Hofstra law review最新文献

{"title":"The Case for Selective Abolition of the Rules of Evidence","authors":"D. Crump","doi":"10.2139/SSRN.901641","DOIUrl":"https://doi.org/10.2139/SSRN.901641","url":null,"abstract":"This article advocates selectively abolishing the exclusionary components in the Federal Rules of Evidence. Arguing that some parts of the existing rules cost more than the value of any benefits they provide, it is the author's position that the current system is sufficiently dysfunctional so as to make significant revisions in the Rules of Evidence worthwhile. The article examines the hearsay rule, the rules governing repetitive-behavior evidence, and issues regarding opinion evidence, experts, and authentication. The article proceeds to consider the rest of the FRE 400 series - particularly Rules 401 through 403 - and proposes modifications. Next, the article evaluates some overall issues that apply to these rules, including their impact upon trials and strategic responses by judges and litigants. Finally, the article considers separate rules that could be inaugurated if the existing rules were changed as suggested (including rules designed resolve trials in a speedier fashion).","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"35 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2006-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67867394","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":"Truth or Consequences in Legal Scholarship","authors":"David R. Barnhizer","doi":"10.2139/SSRN.684242","DOIUrl":"https://doi.org/10.2139/SSRN.684242","url":null,"abstract":"There has been an erosion of the ideal of truth as a guiding force for what we do. This includes a dishonoring of the tradition of the truth-seeking function of scholars. For the university-based intellectual, including legal scholars, the problem with commitments to ends other than truth-seeking is that once we accept a mission distinct from the pursuit of truth and honest discourse, most of the remaining options are suspect - including falseness, hypocrisy, self-deception, subordination of self to a collective, profit, dogmatism, devotion to tradition, and propaganda. Although what we intend by the idea of truth - legal, scientific, political and otherwise - is obviously subtle, wide-ranging, functionally disparate and perhaps impossible to make entirely concrete, this essay concentrates on the complex and beleaguered phenomena of truth and truth-seeking within academia and the noncumulative disciplines of which law is a part. This focus is chosen because of the belief that a society without commitment to the ideal of truth with integrity and honesty (even if not entirely real or provable) is not a community but only a collection of disparate people seeking to take advantage of each other while never being able to trust the validity of anyone or anything. A society without the ability to negotiate reliable terms of what will be considered true and thus authoritative is one in which promises are meaningless, nothing is reliable, and betrayal is a predictable and even inevitable condition of relationships. Western societies grounded on the Rule of Law cannot afford to surrender such a basic principle without devolving into a system operating on increasingly prevalent use of force and Machiavellian machinations by fragmented but powerful political cliques. Camus warns of the distortion that occurs when individuals engaging in the struggle to achieve what they think to be social justice simultaneously try to be clear-thinking scholars. Consider his poignant observation in the context of the creativity of the artist and the need to keep sufficient distance from the heated conditions of society in order to retain a clear perspective. He writes: [I]t is not possible to be a militant in one's spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena. Yet between the two lies the arduous way of true art. It seems to me that the writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history. We have lost the distance and are increasingly consumed by ideology and the narrowness of political perspective. A result is that much of what is said in noncumulative academic disciplines such as law is suspect.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"33 1","pages":"1203"},"PeriodicalIF":0.0,"publicationDate":"2005-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67799542","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":"Review of the Merits in Class Action Certification","authors":"G. Miller","doi":"10.2139/SSRN.554663","DOIUrl":"https://doi.org/10.2139/SSRN.554663","url":null,"abstract":"In Eisen v. Carlisle & Jacquelin, the Supreme Court declared that federal courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. This proscription - sometimes known as the Eisen rule - has become a pillar of class action practice, both under Federal Rule of Civil Procedure 23 and under state-court class action procedures. The rule can have a crucial influence on whether a case is certified as a class action - and, given the importance of certification, on the success or failure of the litigation. This Article analyzes the proper scope of a court's inquiry into merits issues when ruling on motions to certify a class. Part I of the Article distinguishes three approaches to this question: strong-form rules that prohibit inquiries into the merits and require the court to accept as true the well-pleaded allegations in the complaint; weak-form rules that permit reasonable inquiries into the merits as relevant to certification and usually place burdens of production and persuasion on the plaintiff; and super-weak rules which permit or require the court to investigate the class's chances of success in the litigation and place burdens of production and persuasion on the plaintiff. Parts II-VI compare these rules with respect to the values of fidelity to law, accuracy in adjudication, fairness in judgments, fairness in settlements, and judicial economy. Part VII argues that weak-form rules are superior to the alternative approaches.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"33 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67761743","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":"Enforcement of WTO Rulings: An Interest Group Analysis","authors":"Mark L. Movsesian","doi":"10.2139/SSRN.444640","DOIUrl":"https://doi.org/10.2139/SSRN.444640","url":null,"abstract":"This essay explains the WTO's enforcement mechanism in terms of interest group theory. Under the Dispute Settlement Understanding, a WTO member that fails to comply with a ruling in a trade dispute is subject to \"retaliation\" from the complaining member: the complaining member may raise tariffs against the offending member's products. This remedy creates incentives for exporters in the offending country to lobby their government in favor of compliance. As a result, the retaliation remedy promotes compliance without intruding directly on national institutions. It is thus superior to suggested reforms, like direct effect, that would commandeer courts or other national governmental bodies. The retaliation remedy resolves a dilemma at the heart of the world trade regime: how to give the WTO sufficient power to promote global trade without conferring so much power that the organization becomes a threat to sovereignty and representative government.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"32 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2003-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789397","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 Escalating Copyright Wars","authors":"Peter K. Yu","doi":"10.2139/SSRN.436693","DOIUrl":"https://doi.org/10.2139/SSRN.436693","url":null,"abstract":"Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based music service, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's relative success in its mass litigation campaign. Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, technology developers, and intellectual property rightsholders. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it eventually might lose the war. Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, self-help, education, and licensing. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"32 1","pages":"907-951"},"PeriodicalIF":0.0,"publicationDate":"2003-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68781502","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":"Testing Lay Intuitions of Justice: How and Why?","authors":"P. Robinson","doi":"10.2139/SSRN.381420","DOIUrl":"https://doi.org/10.2139/SSRN.381420","url":null,"abstract":"Part I of this Article summarizes the arguments as to why lay intuitions of justice are important for criminal law rule-makers. Part II sketches the challenges at reliably determining those intuitions and describes methodology worked out to meet those challenges. Part III looks briefly at one simple study to illustrate the methodology, which has been used on a wide variety of issues, as described in Part IV.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"28 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2003-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68649502","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":"Commentary on Counsel's Duty to Seek and Negotiate a Disposition in Capital Cases (ABA Guideline 10.9.1)","authors":"Russell Stetler","doi":"10.2139/ssrn.1847063","DOIUrl":"https://doi.org/10.2139/ssrn.1847063","url":null,"abstract":"This paper discusses counsel's duty to seek to resolve death penalty cases through negotiated dispositions for a sentence less than death.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"31 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67758585","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":"Compensation for Victims of Terror: A Specialized Jurisprudence of Injury","authors":"Marshall S. Shapo","doi":"10.2139/SSRN.395021","DOIUrl":"https://doi.org/10.2139/SSRN.395021","url":null,"abstract":"The legislation and Rules creating the September 11th Victim Compensation Fund (the \"Fund\") constitute a new entry in the \"jurisprudence of injury.\" The Fund presents challenges that cut across traditional tort and compensation law, economic theory, philosophy, psychology and political science. This article combines analysis of the statute and the Rules with suggestions about their political significance, including brief summaries of heated public discussion about the Fund and a couple of personalized anecdotes, selected for their symbolic power. Trying to \"broker the politics of injury,\" Congress in establishing the Fund created a \"unique form of public choice,\" with \"something for everyone, in response to a most tragic set of circumstances.\" It provides victims of the attacks and their survivors an option to take advantage of a federal compensation fund or to sue air carriers. The Fund combines features of no-fault compensation systems like workers' compensation and of tort damages law, although departing from traditional American damages law by requiring the deduction of collateral sources. It also provides direct subsidies to the air carriers whose passengers and planes were lost in the attacks, as well as limiting their liability and offering them a potential immunity - a highly specialized immunity that depends on choices made by victims and survivors. By contrast with the traditional statutory compensation systems, the Fund \"carves out a narrow wedge of misfortune.\" Reaching beyond \"the graphs of microeconomic theory,\" it appeals to the communitarian instinct, responding to \"our continuing horror at the events\" of September 11th, \"our collective compassion for the victims, and our increased sense of vulnerability.\" At the same time, the Fund has provoked a nationwide community conversation about the limits of compassion, the sharing of burdens, and even the vices of greed and envy.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"30 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2003-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68670397","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":"Getting Stuck Between Bottom and Top: State Competition for Corporate Charters in the Presence of Network Effects","authors":"Brett H. Mcdonnell","doi":"10.2139/SSRN.330661","DOIUrl":"https://doi.org/10.2139/SSRN.330661","url":null,"abstract":"For decades, American legal scholars have debated over the implications of allowing corporations to choose in which state they will incorporate, irrespective of where they do business. Until recently the debate has centered almost exclusively on whether the managers who choose where to incorporate have incentive to choose a state whose laws favor managers to the disadvantage of shareholders (the \"race to the bottom\" thesis) or whether their incentives are to choose states whose laws treat shareholders properly (the \"race to the top\" thesis). Recently, some scholars have questioned whether the state charter competition process will necessarily lead to an optimal choice from the point of view of corporate decisionmakers, whatever the incentives of those decisionmakers might be. The presence of a variety of network effects may cause corporations to incorporate in a state which already has taken the lead in the charter race, even if some other states might offer better substantive law. For instance, corporations may prefer a state which has a well-developed, and hence more predictable, body of corporate law, or they may prefer to appear before judges who from much experience are familiar with corporate law matters. These effects may cause the whole system to get stuck with sub-optimal laws dominating. This paper takes the presence of significant network effects in corporate charter competition as a given. It then asks whether allowing competition between states is an attractive option, and how much competition is best. Even if network effects create the possibility of getting stuck with a sub-optimal dominant state, allowing competition may improve the odds of reaching a good corporate legal system. The paper presents a very simple model of charter competition as a way to start thinking about the issues involved. Within that model, some competition tends to lead to better results than no competition at all. However, more competition is not necessarily better than less, and a very large amount of competition may be as bad as no competition at all. The paper considers many questions that remain quite open in this area. It concludes by posing the question of how to make empirical recommendations where theory and empirical evidence suggest no clear answers. It suggests that little change from the present structure is likely, and that critics have yet to make a persuasive case for such change.","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"31 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2002-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68583751","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":"Minor rights: the adolescent abortion cases.","authors":"Martin Guggenheim","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81461,"journal":{"name":"Hofstra law review","volume":"30 3","pages":"589-646"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24578513","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}