will further delay judicial review. In sum, intervention practice under the Federal Rules harms the rights of those entitled to judicial review of an agency rulemaking and, most importantly, negatively impacts the public as a whole by reducing the efficiency of the administrative rulemaking process. As such, this Article argues that the practice is inconsistent with both the APA and the intent of third-party practice under the Federal Rules.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"32 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2011-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67794723","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 Ethical Responsibility to Reduce Energy Consumption","authors":"J. Dernbach, Donald A. Brown","doi":"10.2139/SSRN.1464875","DOIUrl":"https://doi.org/10.2139/SSRN.1464875","url":null,"abstract":"This Article argues that developed countries have an ethical responsibility to reduce energy consumption - through energy efficiency and conservation - as part of the global effort to reduce greenhouse gas emissions. While this responsibility is borne by nations themselves, it has consequences for the individuals living in those nations. This Article also argues that developing countries have different duties concerning energy consumption. Their responsibility to improve human quality of life will mean greater use of modern energy, especially when it is not now available. At the same time, developing countries should use energy efficiency and conservation when it is cost effective to do so.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"37 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2009-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1464875","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183865","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":"Rights of the Dead","authors":"Kirsten Rabe Smolensky","doi":"10.2139/SSRN.924499","DOIUrl":"https://doi.org/10.2139/SSRN.924499","url":null,"abstract":"This article examines how decedents are treated across a variety of legal disciplines and asks why the law gives the dead certain legal rights but not others. For example, survival statutes allow certain tort claims to be brought after death, most non-personal contracts (except those personal in nature) survive death, and at least one court has suggested that the dead have a nascent constitutional right to reproductive liberty. In contrast, testamentary directions concerning the disposal of property are sometimes ignored and some states disallow posthumous right of publicity or defamation claims. Many legal rules favoring the dead could be explained simply as an attempt to control, incentivize, punish and empower the actions of the living. Yet, such an explanation is incomplete because it ignores cultural norms and an innate desire among the living to honor the wishes of the dead even when doing so may harm the interests of the living. This article argues that consistent use of \"rights\" language by legislatures and courts is evidence not only that such cultural norms exist, but also that they guide the development of legal rules in very important ways. Where granting posthumous rights is practical, the article argues that judges and legislators should do so because it humanizes the law, making it more accessible to the general public. In building this thesis, the article relies on both Hohfeldian notions of legal rights and the extensive philosophical literature exploring the necessary characteristics of legal rights-holders. The article also considers a wide variety of legal cases which seem to confer legal rights on decedents, drawing particular attention to a few well-settled, common legal rules. Using these examples, the article develops a series of principles that will help judges, legislators and legal scholars think about the legal treatment of decedents' interests, including the way the law should treat decedents' legal interests. The article also explores what it means to be a legal rights holder, how posthumous rights can be enforced, and some of the agency problems created when an estate acts on a decedent's behalf.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"37 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2009-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.924499","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67885714","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":"Using Local Knowledge to Shrink the Individual Carbon Footprint","authors":"K. Kuh","doi":"10.4324/9780203109717-9","DOIUrl":"https://doi.org/10.4324/9780203109717-9","url":null,"abstract":"Entire texts have been devoted to exploring the meaning of the term “lifestyle” and sociological understandings of lifestyle are complex and nuanced. 3 For present purposes, however, a more simple articulation of the term will suffice. Lifestyle can mean “mode of living,” 4 including “patterns of action” 5 and “patterns of ways of living.” 6 Without rendering judgment, one observation that can fairly be made about the current lifestyles and associated behaviors of Americans is that they indirectly and directly lead to the emission of a high volume of greenhouse gases (“GHGs”). 7 Although an American diplomat is said to have remarked in preparing for the Rio Earth Summit that “‘the","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"37 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70577237","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}