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- Evidence; Rule 702; Experts; Federal Rules of Evidence; Criminal Law (2)
- Access to Justice; Criminal Law; Constitutional Law; Wrongful Convictions; Remedies; Damages; Criminal Procedure; Fourteenth Amendment; Procedural Due Process; Due Process Clause; Supreme Court; Colorado; Exoneration Act (1)
- Access to Justice; Criminal Law; Litigation; Defendants; Civil Rights; Civil Liability; Contracts; Department of Justice; DOJ; Professional Responsibility; Ethics; Executive Branch; Affirmative Litigation; Affirmative Enforcement; Private Attorneys General (1)
- Civil Litigation; Prens Patriae; Opioid (1)
- Civil rights law; constitutional law; law and race (1)
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- Constitutional Law; Equal Protection; School Vouchers; LGBT (1)
- Criminal Law; Public Health; Rape (1)
- Criminal justice reform; bail reform; constitutional rights; constitutional law; risk assessment instrument (1)
- Criminal law; criminal ethics; prosecutorial discretion (1)
- Criminal law; law and ethics; racial justice; civil rights law; professional responsibility (1)
- Evidence; Rule 702; Experts; Federal Rules of Evidence (1)
- Evidence; Rule 702; Experts; Federal Rules of Evidence; Criminal Law; Duty to Investigate; Effective Assistance of Counsel; Rule 707; Constiutional Law (1)
- Evidence; Rule 702; Experts; Federal Rules of Evidence; Reliability (1)
- Evidence; Rule 702; Experts; Federal Rules of Evidence; Statistics (1)
- Family law; constitutional law; race; foreword (1)
- Family law; immigration law; domestic violence (1)
- Immigration law; amnesty; immigration enforcement; travel ban; sanctuary cities (1)
- Immigration; universal representation; deportation defense (1)
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Articles 1 - 20 of 20
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Rape Messaging, Alena Allen
Rape Messaging, Alena Allen
Fordham Law Review
When feminists began advocating for rape reform in the 1970s, the rape message was clear: rape was not a crime to be taken seriously because women lie. After decades of criminal law reform, the legal requirement that a woman vigorously resist a man’s sexual advances to prove that she was raped has largely disappeared from the statute books, and, in theory, rape shield laws make a woman’s prior sexual history irrelevant. Yet, despite what the law dictates, rape law reforms have not had a “trickle-down” effect, where changes in law lead to changes in attitude. Women are still believed to …
Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler
Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler
Fordham Law Review
More than a dozen states operate school voucher programs, which allow parents to apply state tax dollars to their children’s private school tuition. Many schools that participate in voucher programs are affiliated with religions that disapprove of homosexuality. As such, voucher-accepting schools across the country have admissions policies that discriminate against LGBT students and students with LGBT parents. Little recourse exists for students who suffer discrimination at the hands of voucher-accepting schools. This Note considers two ways to provide protection from such discrimination for LGBT students and ultimately argues that the best route is for an LGBT student to bring …
The Role Of Direct-Injury Government-Entity Lawsuits In The Opioid Litigation, Edgar Aliferov
The Role Of Direct-Injury Government-Entity Lawsuits In The Opioid Litigation, Edgar Aliferov
Fordham Law Review
The opioid epidemic has ravaged the United States, killing over 100 Americans every day and costing the nation upward of $90 billion a year. All branches and levels of the government have pursued measures to combat the epidemic and reduce its societal costs. Perhaps the most interesting response is the emergence of direct-injury government-entity lawsuits, which seek to recover damages from opioid companies that facilitated prescription pill addictions. Cities, counties, and states across the country are suing opioid manufacturers and distributors in unprecedented numbers. This Note explores the role of direct-injury government-entity claims as compared to other forms of civil …
Universal Representation, Lindsay Nash
Universal Representation, Lindsay Nash
Fordham Law Review
In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for noncitizens in removal proceedings. This effort, initially born out of a pilot project in New York City, has generated a host of replication projects throughout the nation and holds the promise of even broader expansion. But as it grows, this effort must confront challenges from within: the sort-of supporters who want to limit this representation system’s coverage in a number of ways, …
Immigration Blame, David S. Rubenstein
Immigration Blame, David S. Rubenstein
Fordham Law Review
This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and …
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Fordham Law Review
In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya Lovell Banks
Fordham Law Review
The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only ongovernment “racial” definitions. Multiracial individuals should enjoy thefreedom to self-identify as they wish—and, like others, be afforded theprotections of antidiscrimination law.The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial …
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Fordham Law Review
This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Family Courts As Certifying Agencies: When Family Courts Can Certify U Visa Applications For Survivors Of Intimate Partner Violence, Sylvia Lara Altreuter
Fordham Law Review
Undocumented intimate partner violence survivors living in the UnitedStates have limited options for immigration relief. One of the only avenuesopen to them is the U Visa: a nonimmigrant visa established by the BatteredImmigrant Women Protection Act of 2000. To apply for a U Visa, a survivormust prove to immigration authorities that she was the victim of a crime;suffered substantial abuse; and was, is,or is likely to be helpful in theinvestigation of her abuser. The statute requires that all U Visa applicationsbe certified by an appropriate officialwho testifies to the applicant’shelpfulness with the investigation. This certification is a tremendous obstaclefor survivors: …
The Influence Of Government Defenders On Affirmative Civil Rights Enforcement, Alexander A. Reinert
The Influence Of Government Defenders On Affirmative Civil Rights Enforcement, Alexander A. Reinert
Fordham Law Review
The focus of this brief Article will be on a conundrum, particularly in the area of civil rights enforcement: the federal government—in particular the DOJ—can be one of the most efficient and powerful vindicators of civil rights, while at the same time one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to “vindicat[e] rights and remedy[] inequities,” attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent …
Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells
Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael L. Wells
Fordham Law Review
The end result in Nelson will satisfy nearly everyone’s sense of basic justice, at least insofar as the monetary refund is concerned. Still, the case is interesting not for its outcome but because the Court’s analysis touches on, but fails to fully engage with, subtle and difficult questions of constitutional law. This Article examines three important aspects of the case—outside of the procedural due process balancing question—that receive little, if any, attention in the Court’s opinion. Part I shows that the Court’s procedural due process analysis skips over the logical first step and doctrinally harder question of whether Nelson had …
Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm
Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm
Fordham Law Review
With regard to criminal cases, the focus of this Article, judges face significant challenges in ruling on the admissibility of expert testimony that do not occur in most civil cases. This Article starts by describing these challenges and then offers some suggestions about what can be done to address them.
Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Deceptively Simple: Framing, Intuition, And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty
Fordham Law Review
This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics …
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
The Myth Of The Reliability Test, Brandon L. Garret, Chris Fabricant
Fordham Law Review
The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases …
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Symposium On Forensic Expert Testimony, Daubert, And Rule 702, Daniel J. Capra
Fordham Law Review
No abstract provided.
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
The Duty To Investigate And The Availability Of Expert Witnesses, Stephen A. Saltzburg
Fordham Law Review
To assess the likelihood that the proposed rule will assure better representation for criminal defendants, this Article proceeds as follows: Part I provides a general review of the effective assistance of counsel standard. Next, Part II focuses on the specific duty of defense counsel to investigate. Part III then examines the constitutional right of indigent criminal defendants to have expert assistance at government expense. Part IV proceeds to examine proposed Rule 707 and argues that it will not accomplish its purpose unless criminal defendants and their counsel have access to expert resources that match those relied upon by the government. …
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
The Critical Role Of Statistics In Demostrating The Reliability Of Expert Evidence, Karen Kafadar
Fordham Law Review
Federal Rule of Evidence 702, which covers testimony by expert witnesses, allows a witness to testify “in the form of an opinion or otherwise” if “the testimony is based on sufficient facts or data” and “is the product of reliable principles and methods” that have been “reliably applied.” The determination of “sufficient” (facts or data) and whether the “reliable principles and methods” relate to the scientific question at hand involve more discrimination than the current Rule 702 may suggest. Using examples from latent fingerprint matching and trace evidence (bullet lead and glass), I offer some criteria that scientists often consider …
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Implicit Racial Biases In Prosecutorial Summations: Proposing An Integrated Response, Praatika Prasad
Fordham Law Review
Racial bias has evolved from the explicit racism of the Jim Crow era to amore subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes andassociations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these biases. Although inaccessible through introspection, implicit biases can easily be triggered through language. When trials involve Black defendants, prosecutors’ summations increasingly include racial themes that could trigger jurors’ implicit biases, lead to the perpetuation of unfair stereotypes, and contribute to racial injustice and disparate outcomes. This Note examines and critiques the …
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Foreword, Robin A. Lenhardt, Tanya K. Hernandez, Kimani Paul-Emile
Fordham Law Review
This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of …
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas
Fordham Law Review
Algorithmic decision-making has become synonymous with inexplicable decision-making, but what makes algorithms so difficult to explain? This Article examines what sets machine learning apart from other ways of developing rules for decision-making and the problem these properties pose for explanation. We show that machine learning models can be both inscrutable and nonintuitive and that these are related, but distinct, properties. Calls for explanation have treated these problems as one and the same, but disentangling the two reveals that they demand very different responses. Dealing with inscrutability requires providing a sensible description of the rules; addressing nonintuitiveness requires providing a satisfying …